2017 WAIRC 00065
WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT


CITATION : 2017 WAIRC 00065

CORAM
: INDUSTRIAL MAGISTRATE M FLYNN

HEARD
:
WEDNESDAY, 25 JANUARY 2017

DELIVERED : WEDNESDAY, 8 FEBRUARY 2017

FILE NO. : M 47 OF 2016

BETWEEN
:
ALDO BECHERELLI
CLAIMANT

AND

MEDITERRANEUS PTY LTD TRADING AS LUCIOLI
RESPONDENT

CatchWords : INDUSTRIAL LAW – Contravention of civil penalty provisions on terms of a modern award on overtime and penalty rates – Small Claims Procedure.
Legislation : Fair Work Act 2009
Instruments : Restaurant Industry Award 2010 (MA000119)
Cases referred to
in reasons : B.P. Refinery (Westernport) Pty Ltd v Shire of Hastings (1977)
180 CLR 266 at 283
Kucks v CSR Limited (1996) 66 IR 182
Linkhill Pty Ltd v Director, Office of the Fair Work Building
Industry Inspectorate [2015] FCAFC 99
James Turner Roofing Pty Ltd v Peters [2003] WASCA 28
Result : Judgment for the claimant
REPRESENTATION:
CLAIMANT : IN PERSON.
RESPONDENT : MR LUCA LUCIOLI, DIRECTOR OF THE RESPONDENT.

