2016 WAIRC 00196
WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT


CITATION : 2016 WAIRC 00196

CORAM
: INDUSTRIAL MAGISTRATE G. CICCHINI

HEARD
:
WEDNESDAY, 10 FEBRUARY 2016, THURSDAY, 11 FEBRUARY 2016, THURSDAY, 17 MARCH 2016

DELIVERED : WEDNESDAY 6 APRIL 2016

FILE NO. : M 83 OF 2015

BETWEEN
:
MICHELLE ANN DYER
CLAIMANT

AND

ROGERSTAR PTY LTD AS THE TRUSTEE FOR THE ROGERSTAR FAMILY TRUST
RESPONDENT

Catchwords : Alleged contravention of the Fast Food Industry Award 2010 [MA000003] by failing to pay the correct rate of pay, failing to pay penalties, failing to pay public holiday entitlements, failing to attribute the correct award classification to the employee – Whether the employer was entitled to make deductions for breaks taken – Whether the employer was authorised to make other deductions.
Legislation : Fair Work Act 2009
Minimum Conditions of Employment Act 1993
Industrial Magistrates Courts (General Jurisdiction) Regulations 2005
Instruments : Fast Food Industry Award 2010 [MA000003]
Restaurant, Tearoom and Catering Workers’ Award (WA)
Result : Claim proven in part
Case(s) referred
to in reasons : Miller v Minister of Pensions
[1947] 2 All ER 372
REPRESENTATION:

CLAIMANT : IN PERSON

RESPONDENT : MRS C ROGERS (DIRECTOR)

REASONS FOR DECISION
Background
1 At all material times Rogerstar Pty Ltd as The Trustee for the Rogerstar Family Trust (the respondent) owned and operated the Beachfront Deli (the Deli) on Safety Bay Road in Safety Bay. The Deli was purchased in 2005. At that time it was a successful business but for variety of reasons its viability declined and ultimately it ceased to trade in 2015.
2 The Deli was run by various members of the Rogers family. The respondent’s sole director, Mrs Christine Rogers (Mrs Rogers), was responsible for the Deli’s financial and regulatory affairs. She managed the payroll and was largely responsible for rostering staff. Mrs Rogers’ husband, Mr Andrew Rogers (Mr Rogers), and their daughter, Ms Melissa Rogers (Ms Rogers), variously managed the Deli. From time to time other managers were also employed.
3 The Deli operated seven days per week, including public holidays. During the material period, its opening hours varied. It opened as early as 5.00 am and closed as late as 9.00 pm. Initially it was open from 5.00 am to 9.00 pm but later from 6.00 am to 8.00 pm. As business declined its opening hours reduced and it traded from 6.00 am to 6.00 pm or 4.00 pm dependant on the day of the week.
4 The Deli sold newspapers, drinks, cigarettes, grocery items and various types of fast food items such as sandwiches, rolls, hamburgers and hotdogs. Its busiest periods were in the mornings and at lunch time. It, save for a couple of hours at the start of the day and a couple of hours at the end of the day, operated with at least two staff members working at the same time. At times the Deli operated without a manager in attendance.
5 Ms Michelle Dyer (the claimant) obtained employment with the respondent in December 2010 after having answered the respondent’s advertisement seeking the services of a ‘shop assistant’. When interviewed for the position by Mr Rogers she was told that her duties would include cooking, cleaning, stocking shelves and serving customers. There was no discussion about her pay. The claimant was told that she was to work on a casual basis and that her shifts would be rostered by Mrs Rogers. The rosters were to be kept and displayed at the Deli.
6 She worked shifts of varying duration but in the main the claimant’s shifts were between six and eight hours. She usually worked with another person and sometimes worked with a junior employee who had limited responsibilities. Juniors were not permitted to cook. The claimant assumed a supervisory role when working alone with a junior employee. At times she worked the early shift which necessitated her opening the Deli and at other times she worked the late shift which necessitated her closing the Deli. Her work days varied. She worked weekdays, weekends and public holidays. She was paid a flat hourly rate of pay irrespective of the day of the week that she worked. She was not paid penalty rates excepting Christmas day. On occasions she worked a three hour shift on Christmas day for which she was paid at double time. She was paid for the entirety of any shift worked and did not receive an unpaid lunch break.
7 The claimant’s employment with the respondent ended in March 2015.

