2021 WAIRC 00164
WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT


CITATION : 2021 WAIRC 00164

CORAM
: INDUSTRIAL MAGISTRATE J. HAWKINS

HEARD
:
THURSDAY, 25 FEBRUARY 2021

DELIVERED : THURSDAY, 17 JUNE 2021

FILE NO. : M 87 OF 2020

BETWEEN
:
KATHERINE GILBERT
CLAIMANT

AND

JENBELLA PTY LTD T/A MAYFAIR PROPERTY SERVICES (ACN: 141 085 289)
FIRST RESPONDENT

AND

CLINT CEDAIR EVANS
SECOND RESPONDENT

CatchWords : INDUSTRIAL LAW – Preliminary issue which affects jurisdiction – Identity of employer – company or natural person
Legislation : Real Estate and Business Agents Act 1978 (WA)
Fair Work Act 2009 (Cth)
Industrial Relations Act 1979 (WA)
Magistrates Court (Civil Proceedings) Act 2004 (WA)
Instruments : Real Estate Industry Award 2020 (Cth)
Case(s) referred
to in reasons: : Black Box Control Pty Ltd v Terravision Pty Ltd [2016] WASCA 219
Ermogenous v Greek Orthodox Community of SA Inc (2001) 209 CLR 95
Fair Work Ombudsman v Eastern Colour Pty Ltd [2011] FCA 803
New Image Photographs Pty Ltd v Fair Work Ombudsman [2013] FCA 1385
Pitcher v Langford (1991) 23 NSWLR 142
Shaw v Bindaree Beef Pty Ltd [2007] NSWCA 125
Taylor v Johnson (1983) 151 CLR 422
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165
Tomko v Palasty [2007] NSWCA 258
Mildren v Gabbusch [2014] SAIRC 15
Miller v Minister of Pensions [1947] 2 All ER 372
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Result : The claim is dimissed
REPRESENTATION:

CLAIMANT : IN PERSON
RESPONDENTS : MR C. EVANS

REASONS FOR DECISION ON PRELIMINARY ISSUE
Introduction
1 In the flurry of starting a new career and employing someone details are often missed in the documents that are signed by the parties. This dispute is one such example.
2 What is not in dispute is that an employment contract (the Contract) was entered into with Ms Katherine Gilbert (Ms Gilbert). Mr Clint Evans (Mr Evans) was a licensed real estate agent at the material time and presently he holds a triennial certificate under the Real Estate and Business Agents Act 1978 (WA) (REBA Act). Under that triennial certificate he is entitled to carry on the business of a real estate and business agent under the name of Mayfair WA Property Services. Affidavit of Mr Evans sworn 31 May 2021 – REBA Triennial Certificate.
Mayfair WA Property Services is a business name and not a legal entity. Affidavit of Mr Evans sworn 31 May 2021 – Business Name Record of Registration.
Mr Evans is also a director of Jenbella Pty Ltd (Jenbella). What is in dispute is with whom Ms Gilbert has the Contract. Ms Gilbert says she was employed by Jenbella whereas Jenbella and Mr Evans say she was employed by Mr Evans.
3 Ms Gilbert claims that, despite the Contract referring to her being entitled to be paid on ‘Commission Only’ as a sales executive, she is entitled to be paid in the period from 11 February 2019 to 24 March 2020 as a ‘Real Estate Employee Level 2’ under the Real Estate Industry Award 2020 (Cth) (the Award). As a result, Ms Gilbert makes her claim under the Fair Work Act 2009 (Cth) (FW Act).
4 Jenbella and Mr Evans, however, submit that Ms Gilbert was employed by Mr Evans. Mr Evans says that in pre-employment discussions with Ms Gilbert, he made clear that he could employ her in his capacity as a sole trader and on a commission only basis. As such Mr Evans and Jenbella submit that Ms Gilbert is not entitled to pursue a claim under the FW Act and if any claim arises it is under the Industrial Relations Act 1979 (WA) and not under the FW Act.
5 The identity of Ms Gilbert’s employer affects which jurisdiction of the Western Australian Industrial Magistrates Court (IMC) applies, i.e. whether it is state or federal jurisdiction.
6 The confusion as to the correct identity of Ms Gilbert’s employer in part is because:
(a) The Contract states that it is between ‘Mayfair WA Property Services, A.C.N: 141 085 289’ and Ms Gilbert. Obviously, Mayfair WA Property Services is not a legal entity, but a trading or business name. The holder’s name for Mayfair WA Property Services is Mr Evans’. Affidavit of Ms Gilbert sworn 15 May 2021 – ASIC Business Name search; Affidavit of Mr Evans sworn 31 May 2021 – ASIC Record of Registration Business Name.

