Mazi v Elizabeth Andrews Pty Ltd
[2025] FedCFamC2G 1284
•15 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mazi v Elizabeth Andrews Pty Ltd [2025] FedCFamC2G 1284
File number: MLG 835 of 2023 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 15 August 2025 Catchwords: INDUSTRIAL LAW – where the applicant claims that the respondents breached sections 45, 536, 323, 343, 345 of the Fair Work Act 2009 (Cth) and the Hospitality Industry (General) Award 2020 – finding that the respondent contravened section 45 of the Act by failing to pay the applicant under clause 11.5 of the Award – finding that the respondent contravened section 536 of the Act by failing to provide a payslip with the required information within the required time frame – whether the second to fourth respondents were ‘knowingly involved’ in any contraventions – declarations made. Legislation: Fair Work Act 2009 (Cth), ss 15A, 45, 323, 324, 341, 343, 345, 350, 361, 536, 550, 563
Fair Work Regulations 2009 (Cth), rr 3.45, 3.46
Surveillance Devices Act 1999 (Vic), ss 7, 9B
Cases cited: Australian Federal of Air Pilots v Regional Express Holdings Limited [2021] FCAFC 226
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1
EZY Accounting 123 Pty Ltd v Fair Work Ombudsman [2018] FCAFC 134
Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365
Fair Work Ombudsman v Happy Cabby Pty Ltd & Anor [2013] FCCA 397
Fair Work Ombudsman v Yenida Pty Ltd & Anor [2018] FCCA 134
Kucks v CSR Ltd (1996) 66 IR 182
Ponce v DJT Staff Management Services Pty Ltd (t/as Daly’s Traffic) [2010] FWA 2078
Robinson v BMF Pty Ltd (in Liq) (No 3) [2022] FCA 1519
Tattsbet Ltd v Morrow [2015] FCAFC 62
Division: Division 2 General Federal Law Number of paragraphs: 302 Date of last submission/s: 13 March 2025 Dates of hearing: 4 March 2025, 13 March 2025 Place: Melbourne Counsel for the Applicant: The applicant appeared in person Counsel for the First, Second, Third and Fourth Respondents: Mr M Garozzo Solicitor for the First, Second, Third and Fourth Respondents: Holding Redlich ORDERS
MLG 835 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GRACE MAZI
Applicant
AND: ELIZABETH ANDREWS PTY LTD
First Respondent
DUNCAN SCUDAMORE
Second Respondent
ANDREW DUNOON
Third Respondent
JANE ELZINGA
Fourth Respondent
ORDER MADE BY:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
15 AUGUST 2025
THE COURT DECLARES THAT:
1.The first respondent contravened section 45 of the Fair Work Act 2009 (Cth) by failing to pay the applicant in accordance with Clause 11.5 of the Hospitality Industry (General) Award 2020 (“the Award”) by failing to pay the applicant for work performed on 4 December 2022 within the agreed weekly pay period.
2.The first respondent contravened section 536 of the Fair Work Act 2009 (Cth) by failing to provide the applicant with a pay slip for work performed on 4 December 2022, with the required information within the prescribed time frame.
THE COURT ORDERS THAT:
1.Within 14 days of these orders, the applicant file and serve written submissions with respect to what, if any, penalty ought be imposed on the first respondent in relation to the contraventions found in this matter.
2.Within 28 days of these orders, the first respondent file and serve written submissions with respect to what, if any, penalty ought be imposed on the first respondent, in relation to the contraventions found in this matter.
3.The matter be listed for penalty hearing to deal with what, if any, penalty ought be imposed on the first respondent in relation to the contraventions found in this matter on 7 November 2025 at 2:15pm.
4.The applicant’s application otherwise be dismissed.
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
DEPUTY CHIEF JUDGE MERCURI
INTRODUCTION
Before the court is an application under the Fair Work Act 2009 (Cth) (‘FW Act’) in which the applicant claims that the first respondent misclassified her position under the Hospitality Industry (General) Award 2020 (‘Award’), and that this resulted in the consequential underpayment to her of wages, penalties and the like as well as superannuation entitlements. The applicant also claims that the first respondent failed to issue compliant payslips and required employment documents under the FW Act, failed to pay her on time and made unauthorised deductions of money from her wages. In addition, the applicant claims that the first respondent engaged in coercive conduct and made misleading representations about her workplace rights, all in breach of the FW Act. The applicant also claims that the first respondent failed to comply with the dispute resolution procedure contained in clause 40 of the Award.
The applicant claims that the second to fourth respondents were involved in the first respondent’s breaches and therefore by virtue of section 550 of the FW Act, are also taken to have contravened the FW Act.
By her application, the applicant seeks declarations against each of the respondents of the unlawful conduct she claims they have engaged in, repayment to her of outstanding entitlements and the imposition of penalties.
The applicant represented herself throughout these proceedings and was assisted by an interpreter in the Shona and English languages at the hearing. The applicant had a very good command of the English language and chose to call upon the interpreter as and when she required.
The respondents deny that they misclassified the applicant’s position under the Award and further deny that they have failed to comply with the Award or the FW Act as claimed or otherwise. The respondents concede that there was an oversight in processing the applicant’s payment for work performed by her on 4 December 2022 which was ultimately rectified on 23 February 2023.
The respondents submit that the coercion claim and the misrepresentation claim have not been properly pleaded, but in any event deny that they have breached those provisions of the FW Act.
BACKGROUND
Much of the factual background to this matter is not in contest. Unless otherwise stated, the following is a summary of the factual background as agreed, or as found by me.
The first respondent is a catering business employing kitchen assistants and cooks and is covered by the Award.[1]
[1] Affidavit of Duncan Howard Scudamore affirmed and filed on 17 July 2024, paragraph 5.
The first respondent operates a commercial kitchen in West Melbourne in which food is prepared for the purposes of the first respondent’s catering services.[2] The team working in the kitchen is headed by a shift supervisor. One of the services which the first respondent provides is a breakfast service. The food for the breakfast service is prepared during the immediately preceding night shift.[3]
[2] Affidavit of Duncan Howard Scudamore affirmed and filed on 17 July 2024, paragraph 7.
[3] Affidavit of Duncan Howard Scudamore affirmed and filed on 17 July 2024, paragraph 8.
The second and third respondents are the owners and directors of the first respondent. The fourth respondent is the financial controller of the first respondent and responsible for the administration of the first respondent’s payroll system.
The applicant was offered and completed a trial shift on 29 November 2022.[4] The following day, the applicant received a text message from the third respondent, Mr Dunoon, in the following terms:[5]
Hi Grace, thank you for coming in overnight to work at Elizabeth Andrews. Brian and Jared said you did a great job and enjoyed working with you. Please give me a call when you are available. Thanks, Andrew
[4] Court book at page 243.
[5] Court book at page 145.
The applicant was then offered and accepted casual employment with the first respondent. An employment contract which was offered to, and accepted by, the applicant provided that the applicant was offered a position as a ‘Breakfast Kitchen Assistant’.[6]
[6] Court book at pages 242 and following.
The Contract further stated:
Terms of Employment: Casual until Mid January then the option to move to full time
Start Date: Tuesday 29th November 2022
Remuneration: 7pm to Midnight Monday to Friday $29.94/h
Midnight to 7am Monday to Friday $31.17/h
7pm to Midnight Sunday $40.93
Monday to Friday after 7am $27.46
Hours of Work: As required, generally from 10pm to 5am
Monday (Sunday night) to Friday.
(emphasis added)
At 11:24am on 1 December 2022, the applicant sent an email to Mr Dunoon in the following terms:[7]
Hi Andrew
Thanks for your email.
Just a question to clarify the position.
What is the “Breakfast assistant”, stream and grade relevant to the Hospitality Award?
Thanks
Grace
[7] Court book at page 241.
Mr Dunoon replied almost immediately as follows:[8]
Hi Grace,
It is not a name under the award, but it (sic) actually: Level 1 Kitchen Attendant. Hospitality Industry Award.
Let me know if you have any other questions.
Regards,
[8] Court book at page 241.
The applicant then replied again, almost immediately on 1 December 2022 with:[9]
Hi Andrew
Thanks for the clarification. Please find attached the signed contract.
[9] Court book at page 241.
The following day, on 2 December 2022, Mr Dunoon sent the applicant a text message in the following terms:
Hi Grace, I checked with Jared and these are the days he would like you to work. This is the text I got from him.
Hi Andrew Sunday 10pm into Monday morning. Tuesday 10pm into Wednesday morning. Then Wednesday 10pm into Thursday morning
It is not in dispute that Ms Mazi worked according to this schedule on 4, 6 and 7 December 2022.[10]
[10] See Court Book at page 308.
On 4 December 2022, the applicant had difficulty accessing the worksite. At Annexure A-9D to her affidavit, the applicant annexed a text message exchange with Andrew Dunoon in the following terms:
Sun, 4 Dec at 10:02 pm
Hi Andrew
Sorry to trouble you. Can’t get inside, my shift starts 10 pm
There is no doorbell can you ask whoever is inside to come let me in front door.
Mr Dunoon replied the following morning in the following terms:
Mon, 5 Dec at 10:07am
Sorry, the doorbell was missing, somebody has taken it off the door. I’ll get one put back on soon.
