2025 WAIRC 00176
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION
:
2025 WAIRC 00176



CORAM
:
INDUSTRIAL MAGISTRATE D. SCADDAN



HEARD
:
THURSDAY, 6 MARCH 2025



DELIVERED
:
FRIDAY, 21 MARCH 2025



FILE NO.
:
M 113 OF 2024



BETWEEN
:
JINCHAO YU


CLAIMANT





AND





BAI WEI XIANG PTY LTD


RESPONDENT

CatchWords : INDUSTRIAL LAW – Small claims procedure under Fair Work Act 2009 (Cth) – Whether the claimant is an employee or an independent contractor – Failure to pay in full for performance of work under Fair Work Act 2009 (Cth) – Failure to pay hourly rates applicable under Restaurant Industry Award 2020
Legislation : Fair Work Act 2009 (Cth)
Taxation Administration Act 1953 (Cth)
Instrument : Restaurant Industry Award 2020
Case(s) referred
to in reasons: : Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; (2022) 275 CLR 165
EFEX Group Pty Ltd v Bennett [2024] FCAFC 35
Jin v Premium Travel Solutions Pty Ltd [2023] FedCFamC2G 22
Metropolitan Health Service Board v Australian Nursing Federation [2000] FCA 784; (2000) 176 ALR 46
Kronen v Commercial Motor Industries Pty Ltd (CMI Toyota) [2008] FCAFC 171; (2008) 171 FCR 521
Textile, Clothing and Footwear Union of Australia v Givoni Pty Ltd [2002] FCA 1406; (2002) 121 IR 250
Regional Express Holdings Ltd v Clarke [2007] FCA 957; (2007) 165 IR 251
Fair Work Ombudsman v Glasshouse Mountains Tavern Pty Ltd [2014] FCCA 1115
Result : The Claim is proven
Representation:
Claimant : Self-represented
Respondent : Ms P. Tan on behalf of the respondent (as a director)



REASONS FOR DECISION
1 Jinchao Yu (the claimant) was engaged as a kitchenhand at a restaurant, King Kong Bar & Restaurant (King Kong), operated by Bai Wei Xiang Pty Ltd (the respondent) from 24 January 2024 to 25 March 2024 (the Employment Period).
2 The primary issue for resolution is the character of the legal relationship between the claimant and the respondent in the Employment Period.
3 The claimant contends he was a casual employee, and the respondent contravened the Fair Work Act 2009 (Cth) (FWA) by failing to pay him in full the wages for time worked at King Kong.
4 The claimant seeks an order under the FWA for the payment of all monies owed for time worked, being $4,360.
5 The claimant elected to commence his claim using the small claims procedure under s 548 of the FWA.
6 The respondent denies the claimant was an employee of the respondent. The respondent contends the claimant was an independent contractor who worked at King Kong for a short period during Chinese New Year. The respondent further says that it has discharged its obligations to the claimant by paying him for all the work done up to 3 March 2024. In respect of the period 4 March 2024 to 25 March 2024, the respondent says the claimant agreed to compensate the respondent for broken equipment and, accordingly, the respondent withheld $2,200 for work done by the claimant during that period.
Procedure of the Industrial Magistrates Court
7 Schedule I of these reasons outlines the law governing the jurisdiction, practice and procedure of the Industrial Magistrates Court of Western Australia (IMC or Court) under the FWA.
8 If the claimant proves on the balance of probabilities that, for the purposes of the FWA, he was an employee of the respondent, then the respondent is a national system employer, and the claimant is a national system employee as those terms are defined under the FWA. An employee is defined as a national system employee. A national system employee is defined to be ‘an individual so far as he or she is employed, or usually employed, [by a] national system employer’ (for instance ‘a constitutional corporation, so far as it employed, or usually employs, an individual’): ss 13, 14 and s 322 of the FWA.
A consequence of if the claimant was an employee of the respondent is that the respondent has obligations under the FWA, including under s 323 of the FWA. That is, if the claimant was an employee of the respondent, he is entitled to receive amounts payable in relation to ‘the performance of work’ in full. Section 323(1)(a) of the Fair Work Act 2009 (Cth) (FWA).