Award
8 Mrs Rogers was unaware that the Fast Food Industry Award 2010 [MA000003] (the Award) governed the claimant’s employment. During the claimant’s employment the respondent mistakenly paid her in accordance with the requirements of the Minimum Conditions of Employment Act 1993 (WA) (MCE Act) which had no application. Mrs Rogers only became aware of the existence of the Award after the claimant and another staff member complained about their pay in early March 2015.
9 The respondent accepts that the Award had application throughout the claimant’s employment.
Claim and Response
10 The claimant alleges that the respondent underpaid her $33,475.94. She alleges that she was paid at the incorrect rate and not paid applicable penalty rates. She asserts that during her employment she should have been paid the rate applicable to a Fast Food Employee Level 3 or alternatively, a Fast Food Employee Level 2 as defined in Schedule B of the Award.
11 The respondent denies that the claimant was a Fast Food Employee Level 3 or Fast Food Employee Level 2 and says that, at all material times, the claimant was a Fast Food Employee Level 1.
12 In any event, the respondent contends that the claimant is not owed anything because the claimant was overpaid. The respondent says that the claimant took rest and meal breaks amounting to at least 60 minutes in duration each shift, which were mistakenly paid but which should not have been. It seeks to set off those overpayments as against any underpayment due.
13 In addition to the underpayment claimed the claimant asserts that she is entitled to $154.70 unlawfully deducted from her pay. In that regard, the respondent admits deductions to the extent of $145.60, but says that the deductions were made with the express consent and authorisation of the claimant.
14 In addition to the amounts claimed the claimant also seeks interest thereon. Further, she asks that the court penalise the respondent for its contraventions of s 45 of the Fair Work Act 2009 (FW Act) (failure to pay the correct rates) and its contravention of s 323(1) of the FW Act (unauthorised deductions).
15 For the sake of completeness it is necessary to say something about what the claimant has done in bringing this claim.
16 She lodged her originating claim on 15 June 2015. In the statement of claim which was attached to it she named the respondent as the first respondent, Mrs Rogers as second respondent and Mr Rogers as third respondent. Where the respondent’s name appears on the originating claim form it refers to the attached Form 28. A Form 28 is used to list additional respondents. Despite indicating that a Form 28 was attached to the originating claim form there was no such form attached.
17 After its lodgement the originating claim was only ever served upon the respondent. There has never been any attempt made to serve Mrs Rogers and/or Mr Rogers with a copy of it. It follows that although Mr and Mrs Rogers were nominated as parties in the statement of claim, they have never in fact been parties in this proceeding.
18 At the commencement of the trial, I raised this difficulty with the claimant. She informed me that although she no longer wishes to pursue a claim against Mr Rogers she maintains that Mrs Rogers is, pursuant to s 550 of the FW Act, liable for the respondent’s contraventions. She accordingly sought an adjournment of the trial to join Mrs Rogers as a party. Her application was refused because of the cost and delay involved. If her application had been granted it would have resulted in the vacation of the two day trial which had long been listed and would not have been in keeping with what is required by reg 5 of the Industrial Magistrates Courts (General Jurisdiction) Regulations 2005.
Burden of Proof and Standard of Proof
19 The claimant carries the legal burden of proof for her claim whilst the respondent carries the legal burden of proving those things which it asserts.
20 The standard of proof required to discharge the respective burdens of proof is the balance of probabilities. This standard was explained by Lord Denning in Miller v Minister of Pensions [1947] 2 All ER 372 at 374 as follows:
That degree is well settled. It must carry a reasonable degree of probability but not so high as is required in a criminal case. If the evidence is such that the tribunal can say ‘we think it more probable than not’ the burden is discharged, but if the probabilities are equal it is not.
21 Accordingly, where in these reasons I say that ‘I am satisfied’ of a fact or matter or otherwise make a finding as to a fact or matter, I am saying ‘I am satisfied on the balance of probabilities’ of that fact or matter. Where I state that ‘I am not satisfied’ of a fact or matter I am saying that ‘I am not satisfied on the balance of probabilities’ of that fact or matter.
Issues
22 The issues to be determined in this matter are:
1. the claimant’s correct classification under the Award;
2. whether, during the period of the claimant’s employment, the respondent contravened s 45 of the FW Act by
i. paying the claimant less than the applicable minimum wage under the Award;
ii. failing to pay the claimant penalty rates required by the Award; and
iii. failing to pay the claimant public holiday rates required by the Award;
3. whether the claimant was overpaid by reason of having been mistakenly paid for breaks taken;
4. whether overpayments, if any, are to be set off against any underpayment; and
5. whether deductions made from the claimant’s pay were lawful.
Classification
23 The claimant asserts that she was a Fast Food Employee Level 3, or in the alternative, a Fast Food Employee Level 2. The respondent contends that the claimant was a Fast Food Employee Level 1.
24 Schedule B – Classifications of the Award provides:
B.1 Fast Food Employee Level 1
B1.1 An employee engaged in the preparation, the receipt of orders, cooking, sale, serving or delivery of meals, snacks and/or beverages which are sold to the public primarily to take away or in food courts in shopping centres.
B1.2 A Fast Food Employee Level 1 will undertake duties as directed within the limits of their competence, skills and training including incidental cleaning and cleaning of toilets.
B.2 Fast Food Employee Level 2
An employee who has the major responsibility on a day to day basis for supervising Fast Food employees Level 1 and/or training new employees or an employee required to exercise trade skills.
B.3 Fast Food Employee Level 3
An employee appointed by the employer to be in charge of a shop, food outlet, or delivery outlet.
25 The claimant relies on her own testimony and that of her co-worker, Ms Karen Morris (Ms Morris), to prove that whilst working for the respondent, she performed the duties of a Fast Food Employee Level 3, or alternatively a Fast Food Employee Level 2.
26 Her assertion that she was a Fast Food Employee Level 3 was, in part, predicated on the fact that her duties included opening or closing of the Deli as the case required. She was entrusted with the Deli’s keys for that very purpose. Further, she asserts that she was responsible for the payment of deliveries and had the responsibility of ensuring that all of the necessary stock was available. She contends that it was her task to ensure the efficient running of the Deli, which included the ring-off of sales at the end of the day, the safe storage of cash and the creation of a float for the next day’s operations. When rostered alone with juniors as young as 13 years old, she had to supervise them and instruct them.
27 Mrs Rogers testified that the claimant was never appointed to be in charge of the Deli. Mrs Rogers, Mr Rogers, Ms Rogers and Ms Vanessa Kelly (Ms Kelly), a former manager of the Deli, all testified that the claimant worked under the direction of a manager in attendance and if a manager was not in attendance, the claimant worked in accordance with a list of duties that the respondent had given her. It was their evidence that if any difficulties or issues arose at the Deli whilst a manager was not present, that Mrs Rogers, Mr Rogers, or Ms Rogers were readily contactable by phone for the purpose of instruction and/or direction. Mrs Rogers’ evidence is that the claimant was not given any administrative responsibility and did not have any authority to do anything associated with the management of the Deli.
28 In determining the issue of classification, one thing is clear and that is that the claimant was never ‘appointed’ to be in charge of the Deli. The claimant does not assert such appointment. That alone defeats her contention that she was a Fast Food Employee Level 3. One cannot assume a responsibility to be in charge which has not been conferred. I am satisfied that the claimant was always subservient to the Deli’s manager who was either present or on-call. All the things that she did were at the direction of a manager.