REASONS FOR DECISION
Introduction
1 Mr Aldo Becherelli (Mr Becherelli) was employed by Mediterraneus Pty Ltd (the Company) from 24 November 2014 until 20 March 2015. Mr Becherelli was a pastry cook in a business operated by the Company, ‘Lucioli’ (Lucioli). He claims $13,008.98 from the Company, alleged to be overtime and penalty rates to which he is entitled under the provisions of the Restaurant Industry Award 2010 (MA000119) (the Modern Award).
2 The Company disputes the claim on a number of (alternative) grounds. First, the Company submits that the overtime and penalty rate provisions of the Modern Award did not apply in circumstances where, pursuant to the terms of an agreement between Mr Becherelli and the Company made at the commencement of Mr Becherelli’s employment, Mr Becherelli was paid an ‘over Award’ fixed weekly salary of $1,346.15. Secondly, the Company alleged that Mr Becherelli was incompetent (‘ingredients had to be thrown out, burnt the products’) and engaged in discreditable conduct (‘urged other staff to file employment claims’, ‘threatened and abused other staff’) implying that, if proven, these facts would discharge the Company of any legal obligations to Mr Becherelli. Thirdly, the Company submits that a reconciliation of total payments made by it to Mr Becherelli (including alleged cash payments and other non-cash benefits (e.g. ‘free meals and drinks’)) and the entitlements of Mr Becherelli under the Modern Award (as a ‘Level 4, Cook grade 3’ and after an appropriate deduction because Mr Becherelli did not give notice of termination) reveals that Mr Becherelli has been paid in excess of his entitlements under the Modern Award.
3 In Schedule I of this decision, I have set out the law relevant to the jurisdiction, practice and procedure of this court in determining this case. In Schedule II of this decision I have set out extracts of the Modern Award as at the period relevant to the claim (24 November 2014 – 20 March 2015).
4 Relevant to matters identified under the heading, ‘Jurisdiction’ in Schedule I, I am satisfied:
a. Mr Becherelli has elected to use the Small Claims procedure provided for in s 548 of the Fair Work Act 2009 (FWA).
b. The Modern Award covers Mr Becherelli and the Company as provided for in s 48 of the FWA and there are no relevant statutory exceptions. Clause 4 of the Modern Award provides that the award covers employers in the restaurant industry and their employees in the classifications listed in Schedule B. I rely upon the uncontradicted evidence of Luca Lucioli, Salvatore Lucioli and Mr Becherelli, on the:
· operation of Lucioli. The evidence was consistent with Lucioli being characterised as a restaurant and inconsistent with it being characterised as one of the industries in cl 4.8 of the Modern Award (e.g. fast food etc.);
· the role of Mr Becherelli as a ‘pastry cook’. This position is mentioned in the classifications in Schedule B of the Modern Award in the descriptions of a ‘Cook’ at grades 1-5.
c. The Company is a corporation to which paragraph 51(xx) of the Constitution applies. As a result, the Company is a ‘a national system employer’ as provided for in s 42 of the FWA.
d. Mr Becherelli was an individual who was employed by the Company. Although the relevant conditions of his employment may be in dispute, the fact that Mr Becherelli was an employee of the Company is not in dispute. As a result, he was a ‘national system employee’ as provided for in s 42 of the FWA.
5 In order to determine this case, three issues arise for my consideration. First, I must determine the content of the employment agreement made between Mr Becherelli and the Company at the time of the commencement of his employment. Secondly, I must determine the significance of the allegations, made by the Company, of incompetence and discreditable behaviour of Mr Becherelli. Thirdly, I must determine the entitlements of Mr Becherelli under the Modern Award, having particular regard to: my findings on the hours worked by Mr Becherelli; the appropriate classification of Mr Becherelli from the classification structure set out in Schedule B of the Modern Award; the application of the provisions of the Modern Award on hours of work, breaks, overtime, penalty rates etc.; whether the entitlements of Mr Becherelli under the Modern Award ought be reduced on account of any of the following: above-Award payments to Mr Becherelli; cash payments to Mr Becherelli; non-cash payments to Mr Becherelli; Mr Becherelli failing to give notice of termination as required by the Modern Award.
First Issue: The Agreement Between Mr Becherelli and the Company
6 Mr Becherelli gave evidence of two conversations with representatives of the Company in the period shortly before he commenced working at Lucioli. The first conversation was at a meeting between Mr Becherelli, Salvatore Lucioli, Luca Lucioli and Alessandro Lucioli. Mr Becherelli’s duties as a pastry chef at the new venture, Lucioli, were discussed. Mr Becherelli said that he was interested in the position on the basis that he would receive a salary of $1,000 per week net (i.e. after tax). The Company representatives told him that they would ‘get back to him’. The second conversation was between Mr Becherelli and Salvatore Lucioli only and occurred on the occasion of a larger meeting between representatives of the Company and all of the staff who were about to commence working at Lucioli. Mr Becherelli’s evidence was that Salvatore Lucioli told him words to the effect that the Company agreed to the salary of $1,000 per week but that Mr Becherelli would be expected to work for 40 – 42 hours per week and not 38 hours per week. Mr Becherelli agreed. Mr Becherelli stated that he signed a document presented to him during this meeting and that: he understood that the document related to his employment; he did not read the document; and, despite requests to the Company, he had never been provided with a copy of the document.
7 The evidence of the Company came from Salvatore Lucioli and Luca Lucioli. Their evidence did not contradict the evidence of Mr Becherelli except in two respects. First, Salvatore Lucioli’s evidence was that Mr Becherelli agreed to work for 45 – 50 hours per week (rather than 40 – 42 hours per week) for a weekly salary of $1,000 per week net. Salvatore Lucioli stated that he left the documentation of this agreement to be done by Luca Lucioli ‘who ran the administration’. Secondly, Luca Lucioli gave evidence that: he arranged for the preparation of a document entitled ‘Employment Contract’ that was intended to reflect the agreement between the Company and Mr Becherelli that Mr Becherelli would be paid $70,000 per annum gross and that this salary was inclusive of any reasonable overtime undertaken by Mr Becherelli; the document was prepared around the time Mr Becherelli commenced his employment; a copy of the document was sent to Mr Becherelli or left with Mr Becherelli for signature and return; and Mr Becherelli failed to return the document. A copy of the document (‘the EC Document’) was admitted into evidence by Luca Lucioli.
8 Mr Becherelli stated that he had never seen the EC Document before Luca Lucioli produced it at the trial on 25 January 2017. In circumstances where the Company has not produced a copy of the EC Document that has been signed by Mr Becherelli (or by the Company) or independent evidence of the EC Document having been sent to Mr Becherelli (e.g. a copy of an email or a covering letter) or independent evidence of the Company demanding that he return a signed copy (e.g. a copy of an email), I am not satisfied that Mr Becherelli sighted a copy of the document before 25 January 2017. The Company cannot rely upon the contents of the EC document to evidence the content of the agreement between it and Mr Becherelli. This finding is significant insofar cl 7 and cl 8 of the EC document appear to have been drafted in anticipation of Mr Becherelli’s employment being governed by cl 28 of the Modern Award on ‘Annualised salary arrangements’. If cl 28 of the Modern Award is to govern the entitlements of Mr Becherelli, as alleged by the Company, it will be necessary for the Company to prove an ‘agreement between the employer and the employee’ (per cl 28.1(a) of the Modern Award) to that effect by reference to evidence other than the supply of the EC Document to Mr Becherelli.
9 As to the conflict in evidence between Mr Becherelli and Salvatore Lucioli as to the agreed number of hours to be worked (40 – 42 or 45 – 50), I am not satisfied as to either version of the conversation. I am not satisfied that a precise number of overtime hours was discussed. Salvatore Lucioli was commencing a new venture. Salvatore Lucioli was unlikely to know, with precision, the demands to be made upon the new pastry chef that he was keen to employ. Mr Becherelli was keen to accommodate any reasonable demands of his new employer if his demand for a salary of $1,000 net per week was met. I am satisfied that Salvatore Lucioli stated words to the effect that some overtime would be required for a salary of $1,000 net per week, particularly as the business commenced operations and that Mr Becherelli agreed to this term. I am satisfied that to give efficacy to this express term it is necessary to imply, as a fact, a term that the amount of overtime required for a salary of $1,000 net per week would be a reasonable level of overtime. The other conditions for an implied term as set out in B.P. Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 [283] are each satisfied ((1) it must be reasonable and equitable; (2) [efficacy] (3) it must be so obvious that ‘it goes without saying’; (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract.)