9 A contravention of s 323 of the FWA is a contravention of a civil remedy provision.
The Claimant’s Claim in More Detail
10 On 3 January 2025, the claimant filed and served a witness statement in which he identified that the Restaurant Industry Award 2020 (the Award) covered and applied to his employment where King Kong is in the restaurant industry referring to cl 4.1(a) and cl 4.2 of the Award, and he was employed as a kitchen attendant referring to cl 4.1(b) and Schedule A of the Award.
11 The claimant says he was paid $20 per hour for casual kitchenhand work done during the Employment Period. He says he was never provided with pay slips and he believes the respondent has breached the Award, the FWA and owes him wages.
12 The claimant’s first language is Mandarin. I infer from the originating claim and the content of his witness statement, that the claimant is, in fact, claiming he was not paid in full because he was not paid the correct hourly rate applicable to a casual kitchenhand employed in the restaurant industry under the Award.
13 I am satisfied that when read together, the originating claim and the claimant’s witness statement sufficiently identify the claim, and the respondent has had notice of the claim.
14 Accordingly, if the claimant proves he was an employee of the respondent, the second issue for determination, to be proved by the claimant on the balance of probabilities, is whether the Award covers and applies to his employment and the amount he says he ought to have been paid as a casual kitchenhand during the Employment Period.
Facts Not in Dispute
15 The respondent’s director’s, Ping Tan (Ms Tan), first language is also Mandarin, as is the other respondent’s witness, Xiaogang Feng (Mr Feng), the manager at King Kong. Many of the documents relied upon by both parties were in Mandarin, but both parties had the documents translated to English by a certified translator and attached these documents to their witness statements.
16 Having regard to the content of the witness statements by the claimant, Ms Tan and Mr Feng, and to their oral evidence at trial, it is not disputed the claimant worked at King Kong commencing on 24 January 2024 and ceased on 25 March 2024. King Kong is a restaurant, and the claimant carried out kitchenhand work, predominantly washing dishes and other general duties.
17 On 23 January 2024, text messages between the claimant and Mr Feng indicate that the respondent wanted someone to work at King Kong doing ‘general chores’ and ‘wash dishes’. The start time was 5.00 pm and the finishing time was midnight. The claimant made enquiries about the location and wanted to know the name of the ‘store’ (it was a restaurant). Mr Feng told the claimant to come to an address at 6.00 pm ‘tomorrow’ (being 24 January 2024) and to wear work shoes. The claimant was also told there were several ‘Shandong people’ there. Exhibit 1 – Witness Statement of the claimant at Attachment 2.

18 On 24 January 2024 at 6.04 pm, the claimant sent Mr Feng a text message asking him the name of the ‘store’ and Mr Feng replied it was ‘King Kong Bar’. Exhibit 1 at Attachment 2.

19 On 5 February 2024, Mr Feng sent to the claimant a text message stating: Exhibit 1 at Attachment 2.

Tax Number information
Superannuation information
Bank information
Contact information
Personal information
20 On 8 February 2024, the claimant responded to Mr Feng’s text message, stating: Exhibit 1 at Attachment 2.

Boss, I forgot my TFN (Tax File Number). When I called the [Australian Taxation Office] customer service, I couldn’t remember some of the questions they asked me. Then they told me to reapply for a tax number. They said the ATO issue me one that is the same as before, but it will take at least about two weeks.
21 Mr Feng responded to the claimant as follows: Exhibit 1 at Attachment 2.

First, give me your ABN.
22 The claimant replied: Exhibit 1 at Attachment 2.

ABN: 79556450119
23 Mr Feng stated: Exhibit 1 at Attachment 2.

Your personal information.
24 The claimant then provided in a text message on the same day his bank account details, telephone number and email address. Exhibit 1 at Attachment 2.

25 On 9 February 2024, the respondent transferred to a Commonwealth Bank Account (CBA) in the claimant’s name the amount of $560. Exhibit 1 at Attachment 3 and Exhibit 3 – Witness Statement of Xiaogang Feng at Attachment C.

26 On 17 February 2024, the respondent transferred to a CBA in the claimant’s name the amount of $2,120. Exhibit 1 at Attachment 3 and Exhibit 3 at Attachment C.

27 On 4 March 2024, the respondent transferred to a CBA in the claimant’s name the amount of $2,180. Exhibit 1 at Attachment 3 and Exhibit 3 at Attachment C.

28 From 4 March 2024 to 25 March 2024, the respondent withheld $2,200 for the payment of work undertaken by the claimant purportedly because the claimant broke some kitchen equipment (a pot) owned by the respondent.
29 On an unknown date, Mr Feng sent a text message to the claimant stating: Exhibit 3 at Attachment B.

Understand this clearly. You can’t provide the information that I’m asking you for. It’s too simple. Hahaha!
30 The claimant responded to Mr Feng as follows: Exhibit 3 at Attachment B.

Cut the crap. How dare you still use my services or employ me when I don’t have a tax file number?
31 Mr Feng replied: Exhibit 3 at Attachment B.

Hahaha. Hurry up and go! Be quick.
32 On 5 March 2024, the claimant emailed Mr Feng informing him that his wages were incorrect and that he had been underpaid. He said he had worked 126 hours over the past two weeks. Mr Feng’s response was to ask whether the claimant had clocked in every time and that the wages paid to the claimant were based on the hours recorded by the clock-in system. Exhibit 1 at Attachment 2.

33 On the same day, Mr Feng asked the claimant how much money had been sent to him to which the claimant said it was $2,180 but it should have been $2,520. The claimant informed Mr Feng the clock in system was not accurate and there were times he had forgotten to clock in. Exhibit 1 at Attachment 2.

34 Mr Feng responded that this was the claimant’s problem, and the claimant ‘never listen[s] to what I tell you’. After further remonstrating with the claimant, Mr Feng said ‘[Y]ou always have a bunch of excuses. I’ve already told you that you need to clock in when you start work. How can you not remember?’ Exhibit 1 at Attachment 2.

35 The claimant asked when he would be paid his money, and the respondent still owed him $340. Mr Feng replied that he did not owe money and that it’s the claimant’s problem. He reiterated that the wages he pays are based on the hours recorded by the clock-in system. Exhibit 1 at Attachment 2.