29 In the alternative, the claimant asserts that she was a Fast Food Employee Level 2. To fall within that classification, the claimant has to prove that she had, on a day-to-day basis, the major responsibility for supervising Fast Food Employees at Level 1 and/or training new employees. In that regard, I am satisfied based on the evidence given by Mr and Mrs Rogers, and indeed on the claimant’s own evidence, that she was never given the responsibility to supervise other employees. She may have, on an ad-hoc basis, assumed some form of responsibility with respect to juniors working with her. It is clear from the claimant’s own testimony that any supervision or training conducted was not her major responsibility and in any event did not occur on a day-to-day basis.
30 I am satisfied that the claimant was at all material times a Fast Food Employee Level 1. Her own testimony establishes that she carried out the type of duties described in cl B.1 of Schedule B of the Award. I find that she was engaged in food preparation, the receipt of orders, cooking, selling, serving or the delivery of meals, snacks and/or beverages that were sold by the Deli to the public to take away. She also undertook other duties as directed, within the limits of her competence, which included cleaning, opening the store, closing the store, creating floats and securing takings. Such other directed duties fall within that which is contemplated by cl B1.1 of Schedule B of the Award.
Was the Claimant Paid Correctly?
31 It is self-evident that the respondent did not pay the claimant in accordance with that required by the Award because Mrs Rogers did not know of its existence. Consequently all payments received by the claimant were calculated on a flat hourly rate irrespective of whether the work was done on weekdays, Saturdays, Sundays or public holidays (Christmas day being the exception). The respondent does not contend otherwise.
32 The flat hourly rate used by the respondent in paying the claimant for hours worked was, with respect to each pay period, lower than the applicable hourly rate for ordinary time worked. It follows that it was also lower than the applicable Saturday, Sunday and public holiday rate.
33 There can be no doubt that the claimant was, throughout her employment, paid at an hourly rate which was lower than that required by the Award.
Was the Claimant Underpaid?
34 The respondent asserts that it erroneously overpaid the claimant and therefore does not owe her anything.
35 It argues that cl 27 of the Award provides that breaks taken by an employee during each shift worked are not payable. It says that it paid the claimant for the breaks that she took during each shift worked because it believed that was required by the MCE Act. Had it known that the Award applied it would not have paid the claimant for all of the breaks that she took. As a consequence of its mistake of law the respondent overpaid the claimant. It accordingly seeks to set off any underpayment resulting from the application of the incorrect industrial instrument against the overpayments it says it made to the claimant.
36 Mrs Rogers contends that the accumulation of all the breaks taken by the claimant each shift, including the time to eat lunch, would have amounted to at least 60 minutes in duration. In addition she asserts that the claimant had a coffee at the commencement of each shift and therefore attributes a further 15 minute break for that purpose. Consequently the respondent maintains that it overpaid the claimant the value attributable to 75 minutes of each shift worked.
37 Much of the evidence at trial concerned the extent of the breaks taken by the claimant and whether or not she was given an uninterrupted lunch break during each shift that she worked consisting of six hours or more.
38 The respondent called a number of witnesses to establish that the business at the Deli was very slow, particularly in the couple of years prior to the claimant’s employment ceasing. It contends that such evidence establishes that the claimant had ample time to take numerous breaks and to eat lunch each shift.
39 The claimant and Ms Morris testified that the Deli was relatively busy and even when it was not there were other duties to perform. Consequently the number and duration of the breaks that could be taken was limited. Notwithstanding that, they readily concede that breaks were taken at opportune times to smoke, eat, or do other things. Such breaks were taken in periods of down time when business was slow.
40 Mrs Rogers, Mr Rogers and Ms Rogers all testified that during each shift, the claimant had ample opportunity to take an uninterrupted lunch break. The claimant and Ms Morris, on the other hand, testified that they were not given a dedicated lunch break and that they ate on the run in between serving customers. Their evidence in that regard is supported by Ms Kelly who worked with the claimant and at one time, was the manager of the Deli. Ms Kelly said under cross-examination that employees at the Deli were not allowed to take a lunch break and that staff ate their lunch between serving customers.
41 I am satisfied based on the evidence given by the claimant, Ms Morris, and Ms Kelly that the respondent did not make provision for the claimant to take a dedicated lunch break. Had it done so the respondent would not have paid for the lunch breaks taken. As Ms Kelly said, the respondent did not permit the taking of a lunch break. The respondent’s conduct in paying the claimant for the entire duration of the shift contradicts any suggestion of an unpaid lunch break. It is clear to me that the respondent was, in respect of each shift worked of five hours or more, in breach of cl 27(1)(f) of the Award by denying the claimant a meal break. That is not to say that the claimant was not afforded an opportunity to have a meal, but rather she was not given a meaningful break of at least 30 minutes during which she could leave the workplace if desired.
42 As to the other breaks taken, I am satisfied, given that there is no real dispute about the issue, that on any given shift the claimant took several breaks. I am satisfied that those breaks taken were with the consent of the respondent through its managers. Mr Rogers admitted that. Indeed, there was never any complaint made when they were taken. There was never any complaint about the number of breaks taken or the duration of those breaks. The claimant was never threatened with disciplinary action or advised by the respondent that it would make deductions from her pay for having taken the breaks. During the claimant’s employment, the taking of breaks was never an issue. The respondent raises it now as a convenient way to defeat the claim.
43 Even if there was some legitimacy in the respondent’s contention concerning the breaks taken, the respondent has failed to prove that which it asserts, that is, that the claimant accumulated breaks during each shift which amounted to at least 60 minutes. It is axiomatic that no record was kept of the number of breaks that the claimant took or the duration of those breaks.
44 Given that the respondent asserts that the claimant took breaks totalling at least 60 minutes each shift worked it will be for the respondent to prove that on the balance of probabilities. That it has failed to do because the evidence that it has called in that regard is lacking in detail. The evidence given by all witnesses called by the respondent is anecdotal in nature. Their evidence on the issue is based on hearsay, supposition and conjecture. It does not permit the court to conclude that with respect to each shift worked the claimant took breaks amounting to at least 60 minutes.
45 In any event the respondent’s contention with respect to breaks taken is fundamentally flawed. It is predicated on a misunderstanding of what cl 27 of the Award says. Clause 27 of the Award provides:
27. Breaks
[Varied by PR539921]
27.1 Breaks during work periods
(a) Breaks will be given as follows:
Hours worked
Rest break
Meal break
Less than 4 hours
No rest break
No meal break
4 hours but less than 5 hours
One 10 minute rest break
No meal break
5 hours but less than 9 hours
One 10 minute rest break
One meal break of at least 30 minutes but not more than 60 minutes
9 hours or more
One or two 10 minute rest breaks, with one taken in the first half of the work hours and the second taken in the second half of the work hours, two rest breaks will be given unless a second meal break is provided
One or two meal breaks of at least 30 minutes but not more than 60 minutes
(b) The timing of the taking of a rest break or meal break is intended to provide a meaningful break for the employee during work hours.
(c) An employee cannot be required to take a rest break or meal break within one hour of commencing or ceasing work. An employee cannot be required to take a rest break(s) combined with a meal break.
(d) The time of taking rest and meal breaks and the duration of meal breaks form part of the roster and are subject to the roster provisions of this award.
[27.1(e) varied by PR539921 ppc 01Oct13]
(e) Rest breaks are paid breaks and meal breaks are unpaid breaks.
(f) An employee cannot work more than five hours without a meal break.