10 I am not satisfied that the express terms of the oral employment agreement as set out by me in paragraph 9 constitutes an agreement to enter an annualised salary arrangement as provided by cl 28 of the Modern Award. Although some features of the agreement between Mr Becherelli and Salvatore Lucioli reflect the mechanism anticipated by cl 28 (weekly salary at least 25% above award), there is no evidence that Mr Becherelli or Salvatore Lucioli made any reference (or were aware of) the Modern Award or the content of the Modern Award so far as the entitlements of Mr Becherelli were concerned when they reached agreement on the weekly salary to be paid to Mr Becherelli. It follows that notwithstanding the ‘above award’ weekly salary paid to Mr Becherelli, his entitlements as to overtime and penalty rates will be as provided by the terms of the Modern Award (without reference to cl 28 of the Modern Award).
11 For completeness, I note that cl 7 (Award flexibility) of the Modern Award enables an employer and an employee to agree to vary the application of terms of the award concerning overtime and penalty rates. However, that clause requires certain conditions to be satisfied and it is sufficient to note that the conditions set out in cl 7.4 of the Modern Award (agreement signed by each party etc.) have not been proven by the Company.
Second Issue: Allegations of Incompetence and Discreditable Behaviour
12 Salvatore Lucioli gave evidence of his extensive experience as an executive chef and in the management of restaurants, including of periods when he had directly supervised a large number of pastry cooks. Salvatore Lucioli detailed what he perceived as Mr Becherelli’s failings in his role as a pastry chef during the period he worked at Lucioli: Mr Becherelli lacked the interpersonal skills necessary to perform his duties; Mr Becherelli did not follow recipes supplied to him; Mr Becherelli did not properly manage stock with the result that stock was wasted; customers complained about the quality of items prepared by Mr Becherelli; Mr Becherelli was inefficient, taking more time than necessary with tasks and spending too much time ‘on the mobile phone’. Luca Lucioli gave similar evidence, adding that Mr Becherelli had contacted employees of the Company and encouraged then to make claims against it.
13 Mr Becherelli denied each of the above allegations.
14 This issue can be addressed briefly. The Company did not adduce a single piece of independent evidence to support the serious imputations against the professional and personal character of Mr Becherelli. Salvatore Lucioli confirmed in cross-examination that he had not, at the time, conveyed to Mr Becherelli any customer complaints. The allegations are not proven. In any event, the provisions of the Modern Award (e.g. cl 9 on Dispute Resolution) and the FWA for dealing with such allegations do not countenance an employer raising such allegations in answer to an employee’s claim to entitlements under the Modern Award to overtime and penalty rates.
Third Issue: Mr Becherelli Entitlements Under the Modern Award
Hours Worked by Mr Becherelli
15 The evidence of Mr Becherelli was that a spreadsheet prepared by him (and admitted into evidence as exhibit D) listing his starting time and finishing time for each day that he worked between 24 November 2014 and 20 March 2015 was an accurate reflection of his working hours. He said that it was based on time sheets filled out by him each day at the Company premises (and admitted into evidence as exhibit C) save for an initial period when the Company did not supply time sheets. The Company did not cross-examine on the accuracy of Mr Becherelli’s transposition of the time sheets to his spreadsheet and, save as to question him about his taking ‘breaks’, did not question him about the accuracy of time sheets. There is no other evidence to suggest that the time sheets are not reliable records. In those circumstances, I am satisfied as to the accuracy of the spreadsheet as to the dates, starting times and finishing times of the work done by Mr Becherelli for the Company. The significance of the spreadsheet not referring to ‘breaks’ is discussed below at paragraph 21.
Appropriate Classification of Mr Becherelli Under the Modern Award
16 The rate of pay to which Mr Becherelli is entitled under the Modern Award depends upon his classification as defined in Schedule B for the area in which he is working. Mr Becherelli submits that the appropriate classification appears in ‘Clause B.3.8 Cook grade 5’. The minimum hourly wage in the period November 2014-March 2015 for this classification was $21.43. (I note that some of the calculations of Mr Becherelli refer to a minimum hourly wage of $20.87 which would equate to a Cook grade 4 e.g. Attachment G). The Company submits that the appropriate classification appears in ‘Clause B.3.6 Cook grade 3’. The minimum hourly wage in the period November 2014-March 2015 for this classification was $19.64. (I note that the calculations of the Company refer to a minimum hourly wage of $20.61 which is the current rate for a Cook grade 3 and not the rate during the relevant period.)
17 The relevant classifications in Schedule B of the Modern Award are as follows:
B.3.6 Cook grade 3 (tradesperson) means a commi chef or equivalent who has completed an apprenticeship or who has passed the appropriate trade test or who has the appropriate level of training, and who is engaged in cooking, baking, pastry cooking or butchering duties.
B.3.7 Cook grade 4 (tradesperson) means a demi chef or equivalent who has completed an apprenticeship or who has passed the appropriate trade test or who has the appropriate level of training and who is engaged to perform general or specialised cooking, butchering, baking or pastry cooking duties and/or supervises and trains other cooks and kitchen employees.
B.3.8 Cook grade 5 (tradesperson) means a chef de partie or equivalent who has completed an apprenticeship or has passed the appropriate trade test or who has the appropriate level of training in cooking, butchering or pastry cooking and who performs any of the following:
(a) general and specialised duties including supervision or training of other kitchen staff;
(b) ordering and stock control; and
(c) solely responsible for other cooks and other kitchen employees in a single kitchen establishment.
18 I am satisfied that Mr Becherelli was engaged by the Company to perform the duties of a pastry chef and was responsible for the production of pastry products necessary for the operation of Lucioli, a 100 seat licensed ‘Bar/Patisserie’ establishment open from 8.30 am until after 10.30 pm. He was subject to the overall direction of Salvatore Lucioli. However, on a day to day basis he had significant autonomy. Mr Becherelli was responsible for the supervision of staff in the pastry section including a more junior cook (Lucia Franceschetti) and, when he commenced employment, another cook (Antonio Zaccaria). Mr Becherelli had significant experience as a pastry chef before he commenced working for the Company. He also had a number of professional qualifications. The findings in this paragraph are supported by the evidence of Mr Becherelli, Salvatore Lucioli and Luca Lucioli.
19 The fact that the duties of Mr Becherelli involved the supervision of staff satisfies me that the classification of Mr Becherelli should be as either a Cook Grade 4 or a Cook Grade 5. Reflecting on oft quoted statements to the effect that awards should be construed with an eye to the context of the relevant industry rather than legal niceties (e.g. Kucks v CSR Limited (1996) 66 IR 182), the overlapping descriptions in Grade 4 and Grade 5 is, in my view, resolved by accepting that the drafter intended, in any event, to establish a hierarchy of cooks. In this regard it is significant to me that Mr Becherelli was subject to the ultimate supervision of Salvatore Lucioli. In my view, this favours a classification of his duties as Cook Grade 4 with the result that the minimum hourly wage of $20.87 applied during the relevant period.
Calculation of Entitlements (Breaks, Overtime, Penalty Rates)
20 In Schedule III of this decision, I have prepared a table containing a breakdown of the hours worked each day by Mr Becherelli (see paragraph 15 above) with the detail necessary to calculate Mr Becherelli’s entitlement under the Modern Award. The breakdown contains the following information:
· Hours worked Tuesday to Friday.
o Before 7.00 am. Clause 34.2 of the Modern Award provides for an additional payment of 15% of the standard hourly rate for work between midnight and 7.00 am. This appears in Columns B, G, L, and Q.
o The first 7.6 hours worked Tuesday to Friday. Clause 31.1 and cl 31.2 provide, in effect, for hours of work to average 38 per week and for eight full days off per four-week period. In the result, the ‘ordinary’ hours of work (i.e. hours before overtime becomes payable) is 7.6 hours per day. Columns C, H, M and R state the number of hours that, when added to the starting time that day (per Columns B, G, L, and Q), equate to 7.6.