The applicant says that as she had not yet received a copy of her job description or other onboarding documents, she requested these from Mr Mark Galea on 6 December 2022 in the following terms:[11]
Hi Mark
Can you please provide me a Pin access code to sign in electronically when I start & finish work. Also you mentioned providing me access to Deputy, haven’t been emailed as yet.
Can you also email me my Job description and other docs not provided when signed paperwork last Friday.
Thanks
Grace Mazi
[11] Court Book at page 130.
Ms Mazi says that Mr Galea did not provide these documents to her. Mr Galea, when asked about why he had not provided that job description as requested or otherwise responded to her request, said that he believed he missed that message.[12] He was asked when he became aware of the message but was unable to recall other than to say that it was probably after Ms Mazi left the business.[13] Mr Galea said that he receives a lot of calls and manages a lot of people. Mr Galea said:[14]
… I did not give you a position description. I’m not too sure what the timeline was. Like I said, I’ve missed the message. It was a message. But obviously, I’m available via phone call if I miss anything, which I didn’t get a phone call in relation to, like “I need a position description”. Like I said, it’s – you know, from someone that gets a lot of emails each day, messages, if I miss a message, you know that you can always follow it up.
[12] Court transcript at page 80.
[13] Court transcript at page 81.
[14] Court transcript at page 84.
Ms Mazi referred Mr Galea to Court Book page 130 and then the following exchange occurred:[15]
[15] Court transcript at page 87.
Ms Mazi:So this is a message I texted you because I couldn’t sign in. I didn’t have access to Deputy at that time. So I asked you to provide me a PIN access code to sign in electronically when I start and finish work. So obviously, at that point, you had not spoken to me about signing in and off for breaks. That happened on the 9th. But on the 6th, I specifically requested for a PIN to access the employer’s electronical that is Deputy. And also in the – you mentioned providing me access to Deputy and haven’t been emailed anything as yet. And I asked you to email me the PIN and also the job description. So did you miss that message as well?
Mr Galea:No, no. I added you on to Deputy, but I couldn’t give you the PIN. So I believe I relayed that. I can’t remember. Because, basically, on the tablet, which Jared and Brian know, there’s a button there says, “Forgot PIN,” and that’s where you get it from. But I can’t – again, I couldn’t train you because we didn’t really have an overlap.
Ms Mazi:So this was obviously one of your roles at Elizabeth Andrews because I specifically alerted you that I couldn’t access Deputy. So how were you expecting me to sign in and out of Deputy when you had failed to provide me the PIN access?
Mr Galea: I can’t give you PIN access.
Ms Mazi; Is there anywhere that you documented that you couldn’t do that?
Mr Galea: No, I didn’t document that
Ms Mazi: So you just missed it again? …
Mr Galea: I’m not sure. I can’t remember. It was two years ago.
On 5 December 2022, the fourth respondent sent an email to the applicant attaching a pay slip for the payment processed on 5 December 2022.[16]
[16] Court book at page 140.
At some point between 6 and 9 December, the applicant sent a text message to Mr Galea, in the following terms:[17]
I have accessed Deputy, however, it won’t allow me to input my specific shift times for last Sunday, 4/12/2022 10PM to 5AM. Could you please input for me - thanks
Grace Mazi.
[17] Court book at pages 213 to 214.
On or about 9 December 2022, the applicant sent a text message to Mr Galea in the following terms:
Hi Mark
Just doublechecking if I was supposed to get paid on Wednesday or Thursday this week for the 5/12 payslip. I haven’t received any funds as yet.
Grace
Mr Galea replied as follows:[18]
Have you received any money?
Pay day is Monday so you should have gotten your pay by Tuesday in your account.
[18] Court book at page 214.
Ms Mazi replied that she had not received payment. Mr Galea then said:[19]
I will ask Jane because the payslip corresponds with payment
…
Can you also send her an email to [email protected] also provide your banking details again so that she can check she has the right details on file
[19] Court book at pages 214 and 215.
As suggested, on 9 December 2022, the applicant sent an email to the fourth respondent checking whether her pay had been processed for the shift on 4 December 2022.[20] She also provided her bank details again. In response, at Court Book page 217, is a reply from the fourth respondent in which she said:
Hi Grace
Your wages have bounced back today. There was a 1 missing from your bank account. I have transferred to your correct bank account today.
Thanks for flagging the issue and apologies for the error.
Regards
Jane
[20] Court book at page 217.
It is apparent from this exchange, and I find, that the first respondent paid the applicant for her work on 29 November and 1 December 2022 but this payment bounced back due to the applicant having provided incorrect banking details. This was then immediately rectified on 9 December 2022. I also find that the applicant had not entered the time worked for the evening of 4 December by 9 December 2022 and that payment for this shift was therefore not included in the payment that was initially processed on 5 December 2022.
It was in this context, that Mr Galea continued his text exchange with Ms Mazi on 9 December 2022 when he sent her a message in the following terms:
What days and hours did you work again this week I need to update deputy
Include your break time as well start and finish
Also, next week can you sign off and on for breaks
The applicant then replied in the following terms:[21]
Sunday – 4/12/22 – 10pm – 5am
Tuesday – 6/12/22 – 10pm – 5am
Wed 7/12/22 – 10 pm-5am
I don’t remember exactly what time I took the breaks.
[21] Court book at page 215.
Mr Galea then replied by saying ‘I will check the cameras. Thanks’.[22]
[22] Court book at page 132.
The applicant then queried what Mr Galea meant by saying that he would check the cameras, to which Mr Galea responded:[23]
Because if you can’t remember the times I will need to log them correctly for auditing purposes. So I will check the cameras to log break room time.
[23] Court book at page 132.
The applicant then replied:[24]
If you required me to log in breaks you should have told me prior. I don’t appreciate you using cameras to determine my break times and am sure the cameras are not installed for that purpose.
[24] Court book at page 132.
The applicant says that she did not consent to the surveillance cameras being used for the purpose of determining her break times, maintaining that she had not consented to that kind of surveillance. She says that notwithstanding her objection, the first respondent identified that she had taken a 40-minute break during her shift on 4 December 2022, amended their records and paid her accordingly. As I understand her evidence, the applicant does not deny that she took a 40-minute break on 4 December 2022, but rather objects to the respondent using the CCTV cameras to check her break times. Moreover, the applicant does not deny that she commenced work at 10:05pm on that evening, but again says that the reason why she did not start at 10pm was because she was unable to enter the workplace. Implicit in this is that she maintains that she should have been paid from 10pm that evening.
The respondents maintain that the applicant was paid all of her entitlements at the correct classification level. In addition, the respondents assert that the applicant was entitled to be paid for hours worked on the following dates and times:[25]
·29 November 2022 for 6 hours, start: 22:30 finish 5:00am with a 30 min break;
·1 December 2022 for 7 hours, start 22:00 finish 5:30 with a 30 min break;
·4 December 2022 for 6.25 hours, start 22:05 finish 5:00 with 40 min break;
·6 December 2022 for 6.5 hours, start 22.00 finish 5:00 with 30 min break; and
·7 December 2022 for 6.58 hours, start 21:55 finish 5:00 with a 30 min break.
[25] Defence filed 22 May 2024, paragraph 11.
In addition to objecting to the use of CCTV footage generally to confirm her work hours, the applicant claims that as a result, this conduct by the employer has impacted her workers’ compensation payments which are based on her average pre-injury earnings. As I understand it, the applicant’s position is that if the first respondent had not relied upon the CCTV footage, they would not have deducted an additional 15 minutes of her pay for this shift and her average pre-injury earnings would have been higher.
I note that the applicant has focussed on the reduction of her hours of work on 4 December 2022, she says by the first respondent improperly relying upon the CCTV footage to determine the hours that she worked. However, in relying upon the CCTV footage it also appears that the applicant was credited additional time on 7 December, when in her message to Mr Galea she said she had started work at 10pm, whereas the respondent appears to have paid her from 9:55 pm.[26]
[26] Court book at page 330.
It is not in dispute that the applicant attended work on 11 December 2022, and an incident ensued which ultimately resulted in the applicant lodging a workers’ compensation claim. The applicant claims that as a consequence of the text message she received from Mr Dunoon on 2 December 2022, she was effectively rostered on to work each Sunday, Tuesday and Wednesday and that she was therefore rostered to work on Sunday 11 December 2022. The applicant maintains that she attended for work on that shift, was ready willing and able to work that shift and is therefore entitled to payment for that shift.
The respondents’ say that the applicant was not rostered on for that shift and that the text message from Mr Dunoon only related to the following week and that no one contacted Ms Mazi and asked her to attend for work on 11 December 2022.
Notwithstanding this position, the respondents ultimately paid the applicant the minimum two-hour casual engagement under the Award that would have applied, had she been rostered on to work on 11 December 2022.
The applicant’s contemporaneous version of what occurred when she attended for work on 11 December is contained within her email to Mr Dunoon dated 12 December 2022, a copy of which is annexed to the applicant’s affidavit affirmed 9 June 2023. In that email, the applicant says that when she arrived, she was ‘abused by Jared Drake’.[27] Relevantly, on her own version of events, the applicant notes that upon her arrival, Mr Drake asked what she was doing there, told her that she was not required and asked her to leave. She also says that he said that she was no longer employed and that someone should have contacted her about the termination of her employment.