46 Clause 27 of the Award facilitates the taking of rest and meal breaks. In the claimant’s case it facilitated the taking of one unpaid meal break of between 30 minutes and 60 minutes and at least one paid rest break of 10 minutes duration. Clause 27 of the Award does not prevent an employee having more than one authorised paid rest break. Clause 27.1(c) of the Award provides that an employer cannot force an employee to take a meal or rest break within an hour of commencing or finishing. It does not provide an employer with the power to make a deduction of pay for a rest break taken during that time which was taken with the consent of the employer.
47 Nothing in cl 27 of the Award empowers an employer to accumulate all time taken off as a break and then deduct the value of that time from an employee’s entitlement. A plain reading of the provision indicates that the respondent’s contention that it is permitted to reduce the claimant’s entitlement by deducting money for breaks taken is quite disingenuous. It appears that the respondent is attempting to obfuscate the plain meaning of cl 27 of the Award in order to achieve its end of defeating the claim. The respondent’s argument concerning breaks is wholly unmeritorious.
48 I find that the respondent did not overpay the claimant. Accordingly, there is nothing to set off against any entitlements due to the claimant.
Underpayment
49 I am satisfied based on the documentary evidence before me that the claimant has been underpaid. The only issue to be determined in that regard is the quantum of underpayment.
50 The claimant has produced a number of documents by which she seeks to prove the quantum of underpayment. Once such document (exhibit 3) contains spread sheets of calculations made based on information derived from rosters and payslips which have also been produced to the court.
51 The respondent contends that the claimant’s calculations cannot be relied upon because her source information (the rosters) does not represent the actuality of the shifts worked. Mrs Rogers testified that employees used to change shifts between them and the rosters do not represent the shifts actually worked. Indeed, the claimant conceded that shifts were sometimes swapped but contends that such does not impact upon her calculations. Clearly the claimant’s contention is wrong because it will be of significance if a weekday shift was swapped for a weekend or public holiday shift and vice-versa. Penalty rates are applicable to shifts worked on weekends and public holidays.
52 The respondent says that its time and wages records (exhibit 15), which were used at the end of each pay period to calculate payments made to the claimant, are a more accurate record and should be used for the purpose of determining the shifts completed and hours worked. I accept that.
53 Consequently I have carefully cross-checked exhibits 3 and 15 and find that there is no variation between the two documents as to the shifts worked. Indeed they correlate in their entirety in that regard. There are however, some minor variations with respect to the hours worked on certain shifts. Those variations are also borne out by the pay slips (exhibit 1). The variations are noted in the following table.

