Jones v Hamilton Island Enterprises Limited - [2024] FedCFamC2G 6

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Jones v Hamilton Island Enterprises Limited [2024] FedCFamC2G 6

File number(s): SYG 1906 of 2021

Judgment of: JUDGE CAMERON

Date of judgment: 10 January 2024

Catchwords:
INDUSTRIAL LAW - alleged contraventions of a modern award in breach of the Fair Work Act 2009 (Cth) – alleged underpayment of award entitlements to overtime, penalty rates and meal allowance – whether the correct job classification under the award was “Cook (tradesperson)” or “Managerial staff”.

INDUSTRIAL LAW – Hospitality Industry (General) Award 2010 – interpretation – “hotel manager” – “senior management”.

INDUSTRIAL LAW – whether an employer, having contravened an award, can expunge the contravention by compliance pro nunc tunc.

Legislation: Fair Work Act 2010 (Cth) ss 45, 61, 62, 323, 544, 545.

Cases cited:
Kucks v CSR Ltd (1996) 66 IR 182

United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board (2006) 152 FCR 18

Short v FW Hercus Pty Ltd (1993) 40 FCR 511

Martin v Repeller Nominees Pty Ltd (No 2) (2019) 289 IR 267

TCN Channel 9 Pty Ltd v Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130

Kronen v Commercial Motor Industries Pty Ltd (2008) 171 FCR 521

Division: Fair Work

Number of paragraphs: 147

Date of hearing: 10, 11, 14 November 2022

Place: Sydney

Counsel for the Applicant: Mr D. Stewart

Solicitor for the Applicant: Hilliard & Berry Solicitors

Counsel for the Respondent: Mr I. Neil SC and Mr Parker

Solicitor for the Respondent: HFW Australia
ORDERS

SYG 1906 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
EMRYS JONES

Applicant

AND:
HAMILTON ISLAND ENTERPRISES LIMITED

Respondent

ORDER MADE BY:

JUDGE CAMERON

DATE OF ORDER:

10 JANUARY 2024

THE COURT ORDERS THAT:
1.The matter stand over for directions.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CAMERON
INTRODUCTION

The applicant, Mr Jones, was employed by the respondent, Hamilton Island Enterprises Limited (HIE), from 9 January 2013 to 8 July 2013, and from 8 January 2014 to 5 July 2018. HIE is the operator of a number of restaurants within its resort complex on Hamilton Island, including ones in the Qualia Resort where Mr Jones was employed in the position of chef de partie, then junior sous chef and finally sous chef. In his application and his amended statement of claim, Mr Jones alleged that HIE had breached the Hospitality Industry (General) Award 2010 (Award), the Fair Work Act 2010 (Cth) (FW Act) and his employment contract (Contract) by rostering him to work more than the maximum of hours per week, by failing to provide him with minimum work breaks and by underpaying him his entitlements to overtime, penalty rates and meal allowances. Mr Jones’s case is that at the relevant times his job classification under the Award had been “Cook (tradesperson) grade 5”, not a manager, and that he had been entitled to, but not fully paid, the wages and benefits appurtenant to the Cook (tradesperson) grade 5 classification. Mr Jones’s application sought compensation, general damages and pecuniary penalties, paid to him.
In its defence HIE alleged that once Mr Jones was promoted to junior sous chef on 3 June 2015, he was classified under the Award as “Managerial staff (Hotels)” with the consequence that, if paid the salary absorption pay rate applicable at the relevant time, he was not entitled to the overtime or penalty rates payable to a Cook (tradesperson) grade 5 or to other award entitlements associated with that classification concerning ordinary hours of work. HIE denied having breached the Contract or that Mr Jones had suffered any loss or damage in respect of which he was entitled to compensation or damages.
This proceeding was commenced on 15 October 2021 and so, by virtue of ss.544 and 545(5) of the FW Act, any causes of action predating 15 October 2015 are statute barred and compensation may not be ordered in respect of any underpayments occurring before that date.
PLEADINGS
Applicant
The amended statement of claim alleged that HIE had breached the following provisions of the Award:
(a)cl.21.2(a)(i) (overtime of more than 2 hours without a meal allowance);
(b)cls.29.1(a) and 29.1(b)(i) (overtime allowance);
(c)cl.29.1(b)(ii) (appropriate breaks between shifts);
(d)cl.29.1(b)(iii) (excessive days of worked overtime); and
(e)cl.32.3 (late hours penalty rates).
The pleading also alleged that HIE had breached:
(a)cl.8 of the Contract by requiring him to work more than 40 hours per week without providing him with time off in lieu of the additional hours;
(b)s.62 of the FW Act by requiring him to work more than the maximum weekly hours; and
(c)s.61(1) of the FW Act by displacing the National Employment Standards through the Contract having set minimum weekly hours at 40.
The Amended Statement of Claim did not identify the period within which the contraventions were said to have occurred other than by reference to Mr Jones’s period of employment with HIE.
Respondent
HIE relied on the limitation period to answer any claims based on a cause of action that accrued before 15 October 2015.
HIE alleged that once he was promoted to junior sous chef on 3 June 2015, Mr Jones had been properly classified as “managerial staff” under the Award, the effect of which was that if he was paid at least the minimum salary absorption rate applicable under cl.27.2 of the Award, cls.12, 21, 29, 31, 32, 33, 37.1(b)(i), and 39 of the Award no longer applied to him.
HIE admitted that Mr Jones had:
(a)worked in excess of 40 hours per week in various weeks from October 2015 to May 2016 but denied that that it had been required to pay overtime;
(b)worked shifts in excess of 11.5 hours on various dates from December 2015 to June 2016, contrary to cl.29.1(b)(i) of the Award;
(c)been rostered to work in excess of 10 hours per day on more than 3 consecutive days without a break of 48 hours immediately following those shifts during various 3 day periods from January 2016 to May 2016, contrary to cl.29.1(b)(ii) of the Award;
(d)worked more than 8 days of more than 10 hours in a 4 week period during various 4 week periods from January 2016 to May 2016, contrary to cl.29.1(b)(iii) of the Award; and
(e)worked between 7pm and midnight or between midnight and 7am on various dates from October 2015 to June 2016, contrary to cl.32.3 of the Award.
HIE alleged that Mr Jones been provided with a meal on every shift worked and denied that he had been entitled to a meal allowance.
HIE admitted that it had breached s.323(1)(a) of the FW Act by failing to pay Mr Jones in full for work from 15 October 2015 to 2 June 2016 [recte: 28 June 2016] (Salary Period) in that it had not paid him the salary absorption rate applicable to his position as junior sous chef.
HIE alleged that, to the extent that Mr Jones had suffered any loss or damage by reason of the admitted contraventions of the FW Act during the Salary Period, he had been fully compensated by a payment it made to him in May 2021. It alleged in that connection that on 21 May 2021 it had made him a back payment of $26,256.69, of which $10,627.09 related to work undertaken during the Salary Period.
HIE further alleged that from 3 June 2016 [recte: 29 June 2016] to 5 July 2018, Mr Jones had been paid at the correct salary absorption rates and so he had not been entitled during that period to the benefit of, relevantly, cls.21, 29 and 32 of the Award.
HIE denied having breached any terms of the Contract.
LEGISLATION & AWARD
The FW Act relevantly provides:
...
45       Contravening a modern award
A person must not contravene a term of a modern award.
...
61 The National Employment Standards are minimum standards applying to employment of employees
(1)This Part sets minimum standards that apply to the employment of employees which cannot be displaced, even if an enterprise agreement includes terms of the kind referred to in subsection 55(5).
...
62       Maximum weekly hours
Maximum weekly hours of work
(1)An employer must not request or require an employee to work more than the following number of hours in a week unless the additional hours are reasonable:
(a)      for a full‑time employee—38 hours; or
(b)for an employee who is not a full‑time employee—the lesser of:
(i)       38 hours; and
(ii)      the employee’s ordinary hours of work in a week.
...
323      Method and frequency of payment
(1) An employer must pay an employee amounts payable to the employee in relation to the performance of work:
(a)      in full (except as provided by section 324); and
...
(c)       at least monthly.
At all material times, the Award relevantly provided:
21. Allowances
21.1 Expenses Incurred in the course of employment
(a)       Meal allowance
(i) An employee required to work overtime for more than two hours without being notified on the previous day or earlier that they will be so required to work must either be supplied with a meal by the employer or be paid an allowance …
(ii) If an employee who has been given notice of a requirement to work overtime has provided a meal and is not required to work overtime or is required to work less than the amount advised, they must be paid as prescribed above for the meal which they have provided but which is surplus.
…
26. Payment of wages
…
26.2 By agreement between the employer and the employee wages may be paid either weekly or fortnightly …
…
27. Salary arrangements
27.1 Annualised Salary (Employees other than Managerial Staff (Hotels))
This clause applies to employees other than those classified as Managerial Staff (Hotels).
(a)As an alternative to being paid by the week according to clause 20—Minimum wages, by agreement between the employer and the employee, the employer may pay the employee at a rate equivalent to an annual salary of at least 25% or more above the rate prescribed in clause 20—Minimum wages, times 52 for the work being performed. The employer and the individual employee must genuinely make the agreement without coercion or duress.
…
27.2 Salaries absorption (Managerial Staff (Hotels))
This clause applies to those employees classified as Managerial Staff.
(a)Managerial Staff who are paid a salary of 25% in excess of the minimum annual salary rate … in clause 20.2 … will not be entitled to the benefit of the terms and conditions within the following clauses:
•clause 12—Part-time employment;
•clause 21—Allowances;
•clause 29—Ordinary hours of work (Full-time and part-time employees)
•clause 31—Breaks;
•clause 32—Penalty rates;
•clause 33—Overtime;
•clause 34.2—Payment for annual leave;
•clause 37.1(b)(i)—Additional arrangements for full-time employees (on public holidays);
•clause 39—Provision of employee accommodation and meals.
(b)An employee being paid according to clause 27.2(a) will be entitled to a minimum of eight days off per four week cycle.
(c)An employee being paid according to clause 27.2(a) who works on a public holiday will be entitled to paid time off that is of equal length to the time worked on the public holiday. This time is to be taken within 28 days of accruing it.
…
(e)For the purpose of calculating the weekly equivalent of the annual salary rates prescribed by this clause, the divisor of 52 will be used and the resultant amount will be taken to the nearest 10 cents. All calculations required to be made under this award for the purpose of determining hourly amounts payable to an employee will be calculated on the weekly equivalent of the annual salary.
(f)Managerial Staff will be reimbursed for all monies reasonably expended for and on behalf of the employer subject to hotel policy or approval.
…
29 Ordinary hours of work (full-time and part-time employees)
29.1 Full-time employees
(a)       The average of 38 hours per week is to be worked in one of the following ways:
•a 19 day month, of eight hours per day;
•four days of eight hours and one day of six hours;
•four days of nine and a half hours per day;
•five days of seven hours and 36 minutes per day;
•76 hours over a two week period with a minimum of four days off each two week period;
•152 hours each four week period with a minimum of eight days off each four week period;
•160 hours each four week period with a minimum of eight days off each four week period plus an accrued day off;
•any combination of the above.
(b)The arrangement for working the average of 38 hours per week is to be agreed between the employer and the employee from the alternatives in clause 29.1(a) and must meet the following conditions:
(i)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.
(ii)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 immediately following.
(iii)No more than eight days of more than 10 hours may be worked in a four week period.
(iv)Where broken shifts are worked the spread of hours can be no greater than 12 hours per day.
...
32.3 Other penalty
Employees will be entitled to the following additional penalty for work performed at the following times:
(a)Monday–Friday—7.00 pm to midnight: 10% of the standard hourly rate per hour or any part of an hour for such time worked within the said hours;
(b)Monday–Friday—midnight to 7.00 am: 15% of the standard hourly rate per hour or any part of an hour for such time worked within the said hours.
…
Schedule D—Classification Definitions
…
D.2      General classification definitions
D.2.1 Food and beverage stream
…
D.2.2   Kitchen stream
…
Cook (tradesperson) grade 5 means a chef de partie or equivalent who has completed an apprenticeship or has passed the appropriate trade test in cooking, butchering, baking or pastry cooking and has completed additional appropriate training and who performs any of the following:
·     general and specialised duties including supervision or training of other kitchen staff;
·     ordering and stock control; and
·     supervising other cooks and other kitchen employees in a single kitchen establishment.
…
D.2.9 Managerial staff (Hotels)
For the purpose of this additional classification, hotels means hotels, resorts, casinos, taverns, wine saloons, wine and spirit merchants retailing to the general public and other retail licensed establishments in or in connection with accommodation, with the selling of drinks, preparing and serving food and drinks, cleaning and attending to the premises and all other services associated therewith.
In this additional classification, hotel manager means an employee (however designated) who:
•under the direction of senior management is required to manage and co-ordinate the activities of a relevant area or areas of the hotel; and
•directs staff to ensure they carry out their duties in the relevant area or areas of the hotel; and
•implements policies, procedures and operating systems for the hotel;
but excludes an employee who is employed to undertake the duties of senior management, responsible for a significant area of the operations of one or more hotels. Indicative position titles for such an employee include:
•Company secretary;
•Chief accountant;
•Personnel or human resources manager;
•Financial controller;
•Industrial relations manager;
•Venue manager;
•General/hotel manager;
•Executive assistant manager;
•Regional manager; or
•a Manager to whom any of those positions report or are responsible.
An employee appointed as a Manager will have completed an appropriate level of training in business management or have relevant industry experience including the supervision of staff in one or more areas of an hotel. In a General Hotel, this classification is commonly known as an Assistant manager. In an Accommodation Hotel, this classification may include any of the following positions: Duty manager; Assistant food and beverage manager; Assistant rooms division manager; Assistant front office manager or equivalent position.
…
APPLICANT’S EVIDENCE
Emrys Jones
Mr Jones deposed that he had been employed by HIE in the Qualia Resort on Hamilton Island from 9 January 2013 to 8 July 2013 and from 8 January 2014 to 5 July 2018. He had commenced working professionally as a chef in 2007 after completing his studies and attaining a British National Vocation Qualification Level 2, which he said was similar to an Australian TAFE course.
First period of employment: 9 January 2013 to 8 July 2013
Mr Jones commenced his first period employment with HIE on 9 January 2013 as a chef de partie. He left on 8 July 2013 in accordance with the terms of his working holiday visa.
Responsibilities as chef de partie
Mr Jones deposed that a chef de partie is a qualified chef who is responsible for the food production of a certain station within a professional kitchen and who may or may not have other junior staff working directly under them at that station. While working as a chef de partie, he was responsible for his work station and for the quality of food it produced and would be given orders by the Head Chef or Executive Chef.
Mr Jones deposed that his regular responsibilities as a chef de partie included cooking all sauces, preparing any meat that required brining or slow cooking, assisting other kitchen staff in packing away the vegetable delivery and setting up the station for dinner service. Mr Jones deposed that during the dinner service he cooked all meat and fish to be sent to the restaurant by the Head Chef. Mr Jones deposed that following the dinner service, he would clean his station and pass on any orders for supplies to more senior chefs such as the junior sous chef, sous chef or Head Chef.
Mr Jones’s evidence was that junior chefs did not report to him, but during meal service he would supervise and direct them to ensure that they were working efficiently and preparing food properly.
Second Employment Period: 8 January 2014 to 5 July 2018
Chef de partie
Mr Jones’s second period of employment commenced on 8 January 2014. His letter of appointment dated 20 December 2013 relevantly read:
...
7.Because of the nature of the tourism industry particularly on a resort island, you may be required to work on public holidays from time to time. No extra payments by way of overtime or penalty will be made for such work.
8.Your nominal roster is 40 hours per week, however, it is expected that you will be required to work reasonable additional hours to fulfil your responsibilities. No extra payments will be made for this additional time, however, you may be allowed time off in lieu of pre-approved overtime at the discretion of your department head.
...
11.Wage earning employees on Hamilton Island work under a registered workplace agreement. As a salaried employee, you are not covered by this agreement, and unless benefits are specifically referred to in this letter of appointment, you are excluded from all other benefits as expressed in the workplace agreement including such things as holiday leave loading and overtime rates. Please note your salary, if applicable, does include tool allowances.
...