o The next two hours worked on Tuesday to Friday. This appears in Columns D, I, N and S. Clause 33.2 of the Modern Award provides that the overtime rate applicable to these hours is 150%.
o The remaining hours worked Tuesday to Friday. This appears in Columns E, J, O and T. Clause 33.2 provides that the overtime rate applicable to these hours is 200%.
· Hours worked on Saturdays.
o The first 7.6 hours worked Saturdays. This appears in Column V. Clause 34.1 of the Modern Award provides that the penalty rate applicable to these hours is 125%.
o The next two hours worked Saturdays. This appears in Column W. Clause 33.2 provides that the overtime rate applicable to these hours is 175%.
o The remaining hours worked Saturday. This appears in Column X. Clause 33.2 provides that the overtime rate applicable to these hours is 200%.
· Hours worked on Sundays.
o The first 7.6 hours worked Sundays. This appears in Column Z. Clause 34.1 provides that the penalty rate applicable to the first 7.6 hours is 150%.
o The remaining hours worked Sundays. This appears in Column AA. Clause 33.2 provides that the overtime rate applicable to these hours is 200%.
21 Mr Becherelli gave evidence of taking a 10 – 15-minute meal break on one occasion during each shift of work. This evidence was not contradicted and I am satisfied as to it being accurate. The effect of the Modern Award is that time taken on a break is ordinarily ‘unpaid’ and would not be counted for the purpose of calculating entitlements under the Modern Award, see cl 32.1. However, cl 32.4 of the Modern Award also details the entitlements of an employee who works more than five hours and is not given an unpaid meal break of at least 30 minutes. I do not accept the submission of Mr Becherelli that he is entitled to include the claim for the 10 – 15-minute meal break on the basis that he waives any claim to entitlements under cl 32 of the Modern Award in circumstances where he has shown it to be to the (arithmetic) advantage of the Company that he takes this approach. An employee may not ‘re-write’ one clause of an award on the basis that the employee is waiving the benefit of another clause. It will be necessary to reduce the time claimed by Mr Becherelli by 15 minutes for each day that he worked which, on my calculations, equates to a reduction of $558.32 of his entitlement under the Modern Award. He worked: 84 days (Tuesday-Saturday) equating to 21 hours of ‘breaks’ at an award rate of $20.97 per hour ($440.37); 10 days (Sundays) equating to 2.5 hours of ‘breaks’ at an award rate of $41.94 ($104.85) and one day (public holiday) equating to 0.25 hours of a break at an award rate of $52.42 ($13.10). The sum of $440.37, $104.85 and $13.10 is $558.32.
Accounting for Above-Award Payments by the Company to Mr Becherelli
22 The weekly salary of $1,346.15 paid by the Company to Mr Becherelli for the duration of his employment equates to an hourly rate of $35.42 when calculated on the basis of a 38-hour week compared to the Modern Award minimum rate of pay of $20.87. The Company submits that any obligation with respect to overtime and penalty rates under the Modern Award must be reduced by the over-Award payments.
23 In Linkhill Pty Ltd v Director, Office of the Fair Work Building Industry Inspectorate [2015] FCAFC 99, the Full Court of the Federal Court reviewed the law on this issue. The review included an assessment of the decision of the WA Industrial Appeal Court (Anderson, Scott and Parker JJ) in James Turner Roofing Pty Ltd v Peters [2003] WASCA 28. The judgment of North and Bromberg JJ place emphasis on the following passage of the judgement of Anderson J from James Turner Roofing:
The payment of an amount as wages for hours worked in a period can be relied on by the employer in satisfaction of an award obligation to pay wages for that period whether in relation to wages for ordinary time, overtime, weekend penalty rates, holidays worked or any other like monetary entitlement under the award. This is so, whether the payment of the wages is made in contemplation of the obligations arising under the award or without regard for the award. However, if a payment is made expressly or impliedly to cover a particular obligation (whether for ordinary time, overtime, weekend penalty rates, fares, clothing or any other entitlement whether arising under the award or pursuant to the contract of employment) the payment cannot be claimed as a set off against monies payable to cover some other incident of employment. A payment made on account of say ordinary time worked cannot be used in discharge of an obligation arising on some other account such as a claim for overtime. Whether or not the payment was for a particular incident of employment will be a question of fact in every case [45].
24 In Linkhill Pty Ltd the joint judgment proceed to state:
[W]hat is required is a close correlation between the award obligation and the contractual obligation in respect of which the payment was made. It is not the monetary nature of the payment made under the contract that must correlate with the award. It is the subject matter of the contractual obligations for which the payment was made that must be examined and be found to closely correlate with the obligations in the award said to be discharged by the payment. … [98]
25 Applied to the facts of this case, the effect of the agreement between Mr Becherelli and the Company described by me at paragraph 9 above was that payments of the weekly salary of $1,346.15 discharged the obligation of the Company with respect to any entitlements under the Modern Award to 38 hours per week and a reasonable number of hours of overtime. It did not discharge the obligations of the Company to the entitlements of Mr Becherelli under the Award with respect to each hour of overtime worked by Mr Becherelli that was in excess of a reasonable number of hours. The evidence of Mr Becherelli (40 – 42 hours) and Salvatore Lucioli (45 – 50 hours), although not accepted as an accurate reflection of a conversation is revealing of their respective views on what constitutes a reasonable number of hours of overtime. It equates to overtime being payable after working between 8 – 10 hours. I note the evidence of Luca Lucioli to the effect that he considered one to two hours of overtime per day was ‘reasonable’. My view is that one hour of overtime for each day worked is ‘reasonable’ in the context of the circumstances of this case which equates to overtime being payable after Mr Becherelli worked 8.6 hours.
26 Clause 33.3 of the Modern Award provides that ‘overtime worked on any day stands alone’. The result is that for each day that Mr Becherelli worked in excess of 8.6 hours he is entitled to overtime at the rate calculated in accordance with the Modern Award. I have undertaken this calculation in Schedule III. Row 18 shows the total hours in excess of 7.6 hours for each work day. Row 19 shows a reduction of those hours for one hour of overtime each work day as explained above. Row 20 shows the relevant multiplier Rate. Row 21 is the product the number of hours from row 18 or 19 multiplied by the relevant multiplier rate. Row 22 is an addition for a public holiday. Row 23 is the total number of hours to which Mr Becherelli is entitled to be paid at the rate of $20.87. The result is an entitlement to $8,507.65.
Accounting for Other Matters: Cash Payments? Non-cash Benefits?
27 Salvatore Lucioli alleged that he made cash payments to Mr Becherelli on account of his employment. Luca Lucioli submitted that this should be taken into account. Mr Becherelli denied receiving any cash payments. The Company has failed to satisfy me that any cash payments were made to Mr Becherelli.
28 Salvatore Lucioli and Luca Lucioli gave evidence of Mr Becherelli having unrestricted access to food and drink supplied by the Company. Clause 27.2 of the Modern Award provides that the employer will pay wages by cash, cheque or electronic funds transfer. The supply of coffee did not discharge the obligation to pay wages under the Modern Award.
Accounting for Mr Becherelli’s Failure to Give Notice of Termination
29 Mr Becherelli worked for the Company for 17 weeks. I am satisfied, on the basis of the payslips adduced by Mr Becherelli (exhibit A) and the payroll advice adduced by the Company (exhibit 1) that the Company paid to Mr Becherelli a salary of $1,346.15 for each of the 17 weeks that he worked for it. Clause 16 of the Modern Award, read with the FWA has the result that Mr Becherelli was required to give one weeks’ notice of termination at the end of the 17 weeks. He admits that he did not do so. His entitlement under the Modern Award is accordingly reduced. Mr Becherelli’s entitlement is reduced by one week’s salary in the amount of $1,346.15.
Conclusion
30 I am satisfied that Mr Becherelli is entitled to $8,507.65 on account of unpaid overtime and penalty calculated in accordance with the Modern Award. This amount will be reduced by $558.32 on account of time taken for breaks (see paragraph 21) and $1,346.15 on account of failure to give notice of termination (see paragraph29), resulting in a judgment of $6,603.
31 I will hear from the parties on the question of interest. I note that s 547 of the FWA provides that on making an order for payment of an amount that was required under a modern award, then the court must, on application, include an amount of interest in the sum ordered, unless good cause is shown to the contrary.