(b) The Australian Company Numbers (ACN) ‘141 085 289’ referred to in the Contract is the ACN for Jenbella. Exhibit 2 – Claimant’s Bundle of Documents, Document LS 8, 1.
Jenbella’s Australian Business Number (ABN) is 24 141 085 289. Exhibit 2, Document LS 8, 3.

(c) Throughout the terms and conditions of the Contract the employer is referred to as ‘Mayfair Property Services’ which is the trading and business name for Jenbella.
(d) The business and trading name for Jenbella is Mayfair Property Services. Affidavit of Ms Gilbert sworn 15 May 2021 – ASIC Business Name for Jenbella.

7 The signing clause of the Contract states:
PARTIES TO THE CONTRACT:
The parties to this contract are:
Clint Evans
Licensee/Principal
On behalf of Mayfair WA Property Services
8 Both parties also rely on pre-contract and post-contract evidence.
9 The jurisdiction and practice and procedure of the IMC under the FW Act is set out in sch 1 of these reasons.
10 As a result, a preliminary issue arose as to jurisdiction. If Ms Gilbert was employed by Jenbella then the jurisdiction of the IMC under the FW Act may be enlivened. Ms Gilbert has made her claim pursuant to the FW Act. However, if Mr Evans employed Gilbert, then Ms Gilbert’s claim must be dismissed as Mr Evans is not a ‘national system employer’ as defined in the FW Act.
11 Ms Gilbert has made her claim against both Jenbella and Mr Evans, under the FW Act. However, Ms Gilbert has not particularised how any claim against Mr Evans arises under the FW Act.
12 The preliminary issue was the subject of a hearing. Following that hearing the parties lodged further evidence by affidavit in May 2021.
Issue:
13 The preliminary issue that affects which jurisdiction applies (state or federal) requires determining who employed Ms Gilbert: Jenbella or Mr Evans?
Findings Of Fact:
14 Both parties were self-represented and to a large extent their evidence was not divergent. Both agreed that in early 2019 Ms Gilbert approached Mr Evans as she was looking for employment as a real estate agent. The only difference is that Mr Evans suggested that Ms Gilbert approached him in February 2019, whereas the documentary evidence shows that approach was made in or about 23 January 2019. Exhibit 3 – Witness Statement of Mr Evans, Document 14.
I do not consider much turns on this discrepancy.
15 Following that meeting, Mr Evans emailed Ms Gilbert on 24 January 2019, which states:
Hi Katherine
Following on my sms earlier. As stated because I am a sole trader I am not obliged to pay the level 1 entry income of $753.70.
I can offer you a sales position based on commission only which would equate to;
70% on any sales, as an example:
Property sold at $350,000 at 2% comm would be $7,000 + gst $7,700 (you can charge more comm; to the client if you want)
70% to you of the $7,000 = $4900 which is incl: of super paid directly to your nominated account.
As a company I do not deduct any office costs for photocopier, stationery, phones or desk space.
There is also 15% for any financial referrals paid directly to you from Nectar Mortgages.
The advertising of $1,100 covers all advertising on major websites & on realestate.com.au features as a highlighted property, the rest covers professional photography, boards, brochures etc.
I will supply to you as much as possible including your first 250 Bus: Cards, home open directional signs. Reiwa membership fees will be covered for the period of your employment.
During your period of employment as you are on comm: only, there are no set hours for your working week.
Regarding personal advertising, I would suggest allow yourself a $1,000 per month.
Let me know if you have any questions or again if you wanted to pop into the office for another chat by all means give me a call.
Kind regards
Clint Evans
16 There is no dispute that during the first meeting between Ms Gilbert and Mr Evans, Ms Gilbert provided him with her resume and advised she had recently obtained her real estate license and was looking for employment.
17 Mr Evans then had discussions with the Department of Mines, Industry Regulation and Safety (DMIRS) and was advised that because he was registered as a sole trader, Clint Cedair Evans trading as Mayfair WA Property Services, he could offer Ms Gilbert employment on a commission only basis. Mr Evans confirmed this in cross-examination. Transcript, 45.