36 Timesheets attached to Ms Tan’s statement show the following:
· the timesheets are headed ‘Employee Attendance Sheet’;
· the claimant and two other persons are given ‘employee’ numbers; and
· the claimant and one other person appear to consistently clock on at times immediately before 5.00 pm. On less frequent occasions they appear to clock on at around 11.00 am between 5 February 2024 and 25 March 2024. Exhibit 2 – Witness Statement of Ping Tan at Attachment A.

37 The timesheets translated into English are attached at Schedule II.
Facts in Dispute
38 The facts in dispute concern the character of the claimant’s employment status, although there is also a dispute over hours worked.
The Claimant
39 The claimant states that prior to working at King Kong he did some food delivery work for Uber Eats and the like, and he registered an Australian Business Number (ABN) in his name for this work. He states he never used an ABN for kitchenhand work. Exhibit 1 at [5].

40 The claimant further states there was no written contract and that he and the respondent had a verbal agreement for him to undertake casual employment at King Kong in the kitchen and he was to be paid $20 per hour. Exhibit 1 at [7].

41 The claimant said he did kitchenhand work, including mainly washing dishes and some minor food preparation. Exhibit 1 at [8] and oral evidence.

42 In February 2024, King Kong asked him for his tax file number via text message. He told King Kong that he was getting a new tax file number and that it would come in a couple of weeks. King Kong then asked for his ABN, which he provided. He understood this was so he could be paid. Exhibit 1 at [9].

43 The claimant said he never discussed with King Kong that he would be a contractor. He was always King Kong’s employee. Exhibit 1 at [10].

44 The claimant says he was never provided with any payslips by the respondent. Exhibit 1 at [13].

45 In his oral evidence the claimant clarified that Attachment 1 to his witness statement was a handwritten timesheet prepared by him on a weekly basis recording the hours he worked at King Kong. Exhibit 1 at Attachment 1 and oral evidence.

46 The claimant said that he started every day at 5.00 pm and finished at 12.00 am, except for two days, 19 and 20 March 2024, when he finished at 11.00 pm. He also worked occasionally on a day shift from 11.00 am to 3.00 pm to cover sick leave and annual leave taken by other staff. He was told what to do by the manager who he called ‘Boss’ (Mr Feng). The restaurant provided him with everything, like tea towels and dishwashing liquid, so that he could do his job.
47 The claimant said that he did not know how to reapply for a new Tax File Number (TFN), and it took time to sort this out, so he provided his ABN when he was asked to by Mr Feng. He denied that he had any conversation with Mr Feng about an ABN or that he was or would be a contractor rather than an employee. The claimant says that after the text message he sent on 8 February 2024, the respondent paid him $560 into his bank account on 9 February 2024 for the work he did from 24 January 2024 to 4 February 2024.
48 The claimant said the hours of work were fixed. He agreed he did not clock off, but he did clock in other than for the first two weeks of work where he was not told to clock on and on a couple of other occasions where he forgot to clock on. The claimant referred to the payment made on 9 February 2024 in the amount of $560 and questioned why the respondent would pay him at all if he was not working in the preceding two weeks.
49 The claimant maintained that he worked for the whole time and did not have a day off. He reiterated that his hours were fixed and denied that he stayed behind so the manager could take him home.
50 The claimant referred to further text messages between him and Mr Feng dated 20 and 21 March 2024 which he had forgotten to put in his witness statement. In fact, in exhibit 1 at Attachment 1 part of the text message is included but the content of the reply on 21 March 2024 is missing.
Both interpreters translated the text messages, which included: ts 13, 16.

· Claimant on 20 March 2024 at 11.18 am: What time do I finish work now?
· Mr Feng on 21 March 2024 at 12.19 am: Didn’t I tell you it was supposed to be 12.00 am. Why did you clock off early? Who let you go? Did you ask me?
· Claimant on 21 March 2024 at 12.20 am: okay.
51 I allowed the text message to be read into Court. It was partially included as an attachment to the claimant’s witness statement, and, in my view, no prejudice was suffered by the respondent because the whole of the conversation was overlooked by the claimant. In addition, Mr Feng was available to give evidence if its contents were contested, which they were not.
52 The claimant said this was one of the two occasions that he left before 12.00 am and he recorded the times in his handwritten timesheet. Exhibit 1 at Attachment 1.

53 The claimant did not sign a document authorising the respondent to deduct $2,200 from his pay because he broke the respondent’s pot.
54 In cross-examination, the claimant said he completed his handwritten timesheet once per week. He denied he talked to ‘the manager’ separate to the text message dated 8 February 2024. The claimant said he never mentioned the ABN outside of the text message and denied there was a discussion in the interview about an ABN or that he would be a contractor.
55 In terms of evidence to support the contents of his witness statement, including Attachment 1, the claimant relied upon three things:
(1) the respondent’s timesheets;
(2) the text messages between him and Mr Feng specifying the hours of work; and
(3) the payment for the first two weeks of work (when he was not required to clock on).
56 The claimant said that the notation on the bank statements (by the respondent) of ‘inv’ did not mean anything, he did not pay attention to that, and on its own it did not mean he was a contractor, which he denied he was.
57 The claimant denied there was any conversation with Mr Feng or Ms Tan that he would be engaged as a contractor.
Ms Tan
58 Ms Tan says the claimant’s statement contains false records of time with the clockin and clockout records. Exhibit 2 at [2].