M. FLYNN
INDUSTRIAL MAGISTRATE
Schedule I: Jurisdiction, Practice and Procedure of the Industrial Magistrates Court (WA) under the Fair Work Act 2009 (Cth): Small Claim Alleging Contravention of Modern Award
Jurisdiction
[1] An employee, an employee organization or an inspector may apply to an eligible state or territory court for orders regarding a contravention of the civil penalty provisions identified in s 539(2) of the FWA.
[2] The Industrial Magistrates Court (WA) (IMC), being a court constituted by an industrial magistrate, is ‘an eligible State or Territory court’: FWA, s 12 (see definitions of ‘eligible State or Territory court’ and ‘Magistrates Court’); Industrial Relations Act 1979 (WA), ss 81, 81B.
[3] The application to the IMC must be made within six years after the day on which the contravention of the civil penalty provision occurred: FWA, s 544.
[4] The civil penalty provisions identified in s 539 of the FWA include the terms of a modern award where the award applies to give an entitlement to a claimant employee and to impose an obligation upon a respondent employer: FWA, s 45, s 46. The award applies if it covers the employee and the employer and there are no relevant statutory exceptions (e.g. high income employees e.g. $138,900 pa from 1 July 2016): FWA, s 47. The award covers the employee and the employer if it is expressed to cover the employee and the employer: FWA, s 48(1).
[5] An obligation upon an ‘employer’ covered by an award is an obligation upon a ‘national system employer’ and that term, relevantly, is defined to include ‘a corporation to which paragraph 51(xx) of the Constitution applies’: FWA, s 42, s 47, s 14, s 12. An entitlement of an employee covered by an award is an entitlement of an ‘employee’ who is a ‘national system employee’ and that term, relevantly, is defined to include ‘an individual so far as he or she is employed by a national system employer’: FWA, s 42, s47, s 13.
[6] Where the IMC is satisfied that there has been a contravention of a civil penalty provision, the court may make orders for an employer to pay to an employee an amount that the employer was required to pay under the modern award: FWA, s 545(3)(a).
[7] Where the claimant elects to use the small claims procedure as provided for in section 548 of the FWA, the Court may not award more than $20,000 and may not make orders for any pecuniary penalty: FWA, s 548(1)(a), (2)(a).
Burden and standard of proof
[8] In an application under the FWA, the party making an allegation to enforce a legal right or to relieve the party of a legal obligation carries the burden of proving the allegation. The standard of proof required to discharge the burden is proof ‘on the balance of probabilities’. In Miller v Minister of Pensions [1947] 2 All ER 372, 374, Lord Denning explained the standard in the following terms:
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.
[9] Where in this decision I state that 'I am satisfied' of a fact or matter I am saying that '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.
Practice and Procedure of the Industrial Magistrates Court: Small Claim
[10] The FWA provides that ‘in small claims proceedings, the court is not bound by any rules of evidence and procedure and may act in an informal manner and without regard to legal forms and technicalities: FWA, s 548(3). The significance of this provision was explained by Judge Lucev in McShane v Image Bollards Pty Ltd [2011] FMCA 215 at [7] in the following terms:
Although the Court is not bound by the rules of evidence, and may act informally, and without regard to legal forms and technicalities in small claim proceedings in the Fair Work Division, this does not relive an applicant from the necessity to prove their claim. The Court can only act on evidence having a rational probative force.
[11] The IMC has experience of similar provisions. The Industrial Relations Act 1979 (WA) (IRA) provides that, except as prescribed by or under the Act, the powers, practice and procedure of the IMC is to be the same as if the proceedings were a case under the Magistrates Court (Civil Proceedings) Act 2004 (WA): IRA, s 81CA Relevantly, regulations prescribed under the IRA provide for an exception: a court hearing a trial is not bound by the rules of evidence and may inform itself on any matter and in any manner as it thinks fit: Regulation 35(4). In Sammut v AVM Holdings Pty Ltd [No2] [2012] WASC 27, Commissioner Sleight examined a similarly worded provision regulating the conduct of proceedings in the State Administrative Tribunal and made the following observations (omitting citations):
40 … The tribunal is not bound by the rules of evidence and may inform itself in such a manner as it thinks appropriate. This does not mean that the rules of evidence are to be ignored. The more flexible procedure provided for does not justify decisions made without a basis in evidence having probative force. The drawing of an inference without evidence is an error of law. Similarly, such error is shown when the tribunal bases its conclusion on its own view of a matter which requires evidence.
42 … After all, they represent the attempt made, through many generations, to evolve a method of enquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of enquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer 'substantial justice'.
43 … The tribunal can obtain information in any way it thinks best, always giving a fair opportunity to any party interested to meet that information; it is not obliged to obtain such independent opinion, for instance, upon oath, and whether the cross-examination shall take place upon that opinion is entirely a question for the discretion of the Tribunal; it is not bound by any rules of evidence and is authorised to act according to substantial justice and the merits of the case.
44 … An essential ingredient of procedural fairness is the opportunity of presenting one's case.
45 … the right to cross-examination is viewed as an important feature of procedural fairness.
47 … Procedural fairness requires fairness in the particular circumstances of the case. While a right to cross-examination is not necessarily to be recognised in every case as an incident of the obligation to accord procedural fairness, the right to challenge by cross-examination a deponent whose evidence is adverse, in important respects, to the case a party wishes to present, is.
Schedule II
Restaurant Industry Award 2010
This Fair Work Commission consolidated modern award incorporates all amendments up to and including 12 November 2014 (PR557581)
Table of Contents
[Varied by PR994479,PR532630,PR544519,PR546288,PR557581]
Restaurant Industry Award 2010