Mr Jones deposed that he recommenced as a chef de partie and after 2-3 months was transferred to the pastry station where he was responsible for all dessert dishes for the Long Pavilion and Pebble Beach restaurants and for informing the sous chef or Head Chef of any ingredient requirements. Mr Jones deposed that at the pastry station, he received order dockets directly and frequently sent dishes straight to the table rather than by way of a more senior chef.
Mr Jones deposed that while at the pastry station no other employees reported to him, although when he was not busy he would assist junior staff on other stations as needed.
Promotion to junior sous chef: 3 June 2015
Mr Jones deposed that he was promoted to junior sous chef on about 15 May 2015 at an annual salary of $51,370 plus superannuation. A letter of appointment dated 15 May 2015 stated that the promotion was effective from 3 June 2015, advised a new annual salary of $51,370 plus superannuation and said that all other conditions of employment would remain the same.
Mr Jones said that a junior sous chef had a greater level of responsibility than a chef de partie and supervised chefs of lesser seniority, namely apprentices, commis chefs, demi chefs and chefs de partie. A junior sous chef might also be called on to run the kitchen in the absence of the Executive Chef, as he had done regularly in the Long Pavilion. Mr Jones’s evidence was that he ran a particular station and provided assistance to other stations as required and, unless the Head Chef or Executive Chef was absent, did not have managerial responsibilities or make rostering decisions. Mr Jones deposed that he worked under the direct supervision and control of the Head or Executive Chef and that although junior sous chefs or sous chefs would assist in operating the restaurants, they were not assistant managers and had no managerial responsibilities.
Mr Jones deposed that after his promotion to junior sous chef, he continued to work alone at the pastry station with the same responsibilities as previously. His evidence was that initially the only difference from his previous duties was that during quiet times he provided more active additional assistance to junior chefs. Mr Jones deposed that 2-3 months after his promotion, he was directed by the then-Head Chef, Mr Knudsen, to perform a “more roaming role” which consisted of:
(a)filling in at various stations when other chefs had the day off;
(b)working to prepare some lunch services;
(c)assisting chefs de partie when they were very busy;
(d)ensuring that the kitchen was cleaned at the conclusion of dinner service; and
(e)providing produce orders to the Executive Chef.
September – November 2016: Period of increased responsibility
Mr Jones deposed that the kitchen was without an Executive Chef from Craig Knudsen’s departure in September 2016 until Douglas Innes-Will’s appointment in November 2016. Mr Jones deposed that during that 6 to 8 week period, the remaining junior staff, including senior sous chef Perin Yates, junior sous chef Mike Bickford and he, worked as a team to run the resort’s restaurants. His evidence was that they were responsible for rostering staff, ordering produce and ensuring that the kitchen maintained the required standards.
Responsibilities after November 2016
Mr Jones deposed that following Mr Innes-Will’s appointment as Executive Chef in November 2016, he continued in his junior sous chef position on a rotating basis as a “fill-in” chef. Mr Jones deposed that in that role he continued to perform the tasks of chef de partie but, having broader experience, was able to fill-in for other chefs and during busy service periods undertook general supervision of the workstations to monitor standards. Mr Jones’s evidence was that his general duties included ordering produce from the storeroom, preparing and cooking food called for by the Executive Chef, telling chefs at other stations when to clean, making suggestions to them regarding technique where appropriate, providing occasional supervision of junior chefs for the breakfast service when required and monitoring food deliveries to advise the Executive Chef of any shortfalls. Mr Jones deposed that he would also provide ideas for dishes to be added to the menu, but was not permitted or guaranteed to have any placed on the menu, which was a matter for the Executive Chef.
Promotion to sous chef: 1 March 2017
Mr Jones’s evidence was that he was promoted to sous chef on or around 1 March 2017 pursuant to a letter of appointment dated 20 March 2017 and at an annual salary of $63,000 plus superannuation.
Mr Jones deposed that after Cyclone Debbie in (late March) 2017 the Executive Chef moved to the Pebble Beach Restaurant and that, as a result, the Long Pavilion operated without a Head or Executive Chef. At the Long Pavilion, he took on the role that would normally have been the Head Chef’s by calling orders and plating food passed to him by the other chefs. He normally only worked the dinner service but if there was a VIP event for lunch, the Executive Chef would ask him to supervise that service too.
Mr Jones deposed that he reported directly to the Executive Chef and his responsibilities included:
(a)menu design;
(b)ordering produce from the mainland supplier’s catalogue;
(c)discussing staffing with the Executive Chef;
(d)supervising lunch service if there was a VIP event; and
(e)on occasionally approving time sheets when the Executive Chef was away.
Mr Jones would begin work at about 10:00am and would leave the kitchen after dinner service had ended. His regular tasks included reviewing the smooth operation of the breakfast service to resolve any issues that may have occurred and, if there had been a complaint, he would talk to the chef involved, find out what had gone wrong and then discuss a way to improve his or her performance if needed. His regular tasks also included checking the preparation of the kitchen for the lunch and dinner services, assisting chefs during any busy periods, informing chefs of anything to be made again because he had discarded it during his morning checks due to hygiene rules, and randomly tasting food to ensure it met the required standard.
Mr Jones deposed that he occasionally worked without supervision and only ran dinner services when neither an Executive Chef nor a Head Chef (also known as Chef de Cuisine) was present because they were needed elsewhere or the position was vacant. He did run lunch services by himself but they were uncomplicated menus with few staff.
Mr Jones deposed that in the absence of a Head Chef he co-ordinated the kitchen under the direct supervision of the Food and Beverage Manager who had overall responsibility when the Executive Chef was not present.
Management Training
Mr Jones’s evidence was that while he had been rostered to attend a finance course on 21 October 2015, he did not in fact attend as it fell on a rostered day off and he had only attended the “Workplace Relationships”, “Recruitment and Diversity”, “Creating Extraordinary” and “People and Performance” courses. He deposed that HIE had not required him to complete any of the “Managers Essentials” courses prior to either of his promotions, or within any specific time while he was junior sous chef or sous chef.
Application for Executive Chef Position
Mr Jones deposed that prior to leaving HIE he had applied for the position of Executive Chef but was told by the General Manager, Mr LaMonica:
You are not suitable because you don’t have the required experience to run the resort restaurants. You don’t have the necessary experience and skills in budgeting, rostering, menu design and coordinating large kitchens.
Alleged underpayments
Mr Jones deposed that his HIE time sheets demonstrated that he regularly worked:
(a)more than 60 hours per week;
(b)shifts of more than 11.5 hours;
(c)more than 10 hours per day on more than 3 consecutive occasions without a 48 hour break;
(d)more than 8 days of more than 10 hours per day over a 4 week period; and
(e)overtime of more than 2 hours without a meal allowance.
Mr Jones annexed a copy of his timesheets to his affidavit.
Events after termination
Mr Jones deposed that on 21 May 2021, HIE sent him a payslip indicating he had been underpaid $26,256.69, which was paid into his bank account, less tax. On 30 August 2021 his solicitors sent HIE’s solicitors a letter of demand for a further $66,804. On 17 September 2021, HIE’s solicitors replied with a counter-offer of $33,313.52. In that letter HIE admitted an unrectified underpayment of $33,313.52 for the period 3 June 2015 to 28 June 2016, calculated by reference to the Award’s chef de partie classification, “Cook (tradesperson) grade 5”.
On 14 October 2021 HIE’s solicitors wrote again advising that HIE’s admission had been reconsidered and asserting that the payment made earlier in 2021 had satisfied all its obligations under the Award. The offer to pay $33,313.52 was not withdrawn but was re-put without admission of liability and made subject to a requirement that Mr Jones enter into a deed of release. The offer was expressly withdrawn upon the commencement of this proceeding on 15 October 2021.
Craig Knudsen
Mr Knudsen deposed that he commenced employment at Qualia Resort in July 2011 as a chef de partie and was promoted to junior sous chef before leaving in January 2013. He returned in August 2015 as Chef de Cuisine and was promoted to Executive Chef before leaving again in September 2016.
Acting Executive Chef
Mr Knudsen deposed that when he returned to Qualia Resort in August 2015 as Chef de Cuisine, there was no Executive Chef so he was responsible for running the pass at the Long Pavilion with the assistance of two junior sous chefs while the sous chef supervised the Pebble Beach restaurant. Mr Knudsen deposed that he was promoted to Executive Chef 4-5 weeks after his return. His duties as Executive Chef included approving menus, ordering ingredients, planning rosters, hiring and dismissing staff and being responsible for profitability.
Mr Knudsen deposed that Mr Jones’s role as one of his junior sous chefs at the Long Pavilion was “to be my eyes and ears on the kitchen floor” and to report any problems to him. Mr Jones was not permitted to make rostering decisions, run a shift unsupervised or act alone, but was expected to collate orders for ingredients and to provide creative input regarding potential additions to the menu.
Douglas Innes-Will
Mr Innes-Will deposed that he was Executive Chef at Qualia Resort from 13 September 2016 to 7 May 2018 and that his duties included:
(a)management of the restaurant and in-house dining offerings;
(b)oversight of the kitchens of both restaurants;
(c)co-ordinating the restaurant service with the Food and Beverage Manager;
(d)directly reporting to the General Manager, with input in relation to changes in policy and procedure other than minor procedure changes in the kitchen, and promotion of kitchen staff;
(e)reporting to the General Manager regarding budget and consulting him or her regarding the costing of menu dishes and approval of menu changes; and
(f)consulting with the General Manager and Sales Team regarding large event menu offerings.
Mr Innes-Will deposed that when he started, Mr Jones was a junior sous chef whose responsibilities included training more junior chefs, maintaining quality and timely food delivery, and ensuring orders for supplies were made in liaison with the sous chef. Mr Innes-Will deposed that when the sous chef was not rostered on, Mr Jones might have been required to perform some of the sous chef’s duties, such as supervising the kitchen during service, plating the food and calling orders.
Mr Jones’s Promotion to Sous Chef
Mr Innes-Will deposed that after about 6 months, he sought Mr Jones’s promotion to sous chef because of his ability to “act-up”. In that role, Mr Jones reported directly to Mr Innes-Will as Executive Chef, because the position of Chef de Cuisine had been abolished.
Mr Innes-Will deposed that Mr Jones was expected to run the kitchen service in his absence, as there was no Chef de Cuisine. He was also expected to train and supervise junior chefs, make suggestions in relation to menu items, provide feedback on areas of concern or on improvements and perform some rostering duties when Mr Innes-Will was not available, such as checking that the shifts had been done by junior chefs. Mr Innes-Will deposed that he permitted the sous chefs, with his approval, to order supplies from the mainland supplier’s catalogue.
Mr Innes-Will deposed that Mr Jones was not permitted to approve changes to procedures or to menus.
RESPONDENT’S EVIDENCE
John Kennedy
At the time of making his affidavit, Mr Kennedy was Executive Chef at Qualia Resort and had over 35 years’ experience as a professional chef. He deposed that at Qualia, a Head Chef and two sous chefs reported directly to him, seven chefs de partie reported to the Head Chef or sous chefs and a number of demi chefs, commis chefs, apprentices and trainees were also employed there.
Mr Kennedy deposed that a kitchen’s structure is hierarchical and that its “leadership team” commonly consists of the Executive Chef, the Head Chef, sous chefs and junior sous chefs if any. Mr Kennedy deposed that if there was a new policy or procedure being introduced, the Executive Chef would bring it to this group of employees who were responsible for explaining it to the more junior chefs.
Mr Kennedy deposed that he would brief the Head Chef and sous chefs daily and they would then brief the team on the day’s service. The Head Chef was responsible for Pebble Beach restaurant and the sous chefs were jointly responsible for Long Pavilion restaurant.
Mr Kennedy deposed that “running service” was a responsibility that involved calling out the orders for each table as they were brought to the kitchen from the dining room and then co‑ordinating the other chefs at each station so everyone at a table received their meals at the same time. Mr Kennedy deposed that this involved checking the quality of food prepared, plating the food correctly and sending out the meal with the other meals on the docket. Mr Kennedy deposed that this required a holistic view of the kitchen and preparation being conducted by each station by co-ordinating the chefs de partie to ensure that the elements for each meal arrived on time for plating.
Executive Chef Role
Mr Kennedy deposed that an Executive Chef runs a hotel or resort’s kitchens and typically reports to the general manager of the establishment. He reported to the General Manager of Qualia.
Mr Kennedy deposed that Executive Chefs are tasked with the effective operation and profitability of the kitchen department and that their responsibilities are divided into back-office work and kitchen work. The back office responsibilities are:
(a)ordering supplies, with assistance from other senior chefs;
(b)co-ordinating menus, including introducing new dishes or menus by tasting and costing;
(c)rostering, as it has the most significant impact on the budget;
(d)hiring and dismissing kitchen staff; and
(e)setting budgets and reviewing profitability of the kitchens in consultation with the General Manager, which would not involve the Head Chef or sous chef.
The relevant kitchen responsibilities of an Executive Chef included:
(a)tasting the food and executing dishes;
(b)ensuring compliance with hygiene and food standards, with assistance from senior chefs; and
(c)making sure other chefs were fulfilling their roles.
Head Chef
Mr Kennedy deposed that the Head Chef is senior manager within the kitchen department and assists the Executive Chef. In the absence of the Executive Chef, the Head Chef would step in and delegate to the team.
Mr Kennedy deposed that the responsibilities of a Head Chef are similar to those of a sous chef but the Head Chef will have more experience and a greater level of skill. Mr Kennedy deposed that the Head Chef’s responsibilities may be:
(a)managing and running service;
(b)assisting with rosters in the absence of the Executive Chef;
(c)assisting the Executive Chef with performance management and discipline; and
(d)assisting the Executive Chef with ordering supplies, or taking responsibility for this in the Executive Chef’s absence.
Sous Chef
Mr Kennedy deposed that a sous chef would be required to have trade qualifications, senior skills and experience working in a kitchen, have previous proven supervisory or managerial experience, and be able to manage areas within a kitchen and to control it in the absence of more senior chefs.
Mr Kennedy deposed that sous chefs are responsible for running the kitchen on a day-to-day basis and that while the role has responsibilities similar to those of a junior sous chef, a sous chef will undertake managerial duties more regularly. Mr Kennedy deposed that at Qualia Resort the sous chefs’ responsibilities were:
(a)checking in with staff at the beginning of each shift about preparation for service;
(b)receiving a handover and briefing from the chef in charge of the previous shift;
(c)ensuring kitchen hygiene;
(d)monitoring junior chefs and providing on-the-job feedback, instruction and training to junior chefs, reporting any issues to the Executive Chef;
(e)conducting food costing;
(f)proposing new recipes for the menu and costing recipes;
(g)checking stock levels and assisting the Executive Chef with ordering; and
(h)running service.
Mr Kennedy deposed that as Executive Chef, while retaining ultimate control, he would seek the input of sous chefs on rostering and who they thought should be working where.
Junior Sous Chef
Mr Kennedy deposed that in his time at the Qualia Resort there had been no junior sous chefs but he had worked with junior sous chefs in other kitchens where, from time to time, he would leave them in charge if he was absent. Mr Kennedy deposed that a junior sous chef should have trade qualifications, senior skills with a strong understanding of kitchen operations, the ability to step in and run the kitchen without senior chefs on shift, and proven previous supervisory experience.
Mr Kennedy deposed that the junior sous chefs, along with the sous chefs, are responsible for running the kitchens on a day-to-day basis, although a junior sous chef may require more support from senior chefs to undertake the role’s more managerial duties. Mr Kennedy deposed that the responsibilities of a junior sous chef were:
(a)overseeing the preparation for service;
(b)ensuring the junior chefs are ready for service;
(c)suggesting new recipes and costing those recipes;
(d)providing on-the-job coaching and informal performance management of the junior chefs;
(e)if required, assisting the Executive Chef and other senior staff with ordering supplies;
(f)if a junior chef calls in sick, finding a chef to replace them; and
(g)on occasion, running service.
Mr Kennedy deposed that junior sous chefs have greater responsibility and are more senior than a chef de partie as they are the first level of management, with responsibility for supervising and managing more employees, and across the whole kitchen, than a chef de partie, who is responsible only for their station. His evidence was that those additional responsibilities of a junior sous chef included running service, kitchen hygiene, training other chefs, food costing and ordering. Mr Kennedy deposed that when a junior sous chef is responsible for running dinner service, they are required to co-ordinate all the junior chefs so that the meal’s elements are ready at the same time.
Chef de partie