[27] Court book at page 158.
The applicant then said that she had not been contacted by anyone, nor had anyone written to her about the termination of her employment. After some further discussion about the quality of her work, the applicant records that Mr Drake again asked her to leave and that she ‘explained that [she] couldn’t leave her shift without authorised leave and requested [Mr Drake] to put the request in writing. He refused.’
The following is then recorded:
14.I notified him I would commence the shift and proceeded to sign in to EA Ipad to start my shift.
15. After signing in, I asked Jared for tasks to complete.
16.Jared refused to assign me tasks and stated that I shouldn’t be on the premises as I was trespassing. He threatened to call the police if I didn’t leave.
17.I agreed with him calling the police to resolve the issue and advised I would wait in the staff room until police arrived.
18.By 05:00 am police had not arrived and I notified Jared of my intention to leave, signed off and left the work premises.
19.The other person present on the premises at this time was night Chef, Binh Nguyen.
The following morning, Mr Dunoon sent the applicant an email in the following terms:[28]
Hi Grace
Sorry to hear of the issues last night. I have followed up with your supervisor Jared, and can confirm from him that he said you were not required to work that shift. Could you please provide details that show that you were asked to work that shift. Also did you attempt to call me to confirm the shift?
I followed up with Jared about you mentioning that he was abusive, he said he was not abusive, but found your demeanour and posturing towards his (sic) as threatening to him. We have reviewed the camera footage and there is no sign of any abusive behaviour from Jared.
Although we are not required to pay you for a shift you were not asked to attend, and Jared said that to you as soon as you arrived, we will pay you for two hours.
We will be in contact with you to let you know of any future shifts we would like you to work. I will also give you a call to discuss this issue.
Regards
[28] Court book at page 159.
Later on 12 December 2022, the applicant responded to Mr Dunoon in the following terms:
Dear Andrew
On 2/12/22, you communicated to me that you had confirmed with Jared Drake that I was to work the following shifts:
Sunday 10pm into Monday morning.
Tuesday 10pm into Wednesday morning.
Wednesday 10pm into Thursday morning.
These are the shifts I have been turning up and working.
Regards
Grace Mazi
Shortly thereafter, Mr Dunoon responded in the following terms:
Hi Grace,
I just tried to call and asked you to call me back. I want to explain to you the performance issues we currently have with your employment.
From now we will contact you to provide you with shifts when they are available.
Regards
Later that same day, the applicant replied to Mr Dunoon seeking confirmation as to whether she is no longer required to turn up to work on the following shifts:
Sunday 10pm into Monday morning.
Tuesday 10pm into Wednesday morning.
Wednesday 10pm into Thursday morning.
Mr Dunoon replied at 7:21am on 13 December 2022 in the following terms:
Hi Grace
You are not required to attend those shifts each week, only if we ask you to attend a shift.
Regards
It is common ground that the applicant has not performed any work for the first respondent since.
11 December 2022
In relation to 11 December 2022, Mr Drake’s evidence is that he was working as the shift supervisor on that evening. He deposes that at 10pm on 11 December 2022, the applicant attended for work. He says that as the supervisor of that shift, he told her that she was not required and had not been rostered on to work. He asked her to leave, but she refused. He did say to the applicant that if she did not leave as requested, she would be trespassing and he might need to call the police. He deposes to the applicant then making her way past him, clocking on and proceeding to sit in the staff room until 5:00am the following morning. He said that ultimately, he did not call the police as he did not want to escalate the situation. He also confirms that no other worker was called in to work on that shift.
In relation to the incident on 11 December 2022, Mr Drake gave the following evidence in cross examination:[29]
… I recall … me saying to you that you’re not needed at that time and you saying no, you have to have two hours of paid work, and ---
… And then I let you come inside the door where we were standing, and then you pushed your way past me and then sat in the break room for a whole eight-hour shift, and then snuck up behind me, scaring me … half to death because there’s sharp objects in that kitchen, and I didn’t know what was going on …
… and I was coming to check on you regularly, as well.
[29] Court transcript at page 102.
When asked about his comment that he would call the police, Mr Drake said:[30]
… at that time, you were getting very aggressive with me, and you’re a female, and I can’t actually physically eject you from the place, so I would rather call the police and have that dealt with like that.
… for safety reasons on my behalf and my other workers and my other colleagues.
…
At that time, the way that you pushed past me to get into the building was very aggressive so I didn’t want to escalate it any more than I had to. I let you know what was … what I could do to escalate the situation which I tried to do and that was it.
[30] Court transcript at pages 102 and 105.
In addition, Mr Drake gave evidence, which I accept, that at the end of each shift on 4 and 6 December, he had confirmed with the applicant the next shift that she would be required to work. He says that he did not discuss any further shifts with the applicant at the completion of her shift on the morning of 8 December 2022. Relevantly, his evidence is that he did not ask her to return to work on Sunday 11 December.
It is also not in dispute that the first respondent has paid the applicant for the two hour minimum casual engagement period in respect of 11 December 2022. The respondent’s evidence, which I accept, is that although they were not legally obliged to do so, they chose to pay her for two hours given that she had turned up for work that day.
In relation to this payment, the following exchange occurred with Mr Scudamore in cross examination:[31]
[31] Court transcript at page 39.
Ms Mazi:So you say that on the 11th … you paid two hours. So why have you not made the full payment, the rest of the five hours for that shift?
Mr Scudamore: Because we made no representation for you to come to work on that day.
Ms Mazi: So why did you pay the two hours then?
Mr Scudamore: In good faith.
Ms Mazi: So what do you mean by good faith?
Mr Scudamore: In good faith. I don’t know. It’s reasonable, I think, and a nice thing to do. You were obviously incorrect in coming to work, and I thought it would be a nice thing to do. You’ve gone to the bother of coming to work when you shouldn’t have come to work, so rather than just sending you away, even though you chose to stay at the premises for eight hours, I thought it was reasonable to pay you even though you weren’t required.
Ms Mazi continued on with the following exchange:[32]
Ms Mazi:So you only made the payment after WorkCover contacted you. So why … then did you not make the … payment on the 11th when WorkCover contacted you? Because they contacted you about the 4th and the 11th and then you decided to pay the 4th and not pay the full payment on the 11th. Why did you decide to do that?
Mr Scudamore: Because you weren’t entitled to full payment on the 11th. We only paid you for the two hours, out of good faith. Because we did not ask you to come to a shift. We never made any representation for you to come on 11 December. You chose of your own free will to come to a shift that you weren’t required for.
[32] Court transcript at page 41.
Having regard to the totality of the evidence, I find that the applicant was not rostered on to work on 11 December 2022. I prefer the evidence of Mr Drake about the fact that he confirmed with the applicant at the end of the previous shift when he required her to attend the following shift. I also accept his evidence that at the end of her shift on 8 December he did not say that she would be working on 11 December, nor was any other evidence produced that indicated that someone from or on behalf of the first respondent had asked her to attend for work on 11 December 2022. The employment contract provided that the applicant would be working ‘as required’. The applicant had only worked three shifts over the course of one week (in addition to her trial shift). I do not accept the applicant’s suggestion that the text message from Mr Dunoon on 2 December 2022 effectively established a fixed roster. Nor had she been at the workplace for long enough to suggest that such a fixed roster was the norm.
As stated, the applicant has not attended for work with the first respondent since 11 December 2022.
The last shift that she performed any duties for the first respondent was 7/8 December 2022.
The applicant made a workers’ compensation claim which was accepted and she has been in receipt of weekly payments as a result from 11 December 2022.
Delay in payment for 4 December 2022
It is not in dispute that the applicant was not paid for the work she did on 4 December 2022, until 23 February 2023. Mr Scudamore gives the following evidence in relation to the reason for this delay at paragraph 27 of his affidavit affirmed 17 July 2024, which I accept:[33]
[33] See also Court Book at page 330.
The delay in making that payment was because:
a.the Applicant was instructed to text Mark Galea, Operations Manager of the First Respondent, confirming shifts she worked for the period 29 November 2022 to 4 December 2022, because she was not yet on-boarded to the First Respondent’s rostering system “Deputy”;
b.on 2 December 2022, the Applicant sent a text to Mark Galea stating hours worked on 29 November 2022 and 1 December 2022;
c.the Applicant provided the First Respondent with incorrect account details during her on-boarding process, and the wages paid for her shifts on 29 November 2022 and 1 December 2022 bounced back on 9 December 2022 as a result;
d.on 9 December 2022, the First Respondent transferred those wages in accordance with the Applicant’s correct account details;
e.also on 9 December 2022, the Applicant sent a text to Mark Galea her hours worked for the week commencing 5 December, to which she included the hours for 4 December 2022;
f.later on 9 December 2022, after notification of the hours worked by the applicant on 4 December 2022, Mark Galea manually inputted the 4 December 2022 shift into Deputy;
g.despite being manually entered into Deputy, the 4 December 2022 shift was not captured in the pay run for the week commencing 5 December 2022 (because the shift was allocated to the week in which it commenced (i.e. the week commencing 28 November 2022));
h.wages for the week commencing 28 November 2022 had already been exported from Deputy;
i.alterations to previously exported pay runs are not automatically remedied by Deputy …
j.Deputy does not flag that payments have been missed due to alterations after exported pay runs or that a new export is required to remedy missed payments;
k.on 15 February 2023, DXC Claims Management Services, the First Respondent’s workers compensation insurer, emailed Jane Elzinga Financial Controller of the First Respondent, querying alleged non-payment of wages by the First Respondent for 4 and 11 December 2022, for the purposes of determining the Applicant’s pre-injury average weekly earnings; and
l.the First Respondent then investigated the non-payment for 4 December 2022 (it did not investigate the alleged non-payment for 11 December 2022 because the applicant was not engaged to work on that date) and made the payment on 23 February 2023.