1

Part 1—Application and Operation
1. Title
2. Commencement and transitional
3. Definitions and interpretation
4. Coverage
5. Access to the award and the National Employment Standards
6. The National Employment Standards and this award
7. Award flexibility
Part 2—Consultation and Dispute Resolution
8. Consultation
9. Dispute resolution
Part 3—Types of Employment and Termination of Employment
10. Types of employment
11. Full-time employment
12. Part-time employment
13. Casual employment
14. Apprentices
15. Junior employees
16. Termination of employment
17. Redundancy
Part 4—Minimum Wages and Related Matters
18. Work organisation
19. Classifications
20. Minimum wages
21. Supported wage system
22. National training wage
23. School-based apprentices
24. Allowances
25. District allowances
26. Accident pay
27. Payment of wages
28. Annualised salary arrangements
29. Higher duties
30. Superannuation
Part 5—Hours of Work and Related Matters
31. Hours of work
32. Breaks
33. Overtime
34. Penalty rates
Part 6—Leave and Public Holidays
35. Annual leave
36. Personal/carer’s leave and compassionate leave
37. Community service leave
38. Public holidays
Part 7—Industry specific provisions
39. No deduction for breakages or cashiering underings
Schedule A—Transitional Provisions
Schedule B—Classification Structure and Definitions
Schedule C—Supported Wage System
Schedule D—National Training Wage
Appendix D1:Allocation of Traineeships to Wage Levels
Schedule E—School-based Apprentices
Schedule F—2014 Part-day Public Holidays






1. Title
This award is the Restaurant Industry Award 2010.
2. Commencement and transitional
[Varied by PR542239]
2.1 This award commences on 1 January 2010.
2.2 The monetary obligations imposed on employers by this award may be absorbed into overaward payments. Nothing in this award requires an employer to maintain or increase any overaward payment.
2.3 This award contains transitional arrangements which specify when particular parts of the award come into effect. Some of the transitional arrangements are in clauses in the main part of the award. There are also transitional arrangements in Schedule A. The arrangements in Schedule A deal with:
●minimum wages and piecework rates
●casual or part-time loadings
●Saturday, Sunday, public holiday, evening or other penalties
●shift allowances/penalties.
[2.4 varied by PR542239 ppc 04Dec13]
2.4 Neither the making of this award nor the operation of any transitional arrangements is intended to result in a reduction in the take-home pay of employees covered by the award. On application by or on behalf of an employee who suffers a reduction in take-home pay as a result of the making of this award or the operation of any transitional arrangements, the Fair Work Commission may make any order it considers appropriate to remedy the situation.
[2.5 varied by PR542239 ppc 04Dec13]
2.5 The Fair Work Commission may review the transitional arrangements in this award and make a determination varying the award.
[2.6 varied by PR542239 ppc 04Dec13]
2.6 The Fair Work Commission may review the transitional arrangements:
(a) on its own initiative; or
(b) on application by an employer, employee, organisation or outworker entity covered by the modern award; or
(c) on application by an organisation that is entitled to represent the industrial interests of one or more employers or employees that are covered by the modern award; or
(d) in relation to outworker arrangements, on application by an organisation that is entitled to represent the industrial interests of one or more outworkers to whom the arrangements relate.
3. Definitions and interpretation
[Varied by PR997772,PR503644,PR544294,PR546124]
3.1 In this award, unless the contrary intention appears:
Act means the Fair Work Act 2009 (Cth)
[Definition of adult apprentice inserted by PR544294 ppc 01Jan14]
adult apprentice means an apprentice who is 21 years of age or over at the commencement of their apprenticeship
agreement-based transitional instrument has the meaning in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)
appropriate level of training means that an employee:
(a) has completed an appropriate training program that meets the training and assessment requirements of a qualification or one or more designated units of competency from a Training Package;
(b) has been assessed by a qualified skills assessor to have skills at least equivalent to those attained in an appropriate training course; and/or
(c) at 31 December 2009 (except for a Food and beverage attendant grade 2 as defined in Schedule B—Classification Structure and Definitions) has been doing the work of a particular classification for a period of at least three months,
(however, to avoid doubt, the minimum classification rate for an employee who has completed AQF Certificate III or higher qualifications relevant to the classification in which they are employed is Level 4 in clause 20.1. For Food and beverage attendants grade 2, classification at grade 3 is subject to the employee having completed AQF Certificate II qualifications relevant to the grade 3 classification)
award-based transitional instrument has the meaning in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)
catering by a restaurant business means the provision by a restaurant of catering services for any social or business function where such services are incidental to the major business of the restaurant
[Definition of default fund employee inserted by PR546124 ppc 01Jan14]
default fund employee means an employee who has no chosen fund within the meaning of the Superannuation Guarantee (Administration) Act 1992 (Cth)
[Definition of defined benefit member inserted by PR546124 ppc 01Jan14]
defined benefit member has the meaning given by the Superannuation Guarantee (Administration) Act 1992 (Cth)
[Definition of Division 2B State award inserted by PR503644 ppc 01Jan11]
Division 2B State award has the meaning in Schedule 3A of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)
[Definition of Division 2B State employment agreement inserted by PR503644 ppc 01Jan11]
Division 2B State employment agreement has the meaning in Schedule 3A of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)
[Definition of employee substituted by PR997772 from 01Jan10]
employee means national system employee within the meaning of the Act
[Definition of employer substituted by PR997772 from 01Jan10]
employer means national system employer within the meaning of the Act
enterprise award-based instrument has the meaning in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)
[Definition of exempt public sector superannuation scheme inserted by PR546124 ppc 01Jan14]
exempt public sector superannuation scheme has the meaning given by the Superannuation Industry (Supervision) Act 1993 (Cth)
[Definition of MySuper product inserted by PR546124 ppc 01Jan14]
MySuper product has the meaning given by the Superannuation Industry (Supervision) Act 1993 (Cth)
NES means the National Employment Standards as contained in sections 59 to 131 of the Fair Work Act 2009 (Cth)
on-hire means the on-hire of an employee by their employer to a client, where such employee works under the general guidance and instruction of the client or a representative of the client
relevant apprenticeship legislation means any awards and/or regulations made by any State Apprenticeship Authority
restaurant industry means restaurants, reception centres, night clubs, cafes and roadhouses, and includes any tea room, café, and catering by a restaurant business but does not include a restaurant operated in or in connection with premises owned or operated by employers covered by any of the following awards:
(a) Hospitality Industry (General) Award 2010;
(b) Registered and Licensed Clubs Award 2010; or
(c) Fast Food Industry Award 2010
spread of hours means the period of time elapsing from the time an employee commences duty to the time the employee ceases duty within any period of 24 hours
standard hourly rate means the minimum hourly wage for a Level 4 classification (Cook grade 3 (tradesperson)) in clause 20.1
standard rate means the minimum wage for a Level 4 classification (Cook grade 3 (tradesperson)) in clause 20.1
standard weekly rate means the minimum weekly wage for a Level 4 classification (Cook grade 3 (tradesperson)) in clause 20.1
transitional minimum wage instrument has the meaning in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)
3.2 Where this award refers to a condition of employment provided for in the NES, the NES definition applies.
4. Coverage
4.1 This industry award covers employers throughout Australia in the restaurant industry and their employees in the classifications listed in Schedule B—Classification Structure and Definitions to the exclusion of any other modern award.
4.2 The award does not cover an employee excluded from award coverage by the Act.
4.3 The award does not cover employees who are covered by a modern enterprise award, or an enterprise instrument (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees.
4.4 The award does not cover employees who are covered by a State reference public sector modern award, or a State reference public sector transitional award (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees.
4.5 This award covers any employer which supplies labour on an on-hire basis in the industry set out in clause 4.1 in respect of on-hire employees in classifications covered by this award, and those on-hire employees, while engaged in the performance of work for a business in that industry. This subclause operates subject to the exclusions from coverage in this award.
4.6 This award covers employers which provide group training services for apprentices and trainees engaged in the industry and/or parts of industry set out at clause 4.1 and those apprentices and trainees engaged by a group training service hosted by a company to perform work at a location where the activities described herein are being performed. This subclause operates subject to the exclusions from coverage in this award.
4.7 Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.
4.8 This award does not cover employers in the following industries or activities or their employees:
(a) contract caterers whose principal and substantial business activity is that of providing catering services and/or accommodation services on a contract or fee-for-service basis;
(b) retail industry;
(c) fast food industry;
(d) in-flight catering for airlines;
(e) catering services provided by aged care employers;
(f) hotels, motels, hostels and boarding establishments;
(g) clubs registered or recognised under State or Territory legislation;
(h) boarding schools, residential colleges, hospitals or orphanages; or
(i) restaurants operated in or in connection with hotels, motels, hostels and boarding establishments, and/or clubs registered or recognised under State or Territory legislation.
NOTE: Where there is no classification for a particular employee in this award it is possible that the employer and that employee are covered by an award with occupational coverage.
….
7. Award flexibility
[Varied by PR542239]
7.1 Notwithstanding any other provision of this award, an employer and an individual employee may agree to vary the application of certain terms of this award to meet the genuine individual needs of the employer and the individual employee. The terms the employer and the individual employee may agree to vary the application of are those concerning:
(a) arrangements for when work is performed;
(b) overtime rates;
(c) penalty rates;
(d) allowances; and
(e) leave loading.
[7.2 varied by PR542239 ppc 04Dec13]
7.2 The employer and the individual employee must have genuinely made the agreement without coercion or duress. An agreement under this clause can only be entered into after the individual employee has commenced employment with the employer.
7.3 The agreement between the employer and the individual employee must:
(a) be confined to a variation in the application of one or more of the terms listed in clause 7.1;and
[7.3(b) varied by PR542239 ppc 04Dec13]
(b) result in the employee being better off overall at the time the agreement is made than the employee would have been if no individual flexibility agreement had been agreed to.
7.4 The agreement between the employer and the individual employee must also:
(a) be in writing, name the parties to the agreement and be signed by the employer and the individual employee and, if the employee is under 18 years of age, the employee’s parent or guardian;
(b) state each term of this award that the employer and the individual employee have agreed to vary;
(c) detail how the application of each term has been varied by agreement between the employer and the individual employee;
(d) detail how the agreement results in the individual employee being better off overall in relation to the individual employee’s terms and conditions of employment; and
(e) state the date the agreement commences to operate.
7.5 The employer must give the individual employee a copy of the agreement and keep the agreement as a time and wages record.
7.6 Except as provided in clause 7.4(a) the agreement must not require the approval or consent of a person other than the employer and the individual employee.
7.7 An employer seeking to enter into an agreement must provide a written proposal to the employee. Where the employee’s understanding of written English is limited the employer must take measures, including translation into an appropriate language, to ensure the employee understands the proposal.
7.8 The agreement may be terminated:
[7.8(a) varied by PR542239 ppc 04Dec13]
(a) by the employer or the individual employee giving 13 weeks ‘notice of termination, in writing, to the other party and the agreement ceasing to operate at the end of the notice period; or
(b) at any time, by written agreement between the employer and the individual employee.
[Note inserted by PR542239 ppc 04Dec13]
Note: If any of the requirements of s.144(4), which are reflected in the requirements of this clause, are not met then the agreement may be terminated by either the employee or the employer, giving written notice of not more than 28 days (see s.145 of the Fair Work Act 2009 (Cth)).
[New 7.9 inserted by PR542239 ppc 04Dec13]
7.9 The notice provisions in clause 7.8(a) only apply to an agreement entered into from the first full pay period commencing on or after 4 December 2013. An agreement entered into before that date may be terminated in accordance with clause 7.8(a),subject to four weeks ‘notice of termination.
[7.9 renumbered as 7.10 by PR542239 ppc 04Dec13]
7.10 The right to make an agreement pursuant to this clause is in addition to, and is not intended to otherwise affect, any provision for an agreement between an employer and an individual employee contained in any other term of this award.
…
10. Types of employment
10.1 Employees under this award will be employed in one of the following categories:
(a) full-time;
(b) part-time; or
(c) casual.
10.2 At the time of engagement an employer will inform each employee of the terms of their engagement and in particular whether they are to be full-time, part-time or casual.
11. Full-time employment
A full-time employee is an employee who is engaged to work an average of 38 ordinary hours per week.
…
18. Work organisation
Employees must undertake duties as directed within the limits of their competence and may undertake duties across the different streams contained in the classification definitions in Schedule B—Classification Structure and Definitions.
19. Classifications
The definitions of the classification levels in clause 20—wages, are contained in Schedule B—Classification Structure and Definitions.
20. Minimum wages
[Varied by PR998019,PR509150,PR522981,PR536784,PR544294,PR551707]
20.1 General
[20.1 varied by PR998019,PR509150,PR522981,PR536784,PR551707 ppc 01Jul14]
An adult employee within a level specified in the following table (other than an apprentice) will be paid not less than the rate per week assigned to the classification, as defined in Schedule B—Classification Structure and Definitions, for the area in which such employee is working.
Classification
Minimum weekly wage
Minimum hourly wage