Mr Kennedy deposed that a chef de partie should have a trade qualification, an intermediate skill level and an understanding of kitchen operations. His evidence was that they should be capable of taking on some tasks in food preparation and service without supervisor assistance.
Mr Kennedy deposed that chefs de partie are assigned to and are supervisors responsible for a particular station within the kitchen. Depending on the size of the station, a chef de partie may be stationed alone or with a demi or commis chef whom the chef de partie would supervise. Mr Kennedy deposed that the responsibilities of a chef de partie included:
(a)preparing their station for service;
(b)ensuring their station is clean and meets hygiene requirements;
(c)ensuring their station has the correct stock levels;
(d)supervising any demi or commis chef working with them; and
(e)executing food preparation during service.
Other kitchen staff
Mr Kennedy deposed that the commis and demi chefs are responsible for assisting with preparation and execution of service, as well as with cleaning and “pack down”.
Nicole Walter
Ms Walter was, at the time she made her affidavit, HIE’s Human Resources Director. She deposed that her responsibilities included the “salary review remediation project”, workforce resource management, employee relations and ensuring compliance with award obligations.
Role descriptions
Ms Walter deposed that the chef de partie position description current when Mr Jones was employed in that role provided that the chef de partie reported to the sous chef and the Executive Chef. The role’s responsibilities included food production, supervision of subordinate kitchen staff, deputising in the absence of the sous chef and processing food (i.e. stock) requisitions.
Ms Walter deposed that the junior sous chef position description that applied when Mr Jones was employed in the position provided that the junior sous chef reported to the sous chef. The role’s responsibilities included supervising food production during service, checking all deliveries of food for quality and quantity, ensuring proper storage and handling, preparing staff rosters, assisting with training and performance appraisals of subordinate staff and conducting daily staff briefings.
Ms Walter deposed that the sous chef position description current when Mr Jones was employed in the position provided that the sous chef reported to the Executive Chef. The role’s responsibilities included food production, supervision of all kitchen staff, overseeing communication with kitchen hands and waiting staff, processing food (stock) requisitions, assisting staff induction and training, assisting the Executive Chef and resort management to create menus and achieve budgeted forecast results, communicating suggested operational changes to the Head Chef and assisting with implementing changes.
Ms Walter deposed that the Head Chef position description current when Mr Jones was employed by HIE provided that the Head Chef reported to the Executive Chef. The role’s responsibilities included ensuring all menus balanced guest satisfaction and cost effectiveness, maintaining accurate costings for food production and high standards of food presentation and preparation, ensuring effective food inventory practice and minimisation of wastage, ensuring effective recruitment, encouraging team retention, and ensuring compliance with all policies and procedures.
Ms Walter deposed that the Executive Chef position descriptions current during Mr Jones’s employment provided that the Executive Chef reported to the General Manager – Food and Beverage. The role’s responsibilities included establishing effective communication of the goals, responsibilities and expectations for sous chefs and their teams, achieving cost of sales targets and objectives, effectively planning and setting business strategies for future growth, and ensuring compliance with all standards and requirements including HIE policies and procedures.
Calculation of Mr Jones’s wages
Ms Walter deposed that Mr Jones had been employed by HIE from 9 January 2013 to 8 July 2013 and from 8 January 2014 to 5 July 2018 and that during his employment he received the following pay increases:
(a)July 2014, increase to $48,000 plus superannuation;
(b)July 2015, increase to $52,500 plus superannuation;
(c)July 2016, increase to $60,000 plus superannuation;
(d)July 2017, increase to $64,135 plus superannuation; and
(e)July 2018, increase to $65,225 plus superannuation.
The letters advising the last four pay rises all stated that the terms and conditions of Mr Jones’s employment were otherwise unaltered.
Ms Walter deposed that in December 2020 HIE commenced a review of its payment practices for employees covered by the Award which found that during his second period of employment, Mr Jones’s annual salary had been, at times, less than what he should have been paid under the Award. Ms Walter deposed that in relation to the period 19 December 2014 to 2 June 2015, when Mr Jones was employed as a chef de partie, his wages had been underpaid by $14,265.84 and his superannuation contributions underpaid by $150.47.
Ms Walters said that upon review of the Award, she found that the highest chef classification was chef de partie and she concluded that roles above that, such as a junior sous chef and sous chef would be managerial and within the Award’s cl.D.2.9 Managerial Staff (Hotels) classification. The review of staff pays identified that Mr Jones had been a managerial employee from 3 June 2015 to 5 July 2018 and it calculated that he was owed $11,990.85 plus $1,139.05 superannuation in respect of that period.
HIE calculated that the total amount owed to Mr Jones was $26,256.69 plus superannuation but an error had been made in an element of the calculation and Ms Walter deposed that HIE would pay $4 to cover the shortfall.
Kyle LaMonica
At the time he made his affidavit, Mr LaMonica was HIE’s Executive General Manager of Food and Beverage and had 30 years’ experience in the food and beverage industry.
Mr LaMonica deposed that from 13 September 2013 to 5 November 2014 he had been Qualia Resort’s Food and Beverage Manager and of the same seniority as the Executive Chef, both of them reporting directly to the General Manager. Mr LaMonica deposed that he had had ultimate responsibility for front of house operations, while the Executive Chef had had ultimate responsibility for the back of house operations.
Mr LaMonica deposed that he had been the General Manager of Qualia Resort from 1 January 2016 to 16 October 2018 and oversaw all aspects of Qualia’s operations, including its restaurants. He received direct reports from the Executive Chef and seven other subordinates, each of whom was responsible for managing a division or area of service. Mr LaMonica deposed that each of these direct reports was responsible for preparing the rosters for their division, with his assistance if required, and managed time and attendance approvals for their teams.
Mr LaMonica deposed that because of his work history and experience, he had a full understanding of all aspects of food and beverage service, including the responsibilities of each role in the kitchen and front of house. He also said that he had specific experience and knowledge of the food and beverage division at the Qualia Resort.
Mr Jones’s employment
Mr LaMonica deposed that Mr Jones had been employed by HIE from 9 January 2013 to 8 July 2013 as a chef de partie. He was later re-employed in the same position and subsequently promoted to junior sous chef and sous chef before resigning his employment.
Mr LaMonica deposed that while he was junior sous chef, Mr Jones undertook many of the same managerial responsibilities as a sous chef. Mr LaMonica deposed although his managerial skills were still being developed and refined, Mr Jones had, along with other senior chefs, successfully run the kitchen during a period when there was no Head Chef or Executive Chef, which included instances of costing and changing menu items with his approval.
Mr LaMonica deposed that Mr Jones was a great chef, proficient in assisting the Executive Chef to run the kitchen, with menu engineering and managing costs. He had also enrolled for training in various management software systems, as would be expected from someone in the role of junior sous chef or higher. Mr Jones had also been invited to attend the Managers Essentials program which was offered to managerial employees.
Mr LaMonica deposed that Mr Jones applied unsuccessfully for the position of Executive Chef prior to ending his employment with HIE. Mr LaMonica deposed that at the interview, he had said words to the effect of:
I am looking for someone with more experience than you for the Executive Chef role. Whilst your ability in the kitchen and skills as a chef and your menu engineering are not to be questioned, I am looking for someone with a solid background in people management.
Mr LaMonica explained that he had had concerns about Mr Jones’s people-management skills because there had been several staff complaints concerning how he, as sous chef, had managed them or had spoken to them.
Staff roles in the kitchen
Mr LaMonica deposed that a commercial kitchen operates with a hierarchical structure, under the supervision of an Executive Chef, although a number of roles share management duties and responsibility with the Executive Chef because the effective management of a kitchen is a very substantial operation. It was Mr LaMonica’s evidence that while General Manager, he had been heavily involved in all areas of Qualia Resort’s operation and knew from experience the roles and responsibilities of different positions within the kitchen.
Chef de partie
Mr LaMonica deposed that a chef de partie is generally responsible for a station, such as sauces, proteins or pastry, from the start of the day to its end. He deposed that at Qualia, while a chef de partie might assist with the supervision and development of a commis or demi chef on their station, they were not responsible for managing the other junior chefs.
Junior sous chef
Mr LaMonica deposed that a promotion to junior sous chef would occur when the individual had a proven record of experience supervising other chefs, and the Executive Chef or General Manager wished to develop the individual’s culinary skills or management skills. Mr LaMonica deposed that a junior sous chef was not responsible for one station alone but assisted the sous chef, the Head Chef and the Executive Chef manage and run the kitchen. Mr LaMonica deposed that the responsibilities of a junior sous chef included:
(a)holding junior chefs accountable and training them on-the-job in the correct processes and procedures;
(b)running breakfast, lunch or dinner service if they were the most senior chef rostered in the restaurant;
(c)assisting the more senior chefs with the management of the junior chefs;
(d)placing orders for ingredients if directed by a more senior chef;
(e)suggesting and costing ideas for the menus; and
(f)assisting the senior chefs with introducing any new policies or procedures.
Sous chef
Mr LaMonica deposed that a sous chef assists the Head and Executive Chefs in the day-to-day management of the kitchen. He deposed that it is an important management role, especially when there is no Head Chef, as the sous chef would be the most senior chef after the Executive Chef. His evidence was that a sous chef would be required to have previous experience supervising or managing employees, ideally with at least one year’s experience in the role. Mr LaMonica deposed that the responsibilities of a sous chef included running dinner service if the Executive Chef was working in the other kitchen, and assisting with the management of junior chefs. He deposed that in addition to the duties of the junior sous chef, a sous chef would be responsible for assisting the Executive Chef with rostering, holding junior chefs accountable for their performance, providing training or review if required, attending the Managers Essentials program and assisting the Executive Chef with menu engineering and costing.
Executive and Head Chefs
Mr LaMonica deposed that there had been no Head Chef or Chef de Cuisine while he was General Manager and that if the Executive Chef was not present in the kitchen during a rostered shift, the most senior chef, who might be a sous chef or junior sous chef, was in charge.
CONSIDERATION
Factual background
The accounts of the witnesses were very similar, their differences being more in the nature of detail and characterisation rather than of significant substance. No issues of credit were raised. Additionally, a statement of agreed facts was tendered. I have no difficulty in finding that:
(a)Mr Jones had two periods of employment with HIE, the one of particular relevance for this dispute being the second, from 8 January 2014 to 5 July 2018;
(b)any claims pre-dating 15 October 2015 are statute barred;
(c)at all times, Mr Jones’s employment was governed by the Award;
(d)Mr Jones was promoted from chef de partie to junior sous chef, effective 3 June 2015 and from junior sous chef to sous chef, effective 1 March 2017;
(e)the position of junior sous chef was superior in the kitchen hierarchy to the position of chef de partie, the sous chef position was superior to the junior sous chef position and the positions of Chef de Cuisine/Head Chef and Executive Chef were superior to the position of sous chef, Executive Chef being the highest position in the kitchen.
Construction of the Award
Approach to construction
An award is to be construed in accordance with the principles expressed in authorities such as Kucks v CSR Ltd (1996) 66 IR 182, United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board (2006) 152 FCR 18 at 26 [51]-[53] and Short v FW Hercus Pty Ltd (1993) 40 FCR 511. In Kucks v CSR Madgwick J said:
It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.
But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning. (at 184)
Submissions
Applicant
The issue at the heart of this case was whether the roles of junior sous chef and sous chef at the Qualia Resort had been, when performed by Mr Jones, “hotel manager” positions governed by cl.D.2.9 of the Award, or trade positions governed by cl.D2.2 of the Award, in particular by the Cook (tradesperson) grade 5 classification.
Mr Jones argued that HIE had classified him as a manager upon his promotion to junior sous chef simply because he was no longer a chef de partie when, in fact, an employee’s classification did not turn on the title of their job but on what work they performed. He argued that a person, including a sous chef, doing the work of a Cook (tradesperson) grade 5 would be covered by that classification. He said that the classification did not refer to sous chef because a sous chef could, in other circumstances such as a small business, be managerial staff.
Mr Jones went on to say that, in any event, he could not have been a “hotel manager” because he was a chef, arguing that the definition of hotel manager referred to persons with hotel management training and experience, including:
supervision of staff at one or more areas of an [sic] hotel,
particularly an “Accommodation Hotel”, and that that amounted to:
an important distinction between roles where a person’s job is business management compared to a person whose role is not e.g. a chef.
Being a “hotel manager” was, he continued:
… not about a role having some authority or having to manage some things or having some responsibility whilst carrying out the key tasks for [a] role such as cooking and preparing food in a kitchen
because
the requisite level of authority must be to manage and coordinate the activities of a relevant area or areas of the hotel and direct staff to ensure that they carry out their duties in the relevant area or areas of the hotel and implement policies, procedures and operating systems for the hotel.
Mr Jones submitted that the “hotel” in this case was the Hamilton Island resort and perhaps the Qualia Resort but not the Qualia kitchen. This was said to be because the Award was not the Restaurant Award and so the “relevant area” had to be the resort, not the kitchen, and the Award also referred to accommodation services and other functions beyond the sale of food. The implication of this submission was that Mr Jones could not have been a hotel manager because what he supervised in the kitchens was too small to be an “area or areas of the hotel”. Mr Jones argued that the definition of “area or areas of the hotel” also affected whether the persons to whom he had reported had been “senior management”, as the definition of “hotel manager” required, submitting that the Executive Chef at Qualia was at best managerial staff and not “senior management”.Mr Jones also referred to Ms Walter’s evidence, which he said indicated that HIE’s “senior management” was the “executive management” team, made of the chief executive officer’s direct reports. He submitted that he had not been, as junior sous chef and sous chef, under the direction of senior management so understood.
Further, Mr Jones said that he had not met cl.D.2.9’s definition of “hotel manager” when he was junior sous chef and sous chef because he had not:
… completed an appropriate level of training in business management or [had] relevant industry experience including the supervision of staff in one or more areas of an [sic] hotel.
Mr Jones submitted that as his roles of junior sous chef and sous chef did not fall within the Award’s definition of “Managerial staff (Hotels)”, but he had nevertheless progressed beyond chef de partie when he performed those roles, he might be considered to have fallen between classifications such that the highest minimum wage to which he had been entitled under the Award had been that of a Cook (tradesperson) grade 5.
Respondent
For its part, HIE argued that the requirement in cl.D.2.9 of the Award that a “hotel manager” have relevant industry experience or an appropriate level of training in business management, should be understood as merely descriptive of the usual characteristics of a “hotel manager” rather than as requirements that an employee had to satisfy in order to come within that classification. HIE also submitted that the various titles attributed by the Award to “hotel manager” were expressed indicatively to include positions such as duty manager, assistant food and beverage manager and assistant rooms division manager, which pointed to the term “hotel manager” encompassing employees with limited authority over an area of a hotel, not just those with absolute authority over it.