Mr Galea also gives evidence that in his capacity as Operations Manager, he ‘was responsible for ensuring that employees were accurately recording their work times on the First Respondent’s rostering system, “Deputy”. When the Applicant commenced employment with the First Respondent, I assisted her to do so, because she was not yet on-boarded onto the system.’ [34]
[34] Affidavit of Mark Cory Lesley Galea affirmed and filed on 19 November 2024.
On 22 December 2022, the applicant sent an email to the fourth respondent regarding an apparent failure to pay her for work on 4 December 2022.[35] The following morning, the applicant sent a further email regarding this issue to Mr Dunoon at 7:07am. In her email to Mr Dunoon, however, the applicant made reference to the apparent failure to pay her for both 4 December 2022 and 11 December 2022.[36]
[35] Court book at page 137.
[36] Court book at page 138.
There is no evidence of any response to either of these emails.
As deposed to by Mr Scudamore and set out above, the failure to pay Ms Mazi for her shift on 4 December 2022, was rectified by the first respondent on 23 February 2023. It is also not in dispute that there was an error on the payslip for this payment as it did not expressly refer to the fact that the payment was for work performed on 4 December 2022 and the payslip was reissued on 26 February 2023 with the correct information.[37]
[37] Court book at page 142.
On 9 March 2023, the applicant wrote to the first respondent about her claim to have been underpaid on 4 December 2022. In that letter, the applicant said:[38]
For the period 28 Nov 2022 to 04 Dec 2022. On the supplementary payslip issued 23 Feb 2023 in lieu of Sunday, 04/12/2022 payment you … deducted 15 minutes pay. Arrival time at work was well before 10PM on that day but spent over 15 mins trying to get in as door bell was not working and was reported to management. Unpaid break was 30 mins and not 40 minutes as logged on paysheet as Mark informed me to initially start logging in for breaks on 9 Dec 2022. The deduction of 15 minutes pay was unlawful. … The shift difference is $4.65.
[38] Court book at page 147.
The balance of that letter deals with future shifts which the applicant claimed to have been entitled to be paid for, and unpaid superannuation entitlements on WorkCover payments.
The second respondent has given evidence, the effect of which is that the first respondent processed the applicant’s workers’ compensation payments in accordance with instructions given to it from its insurer. This meant that there were occasions when the first respondent was directed not to make payments, for example, where the applicant had not submitted a valid certificate of capacity. As a result, there were periods since the applicant’s workers’ compensation claim was accepted, during which payments were not made on a regular basis but when directed to do so, the first respondent then made a lump sum back payment for missed payments on instruction from their insurer.
The second respondent has also deposed to inconsistent advice that he has received as to the first respondent’s liability to make superannuation payments to the applicant whilst the applicant was in receipt of workers' compensation payments. But ultimately, he deposes that the first respondent has paid superannuation in respect of the applicant’s weekly payments.
LEGISLATION
Fair Work Act
Section 45 of the FW Act provides that a person must not contravene a term of a modern award.
Section 324 of the FW Act deals with permitted deductions and relevantly provides:
(1)An employer may deduct an amount from an amount payable to the employee in accordance with subsection 323(1) if:
(a)the deduction is authorised in writing by the employee and is principally for the employee’s benefit; or
(b)the deduction is authorised by the employee in accordance with an enterprise agreement; or
(c)the deduction is authorised by or under a modern award or an FWC order; or
(d)the deduction is authorised by or under a law of the Commonwealth, a state or a Territory, or an order of a court. (emphasis added)
…
Section 343 relevantly provides:
(1)A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:
(a)exercise or not exercise, or propose to exercise or not exercise, a workplace right; or
(b) exercise, or propose to exercise, a workplace right in a particular way.
…
Section 345 deals with misrepresentations and relevantly provides:
(1)A person must not knowingly or recklessly make a false or misleading representation about:
(a) the workplace rights of another person; or
(b)the exercise, or the effect of the exercise, of a workplace right by another person.
…
For the purposes of sections 343 and 345, a workplace right is defined in section 341 as follows:
(1) A person has a workplace right if the person:
(a)is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b)is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i)to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee – in relation to his or her employment.
Section 550 provides:
(1)A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a) has aided, abetted, counselled or procured the contravention; or
(b)has induced the contravention, whether by threats or promises or otherwise; or
(c)has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d) has conspired with others to effect the contravention.
ISSUES
The following legal issues arise for determination:
(a)whether the first respondent has misclassified the applicant’s position and consequently failed to pay her the correct minimum wage, appropriate casual loading, superannuation and penalty rates at the appropriate rate as provided for in the Award (Award Classification and Underpayment Claim);
(b)whether the first respondent contravened section 536 of the FW Act and regulation 3.46 by failing to provide the applicant with payslips containing mandatory information;
(c)whether the first respondent contravened section 323 of the FW Act by making unauthorised deductions from the applicant’s pay;
(d)whether the first respondent was required to pay the applicant for the full shift on 11 December 2022;
(e)whether the first respondent breached the obligation in clause 11.5 of the Award – (periodic payment claim);
(f)whether the first respondent breached the obligation in clause 3.3 of the Award by failing to provide the applicant with necessary documents upon her commencement;
(g)whether the first respondent was required to make superannuation contributions in respect of WorkCover payments she received in breach of clause 27.5(b)(1)(ii) of the Award;
(h)whether the first respondent failed to comply with the dispute resolution clause in the Award;
(i)whether the respondents have contravened sections 343 and 345 by engaging in coercive conduct to deter the applicant from asserting her workplace rights and/or by making false or misleading representations about her entitlements; and
(j)whether the second, third and fourth respondents were involved in any of these contraventions.
RELEVANT AWARD TERMS
In considering the issues that arise for determination, it is appropriate to set out in some detail the relevant terms of the Award.
Clause 2 of the Award includes the following definitions:
casual employee has the meaning given by section 15A of the Act.
…
regular casual employee has the meaning given by section 12 of the Act.
These definitions are relevant for the purposes of interpreting the Award.[39]
[39] See also section 12 of the FW Act which defines ‘regular casual employee’.
The only reference to the term ‘regular casual employee’ in the Award is in clause 19.5, which deals with adult apprentices and is therefore not relevant to this claim. Therefore, whether the applicant is a ‘regular casual employee’ is not relevant to any of the claims that she makes in these proceedings.
The term casual employee is used in clause 8 of the Award which refers to casual employment as one of the employment types available to an employer and employee covered by the Award. The applicant concedes, correctly in my view, that she was engaged as a casual employee. There is no suggestion that she was engaged as a full time or part time employee. The applicant makes no claim to have been incorrectly classified under clause 8, nor on the facts before me could such a claim be sustained.
Clause 8 of the Award then provides:
8.2At the time of engaging an employee, the employer must inform the employee of the terms of their engagement, including whether they are engaged as a full-time, part-time or casual employee.
Clause 10.2 deals with the definition of a part-time employee and relevantly provides:
A part-time employee is an employee who:
(a)is engaged to work at least 8 and fewer than 38 ordinary hours per week (or, if the employer operates a roster, an average of at least 8 and fewer than 38 hours per week over the roster cycle); and
(b) has reasonably predictable hours of work.
Clause 11 deals with casual employees and relevantly provides:
11.1An employer must pay a casual employee for each hour worked a loading of 25% in addition to the ordinary hourly rate.
11.2 A casual employee must be engaged to work:
(a) a maximum of 12 hours per day or per shift; or
(b) a maximum of 38 hours per week or, if the casual employee works in accordance with a roster, an average of 38 hours per week over the roster cycle (which may not exceed 4 weeks).
11.3A casual employee must be engaged and paid for at least 2 consecutive hours of work on each occasion they are required to attend work.
11.4An employer must pay a casual employee at the rates prescribed in clause 28.4 – Overtime rate for all time worked in excess of the hours prescribed in clause 11.2.
11.5An employer must pay a casual employee at the end of each engagement unless the employer and the employee have agreed that the pay period of the employee is either weekly or fortnightly.
11.6A pathway for employees to change from casual employment to full-time or part-time employment is provided for in the NES. See section 66A to 66MA of the Act.
NOTE: Disputes about changes to casual employment status may be dealt with under sections 66M and 66MA of the Act and/or under clause 40 – Dispute resolution.
Clause 15 deals with hours of work. Relevantly, clause 15.1 deals with full-time employees and 15.2 deals with part-time employees. Clause 15.5 deals with rosters for full-time and part-time employees and relevantly provides as follows:
(a) The following rostering provisions apply to full-time and part-time employees.