18 Accordingly, Mr Evans proposed an offer of employment as set out in the email of 24 January 2019. See [14] of these reasons.
It is signed by Mr Evans as ‘Director/Licensee’.
19 Following acceptance of that offer, the Contract was then signed by Ms Gilbert and Mr Evans. A copy of the Contract is annexed to these reasons at sch 2. The Contract states that it is between ‘Mayfair WA Property Services, A.C.N: 141 085 289’ and Ms Gilbert. Mayfair WA Property Services is not a legal entity and cannot be sued. The Contract is signed by Ms Gilbert, and Mr Evans as ‘Licensee/Principal’. The Contract is typed on Mayfair Property Services letterhead wherein it refers to ‘Licensee: Clint Evans T/A Mayfair WA Property Services Licensed Real Estate & Business Brokers ABN: 24 141 085 289’. The ABN 24 141 085 289 is the ABN for Jenbella. In addition, in the terms and conditions of the Contract reference is made entirely to the employment being with Mayfair Property Services, confusingly.
20 As previously stated, Mayfair Property Services is the trading name of Jenbella.
21 This is not a case where the Contract clearly stated it was entered into between Jenbella and Ms Gilbert.
22 The only means of accessing the jurisdiction of the IMC under the FW Act is if Ms Gilbert can show, amongst other things, that she entered into a contract of employment with a ‘constitutional corporation’ as defined under the FW Act, See sch 1 of these reasons sets out the jurisdiction of the IMC under the FW Act.
i.e. with Jenbella.
23 The Australian Securities and Investments Commission (ASIC) search documents produced by Ms Gilbert for Jenbella Exhibit 2, Document LS 8, 1.
show that Jenbella was registered on 11 December 2009. The ASIC searches show that:
· Jenbella’s ACN number is 141 085 289;
· Jenbella’s ABN is 24 141 085 289; and
· Mr Evans is the sole director. Exhibit 2, Document LS 8 (2 - 6).

24 The ASIC search for ABN 24 141 085 289 shows the ‘Entity name’ is Jenbella but the business and trading names is ‘Mayfair Property Services’. Exhibit 1 – Witness Statement of Ms Gilbert, Document 19.
The ABN 24 141 085 289 for Jenbella is the ABN shown on the letterhead upon which the Contract is typed. The letterhead states:
Licensee: Clint Evans T/A
Mayfair WA Property Services
Licensed Real Estate &
Business Brokers
ABN: 24 141 085 289
25 Accordingly, the Contract referred to Ms Gilbert’s employer as Mayfair WA Property Services but then referred to the ACN of Jenbella. It was signed by Mr Evans who is the sole director of Jenbella. Further, it was typed on ‘Mayfair Property Services’ letterhead, which refers to the ABN of Jenbella. However, throughout the Contract, it made references to Mayfair Property Services rather than Mayfair WA Property Services.
26 Ms Gilbert also relies on a range of post-contractual documents being:
(a) The pay slips which record payments made to her during the employment period. Exhibit 1, Documents 7 - 8.
Both pay slips refer to Jenbella. The pay slips also refer to ABN 24 141 085 289 being Jenbella’s ABN.
(b) A printout of her superannuation statement from her employer. This shows that the payment of her superannuation for the period 21 December 2019 to 3 January 2020 was made by Jenbella. Exhibit 2, Document LS 5.

