Cai v Tiy Loy & Co Ltd (No 2)

In *Cai v Tiy Loy & Co Ltd (No 2)*, the Federal Circuit Court of Australia considered whether Mr Cai could pursue a claim that he was employed as a "tea attendant" under a State Award, after his earlier claim that he was a "caretaker" under the same award had been rejected. The dispute arose following an earlier judgment where the court found Tiy Loy & Co Ltd had contravened the *Fair Work Act 2009* (Cth) by altering Mr Cai's employment status. The court had granted liberty to apply for further hearings regarding compensation, penalties, and an annual leave loading claim.

The legal issues before the court were threefold: first, whether Mr Cai was entitled to pursue a claim that he was employed as a "tea attendant" given that this was not the basis of his original claim and had not been pleaded; second, whether Tiy Loy & Co Ltd was precluded from resisting this new contention without amending its points of defence; and third, whether, based on the findings of the earlier judgment, Mr Cai was in fact employed as a "tea attendant" under the relevant award.

The court reasoned that the Federal Circuit Court Rules 2001 (Cth) govern proceedings for relief under the *Fair Work Act 2009* (Cth), and that while the applicant had not initially pleaded the "tea attendant" claim, leave could be granted to amend the points of claim. The court determined that Tiy Loy & Co Ltd was not precluded from resisting the "tea attendant" claim simply because it had not amended its points of defence. Crucially, the court found that Mr Cai was indeed employed as a "tea attendant" within the meaning of the State Award, having engaged in serving teas and other related duties for the major and substantial part of his work time.

Consequently, the court granted Mr Cai leave to amend his points of claim to formally assert his employment as a "tea attendant". The court also found that Mr Cai was employed as a "tea attendant" under the State Award, thereby entitling him to the benefits and entitlements associated with that classification.