59 She also states the claimant had no fixed working hours and he did not adhere to a set schedule and worked flexible hours. Further, she says the claimant was paid ‘per task’ rather than by ‘hourly’ or daily rates. In addition, she says the claimant is responsible for managing his own taxes. The claimant was hired for a short period to help during busy times. Exhibit 2 at [4], [5] and [7].

60 She annexes the claimant’s clockon, clockout schedule used by the respondent. Exhibit 2 at Attachment A.

61 In her oral evidence, Ms Tan agreed King Kong was a restaurant and the claimant worked there.
62 Ms Tan said the manager arranged the claimant’s work each day and the claimant’s pay was based on what the manager determined. She understood the manager and the claimant discussed the claimant’s tasks and what he would be paid.
63 Ms Tan occasionally worked at King Kong.
64 Ms Tan agreed that the respondent never got the claimant to sign a document to withhold $2,200 from the claimant’s pay but referred to Attachment 3 to her response to the originating claim where the claimant agreed to pay for a new pot in a text message.
65 In respect of the text messages between the manager and the claimant on 5 March 2024, she understood that the claimant would be paid by an amount of money on the day he worked although all other ‘employees’ were paid on an hourly basis.
66 Ms Tan queried the claimant’s handwritten records. She said before he commenced working there were discussions about the working arrangements and he was told that if he wanted to be an employee, he would need to provide his visa status and other information.
67 Ms Tan maintained the claimant was a contractor.
68 In cross-examination, Ms Tan said the calculation for the claimant’s first payment of $560 was between the manager and the claimant. She agreed there was nothing in writing, only the bank statements.
69 Ms Tan agreed that she could not provide any written record of how the payments made to the claimant were calculated. Her understanding was that the manager and the claimant had a conversation every day about pay and tasks.
70 While it was difficult to obtain an answer, eventually Ms Tan said the claimant was paid for all work he did based on the respondent’s attendance sheet. However, she could provide no record of how any amounts paid were calculated. She said he was paid a different amount every day but could provide no record of what the different amounts were.
71 While Ms Tan did not agree with the claimant’s calculations, she had no records of her own upon which she could base any calculations of her own.
72 Ms Tan agreed the respondent provided the claimant with ‘tools’ to do the work at King Kong, but said he could have provided his own.
73 Ms Tan agreed the pot broken by the claimant was owned by the respondent.
74 Ms Tan states that in the beginning the claimant said he wanted to be an employee but then he decided to be a contractor based on his eligibility to work. Ms Tan agreed that there was nothing in the text messages sent between the claimant and Mr Feng from 5 to 8 February 2024 which indicated the claimant was now a contractor but said that straight away on 8 February 2024 the claimant decided this.
Mr Feng
75 Mr Feng states that it was the claimant’s preference to be a contractor as he was unwilling to provide his personal information and visa details, and he assigned the claimant flexible and shortterm tasks. Exhibit 3 at [3].

76 Mr Feng said the respondent does not hire individuals whose visa do not meet eligibility criteria. He requested the claimant to provide invoices, but the claimant delayed doing so. Out of goodwill, Mr Feng transferred payments to the claimant in advance and used the message ‘inv’ as a short word for ‘invoice’. Exhibit 3 at [4].

77 Mr Feng said the claimant had the flexibility to come in anytime between 5.00 pm and 12.00 am to complete his work. Exhibit 3 at [5].

78 In his oral evidence, Mr Feng clarified that the verbal discussions referred to in paragraph [3] of his witness statement occurred when the claimant first started working for the respondent and before the first payment was made. He could not recall the date but said it was when the claimant came in for an interview.
79 Mr Feng said the claimant washed dishes and some other casual tasks. He did not have the skills for other more difficult tasks.
80 Mr Feng said he paid the claimant the ‘Award minimum wage’ and when asked what that was, he said ‘about $24 per hour’. ts 37.
Mr Feng said the claimant was paid according to the days he worked and not in relation to how much he worked. The claimant did not provide his personal details which effected the pay. Mr Feng asked ‘why didn’t he follow my instructions? … washing dishes and doing casual jobs.’ ts 36.

81 Mr Feng said he asked for the TFN and other information, but the claimant did not provide it, and he made payments to the ABN as a contractor. He said initially the claimant preferred to work as an employee, but he did not give his personal details, so the respondent had to make payments on the basis of tasks, not hours.
82 The payments were made fortnightly.
83 Mr Feng struggled to understand the point made by the claimant in cross-examination, when the claimant asked him to explain why Mr Feng asked for the claimant’s TFN in the text message dated 5 February 2024. However, his answer appears to be that ‘the payment was due’ and that he runs the restaurant. ts 41.

84 Mr Feng said he paid the claimant in compliance with the ‘clock machine’ and he should have the calculation otherwise he would not pay the claimant.
85 Mr Feng was unable to provide any explanation on how he calculated the claimant’s payment but appeared to suggest that it was different each day depending on how many hours per day was worked. He suggested the payment made was according to a private arrangement. He suggested it was calculated by the ‘accounting department’. ts 42.