HIE submitted that a “hotel manager” was less senior than a “senior manager” which it contended was defined as:
… employees “responsible for a significant area of the operations of one or more hotels” such as a venue manager or general/hotel manager.
It contended that the Executive Chef position to which Mr Jones had reported was a “senior manager” position.
Discussion
Who is a hotel manager?
The Award’s job classifications exist to provide a clear structure for determining the minimum wages or salary to be paid to individuals for their work under the Award. The Award prescribes the following job classifications in relation to cooks:
Cook grade 1 means an employee who carries out cooking of breakfasts and snacks, baking, pastry cooking or butchering.
Cook grade 2 means an employee who has the appropriate level of training and who performs cooking duties including baking, pastry cooking or butchering
Cook (tradesperson) grade 3 means a commi [sic] chef or equivalent who has completed an apprenticeship or who has passed the appropriate trade test, and who is engaged in cooking, baking, pastry cooking or butchering duties.
Cook (tradesperson) grade 4 means a demi chef or equivalent who has completed an apprenticeship or has passed the appropriate trade test 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.
Cook (tradesperson) grade 5 means a chef de partie or equivalent who has completed an apprenticeship or has passed the appropriate trade test in cooking, butchering, baking or pastry cooking and has completed additional appropriate training and who performs any of the following:
·     general and specialised duties including supervision or training of other kitchen staff;
·     ordering and stock control; and
·     supervising other cooks and other kitchen employees in a single kitchen establishment.
Mr Jones submitted that the Award classifications’ reference to “or equivalent” referred to the duties of a particular classification and not to the title of the person in that role but, in my view, it refers to both. The titles are in French and “or equivalent” reflects the likelihood that in some kitchens the same role has a different title, presumably one in English. Further, the description of the role which follows each title appears likely to be a fair description of the tasks and experience associated with that French title and the two elements of the classification work together to describe a particular job. That means, in this case, that a Cook (tradesperson) grade 5 is a chef de partie with limited responsibilities of the sort mentioned in the classification and that a person who discharges those responsibilities as the defining characteristics of their role is a chef de partie.
Such an understanding of what each classification entails reflects the fact that the Award also prescribes, for each of the roles it particularises, minimum wages graduated by reference to skill, experience and responsibility, of which the lowest are those of the “Cook grade 1”and the highest those of the “Cook (tradesperson) grade 5”. The prescribed minimum wages of a Cook (tradesperson) grade 5 are less than the minimum figure prescribed for a “hotel manager”, whose salary levels are not otherwise regulated by the Award, although under cl.27.2 of the Award, the salaries absorption provision, once a manager’s salary is 25% more that the prescribed minimum, various of the Award’s penalty rates, allowances and other entitlements are no longer payable. That step between Cook (tradesperson) grade 5/chef de partie and “Managerial staff (Hotels)” represents the Award’s distinction of trades from management and marks the boundary between wages and salary, the former being graduated and prescribed by reference to levels of skill, experience and responsibility and the latter being at large subject to the prescribed minimum salary and plastic requirements concerning training and experience. Clause 27 of the Award supports that understanding by providing salary arrangements first for:
employees other than those classified as Managerial Staff (Hotels)
and then for:
those employees classified as Managerial Staff.
Putting aside for present purposes the Award’s provisions concerning casino employees, it can be concluded that to be paid under the Award more than the prescribed minimum wages of a Cook (tradesperson) grade 5, a hotel employee needs to be classified as “Managerial staff (Hotels)”. Significantly, the Award makes no reference to sous chefs, junior or otherwise, head chefs or executive chefs and that cannot have been an oversight given the specific identification of lesser roles. I infer from that omission an intention by the drafters of the Award that, in kitchens big enough to support them, those more senior roles are to be classified as managerial in nature.
Unlike the classifications of the various grades of cook, the classification of a role as managerial does not depend on the title given to it, with the Award itself saying as much. For instance, although it is apparent that the grade 5 classification might apply to any sufficiently experienced chef discharging those responsibilities, if that chef, in addition:
•under the direction of senior management is required to manage and co-ordinate the activities of a relevant area or areas of the hotel; and
•directs staff to ensure they carry out their duties in the relevant area or areas of the hotel; and
•implements policies, procedures and operating systems for the hotel;
then, notwithstanding Mr Jones’s submissions to contrary, that chef is properly classified as a manager, not a Cook (tradesperson) grade 5, because he or she has taken on responsibilities that the Award expressly treats as managerial. It is those additional tasks that mark the role out as higher in the Award’s classification hierarchy than a Cook (tradesperson) grade 5, that is to say, as managerial.
In that regard, there is no magic to the Award’s expression “relevant area or areas”. In the context of a hotel whose employment relations are governed by the Award, an “area” is a place or a function that can be distinguished from other parts or operations of the hotel. It will be “relevant” if it is managed by a given hotel manager.
The Award also requires that hotel managers have:
an appropriate level of training in business management or have relevant industry experience (emphasis added)
but does not prescribe what would be appropriate or relevant, presumably that being a matter for the employer to identify in the relevant position description. The fact that an employer appointed a person to a position which was otherwise discernible as managerial in nature would be strong evidence that whatever training or industry experience the person had was sufficient for the role.
An issue was raised, in connection with the provision in the Award that a hotel manager was an employee “under the direction of senior management”, concerning whether as junior sous chef or sous chef Mr Jones had been under such direction, which begged the question whether the Executive Chef was a member of the resort’s senior management. Mr Jones submitted that the Executive Chef was not a member of the resort’s senior management, for instance because he or she did not set the restaurant’s budget and was, at best, managerial staff. HIE submitted that the Executive Chef was a member of senior management because he had responsibility for the whole kitchen including obligations relating to, amongst other things, human resources issues and restaurant profitability. Those arguments assume, wrongly in my view, that the Award defines the term “senior management” as a manager who is so senior that he or she is not covered by the Award.
As noted already, under the Award, a “hotel manager”:
(a)manages and co-ordinates the activities of a relevant area or areas of a hotel under the direction of “senior management”; and
(b)supervises and manages “staff”.
Although it can be inferred from the Award’s hierarchy of classifications that the term “staff” includes the non-managerial employees whose roles are defined in its cls.D.2.1 to D.2.8, the Award does not suggest that the term is limited to those employees. That is significant because in a large establishment it is conceivable that there will be more than one layer of middle management with, for instance, a junior manager being supervised by a more senior manager who in turn reports to a yet more senior manager. It is also significant because it draws attention to the fact that “senior management” is not, in fact, defined by the Award. The Award does say that one set of senior managers is not covered by the Award because they:
undertake the duties of senior management, responsible for a significant area of the operations of one or more hotels
such as:
•Company secretary;
•Chief accountant;
•Personnel or human resources manager;
•Financial controller;
•Industrial relations manager;
•Venue manager;
•General/hotel manager;
•Executive assistant manager;
•Regional manager; or
•a Manager to whom any of those positions report or are responsible.
But that qualification identifies a subset of “senior management”, namely those “responsible for a significant area of the operations of one or more hotels”, not who is “senior management” more generally.
In Martin v Repeller Nominees Pty Ltd (No 2) (2019) 289 IR 267, a case cited in argument, I said:
… the industry covered by the Award ranges from very small to very large businesses and must be flexible enough in its application to operate sensibly in all contexts. Because “senior” is a comparative term and tends to imply the existence of subordinate roles, even if they are not directly subordinate, the size of the hotel operation in question is therefore very likely [to] affect the application and operation of this part of the Award. That is to say, the probability that a manger in a small hotel with fewer staff and a flatter management structure could sensibly be classified a senior manager is lower than the likelihood that a manager in a large hotel with more staff and a more hierarchical management structure could be. (at 302 [214])
For the same reasons, the larger the undertaking, the more likely it is that a person may be a senior manager even if they are not responsible for one or more of the business’s core functions.
This is a case that involves a large resort complex, of which the Qualia Resort was only a part. The evidence indicates that HIE had many layers of management and, as I have said, the Award has to work sensibly in all contexts. It would be contrary to the structure of the Award, distinguishing between trades and management, for a middle manager to be classified and paid as a trade rather than as a manager simply because he or she reported to a more senior manager who was responsible for something less than a core function or feature of the whole Hamilton Island resort business.
Whether a person is a member of “senior management” for the purposes of the Award will be a question of fact in each case and, depending on the size of the business, will not be limited to those that are so senior that they are not covered by the Award. In this case, I consider that the responsibilities of the Executive Chef position at Qualia Resort and the experience necessary to perform it mark it out as a senior management role. Whether or not it is also a position covered by the Award is not a matter I need to decide.
Remuneration of managers
Under the Award, the minimum salary of a manager was slightly above that of a Cook (tradesperson) grade 5. The Award went on to provide that:
Managerial Staff who are paid a salary of 25% in excess of the minimum annual salary rate … will not be entitled to the benefit of the terms and conditions within … clauses [12, 21, 29, 31, 32, 33, 34.2, 37.1(b)(i) and 39]
That is to say, unless a manager was paid at least 125% of the managers’ minimum rate, he or she was entitled to the benefit of cls.12, 21, 29, 31, 32, 33, 34.2, 37.1(b)(i) and 39 of the Award.
What the junior sous chef and sous chef roles at HIE entailed
Mr Jones’s progression from chef de partie to junior sous chef to sous chef is, amongst other things, a history of increasing responsibility and authority. Importantly, Mr Jones’s description of those roles is consonant with the descriptions provided by Mr Innes-Wills, Mr Kennedy and Mr LaMonica, which were not challenged, although Mr Jones did dispute Messrs Kennedy and LaMonica’s characterisation of the roles as managerial. I accept that the junior sous chef and sous chef positions, when filled by Mr Jones, were as described and documented in the various position descriptions annexed to Ms Walter’s affidavit, from which the following information has been extracted:

CHEF DE PARTIE

JUNIOR SOUS CHEF

SOUS CHEF

Reports to – Sous Chef, Executive Chef

Direct reports – Junior Chefs (up to 10)

Reports to – Sous Chef

Direct reports - Junior Chefs (up to 15)

Reports to – Executive Chef

Direct reports - Outlet Kitchen Team (up to 15)

Job purpose

Assists Sous Chef in the management of the kitchen operations to achieve consistently high standards of food quality and production according to the specifications established while maintaining a high level of guest satisfaction

Job purpose

Responsible for the supervision of the kitchen staff and operational activities in the designated kitchen to achieve consistently high standards of food quality and production according to the specifications established while maintaining productivity levels and kitchen expenses to meet the departments objectives

Job purpose

In conjunction with the Outlet Manager and Executive Chef, responsibility for day-to··day operations of the business. Working closely to ensure the business meets financial, operational, legislative and product/service aims are achieved while maintaining a high level of guest satisfaction

Job responsibilities (not limited to)

Food production in accordance with production requirements, ensuring correct methods of cooking, consistency in product and quality to achieve a high level of guest satisfaction

Supervise subordinate kitchen staff, ensuring work procedures, food production and hygiene standards are compliant to Company SOP's

Deputise in the absence of Outlet Sous Chef ensuring the kitchen operation are conducted in accordance to Company SOP's

Assist in the departmental induction and training of subordinate kitchen staff as requested

Immediately rectify any activity that poses a threat to the health and safety of any person, and report such activity to Senior Chef on duty as per reporting requirements.

Communicate with Kitchen Stewards to ensure all par levels of equipment are met for the duration of service

Process food requisitions in accordance with par stock levels

Handle all food :and beverage items and maintain all food storage, preparation and service areas in accordance with Australian Food Safety Standards (including the receipt, preparation, handling, storage, and disposal of food items)

Assist in all areas of Food Safe Compliance and support Chef in Charge with ‘due diligence’, Including the recording of temperatures and cleaning checklists

Participate in all training programs as requested by departmental manager

Job responsibilities (not limited to)

Supervises food production during service to ensure correct cooking methods and consistency of food products to meet and exceed guests' expectations

Ensures all goods delivered are checked for quality and quantity and that goods are correctly stored and handled to meet local Heath regulations

Maintains effective stock control procedures to minimise wastage, pilferage and ensure par levels of stock are maintained

Prepares staff rosters in accordance with forecasted occupancy and to meet productivity objectives of the department

Assists the Outlet Manager with performance appraisals and conducts appropriate training sessions according to the Kitchen training Plan for both the development of staff and to ensure a high level of guest satisfaction

Assists the Outlet Manager in maintaining a safe work environment, safe work practices by staff in section and that all hygiene and Workplace Health and Safety Regulations are adhered to. Maintains equipment in effective operating order, promptly reporting any damaged or faulty equipment to Services department

Takes responsibility for the smooth running of the kitchen operations all times

Conducts daily briefings and attends departmental employee meetings to ensure effective channels of communications are maintained, thus minimize errors

Job responsibilities (not limited to)

Food production in accordance with production requirements; ensuring correct methods of cooking, consistency in product and quality to achieve a high level of guest satisfaction