$
$
Introductory level
640.90
16.87
Level 1:
659.40
17.35
Food and beverage attendant grade 1


Kitchen attendant grade 1


Level 2:
684.70
18.02
Food and beverage attendant grade 2


Cook grade 1


Kitchen attendant grade 2


Clerical grade 1


Storeperson grade 1


Door person/security officer grade 1


Level 3:
708.20
18.64
Food and beverage attendant grade 3


Cook grade 2


Kitchen attendant grade 3


Clerical grade 2


Storeperson grade 2


Timekeeper/security officer grade 2


Handyperson


Level 4:
746.20
19.64
Food and beverage attendant grade 4 (tradesperson)


Cook grade 3 (tradesperson)


Clerical grade 3


Storeperson grade 3


Level 5:
793.00
20.87
Food and beverage supervisor


Cook grade 4 (tradesperson)


Clerical supervisor


Level 6:
814.20
21.43
Cook grade 5 (tradesperson)



27. Payment of wages
27.1 Except upon the termination of employment, all wages including overtime must be paid on any day other than Friday, Saturday or Sunday in each week. However, by agreement between the employer and the majority of employees in the workplace, in a week where a holiday occurs payment of wages may be made on Friday.
27.2 The employer will pay the employee’s wages, penalties and allowances weekly, fortnightly or, by agreement, monthly by cash, cheque or by electronic funds transfer into the employee’s nominated bank account, without cost to the employee.
27.3 Employees whose rostered day off falls on pay day must be paid their wages, if they so desire, before going off duty on the working day prior to their day off. Provided that this provision will not apply to employees paid by electronic funds transfer.
27.4 When notice of termination of employment has been given by an employee or an employee’s services have been terminated by an employer, payment of all wages due must be made during working time, prior to the employee leaving their employment.
27.5 Where an employee is dismissed for misconduct the employee must be paid within one hour of their dismissal or as soon as practicable thereafter.
28. Annualised salary arrangements
28.1 Alternative method of payment—annual salary
(a) As an alternative to being paid by the week, by agreement between the employer and an individual employee, an employee other than a casual, can be paid at a rate equivalent to an annual salary of at least 25% or more above the weekly rate prescribed in clause 20—Minimum wages, multiplied by 52 for the work being performed. In such cases, there is no requirement under clauses 24.2,33—Overtime,34.1 and 34.2 to pay overtime and penalty rates in addition to the weekly wage, provided that the salary paid over a year was sufficient to cover what the employee would have been entitled to if all award overtime and penalty rate payment obligations had been complied with.
(b) Provided further that in the event of termination of employment prior to completion of a year, the salary paid during such period of employment must be sufficient to cover what the employee would have been entitled to if all award overtime and penalty rate payment obligations had been complied with.
(c) An employee being paid according to this clause will be entitled to a minimum of eight days off per four-week cycle. Further, if an employee covered by this clause is required to work on a public holiday, such employee will be entitled to a day off instead of public holidays or a day added to the annual leave entitlement.
28.2 The employer must keep all records relating to the starting and finishing times of employees to whom this clause applies. This record must be signed weekly by the employee. This is to enable the employer to carry out a reconciliation at the end of each year comparing the employee’s ordinary wage under this award and the actual payment. Where such a comparison reveals a shortfall in the employee’s wages, then the employee must be paid the difference between the wages earned under the award and the actual amount paid.
31. Hours of work
31.1 The hours of work of a full-time employee are an average of 38 per week over a period of no more than four weeks.
31.2 The arrangement of ordinary hours must meet the following conditions:
(a) a minimum of six hours and a maximum of 11 and a half hours may be worked on any one day. The daily minimum and maximum hours are exclusive of meal break intervals;
(b) an employee cannot be rostered to work for more than 10 hours per day on more than three consecutive days without a break of at least 48 hours;
(c) no more than eight days of more than 10 hours may be worked in a four-week period;
(d) an employee must be given a minimum break of 10 hours between the finish of ordinary hours of work on one day and the commencement of ordinary hours of work on the next day. In the case of a changeover of rosters the minimum break must be eight hours;
(e) an employee must be given a minimum of eight full days off per four-week period; or
(f) an employee under the age of 18 years must not be required to work more than 10 hours in a shift.
31.3 Make-up time means an arrangement under which an employee takes time off during the employee’s ordinary hours of work and makes up that time later. The employer and a majority of employees in a workplace may agree to introduce make-up time subject to the following conditions:
(a) subject to such agreement, an employee may elect, with the consent of the employer, to work make-up time;
(b) make-up time arrangements must comply with the conditions set out in clause 32—Breaks and clause 34—Penalty rates;
(c) the employer must record make-up time arrangements as time and wages records; and
(d) any disputes in relation to the practical application of this clause may be dealt with in accordance with clause 9—Dispute resolution.
31.4 Spread of hours
Where broken shifts are worked the spread of hours can be no greater than 12 hours per day.
31.5 Minimum break between shift
The roster for all employees other than casuals will provide for a minimum 10 hour break between the finish of ordinary hours on one day and the commencement of ordinary hours on the following day. In the case of changeover of rosters, eight hours will be substituted for 10 hours.
31.6 Roster
(a) A roster for full-time and part-time employees showing normal starting and finishing times and the surname and initials of each employee will be prepared by the employer and will be posted in a conspicuous place accessible to the employees concerned.
(b) The roster will be alterable by mutual consent at any time or by amendment of the roster on seven days ‘notice. Where practicable, two weeks ‘notice of rostered day or days off should be given provided that the days off may be changed by mutual consent or through sickness or other cause over which the employer has no control.
32. Breaks
32.1 If an employee, including a casual employee, is required to work for five or more hours in a day the employee must be given an unpaid meal break of no less than 30 minutes. The break must be given no earlier than one hour after starting work and no later than six hours after starting work.
32.2 If the unpaid meal break is rostered to be taken after five hours of starting work, the employee must be given an additional 20 minute paid meal break. The employer must allow the employee to take this additional meal break no earlier than two hours after starting work and no later than five hours after starting work.
32.3 If an employee is not given the unpaid meal break at the time the employer has told the employee it will be given; the employer must pay the employee 150% of the employee’s ordinary base rate of pay from the time the meal break was to commence until either the meal break is given or the shift ends.
32.4 If clause 32.3 does not apply and an employee is not given a meal break in accordance with clause 32.1 the employer must pay the employee 150% of the employee’s ordinary base rate of pay from the end of six hours until either the meal break is given or the shift ends.
32.5 If an employee is required to work more than five hours after the employee is given the unpaid meal break, the employee must be given an additional 20 minute paid break.
32.6 If a full-time or regular part-time employee is required to work more than 10 ordinary hours in the day, the employee will be given two additional 20 minute paid breaks. In rostering for these breaks, the employer must make all reasonable efforts to ensure an even mix of work time and breaks.
32.7 If an employee is required to work more than two hours’ overtime after completion of the employee’s rostered hours, the employee must be given an additional 20 minute paid break.
33. Overtime
33.1 Requirement to pay overtime rates
(a) Full-time and part-time employees are paid at overtime rates for any work done outside of the spread of hours or rostered hours set out in clause 31—Hours of work.
(b) In addition, part-time employees are paid at overtime rates in the circumstances specified in clause 12.7.
33.2 Overtime rates
The overtime rate payable to an employee depends on the time at which the overtime is worked.
(a) Monday to Friday:150% of the employee’s ordinary base rate of pay for the first two hours of overtime then 200% of the employee’s ordinary base rate of pay for the rest of the overtime.
(b) Between midnight Friday and midnight Saturday:175% of the employee’s ordinary base rate of pay for the first two hours of overtime then 200% of the employee’s ordinary base rate of pay for the rest of the overtime.
(c) Between midnight Saturday and midnight Sunday:200% of the employee’s ordinary base rate of pay for all time worked.
(d) On a rostered day off:200% of the employee’s ordinary base rate of pay for all time worked. The employee must be paid for at least four hours’ even if the employee works for less than four hours.
33.3 Overtime worked on any day stands alone.
33.4 Breaks after working overtime
If starting work at the employee’s next rostered starting time would mean that the employee did not receive a full eight-hour break, then:
(a) the employee may, without loss of pay, start work at such a later time as is necessary to ensure that the employee receives a break of at least eight hours; or
(b) the employer must pay the employee overtime rates for all work performed until the employee has received a break of at least eight hours.
33.5 Time off instead of payment for overtime
(a) Despite clause 33.1 an employee may choose, with the consent of the employer, to take time off instead of payment for overtime at a time or times agreed with the employer. This agreement must be in writing. The employee must take the time off within four weeks of working the overtime.
(b) If an employee takes time off instead of payment for overtime then the amount of time off is to be equivalent to the pay the employee would have otherwise received for working the overtime.
(c) If requested by an employee an employer must, within one week of receiving a request, pay the employee for any overtime worked. The employee must be paid at overtime rates.
34. Penalty rates
[Varied by PR543062,PR551382]
34.1 Penalty rates for work on weekends and public holidays
[34.1 substituted by PR551382 pcc 01Jul14]
An employee working ordinary time hours on the following days will be paid the following percentage of the minimum wage in clause 20—Minimum wages for the relevant classification:
Type of employment
Monday to Friday
Saturday
Sunday
Public holidays