86 Mr Feng said the claimant had two options before he commenced work at King Kong; that is, he could be an employee or a contractor. Mr Feng said the claimant chose to be a contractor.
87 Mr Feng also said the claimant’s payments were the total payment divided by the days he worked to calculate a daily payment.
88 In re-examination, Mr Feng said the claimant was responsible for washing dishes and gave an example where if the claimant had five trolleys of dishes and finished washing them, he could go.
Employee vs Independent Contractor
Contract Terms
89 It is not in dispute there was no formal written agreement or contract between the claimant and the respondent for work undertaken by the claimant. Notwithstanding this, the Court is to determine the nature and terms of the contract between the parties to ascertain their contractual rights and obligations. Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; (2022) 275 CLR 165 at [83] and [177] (Personnel Contracting); EFEX Group Pty Ltd v Bennett [2024] FCAFC 35; (2024) 330 IR 171 at [7] and [52]-[56] (EFFEX).

90 The terms are determined by application of orthodox principles. That is, where the terms are partly in writing and partly oral (or wholly oral), the terms may be inferred from all the circumstances, including the parties’ conduct and words at the time of contract formation, their conduct over time, their course of dealing, or inferred where necessary for business efficacy. EFFEX at [9].

91 To this end, regard may be had to: EFFEX at [11].

… circumstances surrounding the making of the contract and events and matters, known to the parties at the time of contracting, which assist in identifying the object or purpose of the contract. The nature of the work contracted for and the arrangements of the supply or provision of any tools or equipment to the employee may also be relevant.
92 In this case, the terms of the contract for the supply of labour (whether to an employer or to a client, yet to be determined) by the claimant were partly oral (as between the claimant and the respondent or the respondent’s agent) and partly in writing (in text messages between the claimant and Mr Feng).
93 The claimant states he and the respondent agreed that he would be a casual employee working in King Kong’s kitchen doing kitchenhand work for $20 per hour.
94 Ms Tan uses the term ‘hired’ in reference to engaging the claimant but says he was paid per task rather than by hourly or daily rate (although there was no real explanation of how or what he is paid per task – that is – is the claimant paid per dish washed, per bench wiped, per square meter of floor swept and how much is he paid for these tasks – that is – is he paid $10 to wash 10 plates, $5 per bench wiped?). Ms Tan says this explains why the claimant ‘clocked’ on once per day using the respondent’s system.
95 Mr Feng says during verbal discussions, the respondent and the claimant clarified and agreed his ‘scope of work’, finalised his role, and his responsibilities as a contractor. Mr Feng said the claimant had the flexibility to come in any time between 5.00 pm and 12.00 am to complete his work. Mr Feng also said the claimant was paid for the tasks he did but could not provide any explanation of what the pay was, how the pay was calculated or provide any records which in any way supported this explanation.
96 At its core, Mr Feng’s evidence was that the claimant was paid to wash dishes and do some other unskilled work.
97 I find the contract terms for the supply of labour were those predominantly set out in the 23 January 2024 text message sent by Mr Feng, that is:
· the claimant would undertake dish washing and general jobs at King Kong;
· his work hours were 5.00 pm to midnight; and
· he would commence on 24 January 2024 at 6.00 pm.
98 I reject Ms Tan’s evidence that the claimant was paid per task as preposterous and devoid of any rational basis, bearing in mind he was working as a kitchenhand washing dishes. Her evidence did not in any way detail how this was supposed to work, it was not supported by any evidence consistent with such a payment and was illogical. More importantly, it is entirely inconsistent with text messages sent by Mr Feng to the claimant specifically informing the claimant that he is paid based on the hours he clocked in and telling him what the hours of work were.
99 I also reject Mr Feng’s evidence that the claimant came any time between 5.00 pm and 12.00 am. It is inconsistent with the text message engaging the claimant, inconsistent with the timesheets provided by the respondent, and illogical that a kitchenhand would attend a restaurant at say, 11.45 pm to undertake work that concludes at 12.00 am. It is also inconsistent with the text messages on 20 and 21 March 2024, when Mr Feng remonstrated with the claimant about leaving early.
100 I prefer the claimant’s evidence, which is consistent with the timesheets provided by the respondent, consistent with the text message communication with the respondent, and consistent with his own records. I accept the claimant’s evidence the oral agreement with the respondent is that he was paid $20 per hour to work at King Kong.
101 I accept the claimant may have from time to time not ‘clocked on’ or ‘clocked off’, but he provided a contemporaneous explanation to the respondent for failing to do so, and nothing otherwise put forward by the respondent causes me to doubt the credibility or truthfulness of the claimant’s evidence.
102 Accordingly, I further find that an additional term of the contract for the supply of labour was the claimant was paid $20 per hour by the respondent. I also further find that, consistent with the payments made by the respondent, the payment for the claimant’s work was made to the claimant’s bank account on a fortnightly basis.
Other matters
103 The indicia indicating the claimant was an employee of the respondent include:
· he had a defined role within the respondent’s business. That is, he washed dishes at King Kong;
· he used equipment, such as dishwashing liquid, scrubbers, tea towels, supplied by the respondent to do this work;
· he attended at times set by the respondent;
· he was instructed by Mr Feng about what to do and had little, if any autonomy about the work he was required to do; and
· he recorded (for the most part) attendances at King Kong by using the respondent’s electronic recording system, which was in fortnightly blocks.
104 The indicia indicating the claimant was an independent contractor, included that he provided an ABN, and he was engaged for a short period of time to accommodate a busy time of year.
105 The bank account provided by the claimant was in his personal name not a business name. Shortly after the claimant was first engaged, Mr Feng requested the claimant to provide the claimant’s ‘tax number information’ and ‘superannuation information’. Exhibit 1 at Attachment 2.
Information of this type is ordinarily associated with an employee and not independent contractors.
106 The claimant explained to Mr Feng he had forgotten his tax file number, and he had to reapply for a tax file number which would take at least two weeks.
107 In response, Mr Feng said ‘[f]irst, give me your ABN,’ which the claimant did. Exhibit 1 at Attachment 2.