(c) An Australian Tax Office (ATO) document completed by Mr Evans on or about 2 July 2019. Exhibit 1, Document 6.
In that document the payer is described as Mayfair WA Property Services and the ABN number is 24 141 085 289, that being the ABN number for Jenbella. Exhibit 1, Document 19.

27 The only area where there was key divergence between Ms Gilbert and Mr Evans was whether, in the meeting prior to the offer of employment, Mr Evans indicated he was a sole trader and as such he could not afford to pay Ms Gilbert pursuant to the federal fair work system under the Award.
28 Mr Evans maintains that he made clear to Ms Gilbert that as he was a sole trader and as per his conversation with DMIRS he may be able to offer Ms Gilbert employment on a commission only basis. Ms Gilbert disputes what was said, however, does not dispute that a contract based on commission only basis was discussed. Ms Gilbert also agreed that in Mr Evans’ email dated 24 January 2019 she understood that Mr Evans was offering her employment in his capacity as a sole trader. In cross-examination it was put to Mr Evans that he decided to tell Ms Gilbert that he was a sole trader to avoid paying her pursuant to the Award. This question of itself was inconsistent with Ms Gilbert’s assertion that she was not told Mr Evans was a sole trader. Mr Evans denied the assertion and continued to maintain he only intended to employ Ms Gilbert in his capacity as a sole trader on a commission only basis. Further, clearly the email to Ms Gilbert of the offer of employment, set out at [15], refers to Mr Evans as a sole trader, not being obliged to pay Ms Gilbert as a level 1 entry income of $753.70.
29 In addition, the Contract refers to Ms Gilbert being paid on a commission only basis and not pursuant to the Award.
30 Given that the contemporaneous documentation supports Mr Evans, I was not persuaded by Ms Gilbert that she was not told Mr Evans was a sole trader and would only be able to offer her work on a commission only basis.
31 Mr Evans maintained that the only purpose of Jenbella was to register a business partner who wanted to invest in Mayfair Property Services and remain anonymous. Further, he suggested that the reference to Jenbella on payments made to Ms Gilbert was largely related to changes made by the ATO in reporting of salary payments. Mr Evans suggested that to do this he used the software known as ‘MYOB’ and this only worked if an ACN was registered for that software.
32 Mr Evans evidence emphasised the legislative regime under REBA Act that he was authorised to act as a real estate agent and that this required him to employ Ms Gilbert himself. Mr Evans had the authority to act as a real estate agent because of a triennial certificate, which was only given to him in his name and allowed him to operate his real estate agent’s business only in the name, Mayfair WA Property Services.
33 Further, s 55 of REBA Act makes clear that a sales representative is to be in the service of only one person. Accordingly, the legislative regime under which Ms Gilbert was entitled to act as a sales representative required her to be employed by the holder of a current triennial certificate, which in this case, was held by Mr Evans, not Jenbella.
34 In addition, s 44(2) of REBA Act creates an offence for a real estate sales representative who holds themselves out ‘as being in the employment of or as acting for or on behalf of a licensee who is the holder of a current triennial certificate’ unless that licensee is his/her employer. In this case the triennial certificate under which Ms Gilbert was entitled to hold herself out as a sales representative was in Mr Evans’ name and not in the name of Jenbella. In fact, there is no evidence that at the material time Jenbella as an entity held a triennial certificate.
35 Mr Evans also gave evidence that his trust accounts are audited in the name of ‘Clint Cedair Evans’ and under the business name of ‘Mayfair WA Property Services’. This again lends weight to Mr Evans’ evidence that his business as a real estate agent required him to operate it himself using the business name of Mayfair WA Property Services.
36 This legislative regime under REBA Act lends considerable weight to Mr Evans’ evidence that Ms Gilbert was employed by Mr Evans and not Jenbella
Issue: Who Employed Ms Gilbert – Jenbella Or Mr Evans?
37 The issue of identity of an employer has been dealt with in Fair Work Ombudsman v Eastern Colour Pty Ltd [2011] FCA 803 [75] (Eastern Colour) which states:
75 In circumstances where there are multiple possible employers of a person, the traditional approach of the Courts is to endeavour to determine which is the actual employer, by applying principles developed for determining whether there is an employment relationship: Pitcher v Langford (1991) 23 NSWLR 142; Finance Sector Union of Australia v Commonwealth Bank of Australia [2001] FCA 1613 at [60]-[61]. More specifically In the matter of C&T Grinter Transport Services Pty Ltd (In Liquidation) [2004] FCA 1148 Finn J explained relevant principles as follows:
20 The principles to be applied in the identification of the employer of an employee where there are two or more possible employers, are reasonably well settled. For present purposes I would note the following:
(1) A contract of service cannot be transferred by one employer to another or novated as between them without the employee’s consent …
(2) The totality of the circumstances surrounding the relationships of the various parties including conduct subsequent to the creation of an alleged employment relationship is relevant to the assessment to be made: Romero v Auty (2001) 19 AGLC 206 at [10] and [42]-[44].
(3) Documentation created by one or more of the parties describing or evidencing an apparent employment relationship will be relevant to, but not necessarily determinative of, the true character of that relationship: Pitcher v Langford (1991) 23 NSWLR 142; Marrs Fabrics Pty Ltd & Nathan Wholesale Fabrics Pty Ltd v Whipps (1991) 33 AILR 167. In determining the identity of a disputed employer, the Court is entitled to consider ‘the reality of purported contractual arrangements’: Dalgety Farmers Ltd t/a Grazcos v Bruce, NSWCA, 3 August 1995. The documentation may have been brought into existence for other purposes, for example, tax minimisation or the reduction of insurance premiums, without reflecting the reality of the parties relationship: ibid; Pitcher v Langford, at 149; Sharrment Pty Ltd v Official Trustee in Bankruptcy (1988) 18 FCR 449 at 454.
(4) Conversations and conduct at the time of the alleged engagement of the employee is of considerable significance: Romero, at [9]. The beliefs of the employees as to the identity of their employer is admissible and is entitled to weight: Pitcher v Langford.
(5) In cases of the engagement of new employees to work in a business in which a number of separate corporate entities participate otherwise than as partners:
‘... it was open to those controlling the business to select which company should be the employer provided that the selection was consistent with the financial and administrative organisation of the business and was not otherwise a sham.’
See Textile Footwear and Clothing Union of Australia v Bellechic Pty Ltd, FCA, Ryan J, 19 November 1998. (emphasis added)
38 This authority was cited with approval in New Image Photographs Pty Ltd v Fair Work Ombudsman [2013] FCA 1385 [48] - [49].
39 The following observation in Shaw v Bindaree Beef Pty Ltd [2007] NSWCA 125 [59] were made in respect to the decision of Pitcher v Langford (1991) 23 NSWLR 142:
The result in Pitcher v Langford turned on its own facts, and on the need for error in point of law. There is no doubt, however, that without going so far as to find a sham the ‘reality of purported contractual arrangements’ (per Handley JA) can be considered, and the case illustrates that it can extend to the identity of a contracting party and that it can be found that a purported contracting party was not in reality party to the contract even where a written contract gives it as the party.
40 The determination of the entity that entered a contract is based upon an objective assessment of the state of affairs between the parties. See Shaw v Bindaree Beef Pty Ltd [2007] NSWCA 125 [61] - [62].
41 In addition to the principles outlined in Eastern Colour it is also necessary to consider the principles concerning construction of a contract.
42 A contract and its terms should be given the meaning intended by the parties, which is determined objectively by reference to what a reasonable person would have thought the parties intended.
43 The intention of the parties is to be determined objectively, not by reference to actual subjective intent. In Taylor v Johnson (1983) 151 CLR 422.
the majority of the High Court of Australia reaffirmed the objective test by stating:
… the law is concerned, not with the real intentions of the parties, but with the outward manifestations of those intentions.
44 In Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 [40] the High Court of Australia observed:
This Court … has recently reaffirmed the principle of objectivity by which the rights and liabilities of the parties to a contract are determined. It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction.
45 The intention to create legal relations is not a search for the uncommunicated subjective motives or intentions of the parties. Ermogenous v Greek Orthodox Community of SA Inc (2001) 209 CLR 95 [25].