(b)The employer must prepare a roster showing for each employee their name and the times at which they start and finish work.
(c)The employer must post the roster in a conspicuous place that is easily accessible by the employees.
(d)The roster of an employee may be changed at any time by the employer and the employee by mutual agreement or by the employer giving the employee 7 days’ notice of the change.
(e)An employee must have a minimum break of 10 hours between when the employee finishes ordinary hours on one day and starts ordinary hours on the next and a minimum break of 8 hours for a changeover of rosters.
Clause 16 then addresses Breaks. It relevantly provides that if an employee works between 8 and 10 hours in a shift, the employee must have:
An unpaid meal break of no less than 30 minutes (to be taken after the first 2 hours of work and within the first 6 hours of work).
One 20 minute paid rest break (may be taken as two 10 minute paid rest breaks).
(emphasis added)
Implicit in the use of the words ‘no less than’ is the understanding that an employee may be allowed an unpaid break of more than 30 minutes. If the worker works more than 10 hours they are entitled to an additional paid rest break of 20 minutes. Importantly, clause 16.5 provides:
If, during an employee’s shift of more than 6 hours, the employer does not allow the employee to take an unpaid meal break, then the employer must pay the employee at the rate that applies under clause 16.6:
(a) from 6 hours after the employee started work on that shift;
(b) until either the employee is given a break or the shift ends.
Clause 16.6 goes on to provide:
If an employee is not allowed to take an unpaid meal break in accordance with clause 16.2 during a shift of more than 6 hours, the employer must pay the employee 50% of the employee’s ordinary hourly rate extra from the end of the 6 hours after starting work until either the employee is allowed to take the break or the shift ends.
Clause 27 deals with superannuation. It relevantly provides:
27.2An employer must make such superannuation contributions to a superannuation fund for the benefit of an employee as will avoid the employer being required to pay the superannuation guarantee charge under superannuation legislation with respect to that employee.
…
27.5Subject to the governing rules of the relevant superannuation fund, the employer must also make the superannuation contributions provided in clause 27.2 and pay the amount authorised under clauses 27.3(a) or 27.3(b):
…
(b)work related injury or illness – in respect of any employee entitled to accident pay for the period of absence from work of the employee due to work-related injury or work-related illness provided that:
(i)the employee is receiving workers’ compensation payment or is receiving regular payment directly from the employer in accordance with the statutory requirements; and
(ii) the employee remains employed by the employer.
The term ‘accident pay’ is not defined in the Award.
Clause 29 sets out the penalty rates payable to an employee.
Clause 40 of the Award deals with dispute resolution and relevantly provides:
40.1Clause 40 sets out the procedures to be followed if a dispute arises about a matter under this award or in relation to the NES.
40.2 The parties to the dispute must first try to resolve the dispute at the workplace through discussion between the employee or employees concerned and the relevant supervisor.
40.3If the dispute is not resolved through discussion as mentioned in clause 40.2, the parties to the dispute must then try to resolve it in a timely manner at the workplace through discussion between the employee or employees concerned and more senior levels of management, as appropriate.
40.4 If the dispute is unable to be resolved at the workplace and all appropriate steps have been taken under clauses 40.2 and 40.3, a party to the dispute may refer it to the Fair Work Commission.
40.5The parties may agree on the process to be followed by the Fair Work Commission in dealing with the dispute, including mediation, conciliation and consent arbitration.
40.6If the dispute remains unresolved, the Fair Work Commission may use any method of dispute resolution that is permitted by the Act to use and that it considers appropriate for resolving the dispute.
40.7 A party to the dispute may appoint a person, organisation or association to support and/or represent them in any discussion or process under clause 40.
40.8 While procedures are being followed under clause 40 in relation to a dispute:
(a) work must continue in accordance with this award and the Act; and
(b)an employee must not unreasonably fail to comply with any direction given by the employer about performing work, whether at the same or another workplace, that is safe and appropriate for the employee to perform.
40.9 Clause 40.8 is subject to any applicable work health and safety legislation.
Schedule A then sets out the classification structure and definitions, which includes at A.2.2 the Kitchen Stream which are set out in more detail below.
AWARD CLASSIFICATION AND UNDERPAYMENT CLAIMS
As the applicant’s underpayment claims largely arise from her claim that she ought to have been paid as a Kitchen Attendant Level 2 rather than Level 1, I will deal with the classification issue first and then the underpayment claims.
As stated, clause 14 of the Award requires an employer to classify an employee in accordance with Schedule A – Classification Structure and Definition.
That schedule relevantly contains the following classifications and descriptors:
A.2.2 Kitchen Stream
(a)Kitchen attendant grade 1 (wage level 1) means and employee engaged in any of the following:
•general cleaning duties within a kitchen or food preparation area or scullery, including cleaning cooking and general utensils used in a kitchen or restaurant;
•assisting employees who are cooking;
•assembling and preparing ingredients for cooking;
•general pantry duties.
(b)Kitchen attendant grade 2 (wage level 2) means an employee who has the appropriate level of training, and who is engaged in specialised non-cooking duties in a kitchen or food preparation area or in supervising kitchen attendants.
(c)Kitchen attendant grade 3 (wage level 3) means an employee who has the appropriate level of training, including a supervisory course, and has responsibility for the supervision, training and co-ordination of kitchen attendants of a lower classification.
The Kitchen Stream also contains a cooking sub stream, which relevantly covers the following:
(d)Cook grade 1 (wage level 2) means an employee who is engaged in cooking breakfasts and snacks, baking, pastry cooking or butchering.
(e)Cook grade 2 (wage level 3) means an employee who has the appropriate level of training and who performs cooking duties such as baking, pastry cooking or butchering.
(f)Cook grade 3 (tradesperson) (wage level 4) means a commi chef or equivalent who has completed an apprenticeship or passed the appropriate trade test and who is engaged in cooking, baking, pastry cooking or butchering duties.
(g)Cook grade 4 (tradesperson) (wage level 5) means a demi chef or equivalent who has completed an apprenticeship or passed the appropriate trade test and who is engaged to perform general or specialised cooking, butchering, baking or pastry cooking duties or supervises and trains other cooks and kitchen employees.
(h)Cook grade 5 (tradesperson) (wage level 6) means a chef de partie or equivalent who has completed an apprenticeship or passed the appropriate trade test in cooking, butchering, baking or pastry cooking and who performs any of the following …
‘Specialised non cooking duties’ is not a defined term in the award, however, ‘appropriate level of training’ is relevantly defined as follows:
In relation to an employee other than a casino gaming employee, means that the employee:
(a)has completed an appropriate training program that meets the training and assessment requirements of a qualification or one or more appropriate units of competency forming part of the training package; or
(b)has been assessed by a qualified skills assessor as having skills at least equivalent to those attained in an appropriate training program; or
…
The approach to interpreting an award is well settled and stated in Kucks v CSR Ltd (1996) 66 IR 182 where 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.
In the first three affidavits filed by the applicant in these proceedings, on 15 May 2023, 9 June 2023 and 19 March 2024, the applicant gives no detail about the duties that she was required to perform, save for the annexure to her affidavit of 9 June 2023 in which at A-21, she attaches her complaint to Mr Dunoon about the incident on 11 December 2022. In that complaint, the applicant makes reference to having been asked to cook pancakes by Mr Drake on her shift on 4 December 2022. There is no reference in that document to being required to make ‘specialised yoghurt’.
In her statement of claim, filed on 1 May 2024, the applicant states at paragraph 7 that she was required to perform the following duties when working for the first respondent:
General pantry duties, including:
(i) Assembling and preparation of food ingredients;
(ii) making specialized yoghurts; and
(iii) cleaning and tidying associated work areas, and
(iv) carrying out waste to the back; including
(i)bringing in supplies from storage areas and appropriate storage of various food items, and
(ii) assisting night cooks with breakfast meal preparation.
In the respondents’ defence, the respondents deny that the applicant made specialised yoghurt and further said that the only related duty the applicant performed was the assembly of pre-prepared yoghurt meals.
In her affidavit filed 14 November 2024, the applicant makes the following statements about the duties that she was required to perform whilst working for the first respondent:
9.As Breakfast Kitchen Assistant my duties were similar to duties performed by a Kitchen Attendant, Grade 2 (wage level 2) pursuant to clause A2.2(b) of Schedule A of the Hospitality Industry (General) Award 2020.
…
11.On commencement of employment on 1 December 2022, I possessed the mandatory Victorian Food Safety Training Certifications which form part of SIT30616 Certificate III in Hospitality. …
12.Prior to working at Elizabeth Andrews Pty Ltd, I worked as a kitchen attendant in a large commercial kitchen in Alphington, Vic, for four months, as well as volunteering in the same role with … a non-profit organisation in Preston, Vic.
13.I submit that an employee covered by the award with prior training, certifications, experience and duties performed equivalent to kitchen attendant grade 2, I was entitled to be classified in accordance with Schedule A, clause A.2.2.(b) of the Award and be paid in line with clause 18.1.
14.On 4 December 2022, I completed a task which the night shift team leader (Jarod Drake) assigned, that extended to cooking pancakes.
15.On 6 December 2022, I formally requested a job description for my role, as I believed that the task of cooking, extended beyond the scope of my position. Despite my request, no formal job description was provided to me at that time, to date. …
In cross examination, Ms Mazi claimed, for the first time, that she had been required to cook bacon and eggs.