108 Notwithstanding this, Mr Feng put the word ‘inv’ when depositing money into the claimant’s bank account, the claimant did not render any invoices for work undertaken, nor was any claim made for Goods and Services Tax (GST). The respondent did not issue any pay slip or payment confirmation. Notably, personal income taxation was not deducted on a PAYE basis.
109 Like that in Jin v Premium Travel Solutions Pty Ltd [2023] FedCFamC2G 22, the parties were remarkably casual towards the responsibility for correctly paying any taxation liabilities, whether it be personal income taxation or GST.
110 Finally, I reject Mr Feng and Ms Tan’s evidence of some verbal discussion where the claimant elected to be a contractor. Not only was their evidence on when this purported discussion occurred inconsistent with one another with Mr Feng suggesting it occurred at the ‘interview’ (which can only have been on 23 January 2024 before the claimant started work on 24 January 2024) and Ms Tan suggesting it occurred immediately when the claimant provided his ABN on 8 February 2024, but it is not reflected in any text messages between Mr Feng and the claimant.
Determination
111 Considering the terms of the contract for the supply of labour (such as they were) and all the surrounding circumstances, I am satisfied and I find the relationship between the claimant and the respondent was that of employer and employee, not that of an independent contractor providing services to the respondent’s business.
112 The respondent determined the claimant’s role, his place of work, the hours he worked, the amount he was paid per hour, and provided the equipment for him to do the work the respondent required of him, which is more consistent with an employer-employee relationship to that of an independent contractor.
113 In my view, this was clearly a case where the claimant was working in the respondent’s business and not in his own business. Personnel Contracting at [36]-[39].

114 The provision of an ABN by the claimant is not sufficient to rebut the finding that the claimant was an employee of the respondent where this needs to be seen in the context in which the ABN was given. That is, in the first instance Mr Feng requested taxation and superannuation information ordinarily associated with employees, and it was only when he was told this information was not able to be provided for two weeks that Mr Feng requested an ABN.
115 While things said or done after a contract is made are not aids to the contract’s construction, the text messages between the claimant and Mr Feng on 5 March 2024 are consistent with the finding the claimant was an employee.
116 That is, on 5 March 2024, the claimant informs Mr Feng that his wages are incorrect. Mr Feng responds asking the claimant if he clocked on every time, and that the wages paid were based on the hours recorded by the clock-in system. Mr Feng further remonstrates with the claimant that he never listens to what Mr Feng tells him and if he does not clock in, how should Mr Feng know if he worked or not. Mr Feng says that he has told the claimant that he needs to clock in when he starts work, and that the wages he pays are based on the hours recorded by the clock-in system.
117 Nowhere in this chain of text messages does Mr Feng indicate the claimant is paid according to invoices rendered or tasks completed, even putting to one side the use of the word ‘wage’. In addition, the tenure of the messages is Mr Feng instructing the claimant what to do when he starts work and remonstrating with him because he does not follow Mr Feng’s instructions. Again, this is consistent with an employee-employer relationship between the claimant and the respondent where the claimant is subordinate to the respondent’s business.
118 Finally, addressing the respondent’s submission that because the claimant worked on a short-term basis, he was an independent contractor. Short-term work, of itself, does not necessarily indicate whether the engagement was as an employee or as an independent contractor. In the claimant’s case, there was a distinct lack of evidence of any firm advance commitment from the respondent to continuing and indefinite work. Section 15A(a) of the FWA.
The claimant said he was employed on a casual basis, and Ms Tan said the claimant was hired for two months during a busy period. Both of those statements are consistent with the claimant’s engagement being as a casual employee.
119 Accordingly, I am satisfied, and I find that the claimant was employed by the respondent as a casual kitchenhand at King Kong.
120 Having found the claimant to be an employee and the respondent to be the claimant’s employer, as stated previously, the claimant therefore is a national system employee where the respondent is a national system employer (for reasons already given).
121 Accordingly, the respondent, as a national system employer, has an obligation under s 323(1)(a) of the FWA to pay to the claimant amounts payable in relation to the performance of work in full.
Application of the Award
122 A modern award does not impose obligations on a person, and a person does not contravene a term of a modern award, unless the award applies to the person. Equally, a modern award does not give a person an entitlement unless the award applies to the person. Sections 46(1) and (2) of the FWA.

123 A modern award applies to (relevantly) an employee and employer if: (a) the modern award covers the employee and employer; (b) the modern award is in operation; and (c) no other provision of the FWA provides that the modern award does not apply to the employee and employer. Section 47(1) of the FWA.

124 A modern award covers (relevantly) an employee and employer if the award is expressed to cover the employee and employer. Section 48(1) of the FWA.