46 This test applies when determining the entity which entered the contract. Shaw v Bindaree Beef Pty Ltd [2007] NSWCA 125 [62].

47 Principles in relation to construction of contracts were summarised in Black Box Control Pty Ltd v Terravision Pty Ltd. [2016] WASCA 219 [14].

48 Post-contractual conduct can be admissible to determine the identity of the contracting parties. Tomko v Palasty [2007] NSWCA 258.

49 The documents recording payments made to Ms Gilbert was evidence of post-contract conduct and ‘may legitimately be used against a party as an admission by conduct of the existence or non-existence, as the case may be, of a subsisting contract where an issue concerns whether a particular person was a party to that contract’. Tomko v Palasty [2007] NSWCA 258 [68].

50 The evidence that points to Ms Gilbert being employed by Jenbella is that:
(a) The Contract refers to the employer as Mayfair WA Property Services but gives the ACN of 141 085 289. Mayfair WA Property Services is a business or trading name and not a legal entity.
(b) The ACN 141 085 289 is the ACN for Jenbella.
(c) The registered address for Jenbella is ‘Unit 6, 61 Ocean Keys Boulevard, CLARKSON’, being the office of Mayfair WA Property Services.
(d) Further, throughout the Contract it refers to Ms Gilbert’s obligations to Mayfair Property Services. Mayfair Property Services is the trading and business name for Jenbella. Further the Contract specifically makes reference to her employment being with Mayfair Property Services.
(e) All payments made to Ms Gilbert appear to have been from Jenbella.
(f) The PAYG summary completed by Mr Evans on commencement of employment refers to the ABN 24 141 085 289 for which the legal entity is Jenbella.
(g) The superannuation payments made to Ms Gilbert were shown as made from Jenbella.
(h) The letter of employment and offer of employment, was attached to an email signed by Mr Evans as ‘Director/Licensee’. Mr Evans was and is the sole director of Jenbella.
51 The evidence that points to Ms Gilbert being employed by Mr Evans is:
(a) The offer of employment to Ms Gilbert by email dated 24 January 2019. Exhibit 1.
In particular, the comments:
As stated because I am a sole trader I am not obliged to pay the level 1 entry income of $753.70.
I can offer you a sales position based on commission only …
(b) Ms Gilbert’s concession that she understood the offer of employment set out in Mr Evans’ email of 24 January 2019 was she was being offered employment by Mr Evans in his capacity as a sole trader, as opposed to a company.
(c) The Contract states the name of the employing party is Mayfair WA Property Services which is the business name registered to Mr Evans and not to Jenbella.
(d) The Contract makes no direct reference to Ms Gilbert being employed by Jenbella.
(e) The Contract is signed by Mr Evans as ‘Licensee/Principal’ not as director of Jenbella.
(f) The Contract provides that Ms Gilbert is to be paid on a commission only basis, consistent with Mr Evans employing Ms Gilbert directly rather than through Jenbella.
(g) Mr Evans’ triennial certificate as a real estate agent being issued in his name allowing him to operate a real estate agents business using the name of Mayfair WA Property Services and not Jenbella.
(h) The legislative regime under REBA Act only entitled Ms Gilbert to act as a sales representative if she was employed by the holder of a triennial certificate, which in this case was held by Mr Evans, not Jenbella.
(i) Mr Evans’ evidence that the reference on payments made to her referring to Jenbella related to the use of ‘MYOB’ requiring an ACN.
52 The factors in favour of Ms Gilbert being employed by Mr Evans therefore outweigh those that show she was employed by Jenbella. Further, less weight must be given to the post-contract documentation in respect to the payments received by Ms Gilbert in circumstances where a plausible explanation was given by Mr Evans as to the reasons why Jenbella is shown on those payments. Further, as previously stated, although the assessment must be an objective one on the totality of the surrounding circumstances, the belief of an employee as to the identity of their employer must be given weight. Ms Gilbert conceded that the offer of employment made to her was being made as Mr Evans as a sole trader. The Contract that followed that offer was in the name of Mayfair WA Property Services, the business name registered to Mr Evans and not Jenbella. Further the Contract was signed by Mr Evans as Licensee/Principal’ and not as director. Nor is there any mention directly that Ms Gilbert was employed by Jenbella. When judged objectively, this evidence lends considerable weight to an objective assessment that it was Mr Evans who employed Ms Gilbert and not Jenbella. Further, the legislative regime under which both Mr Evans and Ms Gilbert operated as licensee and sales representative required Ms Gilbert to be employed by Mr Evans and not Jenbella. It is for those reasons that I am not satisfied Ms Gilbert has proven she was employed by Jenbella. I will therefore order that Ms Gilberts claim against Jenbella be dismissed.
53 The remainder of Ms Gilberts claim is against Mr Evans under the FW Act. Mr Evans is a natural person and does not fall within the definition of ‘national system employer’ as defined in the FW Act. Accordingly, her claim against Mr Evans under the FW Act is dismissed.