In his affidavit of 22 June 2023, Mr Jared Drake deposed to having worked with the applicant during each of the shifts that she performed work for the first respondent. At the relevant time, he was the night shift supervisor. In his further affidavit of 17 July 2024, deposes that during her work with the first respondent, the applicant was required to undertake the following tasks:
a. Assembling breakfast pots.
b. Assembling mini pancake stacks.
c. Assembling mini burgers.
d. Assembling mini waffles.
e. Cracking eggs into silicon moulds.
f. Traying bacon for cooking.
g. Traying and cooking quiches.
h. Cooking pancakes to freeze as stock.
i. Cleaning down benches.
In his affidavit affirmed 17 July 2024, Mr Drake also gave the following evidence about the applicant’s duties:
5.I understand that in this proceeding the Applicant alleges that it was part of her duties to “make specialised yoghurts”. This was not part of her duties, and she was not required to, and did not, make any kind of yoghurts. In assembling breakfast pots (which included yoghurt pots), the Applicant was required to spoon pre-made yogurt and/or other ingredients that had already been made by others into breakfast cups.
6.The Applicant was not directed nor required to complete any ‘specialised’ tasks, nor did she undertake any “specialised” tasks during any of her engagements.
In his oral evidence, Mr Drake also clarified that she did not cook quiches per se. Rather, his evidence is that Ms Mazi would:[40]
… get [the quiches] from the freezer, put them on trays, put them into the trolley to put into the oven and we did the rest. So me and my other colleague, Brian, did the rest of the cooking after that.
[40] Court transcript at page 96.
In this regard, I note that the applicant at no point claimed to have been required to ‘cook quiches’.
In relation to her evidence that she also assisted in the preparation of ‘quiches’, it was put to the applicant that in his evidence, Mr Drake clarified that the applicant ‘assembled quiches and wheeled them on a trolley to cooks in order for the cooks to cook them in the oven’.[41] The applicant was asked whether she agreed or disagreed with this, to which she responded:[42]
I genuinely can’t remember or recall … that process you’re describing.
[41] Court transcript at page 14.
[42] Court transcript at page 14.
After cross examination of Ms Mazi was complete, in circumstances where she was representing herself, I asked whether she wished to say anything further by way of clarification arising out of the questions that had been asked of her in cross examination. In this context the following exchange then occurred through the interpreter:[43]
[43] Court transcript at pages 14 and following.
Interpreter: … She has asked me to clarify that when I was asked to give an interpretation, I brought back to you saying I was asked to make pancakes on one occasion, but no, it’s not one occasion. I just want to be clear on that.
HH: So are you saying you made pancakes on more than one occasion?
Interpreter: Okay. So at the time I got … it was different things I was being assigned to, it wasn’t just pancakes. So there was pancakes, and then at the time I got sick, I was actually assigned to the bacon. I was using a commercial cooker to prepare the bacon. Okay. So it wasn’t just – it wasn’t just pancakes. It was just an array of things such as bacon. There were eggs as well, prepared, put in the cookers, etcetera. So there was an array of tasks that I would be attending to, or be assigned to.
HH:All right. Thank you. Was there anything else arising out of the questions that Mr Garozzo asked you?
Interpreter: Okay. I just have a clarification I would like to give about the … level 1 – the phrasing around level 1 in the contract on paragraph 17. Okay. In the details in that paragraph say that [Mr Dunoon] … said my role is level one breakfast assistance. Okay. So there isn’t a role with a title like that at all in the award.
…
There is no such role as a breakfast assistant.
Mr Drake also confirmed in cross examination that Ms Mazi only cooked pancakes on one occasion. And that on that occasion she undertook this task for one to two hours at the most. It was put to Mr Drake that Ms Mazi also stated that she cooked bacon in a conventional oven as part of her duties. Mr Drake denied that this was the case. In relation to the bacon, Mr Drake said:[44]
I got her to tray up the bacon and that was all we got her to do at that stage because, again, like the quiches, … we have to show people how to use the ovens. We have to show them … to make sure that they don’t hurt themselves at the time.
[44] Court transcript at page 96.
Similarly, Mr Drake denied that Ms Mazi cooked eggs. In this regard, he said:[45]
I disagree with that because, again, the same principle. I got her to tray up the eggs, as in I got her to crack the eggs into a mould and then put them on a tray for the oven at that time.
[45] Court transcript at page 97.
In cross examination, Ms Mazi asked Mr Drake about the list of tasks that he indicated that she was required to undertake at paragraph 4 of his affidavit affirmed 17 July 2024. When asked about the cooking of pancakes, the following exchange occurred:[46]
Ms Mazi:… So … in your affidavit … you said cooking pancakes to freeze as stock. Do you remember at any time assigning me a cooking task?
Mr Drake: Yes. The pancakes.
Ms Mazi: Yes. So you, yourself, assigned me a cooking task?
Mr Drake:Yes. Well, no, not 100 percent. Not me 100 per cent. It was Brian who assigned you that cooking task and I stopped you from doing that task.
[46] Court transcript at page 99.
In closing submissions, the applicant said that the evidence of Mr Drake confirmed that she used a series of ingredients when preparing the yoghurt ‘to create special yoghurt preparation’ and that this adds weight to her claim that her role ought to be classified as a Grade 2 position not Grade 1 as contended for by the respondents.
In relation to the yoghurt preparation, the applicant submitted:[47]
… that specialised yoghurt preparation requires accurate ingredient, measuring texture and flavour balancing compared to non-specialised yoghurt prep consisting of just putting plain yoghurt into yoghurt tubs. That specialised yogurt required accurate measuring of a variety of ingredients in the creation of a variety of tubs made up with combinations of mixed ingredients such as strawberry, blueberries, rolled oats, cornflakes, together with various fruit pieces, nuts, seeds, chia, etcetera.
The accurate measurements ensure that each tub turns out the same way every time. This is particularly important where even slight variations can affect the texture and flavour of the final product. Too much or too little of a key ingredient can alter the taste. This supports that my actual duties aligned with grade 2 classification and extended into cook grade 1 responsibilities. The other finding, your Honour, is that several of the employer’s witnesses who were supposed to give me a job description said in oral examination that they didn’t. My supervisor, Mr Drake, said he gave me duties based on what I could handle, not from any set job description or award classification.
[47] Court transcript at page 7.
The applicant also submitted that the respondents’ evidence that she did not require specialist training to undertake her food handling duties, ought not be accepted. She has produced evidence that she holds food safety training and says that this too is consistent with her position properly falling within the Level 2 position not the Level 1 position.
The applicant maintained that the food handling training that she possesses is mandatory for anyone in the food industry including employees in lower classifications and invited the court to reject the respondent’s evidence that it was not.
The applicant finally points to the failure by the first respondent to have a job description in place when she commenced employment and indeed was still being finalised some months after she suffered her workplace injury. The applicant submits that this is further evidence that she was misclassified as the first respondent had no structured classification process in place.
The applicant further says that she had a reasonable expectation that her cooking duties would continue in circumstances where no job description was produced which excluded such duties.
Counsel for the respondents noted that in her closing submissions, the applicant made statements about being involved in making specialised yoghurts. He noted, for the record, his objection to these statements being admitted as evidence, in circumstances where there was nothing in the applicant’s affidavit that dealt with these matters. But in any event, he submitted that there is nothing in what the applicant said to suggest that the work that she was required to do regarding the assembly of yoghurts falls within the concept of specialised non-cooking tasks.
It was submitted for the respondent that in her role, Ms Mazi was not required to supervise anyone and she was not required to hold any qualifications or undertake any training specific to the performance of her duties.
CLASSIFICATION AND UNDERPAYMENT - CONSIDERATION
The classification of an employee must be based on the actual duties performed and not the job titles attributed to the particular role. The issue therefore is what duties was the applicant required to perform whilst she performed work for the first respondent. With regard to the absence of a job description, whilst this might not be best practice, the absence of a job description does not, of itself establish a misclassification in the circumstances of this particular matter. The issue is what duties was Ms Mazi required to undertake and which classification level these duties best align with.
When one looks at the Kitchen Stream as a whole, it is clear that it has two different pathways, one involves staff who undertake cooking duties and the other, staff who do not. Ms Mazi has not claimed that she ought to have been classified in the cooking stream. In any event the duties that were required of her as a Breakfast Assistant did not involve cooking. On her own evidence, in the fifty hours that she worked for the first respondent, at most she performed one to two hours of cooking pancakes and this was only on 4 December 2022 and she was not allocated this task again after that. Indeed, her own evidence is that Mr Drake was not satisfied with the quality of the pancakes that she produced.
On balance, I prefer the evidence of Mr Drake that this task was allocated to Ms Mazi by ‘Brian’, that Mr Drake asked her to cease doing that work and that she was not asked to undertake this task again.
It is also important to note that Kitchen Attendant Grade 1 is not a total entry level position in the Kitchen Attendant stream for a person with absolutely no experience or appropriate competence at all. The position for such a person is A.1 Introductory level, which is defined as:
Introductory level is for an employee who enters the hospitality industry and does not demonstrate the competency requirements of level 1. The employee remains at Introductory level for up to 3 months while undertaking appropriate training and being assessed for competency to move to level 1. At the end of that period, the employee moves to level 1 unless the employee and the employer mutually agree that further training of up to 3 months is required for the employee to achieve the necessary competency.