125 For the following reasons I am satisfied, and I find that the Award applied to the claimant and the respondent during the Employment Period:
· clauses 4.1(a) and (b) specifically provide the Award covers employers in the restaurant industry throughout Australia and employees with a classification defined in Schedule A of employers mentioned in cl 4.1(a);
· restaurant industry is defined to mean, amongst other things, a restaurant;
· King Kong is a restaurant, and none of the exclusions in cl 4.2 and cl 4.4 of the Award apply;
· the claimant was employed as a casual kitchenhand to wash dishes and perform general chores, consistent with the classification in Schedule A, A.3.1(a) of the Award – kitchen attendant grade 1; General cleaning duties within a kitchen or food preparation area and scullery, including cleaning cooking and general utensils used in a kitchen or restaurant.
and
· the Award was in operation.
Amount owed under the Award (if any)
126 Pursuant to Table 3 in cl 18.1 of the Award, the minimum hourly rate for a non-casual kitchen attendant grade 1 is $24.10. However, cl 11.1 of the Award provides that an employer must pay a casual employee for each hour worked a loading of 25% in addition to the minimum hourly rate otherwise applicable under cl 18. Therefore, the minimum hourly rate for a casual kitchen attendant grade 1 is $30.13. This amount is also contained in the Award in Schedule B in Table B.1.3 Casual adult employees – ordinary and penalty rates.

127 The hourly rate for a casual kitchen attendant grade 1 working on a Saturday and Sunday is $36.15. The hourly rate for a casual kitchen attendant grade 1 working on a public holiday is $60.25. See footnote 5.

128 Ms Tan asserts the claimant’s evidence is false as it relates to false records of time and wage rates.
129 However, there is no evidence before the Court that indicates the falsity of the claimant’s evidence. Simply put, it is a bare assertion by Ms Tan.
130 The claimant prepared a handwritten document of the shifts he worked. This handwritten document is consistent with, although not identical to, the timesheets provided and relied upon by the respondent.
131 As already stated, I found the claimant to be a truthful and credible witness. The same cannot be said for Ms Tan or Mr Feng whose evidence I rejected in respect to the issue of whether the claimant was an employee of the respondent or an independent contractor.
132 The evidence of Ms Tan and Mr Feng is inconsistent with the contemporaneous and objective evidence of the timesheets (even incomplete) and the text messages. I have little confidence in the credibility or truthfulness of their evidence. Notably, Mr Feng said the claimant was paid in accordance with ‘the Award’ and this was about $24 per hour, again inconsistent with his other evidence which seemed to suggest the claimant was paid to do specified tasks, like a trolley of dishes. However, as already stated there were no records kept by the respondent that in any way supports this assertion and Ms Tan and Mr Feng could provide no evidence on how any money paid to the claimant was calculated. To say the payments were calculated on an ad hoc basis is an understatement.
133 Accordingly, I prefer the claimant’s evidence regarding the days and hours he worked detailed in his handwritten documents (but also consistent, in part, with the respondent’s timesheets).
134 On that basis, the below table is a distillation of the claimant’s handwritten document and the hourly rate referrable to the time worked:

Total number
7hour days
11hour days
Award hourly rate
Total
Weekdays worked
42
35
7
$30.13
$9,701.86
Saturdays worked
9
8
1
$36.15
$2,422.05
Sundays worked
9
8
1
$36.15
$2,422.05
Public Holiday worked
1
1

$60.25
$421.75
Hours
2


$30.13
$60.26
Total




$15,027.97
135 Having regard to the records maintained and produced by the claimant, if he was paid at the applicable Award rates, he should have been paid $15,027.97 for the work undertaken at King Kong during the Employment Period.
136 According to the bank records submitted by both parties, $4,860 was paid to the claimant.
137 As admitted by the respondent, $2,200 in wages were withheld by the respondent purportedly for breakages by the claimant. As will be discussed, there was no lawful basis for the respondent to withhold the claimant’s wages.
Determination
138 An obligation under an award is a statutory obligation and cannot be contracted out. Metropolitan Health Service Board v Australian Nursing Federation [2000] FCA 784; (2000) 176 ALR 46 (Metropolitan Health Service Board) at [18]; Kronen v Commercial Motor Industries Pty Ltd (CMI Toyota) [2008] FCAFC 171; (2008) 171 FCR 521 at [16].
 However, a contract of employment can confer benefits upon an employee over and above those conferred by an award. Metropolitan Health Service Board at [18].