Week Ending
Hours Claimed (Exhibit 3)
Hours Worked (Exhibit 15)
Difference (Hours)
09/08/2011
25 (ordinary)
24 (ordinary)
-1
16/08/2011
19 (ordinary)
18 (ordinary)
-1
23/08/2011
11 (ordinary)
12 (ordinary)
+1
21/12/2012
7.5 (ordinary)
13 (ordinary)
+5.5
08/01/2013
13 (ordinary)
12.5 (ordinary)
-0.5
03/06/2014
10 (ordinary)
12 (ordinary)
+2
03/06/2014
8 (Sunday)
4 (Sunday)
-4
15/07/2014
26 (ordinary)
24 (ordinary)
-2
02/12/2014
8 (Saturday)
6 (Saturday)
-2
30/12/2014
10 (Public Holiday)
11 (Public Holiday)
+1
17/02/2015
20 (ordinary)
32 (ordinary)
+12
17/02/2015
6 (Saturday)
0 (Saturday)
-6
17/02/2015
6 (Sunday)
0 (Sunday)
-6

54 The claimant’s claim was expressed in the alternative in the event of a finding that she was not a Fast Food Employee Level 2 or 3. She has produced calculations in exhibit 3 in so far as they relate to a Fast Food Employee Level 1. However, I find that she has not used the applicable pay rates. The correct rates are those produced by the transitional provisions contained in Schedule A of the Award taking into account that the Restaurant, Tearoom and Catering Workers’ Award (WA) that applied to the respondent prior to the commencement of the Award.
55 There accordingly needs to be an adjustment made to the amount claimed to apply the correct pay rates. The amount payable on the hours claimed to have been worked using the correct rate is set out in the table that follows.