Orders:
54 The claim is dismissed.



J. HAWKINS
INDUSTRIAL MAGISTRATE




Schedule 1 – The Jurisdiction, Practice And Procedure Of The Western Australian Industrial Magistrates Court
Jurisdiction and burden of proof
[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 FW Act.
[2] The IMC, being a court constituted by an industrial magistrate, is an ‘eligible State or Territory court’: FW Act s 12 (see definitions of ‘eligible State or Territory court’ and ‘magistrates court’); Industrial Relations Act 1979 (WA) s 81, s 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: FW Act s 544.
[4] The civil penalty provisions identified in s 539 of the FW Act include contravening a term of the NES and failing to pay in full an amount owed under the FW Act: FW Act s 44(1), s 323 respectively.
[5] An obligation upon an ‘employer’ 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’: FW Act s 12, s 14, s 42, s 47. A NES entitlement of an employee 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’: FW Act s 13, s 42, s 47.
Contravention
[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 (emphasis added): FW Act s 545(3)(a).
[7] The civil penalty provisions identified in s 539 of the FW Act includes:
· The Core provisions (including s 44(1) and s 45) set out in pt 2 - 1 of the FW Act: FW Act s 61(2), s 539.
[8] 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 FW Act: FW Act s 545(3).
[9] In contrast to the powers of the Federal Court and the Federal Circuit Court, an eligible State or Territory court has no power to order payment by an entity other than the employer of amounts that the employer was required to pay under the FW Act. For example, the IMC has no power to order that the director of an employer company make payments of amounts payable under the FW Act: Mildren v Gabbusch [2014] SAIRC 15.
Burden and standard of proof
[10] In an application under the FW Act, 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.
[11] In the context of an allegation of the breach of a civil penalty provision of the FW Act it is also relevant to recall the observation of Dixon J said in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences [362].

Schedule 2 – The Contract