%
%
%
%
Full-time and part-time
100
125
150
250
Casual Introductory Level,
Level 1, Level 2
(inclusive of 25% casual loading)
125
150
150
250
Casual Level 3 to Level 6
(inclusive of casual 25% loading)
125
150
175
250
34.1A Special condition regarding existing employees
No existing employee classified as Level 3 or above shall be moved down to pay grade Levels 1 or 2 or be discriminated against in the allocation of work as a result of the variation of clause 34.1 by the Full Bench of the Fair Work Commission in proceedings number C2013/6610.
34.2 Additional payment for work done between the hours of 10.00 pm to 7.00 am on Monday to Friday
(a) An employee, including a casual, who is required to work any of their ordinary hours between the hours of 10.00 pm and midnight Monday to Friday inclusive, or between midnight and 7.00 am Monday to Friday inclusive, must be paid an additional amount per hour calculated according to the following:
(i) Between 10.00 pm and midnight
●For each hour or part of an hour worked during such times—10% of the standard hourly rate per hour extra.
(ii) Between midnight and 7.00 am
●For each hour or part of an hour worked during such times—15% of the standard hourly rate per hour extra.
(b) For the purposes of this clause midnight will include midnight Sunday.
34.3 Penalty rates not cumulative
Except as provided in clause 32—Breaks, where time worked is required to be paid at more than the ordinary rate such time will not be subject to more than one penalty, but will be subjected to that penalty which is to the employee’s greatest advantage.
34.4 Additional provisions for work on public holidays
(a) An employee other than a casual working on a public holiday must be paid for a minimum of four hours’ work.
(b) A casual employee working on a public holiday must be paid for a minimum of two hours’ work.
(c) Employees who work on a prescribed holiday may, by agreement, perform such work at a rate of 150% of the relevant minimum wage in clause 20—Minimum wages, rather than the penalty rate prescribed in clause 34.1,provided that equivalent paid time is added to the employee’s annual leave or one day instead of such public holiday will be allowed to the employee during the week in which such holiday falls. Provided further that such holiday may be allowed to the employee within 28 days of such holiday falling due.
[34.4(d) varied by PR543062 ppc 10Oct13]
(d) An employee other than a casual working on Christmas Day when it falls on a weekend and it is not a prescribed public holiday must be paid an additional loading of 50% of their ordinary time rate for the hours worked on that day and will also be entitled to the benefit of a substitute day.
…
Schedule B—Classification Structure and Definitions

[Schedule B varied by PR508273,PR551382]

B.3 Kitchen
B.3.1 Kitchen attendant grade 1 means an employee engaged in any of the following:
(a) general cleaning duties within a kitchen or food preparation area and scullery, including the cleaning of cooking and general utensils used in a kitchen and restaurant;
(b) assisting employees who are cooking;
(c) assembly and preparation of ingredients for cooking; and
(d) general pantry duties.
B.3.2 Kitchen attendant grade 2 means an employee who has the appropriate level of training, and who is engaged in specialised non-cooking duties in a kitchen or food preparation area, or supervision of kitchen attendants.
B.3.3 Kitchen attendant grade 3 means an employee who has the appropriate level of training including a supervisory course, and has the responsibility for the supervision, training and co-ordination of kitchen attendants of a lower grade.
B.3.4 Cook grade 1 means an employee who carries out cooking of breakfasts and snacks, baking, pastry cooking or butchering.
B.3.5 Cook grade 2 means an employee who has the appropriate level of training and who performs cooking duties such as baking, pastry cooking or butchering.
B.3.6 Cook grade 3 (tradesperson) means a commi chef or equivalent who has completed an apprenticeship or who has passed the appropriate trade test or who has the appropriate level of training, and who is engaged in cooking, baking, pastry cooking or butchering duties.
B.3.7 Cook grade 4 (tradesperson) means a demi chef or equivalent who has completed an apprenticeship or who has passed the appropriate trade test or who has the appropriate level of training and who is engaged to perform general or specialised cooking, butchering, baking or pastry cooking duties and/or supervises and trains other cooks and kitchen employees.
B.3.8 Cook grade 5 (tradesperson) means a chef de partie or equivalent who has completed an apprenticeship or has passed the appropriate trade test or who has the appropriate level of training in cooking, butchering or pastry cooking and who performs any of the following:
(a) general and specialised duties including supervision or training of other kitchen staff;
(b) ordering and stock control; and
(c) solely responsible for other cooks and other kitchen employees in a single kitchen establishment.



Schedule III Table of Calculations in M 47/2016



Tue
Tue
Tue
Tue

Wed
Wed
Wed
Wed

Thur
Thur
Thur
Thur

Fri
Fri
Fri
Fri

Sat
Sat
Sat
Sun
Sun
Total

A
B
C
D
E
F
G
H
I
J
K
L
M
N
O

Q
R
S
T

V
W
X
Z
AA
BB
1
25/11–30/11
2
5.6
2
1.4

2
5.6
2
4

2
5.6
2
.4

2
5.6
2
2.4

7.6
2
2.4
7.6
5.4

2
2/12-7/12
2
5.6
2
2.9

2
5.6
2
1.4

2
5.6
2
2.9

2
5.6
2
2.65

7.6
2
2.9
7.6
6.65

3
9/12-14/12
1
6.6
2
0.15

2
5.6
2
1.4

2
5.6
2
2.9

2
5.6
2
1.95

7.6
2
1.23
7.6
2.9

4
16/12-21/12
2
5.6
2
2.15

2
5.6
2
1.73

1.66
5.94
2
2.81

2
5.6
2
2.73

7.6
2
2.4
7.6
2.06

5
23/12-28/12
1.83
5.77
2
3.23

2.33
3.27
2
0.4

0
0
0
0

0
0
0
0

7.6
2
2.7
7.6
2.7

6
30/12-4/1
2
5.6
2
1.4
-
2
5.6
2
1.06

0
0
0
0

2
5.6
2
1.65

7.6
2
1.9
7.6
.9

7
6/1-11/1
1.75
5.85
2
0.65

2
5.6
2
1.23

2
7.6
2
1.65

1.66
5.94
2
.9

7.6
2
1.65
7.6
2.4

8
3/1-18/1
2
5.6
2
0

2
5.6
2
0.9

1.5
6.1
2
1.4

1.5
6.1
2
2.4

7.6
2
1.65
7.6
1.66

9
20/1-25/1
1.66
5.94
1.73
0

1.75
5.85
2
0.81

2
5.6
2
1.4

1.75
5.85
2
.4

7.6
2
1.73
7.6
.9

10
29/1-1/2
2
5.6
1.4
0

1.66
5.94
2
2.73

2.66
5.27
2
1.23

2
5.6
2
0.4

7.6
1.9
0
7.6
1.4

11
3/2-8/2
1.75
5.85
2
.4

1
6.6
1.9
0

1.83
5.77
2
2.25

2
5.6
2
2.9

7.6
2
0.56
0
0

12
19/2-14/2
1
6.6
2
3.73

1.5
6.1
2
2.06

1.66
5.94
2
3.4

2
5.6
2
4.06

7.6
2
1.15
0
0

13
17/2-21/2
2
5.6
2
1.73

2
5.6
2
2.4

1.66
5.94
2
3.9

1.66
5.94
2
0.56

7.6
2
0.4
0
0

14
24/2-28/2
1.5
6.1
2
0.56

1.5
5.6
1.9
0

2
5.6
2
1.15

1.66
5.94
2
1.73

7.6
2
0.9
0
0

15
3/3-7/3
2.75
4.85
2
0.56

2.66
4.94
2
3.4

3
4.6
2
2.9

3.75
3.85
2
0.31

7.6
1.48
0
0
0

16
10/3-14/3
1.5
6.1
2
0.15

2.56
5.6
2
4

5
2.6
1.23
0

2
5.6
1.7
0

7.6
2
.4
0
0

17
17/3-20/3
1.75
5.85
1.38
0

3.5
4.1
1.06
0

1.5
6.1
2
1.4

1.66
1.66
0
0

0
0
0
0
0

𝟏8
Total hours


32.51
19.01



32.86
27.52



29.23
29.69



29.7
25.04


31.38
21.97

26.97

19
Reduced 1hr OT


15.51




15.86




14.23




14.7



15.38


19.97

20
Rate


1.5
2



1.5
2



1.5
2



1.5
2


1.75
2

2

21
Overtime


23.26
38.02



23.79
55.04



21.34
59.38



22.05
50.08


26.91
43.94

39.94
403.75
22
Public Hol

























3.9
23
Total Hrs

























407.65
24
@ $20.87

























8507.65

Note: In addition, 26/12/14 was a Public Holiday and AB worked 12.5 hours. Clause 34.1 provides for a rate of 250% for those hours. 12.5 minus 7.6 = 4.9 hours overtime, reduced by one hour = 3.9 hours at 250%.