Supervise all kitchen staff, ensuring all work procedures food production and hygiene standards are compliant to Company SOP’s

Assist in the departmental induction and training of kitchen staff

Immediately rectify any activity that poses a threat to the health and safety of any person, and report such activity as per reporting requirements

Oversee communication with Kitchen Stewards and Food Beverage Attendants to ensure Company Standards are met for the duration of service

Process food requisitions in accordance with par stock levels

Handle all food and beverage items and maintain all food storage, preparation and service areas in accordance with Australian Food Safety Standards (including the receipt, preparation, handling, storage and disposal of food items)

Responsible for all areas of Food Safe Compliance and “due diligence”, including the recording of temperatures and cleaning checklists

Assist the Executive Chef and Senior Resort Management Team to create menus selecting food appropriate to the Outlet ‘Dining Concept’ and in accordance with budget

In conjunction with Outlet Manager achieve budgeted forecast results by monitoring and managing product and labour costs, food cost of sales and minimising wastage within the department

Communicate any suggested operational changes to Executive Chef and assist with the implementation of revised documentation (after Senior management approval)

Participate in all training programs as requested by departmental managers

Experience & qualifications

Trade Certificate in Commercial Cookery III through TAFE, or equivalent (Essential)

Minimum 4 years experience as a qualified chef in an international hotel, restaurant or reputable commercia! Kitchen (Essential)

Demonstrate thorough knowledge and skill of sauce preparation, soup butchery, cold-kitchen and culinary operations (Essential)

Previous supervisory experience in a commercial kitchen (Essential)

Thorough knowledge and experience of volume., production (Desirable)

International experience (Desirable)

Experience & qualifications

Higher School Certificate, or equivalent (Essential)

Apprenticeship completed through TAFE, or equivalent (Essential)

Trade Certificate in Commercial Cookery, or equivalent (Essential)

Certificate qualifications in staff supervision, Train the Trainer, or equivalent (Desirable)

Minimum 5 years experience as a qualified chef, to include 2 years ln a Chef de Partie, in a medium to large international hotel (Desirable)

Experience & qualifications

Trade Certificate: in Commercial Cookery III through TAFE, or equivalent (Essential)

Current Food Safety Handling Certificate (Essential)

Minimum 6 years experience as a qualified chef in an international hotel, restaurant or reputable commercial! kitchen (Essential)

Minimum 2 years supervisory experience in a commercial kitchen (Essential)

Demonstrate thorough knowledge and skill in an sections of the kitchen (Essential)

Thorough knowledge and experience of volume production (Essential)

Previous use of Microsoft Word, Excel or equivalent (Essential)

Proven management skills with the ability to lead and motivate a team, with emphasis placed on team building and mentoring skills and abilities (Essential)

Previous experience in all Human Resources functions (e.g. recruitment, counselling and disciplinary action, including record management and other administrative duties (Essential)

Certificate IV in Commercial Cookery or equivalent (Desirable)

Certificate IV ln Assessment &. Workplace Training or equivalent (Desirable)

International experience (Desirable)