139 Similar observations were made in Textile, Clothing and Footwear Union of Australia v Givoni Pty Ltd [2002] FCA 1406; (2002) 121 IR 250 at [35], Regional Express Holdings Ltd v Clarke [2007] FCA 957; (2007) 165 IR 251 at [56] and Fair Work Ombudsman v Glasshouse Mountains Tavern Pty Ltd [2014] FCCA 1115 at [84].
140 In paying the claimant $20 per hour under the disguise of a contractual arrangement, it is readily apparent the respondent has not conferred any benefit upon the claimant over and above that conferred by the Award. Simply put, the respondent cannot contract out of the minimum rates applicable under the Award. The claimant’s mistaken accession to the payable rate being $20 per hour does not change what, in fact, are the minimum rates applicable to the work he carried out as the respondent’s employee.
141 Therefore, notwithstanding the claimant did not directly express the minimum hourly rate under the Award he says he should have been paid, it is sufficient that he identified the relevant provisions of the Award (as he did in his witness statement) and identified that he had been underpaid by the respondent. The fact that he mistakenly thought he was owed an amount based on $20 per hour, does not change what he was, in fact, owed.
142 Accordingly, I am satisfied that the claimant has proven on the balance of probabilities that he was underpaid for work carried out while an employee of the respondent, and that he was not, and still has not, been paid that amount in full for the performance of that work.
143 I find the amount of the underpayment is $10,167.97, and that this amount was not paid in full by the respondent and, in fact, remains outstanding.
144 I further find this amount is an amount required to be paid under s 323 of the FWA for the purposes of s 548(1A) of the FWA and the respondent contravened a civil remedy provision by failing to pay the amount.
Withholding of wages by the respondent
145 The respondent admitted to withholding $2,200 payable to the claimant for work undertaken because the claimant broke a pot. Leaving aside whether the respondent ever had a lawful basis to withhold monies for work undertaken by the claimant as either an employee or an independent contractor, the IMC having found the claimant was an employee of the respondent resolves the issue in favour of the claimant.
146 That is, the respondent was not lawfully entitled to withhold any wages payable to the claimant unless in compliance with s 324 or s 325 of the FWA, which in the claimant’s case there was not.
147 Firstly, relevant to this case and the found facts, s 324(1) of the FWA permits deductions from an amount payable to an employee if the deduction is in writing, or authorised under the Award, or by court order. Notwithstanding the text message referred to by Ms Tan, I am not satisfied the claimant permitted the deduction of the money from his pay even if the text message reduced the deduction to writing (which I am not satisfied it did).
148 Second, s 325(1) of the FWA prohibits an employer from requiring an employee to spend an amount of the employee’s wages if the requirement is unreasonable and the payment is directly or indirectly for the benefit of the employer. Leaving aside the issue of reasonableness, the withholding of the claimant’s wages to pay for a broken kitchen item was clearly beneficial to the respondent rather than the claimant.
Outcome
149 Subject to any liability to the Commissioner of Taxation under the Taxation Administration Act 1953 (Cth), and pursuant to s 545(3) and s 548(1A)(i) of the FWA, the respondent is required to pay to the claimant the amount of $10,167.97 in unpaid wages which was required to be paid in full for the performance of work under s 323 of the FWA.



D. SCADDAN
INDUSTRIAL MAGISTRATE


SCHEDULE I: Jurisdiction, Practice and Procedure of the Industrial Magistrates Court of Western Australia Under the Fair Work Act 2009 (Cth) and the Industrial Relations Act 1979 (WA)
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. The IMC, being a court constituted by an industrial magistrate, is ‘an eligible State or Territory court’: s 12 of the FWA (see definitions of ‘eligible State or Territory court’ and ‘magistrates court’); Industrial Relations Act 1979 (WA) s 81, s 81B.
[2] The application to the IMC must be made within six years after the day on which the contravention of the civil penalty provision occurred: s 544 of the FWA.
[3] The civil penalty provisions identified in s 539 of the FWA include:
· Section 323 – failing to pay an amount payable in full for the performance of work.
[4] An ‘employer’ has the statutory obligations noted above if the employer is a ‘national system employer’ and that term, relevantly, is defined to include ‘a corporation to which paragraph 51(xx) of the Constitution applies’: s 14 and s 12 of the FWA. The obligation is to 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’: s 13 of the FWA.
[5] 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 or FWA: s 545(3)(a) of the FWA.
[6] A claimant may elect the small claim procedure under s 548 of the FWA provided the order sought relates to, relevantly, an amount under subsection (1A)(a)(i), namely that an amount that an employer was required to pay or an employee is under the FWA or a fair work instrument.
Burden and Standard of Proof
[7] In an application under the FWA, the claimant carries the burden of proving the claim. 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.
[8] In the context of an allegation of the breach of a civil penalty provision of the Act it is also relevant to recall the observation of Dixon J said in Briginshaw v Briginshaw [1938] HCA 34; 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).
[9] Where in this decision it is stated that a finding has been made, the finding is made on the balance of probabilities. Where it is stated that a finding has not been made or cannot be made, then no finding can be made on the balance of probabilities.
Practice and Procedure of the Industrial Magistrates Court of Western Australia
[10] Subject to the provisions of the FWA, the procedure of the IMC relevant to claims under the FWA is contained in the Industrial Magistrate's Court (General Jurisdiction) Regulations 2005 (WA) (IMC Regulations). Notably, reg 35(4) of the IMC Regulations provides the court is not bound by the rules of evidence and may inform itself on any matter and in any manner as it thinks fit.
[11] Similarly, in small claim 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: s 548(3) of the FWA.
[12] At any stage of the small claim proceedings, the court may amend the papers commencing the proceedings if sufficient notice is given to any party adversely affected by the amendment: s 548(4) of the FWA.
[13] In Sammut v AVM Holdings Pty Ltd [No 2] [2012] WASC 27, Commissioner Sleight examined a similarly worded provision regulating the conduct of proceedings in the State Administrative Tribunal and made the following observation:
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 [40]. (citations omitted)


SCHEDULE II: Employee Attendance Sheets