Level 1 therefore is not an entry level role and assumes some level of competency and/or experience in the relevant stream.
There are two issues relevant to determining whether the applicant was properly classified as Level 1 or whether she should have been classified as a Level 2 Kitchen Attendant. First, whether the applicant was required to have an ‘appropriate level of training’ for the position and secondly whether, if so, she was actually engaged in specialised non-cooking duties. The focus in both cases is the duties performed and not the person undertaking them.
I will deal with the second issue first.
As stated, the term ‘specialised non-cooking duties’ is not defined in the Award. In interpreting this term, consideration in the first instance must be given to its ordinary meaning. The term ‘specialised’ is defined in the Macquarie Dictionary to mean:
To pursue some special line of study, work etc; make a specialty
…
To render special or specific, invest with a special character, function, etc.
In support of the proposition that she was engaged in ‘specialised non cooking duties’, the applicant points to the fact that she says she had to make specialised yogurt by combining yoghurt with other ingredients. The respondents concede that the applicant assembled yoghurt pots by combining yoghurt and other ingredients into a container. Accepting the applicant’s evidence that this involved measuring out the various ingredients to ensure consistency in the product, I am not satisfied that assembling these yoghurts falls within the concept of specialised non-cooking tasks.
I accept Mr Drake’s evidence about the duties that Ms Mazi was required to perform including her tasks relating to yoghurt, which were limited to measuring out and assembling yoghurt and other ingredients. The applicant has not established that this task involves any ‘specialised non cooking duties’. In any event, the award classification turns not on whether the food was specialised, but rather whether the duties were specialised. There is no evidence that measuring and placing yoghurt and other ingredients into a tub, involves specialised skill or duties. Rather, these duties fall within the descriptions of Level 1 duties, namely:
·assisting employees who are cooking; and
·assembling and preparing ingredients for cooking.
The applicant also seeks to rely upon her claim that she was required to cook certain foods, including pancakes and bacon and eggs. As stated, I find on the totality of the evidence that the applicant was required to cook pancakes for no more than 2 hours on one shift.
In her complaint about the incident on 11 December 2022, Ms Mazi makes reference to having been asked to cook pancakes on 4 December 2022 and that this was the first time that she had been asked to undertake that task. Moreover, she makes reference to the fact that on 11 December 2022, Mr Drake raised with her his concerns that she had been slow to complete the task and the pancakes were not of consistent size. She acknowledges as much in her report regarding the 11 December incident. At no point in that report does she make any reference to having been asked to or undertaking this task on her subsequent shifts, i.e. on 6 or 7 December 2022.
In relation to the applicant’s claim that she was also required to cook bacon and eggs, I prefer the evidence of Mr Drake, that she was simply required to tray up the bacon and eggs for another person to cook. These duties fall within the descriptor associated with the Kitchen Attendant Level 1 role of assisting employees who are cooking and assembling and preparing ingredients for cooking.
Finally, to the extent that I have found that the applicant was engaged in cooking pancakes on one occasion, this does not bring the applicant’s role within the Level 2 classification. The distinction between a Kitchen attendant Level 1 and 2 is the inclusion in Level 2 of specialised non-cooking duties. Therefore, the cooking itself is not the point of distinction between a Level 1 and Level 2 Kitchen Attendant.
Nor do I find that the applicant has shown that she was required to have ‘an appropriate level of training’ to perform her duties so as to bring her within the Level 2 classification.
I accept Mr Scudamore’s evidence, that at no point during any of the applicant’s shifts with the first respondent:
(a)was the applicant required to supervise other employees; or
(b)was the applicant required to hold any qualifications or undertake training specific to the work she had to perform for the first respondent.
Indeed, the only evidence that the applicant has produced of training that she had undertaken related to food safety handling which formed part of the SIT30616 Certificate III in Hospitality. In her own submissions, the applicant said that such training is required for anyone who works in the food industry. That cannot, on a fair reading of the classification structure, be what was intended by the reference to ‘appropriate level of training’. The point of distinction between a Level 1 and Level 2 Kitchen Attendant is that at Level 2, the employee is engaged in specialised non-cooking duties or in supervising kitchen attendants. The reference ‘an appropriate level of training’ must be a reference to such training which relates to those additional duties, not required of a Level 1 Kitchen Attendant. A base level knowledge of food handling which, on Ms Mazi’s own case, anyone working in a kitchen must have, is not training that is required for a Level 2 or Level 3 position.
Similarly, in relation to a Level 3 Kitchen Attendant, the appropriate level of training must be a reference to training required for the skills particular to that classification, namely supervision, training and co-ordination of kitchen attendants at a lower classification level.
Finally, I note that, in relation to training and experience, the issue is not what training and experience the applicant had, but what training and experience the position offered to her required. I accept Mr Scudamore’s evidence that no formal training was required for the work that Ms Mazi was required to perform. When read in context, the reference to ‘appropriate level of training’ means a level of training necessary to perform the duties of the classification. I also note that it includes both formal training as part of a qualification or unit of competency within a training package or an assessment by a qualified skills assessor, to establish that the person has the same level of skills as someone who has completed an appropriate training program.
Ms Mazi has not established on the balance of probabilities that the position that she was offered and that she accepted, required any formal training.
Similarly, any prior experience that Ms Mazi had working in a commercial kitchen is not relevant to the classification for the position that Ms Mazi was offered. The issue is what the appropriate classification is for the position itself, not whether or not Ms Mazi may have had training or experience to undertake a higher classified role.
Having regard to the totality of the evidence, I therefore find that the duties that Ms Mazi was required to and did undertake do not fall within the Level 2 position but rather clearly fall within the Level 1 position of Kitchen Assistant. As such the first respondent did not incorrectly classify her position.
Ms Mazi’s claim is that in being paid at the Level 1 classification rather than the Level 2 classification she has been underpaid both in terms of her base rate of pay and the appropriate penalties, superannuation and the like.
Having reached the conclusion above that Ms Mazi was correctly classified, it follows that Ms Mazi was paid at the correct rate for the shifts that she worked for the first respondent.
For these reasons, Ms Mazi has not made out the underpayment claims.
PAYSLIP CLAIMS
The applicant also submits that the first respondent has failed to provide her payslips within the required time frame and further says that the first respondent has issued payslips which do not contain key information in breach of section 536 of the FW Act and regulation 3.46 of the Fair Work Regulations 2009 (Cth) (‘the FW Regulations’).
Section 536 of the FW Act deals with the employer’s obligations regarding employee payslips and relevantly provides:
(1)An employer must give a pay slip to each of its employees within one working day of paying an amount to the employee in relation to the performance of work.
(2) The pay slip must:
(a) if a form is prescribed by the regulations – be in that form; and
(b) include any information prescribed by the regulations; and
…
…
(3)An employer must not give a pay slip for the purposes of this section that the employer knows is false or misleading.
(3A) …
(4)Subsection (3) does not apply if the pay slip is not false or misleading in a material particular.
Regulations 3.45 and 3.46 of the FW Regulations deal with the requirements for payslips and relevantly provide:
Reg. 3.45
(1) For paragraph 536(2)(a) of the Act, a payslip must be:
(a) in electronic form; or
(b) a hard copy.
Reg. 3.46
(1) For paragraph 536(2)(b) of the Act, a pay slip must specify:
(a) the employer’s name; and
(b) the employee’s name; and
(c) the period to which the pay slip relates; and
(d)the date on which the payment to which the pay slip relates was made; and
(e) the gross amount of the payment; and
(f) the net amount of the payment: and
(g)any amount paid to the employee that is a bonus, loading, allowance, penalty rate, incentive-based payment or other separately identifiable entitlement; and
(h)on and after 1 January 2010 – the Australian Business Number (if any) of the employer.
(2) If one or more amounts are deducted from the gross amount of the payment under subsection 324(1) of the Act, the pay slip must also include, for each deduction:
(a) the amount of the deduction; and
(b) the name, or the name and number, of the fund or account into which the deduction was paid.
(3) If the employee is paid at an hourly rate of pay, the pay slip must also include:
(a) the rate of pay for the employee's ordinary hours (however described); and
(b) the number of hours in that period for which the employee was employed at that rate; and
(c) the amount of the payment made at that rate.
(4) If the employee is paid at an annual rate of pay, the pay slip must also include the rate as at the latest date to which the payment relates.
(5) If the employer has made, or intends to make, superannuation contributions for the benefit of the employee, the pay slip must also include:
(a) the amount of each contribution that the employer made during the period to which the pay slip relates, and the name, or the name and number, of any fund to which the contribution was made; or
(b) the amounts of contributions that the employer intends to make in relation to the period to which the pay slip relates, and the name, or the name and number, of any fund to which the contributions will be made.