Type of Hours
Hours Worked
Rate ($)
Amount Payable
Amount Paid
Difference ($)
2010-2011





Ordinary
296.5
20.21
5,992.27
5,485.25
507.02
Saturday
61.5
24.26
1,491.99
1.137.75
354.24
Sunday
83.5
25.06
2,092.51
1,544.75
547.76
Public Holidays
23.5
38.00
893.00
434.75
458.35




Total
1,867.37






2011-2012





Ordinary
634.5
21.01
13,691.15
12,169.71
1,521.44
Saturday
142
25.21
3,579.82
2,723.56
856.26
Sunday
252.5
26.89
6,789.73
4,842.95
1,946.78
Public Holidays
28.5
41.18
1,173.63
546.63
627.00




Total
4,951.48






2012-2013





Ordinary
735.25
21.72
15,969.63
14,586.48
1,383.15
Saturday
221.5
26.07
5,774.51
4,362.00
1,412.51
Sunday
182
28.67
5,217.94
3,592.05
1,625.89
Public Holidays
28.5
44.31
1,262.84
631.92
630.92




Total
5,052.47






2013-2014





Ordinary
689
22.39
15,426.71
13,998.00
1,428.71
Saturday
178
26.86
4,781.08
3,624.00
1,157.02
Sunday
155
30.44
4,718.20
3154.80
1,563.40
Public Holidays
25
47.46
1,186.50
510.00
676.50




Total
4,825.63






2014-2015





Ordinary
687
23.15
15,904.05
14,336,79
1,567.76
Saturday
124
27.78
3,444.72
2,607.72
837.00
Sunday
138.5
32.41
4,488.79
2,912.66
1,576.13
Public Holidays
18
50.93
916.74
378.54
538.20




Total
4,549.09










Grand Total
21,246.04

56 An adjustment must also be made to take into account the variation in hours previously noted. The adjustment is as follows:


Week
Ending
Hours Claimed (Exhibit 3)
Hours Worked (Exhibit 15)
Difference in Hours
Monetary Value
09/08/2011
25 (ordinary)
24 (ordinary)
-1 @ $21.01
-$ 21.01
16/08/2011
19 (ordinary)
18 (ordinary)
-1 @ $21.01
-$ 21.01
23/08/2011
11 (ordinary)
12 (ordinary)
+1 @ $21.01
+$ 21.01
21/12/2012
7.5 (ordinary)
13 (ordinary)
+5.5 @ $21.72
+$ 119.46
08/01/2013
13 (ordinary)
12.5 (ordinary)
-0.5 @ $21.72
-$ 10.86
03/06/2014
10 (ordinary)
12 (ordinary)
+2 @ $22.39
+$ 44.78
03/06/2014
8 (Sunday)
4 (Sunday)
-4 @ $30.44
-$ 121.76
15/07/2014
26 (ordinary)
24 (ordinary)
-2 @ $23.15
-$ 46.30
02/12/2014
8 (Saturday)
6 (Saturday)
-2 @ $27.78
-$ 55.60
30/12/2014
10 (Public Holiday)
11 (Public Holiday)
+1 @ $50.93
+$ 50.03
17/02/2015
20 (ordinary)
32 (ordinary)
+12 @ $23.15
+$ 277.80
17/02/2015
6 (Saturday)
0 (Saturday)
-6 @ $27.78
-$ 166.68
17/02/2015
6 (Sunday)
0 (Sunday)
-6 @ $32.41
-$ 194.46








Nett Difference
-$ 244.06

57 It follows that $244.06 must be deducted from $21,246.04 to take into account the variation in hours worked, resulting in a nett underpayment of $21,001.98.
58 I find that the respondent has underpaid the claimant $21,001.98. It will be appropriate for an order to be made that the respondent pay the claimant that sum plus interest thereon at the rate of 6% per annum calculated from 1 April 2015 (first day after last pay period) until judgement fixed in the sum of $1,280.76.
Deductions
59 There is no dispute about the fact that the Respondent deducted $0.70 from the claimant’s pay each pay period worked. The respondent deducted $0.70 as a contribution towards the sponsorship of a child through World Vision. It appears that the respondent did the same thing with respect to other employees.
60 The claimant says that she did not authorise such deduction and only realised that the deduction was made after receiving her first pay slip. The respondent on the other hand maintains that the claimant voluntarily participated in the sponsorship after having been told about it at the interview.
61 In determining the issue I prefer the claimant’s evidence. I found her to be a credible witness. Her evidence in that regard is consistent with what Ms Morris said about her circumstances concerning the same issue. On the other hand the evidence called by the respondent on the issue of express authorisation is somewhat nebulous. In his evidence in chief Mr Rogers testified that when he interviewed the claimant he told her about the voluntary sponsorship arrangement. However, when cross-examined about that he said he knew that he told her about the sponsorship because he routinely did that with all new employees. I cannot therefore be satisfied that he has an actual recollection of a discussion with the claimant about that. Although Mr Rogers believes that he had that discussion I cannot be satisfied that he did. Rather, I am satisfied that there was no such discussion and that by the time the claimant realised the deduction regime was in place it had become a fait accompli. She then reluctantly accepted it.
62 Whether or not oral authorisation was given for such deduction is moot in any event. That is because s 323(1) of the FW Act requires that an employee be paid in full for all work performed unless authorisation to make deductions is given by one of the ways set out in s 324(1) of the FW Act. Section 324(1) enables an employer to make deductions from an amount payable to an employee only if the deduction is authorised in writing by the employee and is principally for the employee’s benefit, or is otherwise authorised under an enterprise agreement, a modern award, by or under a law or an order of a court. None of those things applied. What is clear is that reliance on an oral authorisation to enable deductions from pay is impermissible.
63 It suffices to say that the claimant never gave the respondent written authorisation to make the deductions it made. It follows that the respondent acted unlawfully in making the deductions. The claimant is entitled to recover the amounts deducted. The claimant claims $154.70 in that regard. The respondent denies that amount was deducted and has produced a pay roll activity statement derived from its computer data base showing that between 1 July 2010 and 30 June 2015 the amount $145.60 was deducted (exhibit 14).
64 The time and wages records (exhibit 15) produce a different result. Using those records I find that from 16 December 2010 (the claimant’s first day of work) until 26 March 2015 (the claimant’s last day of work) she worked 211 pay periods. $0.70 was deducted each pay period. A total of $147.70 was deducted. She is entitled to recover that amount plus interest thereon calculated as previously indicated fixed at $9.01.
Amount Payable
65 The respondent will be ordered to pay to the claimant $22,439.45 comprised as follows:
o $21,001.98 in entitlements owed;
o $1,280.76 in interest on the entitlements owed;
o $147.70 in repayment of unauthorised deductions; and
o $9.01 in interest on the sum of unauthorised deductions.
Penalties and Other Orders
66 I will now hear from the parties concerning the issue of penalties and any other orders that need to be made.


G. CICCHINI
INDUSTRIAL MAGISTRATE