Those position descriptions and the evidence of Messrs Innes-Wills, Kennedy and LaMonica reflect levels of responsibility, experience and skill increasing from chef de partie to junior sous chef to sous chef.
Was Mr Jones a managerial employee when junior sous chef and sous chef?
Reporting to senior management
Mr Jones reported to senior management by reporting to Qualia Resort’s Executive Chef when he was a junior sous chef and sous chef.
Qualifications and experience
I acknowledge that Mr Jones undertook only a limited amount of formal management training but he had the foundational qualification for work as a chef and, I accept, gained relevant industry experience, including in the supervision of staff, during his progression though the ranks of the kitchen brigade. I accept that HIE considered that he had sufficient qualifications and experience to perform the roles to which he was appointed, which is sufficient to satisfy the relevant Award requirement.
Area or areas of the hotel
I find that the kitchens of the Qualia Resort were, for Mr Jones, a relevant area or areas of the hotel being, I infer, discrete locations in the hotel that performed a discrete function.
Managerial functions
When deciding whether Mr Jones implemented policies, procedures and operating systems, directed staff, and managed and co-ordinated the activities of a relevant area or areas of the hotel, a short review of his activities is helpful.
Chef de partie
As a chef de partie, Mr Jones was essentially limited to working at a particular station and preparing a particular type of food although he did, at least at some time, supervise and direct junior chefs in their work and preparation of food. He would set up his station for dinner service and clean it up afterwards. The fact that he may have assisted other junior chefs when he was not busy does not alter the fact that his station was his responsibility and he did not have a wider brief.
Junior sous chef
Mr Jones’s evidence was that a junior sous chef had a greater level of responsibility than a chef de partie and supervised chefs of lesser seniority, namely apprentices, commis chefs, demi chefs and chefs de partie. It was an intermediate position in the kitchen and he worked under the direction of the Chef de Cuisine or the Executive Chef. Significantly, a few months after his promotion to junior sous chef, Mr Knudsen asked him to take a “more roaming role” which involved greater responsibility for the overall running of the kitchen than he had had as a chef de partie. He was Mr Knudsen’s “eyes and ears on the kitchen floor”. That increased responsibility was called on in late 2016 when the kitchen was without a Chef de Cuisine and an Executive Chef and the sous chef, Mr Jones and another junior sous chef worked as a team to run the resort’s restaurants. Mr Jones’s evidence was that after Mr Innes-Will’s arrival in November 2016, he assumed further responsibilities in the kitchen, presumably reflective of his greater experience, including undertaking general supervision of the workstations during busy periods to monitor standards and occasionally supervising junior chefs during the breakfast service. He also filled in for the sous chef from time to time.
Sous chef
Following his promotion to sous chef in March 2017 and the rearrangement of the kitchens, Mr Jones ran the Long Pavilion restaurant, reporting directly to the Executive Chef, Mr Innes-Wills. He took on the role that would normally have been the Head Chef’s by calling orders and plating food passed to him by the other chefs. He also assumed responsibility for a wider range of tasks than before, such as menu design, discussing staffing with the Executive Chef, checking on how the breakfast service had gone and dealing with issues arising, supervising the kitchen’s preparations for the lunch and dinner services, tasting food to ensure the required standard was being met and occasionally approving timesheets.
Mr Jones, it must be inferred, considered himself sufficiently skilled and experienced that he could sensibly apply for promotion to the position of Executive Chef following Mr Innes-Will’s return to the mainland, which he did. Mr LaMonica said that he considered Mr Jones’s skills as a people manager were insufficient for the role, and that he had said to him:
I am looking for someone with more experience than you for the Executive Chef role. Whilst your ability in the kitchen and skills as a chef and your menu engineering are not to be questioned, I am looking for someone with a solid background in people management.
Mr Jones deposed that Mr LaMonica had said to him:
You are not suitable because you don't have the required experience to run the resort restaurants. You don't have the necessary experience and skills in budgeting, rostering, menu design and coordinating large kitchens.
The evidence of the tasks that Mr Jones had, apparently successfully, discharged prior to that point suggests that his recollection of his conversation with Mr LaMonica is not accurate, I prefer Mr LaMonica’s account.
Discussion
The Award’s definition of “hotel manager” concerns individuals who perform managerial functions of a ministerial nature under the direction of another.
A lot of attention was given in the evidence to the minutiae of what Mr Jones did as a junior sous chef and sous chef, such as ordering stock, rostering, suggesting and costing menu items and attending management courses but these were minor matters when compared with supervision of staff, having a roving role and running a kitchen during a meal service. Mr Jones was not the Executive Chef and so he did not have principal responsibility for the operation of the kitchen in which he worked but I conclude that, once promoted to junior sous chef, he had kitchen-wide responsibilities which connoted a managerial function. The roving role that he assumed under Mr Knudsen points to him assisting in the management and co-ordination of the kitchen’s operation, the implementation of policies and procedures and the direction of staff. As he became more experienced as junior sous chef, his supervisory and managerial duties expanded and they expanded again upon his appointment as sous chef.
I find that as junior sous chef and as sous chef, Mr Jones satisfied the managerial element of the Award’s definition of “hotel manager”. In some respects, the conclusion has to be an impressionistic one as the boundaries of each adjacent role were not identified by a bright line and at the edges they merged into each other. Notwithstanding that, there is a sufficiently clear distinction between a chef de partie working at a station with no broader responsibilities and a sous chef, whether junior or senior, with responsibility across the whole operation, to conclude that at the Qualia Resort in Mr Jones’s time, the latter was a managerial role and the former was not.
CONTRAVENTIONS
It is relevant to the identification of HIE’s contraventions of the Award and of the FW Act that I have found that Mr Jones became a managerial employee upon his appointment as a junior sous chef.
HIE’s defence admits that Mr Jones was underpaid as a manager from 15 October 2015, the commencement of the limitation period, to 2 June 2016, although in submissions this became an admission that he had been underpaid from 15 October 2015 to 28 June 2016. The back pay calculations entitled “Summary of Reconciliation Review”, which HIE provided to Mr Jones with its letter of 20 May 2021 advising that he had been underpaid during his second period of employment, record that Mr Jones’s pay rate rose from $52,500 p.a. to $60,000 p.a. on 29 June 2016. The calculations record that at that time the minimum salary absorption pay rate was $55,649.10. I accept the Summary of Reconciliation Review and find that the actionable period of Mr Jones’s underpayment ran from 15 October 2015 to 28 June 2016, i.e. the Salary Period. HIE admitted in respect of the Salary Period that it had failed to pay Mr Jones in full, in contravention of s.323(1)(a) of the FW Act.
The Summary of Reconciliation Review also records that Mr Jones continued to be paid a salary greater than the minimum salary absorption pay rate until the end of his employment with HIE. Consequently, I find that on and from 29 June 2016, Mr Jones was not entitled to the benefit of cls.21, 29 or 32 of the Award and that his claims based on those clauses and concerning that period are not made out. The version of the Award that was in evidence dated from 2020, so Mr Jones’s reliance in his written submissions on its pay rates was not well founded.
Mr Jones contends that during the Salary Period he had been entitled, in addition to what he had been paid at the time, to the benefit of cls.21.2(a)(i), 29.1(a), 29.1(b)(i), 29.1(b)(ii), 29.1(b)(iii) and 32.3 of the Award. HIE has denied contravening cls.21.2(a)(i) and cl.29.1(a) of the Award but has admitted contravening the other paragraphs.
Clause 21.2(a)(i) of the Award was concerned with the provision of meals, or the payment of a meal allowance in lieu, if overtime was worked at short notice. Mr Jones did not adduce evidence which addressed important preconditions to the application of that paragraph. He did depose that he had regularly worked “overtime in excess of 2 hours without a meal allowance” but did not say that he had not been “notified on the previous day or earlier that [he would] be so required to work” or that he had not been provided with a meal, as the clause stipulated. Consequently, he has not demonstrated that HIE contravened cl.21.2(a)(i).
Clause 29(1)(a) of the Award is the 38 hour week provision. The amended statement of claim alleged breaches of, and in relation to, that clause in the following terms:
11.      The applicant was regularly rostered to and worked:
a) in excess of the 40 hours agreed in the Employment Contract without adequate remuneration or being provided the opportunity to take time-off in lieu of the additional hours, in contravention of clause 29.1(a) of the Award and clause 8 of the Employment Contract;
…
19.      The respondent has failed to make payments in accordance with the Award.
(a)Failure to pay the appropriate amount of overtime as required by clause 29.1(a)
…
20.      The respondent has:
a) by the Employment Contract displaced the national employment standards in breach of s 61(1) of the Act;
b) breached s 62 of the Act in requiring the applicant to work in excess of the maximum weekly hours and setting the minimum weekly hours at 40 in the Employment Contract;
c) failed to pay the applicant in full satisfaction of his performance in contravention of section 323(1)(a) of the Act;
d) contravened several terms of a modern award in contravention of section 45 of the Act
Clause 8 of the employment contract provided:
8Your nominal roster is 40 hours per week, however, it is expected that you will be required to work reasonable additional hours to fulfil your responsibilities. No extra payments will be made for this additional time, however, you may be allowed time off in lieu of pre-approved overtime at the discretion of your department head.
Section 62 of the FW Act, quoted earlier, provides that an employer must not request or require an employee to work more than, relevantly, 38 hours in a week unless the additional hours are reasonable. To the extent that Mr Jones was required to work more than 38 hours in any given week, it has not been demonstrated that the additional hours were unreasonable in any particular case and consequently a contravention of s.62 of the FW Act. Further, the fact that the employment agreement may have specified a minimum work week longer than 38 hours is not a contravention of s.61(1) of the FW Act as alleged. That subsection provides that such an agreement cannot affect the operation of the National Employment Standards and, relevantly, its prescription of maximum working hours. In any event, it is not a civil remedy provision whose breach grounds a cause of action. Finally, cl.29.1 does not provide for payment of overtime or for giving time off in exchange for overtime hours as alleged and so the claims in that connection have no foundation.
A lack of supportive evidence also affects the allegation that HIE breached cl.8 of the Contract by not providing time in lieu of overtime. Mr Jones deposed to working long hours but did not identify any particular entitlement to time in lieu which had not been honoured.
In relation to the contraventions that it admitted, HIE pleaded:
To the extent that the Applicant suffered any loss or damage by reason of the admitted contraventions of the Act, that loss or damage has been fully compensated by the making of the [21 May 2021] payment ...
The implication of that allegation, when regard is had to HIE’s written submissions, is that all Mr Jones had been entitled to during the Salary Period was the applicable salary absorption rate and that once that was paid, even if belatedly, nothing further was owing.
HIE submitted that, by analogy with contractual rights and obligations, it had been entitled to discharge its Award obligations in the manner most beneficial to it which, I infer, involved utilising the payment regime applicable to managers, which had the capacity to be simpler and more flexible than the one applicable to trades, particularly through its salary absorption provision: viz. TCN Channel 9 Pty Ltd v Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130 at 150 – 154. Indeed, it appears always to have been HIE’s intention to pay Mr Jones as a manager once he was promoted to junior sous chef. On 3 June 2015, his pay increased from an Award-prescribed minimum wage of $36,108.04 p.a. as chef de partie to $51,370 p.a. as a junior sous chef. The letter advising him of that promotion was headed:
Promotion to Salaried Position
I infer from that significant pay rise, and from the heading of the letter advising the promotion, an intention by HIE to pay Mr Jones other than by reference to the cook classifications’ wages that had until that point governed his remuneration, and to pay him a salary under cl.D.2.9 “Managerial staff (Hotels)”.
I have had regard to HIE’s submissions regarding the statement in Mr Jones’s 20 December 2013 letter of appointment as a chef de partie that his wage was to be inclusive of all entitlements, but it appears likely that HIE misunderstood Mr Jones’s rights under the Award at that stage of his career. In any event, the parties could not contract out of its obligations: Kronen v Commercial Motor Industries Pty Ltd (2008) 171 FCR 521 at 527 [16]. The likelihood that HIE was mistaken is reflected in the fact that all the letters it sent Mr Jones advising of changes to his pay from time to time were relevantly expressed in the same terms, regardless of whether he was a trade-based employee or a managerial employee, as were the letters advising him of his pay rises associated with his promotions to junior sous chef and to sous chef. That being so, the letter of appointment is of limited assistance in discerning the parties’ intentions as to Mr Jones’s salary once he became a manager.
Even though I accept that HIE did intend to pay Mr Jones as a manager, the fact is that until his pay rose to $60,000 p.a. on 29 June 2016, the payments made following his promotion to junior sous chef were insufficient to cross the salary absorption rate threshold. Consequently, I find that during the Salary Period HIE did not pay Mr Jones in accordance with the Award, either by availing itself of the salary absorption provision or by paying him in accordance with otherwise applicable Award provisions. Ostensibly, that conduct means that HIE contravened those otherwise applicable Award provisions.
HIE contends that its May 2021 backpayment raised Mr Jones’s earnings in the Salary Period above the salary absorption rate threshold with the consequence that it thereby discharged its obligations under the Award, albeit in the manner most beneficial to it. Its argument was that, having done so, its relevant contravention had been not paying that amount earlier and in accordance with the FW Act.
HIE cited cases which hold that an employer is entitled to terminate an employment contract in the manner most beneficial to it. However, I was not taken to any case that is authority for the general proposition that a party is able to expunge a contravention after the event by belatedly taking a step which it could have taken timeously, but did not, or the particular proposition that HIE was able to expunge its contravention of the otherwise applicable Award provisions by engaging the salary absorption provision nunc pro tunc. No reason to believe that such a principle exists has been demonstrated.
I conclude the May 2021 payment did not have the effect of engaging cl.27.2 of the Award nunc pro tunc. This is so even though I accept that the portion of the May 2021 backpay relating to the Salary Period reflected what should have been paid in the first place to engage the salary absorption provision.
I find therefore that HIE contravened s.45 of the FW Act by contravening cls.29.1(b)(ii), 29.1(b)(iii) and 32.3 of the Award and that it contravened s.323(1)(a) of the FW Act as well. Those contraventions may each attract a penalty and consideration of that question will stand over to a later hearing.
COMPENSATION
During the Salary Period, Mr Jones was entitled to be paid at least the Award minimum salary for a hotel manager and, because he was not paid an additional 25% during that period, he was also entitled to be paid Award-based allowances and penalty rates relevant to the work he performed. Specifically, I find that he was entitled to be paid penalty rates in accordance with cl.32.3 of the Award.
It was not alleged and it has not been found that HIE contravened cl.33 of the Award, which is concerned with overtime payments. That being so, no compensation may be considered in relation to that issue: s.545(1) of the FW Act.
The parties are to confer and provide the Court with a figure that represents Mr Jones’s unpaid penalty entitlements. The question whether any credit should be allowed for the backpay that was paid in May 2021 will be a matter for consideration in the event that it is not resolved during that consultation process.
CONCLUSION
HIE contravened s.45 of the FW Act by contravening cls.29.1(b)(ii), 29.1(b)(iii) and 32.3 of the Award and also contravened s.323(1)(a) of the FW Act. Whether any compensation is payable will abide a further hearing should the parties be unable to agree on an amount, if any.
The matter will stand over for directions.

I certify that the preceding one hundred and forty-seven (147) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron.
Associate:
Dated: 10 January 2024

File number(s):	SYG 1906 of 2021
Judgment of:	JUDGE CAMERON
Date of judgment:	10 January 2024
Catchwords:	INDUSTRIAL LAW - alleged contraventions of a modern award in breach of the Fair Work Act 2009 (Cth) – alleged underpayment of award entitlements to overtime, penalty rates and meal allowance – whether the correct job classification under the award was “Cook (tradesperson)” or “Managerial staff”. INDUSTRIAL LAW – Hospitality Industry (General) Award 2010 – interpretation – “hotel manager” – “senior management”. INDUSTRIAL LAW – whether an employer, having contravened an award, can expunge the contravention by compliance pro nunc tunc.
Legislation:	Fair Work Act 2010 (Cth) ss 45, 61, 62, 323, 544, 545.
Cases cited:	Kucks v CSR Ltd (1996) 66 IR 182 United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board (2006) 152 FCR 18 Short v FW Hercus Pty Ltd (1993) 40 FCR 511 Martin v Repeller Nominees Pty Ltd (No 2) (2019) 289 IR 267 TCN Channel 9 Pty Ltd v Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130 Kronen v Commercial Motor Industries Pty Ltd (2008) 171 FCR 521
Division:	Fair Work
Number of paragraphs:	147
Date of hearing:	10, 11, 14 November 2022
Place:	Sydney
Counsel for the Applicant:	Mr D. Stewart
Solicitor for the Applicant:	Hilliard & Berry Solicitors
Counsel for the Respondent:	Mr I. Neil SC and Mr Parker
Solicitor for the Respondent:	HFW Australia

SYG 1906 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	EMRYS JONES Applicant
AND:	HAMILTON ISLAND ENTERPRISES LIMITED Respondent

ORDER MADE BY:	JUDGE CAMERON
DATE OF ORDER:	10 JANUARY 2024