(5A) For the purposes of sub regulation (5), a pay slip is not required to include the name, or the name and number, of a fund if:
(a) the pay slip is required to be given to the employee within the period of 14 days commencing on the first day on which the employer pays an amount to the employee in relation to the performance of work; and
(b) by the time the pay slip is given to the employee:
(i) there is no chosen fund for the employee (within the meaning of Division 4 of Part 3A of the Superannuation Guarantee (Administration) Act 1992; and
(ii) the Commissioner of Taxation has not notified the employer or the employer's agent (as applicable), in accordance with section 32R of that Act, of whether the Commissioner is satisfied that there is a stapled fund for the employee or, if the Commissioner is satisfied that there is a stapled fund, of the details of the fund.
As can be seen from this provision, the obligation in clause 40.8 only arises whilst the procedures under clause 40 are being followed. There is no evidence that the applicant initiated the procedures in clause 40.
Indeed, the evidence is that on 12 December 2022, the applicant sought confirmation as to whether she was required to attend for work on Sundays, Wednesdays and Thursdays and was told that she was not required for those shifts and that the first respondent would be in contact with her about future shifts. Although there is no evidence as to when she lodged a Workers’ Compensation claim, it is common ground that she did so and that it was accepted and she commenced receiving workers’ compensation payments from 11 December 2022.
In circumstances where the applicant was employed as a casual to work shifts ‘as required’, even if, contrary to my finding that it was not engaged, and clause 40.8 did apply, the applicant has not established that the first respondent did not comply with it. There is no obligation in clause 40.8 for the employer of a casual employee to offer employment and require the employee’s attendance. Moreover, this would on its face be inconsistent with the applicant’s claim for workers’ compensation payments, inherent in which is a claim of incapacity of some kind.
Ms Mazi’s claim in relation to this issue appears to rely upon the words ‘work must continue’ in clause 40.8, however, the full statement is ‘work must continue in accordance with this award and the Act’. That requirement goes to the way that any work which is to be performed is to be performed. It does not, as submitted by Ms Mazi, require an employer of a casual employee to allocate shifts to that employee.
Moreover, in her reply submissions, the applicant says that ‘the respondent’s instruction not to attend work amounts to a constructive termination as it effectively ceased the Applicant’s engagement without proper cause or process.’[62] Leaving aside whether the applicant would have been able to make such a claim in any event, this court does not have general power to hear unfair dismissal claims.
[62] Court book at page 279.
This aspect of Ms Mazi’s claim is not made out.
COERCION
The applicant claims that the respondent’s use of CCTV surveillance to monitor her breaks and to retrospectively ‘deduct’ wages without her consent is in breach of section 343(1)(a) and (b). The applicant submits that ‘the employer used workplace surveillance to scrutinise my break times, which resulted in unauthorised wage deductions, coercing me into adhering to an un-communicated condition regarding break times’.[63]
[63] Court transcript of proceedings on 13 March 2025 at page 20.
The applicant further submits that the use of surveillance in this way was also in breach of Part 2A of the SD Act which prohibits the use of surveillance for monitoring employee’s private activities without express consent. The applicant says that she did not consent to the use of surveillance videos for this purpose and moreover, she maintains that she was not required to sign in and out for her breaks until after Mr Galea sent her the message about this on 9 December 2022. The applicant therefore asserts that in taking this approach, the employer applied the rule retrospectively. The applicant says that prior to 12 December 2022, she was not required to sign in and out for her breaks, nor was she specifically asked to do so. The applicant further submitted that as she was only directed to sign in after she had already completed her shifts on 4 – 7 December, ‘penalising [her] for not doing so was procedurally unfair’. [64]
[64] Court transcript of proceedings on 13 March 2025 at page 21.
The applicant further stated that the employer’s claim that the use of the CCTV footage to ensure that her break times were accurately recorded lacked credibility. She submitted:[65]
CCTV footage was reviewed in a targeted manner after I expressed difficulty in recalling exact break times, suggesting I was singled out for surveillance. If the employer had a genuine concern about recording break time accurately, why was the CCTV review applied selectively rather than as a uniform policy? This practice created an implicit threat. Any deviation from un-communicated break expectations would be monitored and result in wage deductions.
[65] Court transcript of proceedings on 13 March 2025 at page 21.
Furthermore, the applicant submits that a generic sign which states ‘Smile. You are on camera’ does not constitute consent for wage surveillance.[66]
[66] Court transcript of proceedings on 13 March 2025 at page 22.
Section 343(1)(a) of the FW Act relevantly provides:
(1)A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:
(a)exercise, or not exercise, or propose to exercise or not exercise, a workplace right.
Section 361 of the Act further states:
(1) If:
(a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b)taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or that intent, unless the person proves otherwise.
Section 341 of the FW Act defines ‘workplace as follows:
(1) A person has a workplace right if the person:
(a)is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b)is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii)if the person in an employee – in relation to his or her employment.
The applicant has not identified the workplace right or rights that she says the first respondent tried to coerce her into exercising or not exercising.
But leaving this to one side, the requirements to make out a coercion claim under section 343 have been well settled. In the Full Court of the Federal Court decision of Australian Federal of Air Pilots v Regional Express Holdings Limited [2021] FCAFC 226, the court stated the relevant requirements to make out a coercion claim as follows:
170.Section 343 of the FW Act proscribes the taking of action with intent to coerce a person to exercise, or not exercise, or propose to exercise or not exercise a workplace right (as defined), including in a particular way. It is settled that coercion itself requires the satisfaction of two elements: (1) negation of choice; and (2) the use of unlawful, or illegitimate, or unconscionable means to exert pressure to negate choice. …
Before the reverse onus in section 361 comes into play, the applicant must establish that the first respondent, and/or the individual respondents, organised or took or threatened to organise or take action directed at the applicant and that the applicant had a workplace right that they might exercise.
As stated, the applicant has not identified what the workplace right was that she claims was sought to be suborned. Nor does she clearly identify the action that was taken that was being used to coerce her into exercising or not exercising that workplace right.
Moreover, for the reasons set out earlier, the use of the CCTV footage to enter her hours of work (and her break times) is neither unlawful, nor illegitimate or unconscionable. In circumstances where an employer has an obligation to make sure that staff take appropriate breaks and indeed, where the employer has a liability to pay a higher rate until such time as a break is taken, it is entirely appropriate to have regard to CCTV recordings for the sole purpose of determining when the employee was not on a break. As discussed, the employee was on notice that CCTV cameras were in use, they did not record any private activity and they were not used in particular areas expressly rendered unlawful under the SD Act.
For each of these reasons, I find that this claim is not made out.
FALSE AND MISLEADING REPRESENTATION
In her statement of claim, the applicant claimed:
55.By reason of the matters pleaded in paragraph 55 above, (sic) the respondent was required at all times under section 345(1)(a)(b) of the FWA Act to not knowingly or recklessly make a false or misleading representation about the exercise, or the effect of the exercise, of a workplace right by another person.
Particulars
In and around 6 December 2022, the first respondent knowingly and recklessly made false and misleading representations about the exercise, or the effect of the exercise, of using CCTV cameras to determine the duration of the Employee’s break times in the course of performance of work.
56.By acting as alleged in paragraph 58 sic), the first respondent contravened s 345(1)(a)(b) of the FW Act.
The applicant has not pleaded the statement which she says is a misrepresentation. The respondents’ conceded in closing submissions, that to an extent this later point was addressed in Ms Mazi’s closing submissions, namely that there was an implied misrepresentation by Mr Galea that the employer’s use of CCTV footage to retrospectively check her hours of work and that this was lawful.
Section 345 of the FW Act relevantly provides:
(1)A person must not knowingly or recklessly make a false or misleading representation about:
(a) the workplace rights of another person; or
(b)the exercise, or the effective exercise of a workplace right by another person.
The applicant says that by asserting that the CCTV footage could be relied upon in this way, the employer ‘created a misleading impression that [the applicant] had no recourse to challenge this practice’.[67]
[67] Court transcript of proceedings on 13 March 2025 at page 23.
The applicant goes on to say that the employer misrepresented that it was legally entitled to rely upon the CCTV footage to justify the wage deductions it made even though that action was in conflict with privacy laws. The applicant points to the evidence given by Mr Galea about the circumstances in which he used the CCTV footage to complete her time sheets, the fact that this was then used as the basis for her pay and the absence of any policy or procedure that expressly states that the employer could use CCTV footage for this purpose.
The respondents submit that the court should not accept Ms Mazi’s suggestion that there is an implied representation that the use of the CCTV was lawful. But in any event, Mr Galea’s evidence is that he believed that his use of the CCTV footage for this purpose was lawful and there is no basis to conclude that it is not by reference to the SD Act. It is submitted for the respondents that Ms Mazi has failed to establish that any such representation was false or misleading and therefore this claim should be dismissed.
For reasons previously canvassed, I find that Mr Galea did tell Ms Mazi that he would have regard to the CCTV footage to determine her start and finish times and her break times for the purpose of entering her hours on the system. In doing so, he did not make any misrepresentation about her workplace rights or the exercise, or effective exercise of his workplace rights, as defined.
Moreover, the applicant has not identified the workplace right that she says was the subject of the any false or misleading statement, nor that any misleading statement was made knowingly or recklessly.
I accept Mr Galea’s evidence that he believed that it was permissible for him to have regard to the CCTV footage to determine the applicant’s hours of work and break times. And for the reasons previously discussed, there is nothing in the SD Act to suggest that it was not lawful.
For these reasons, the applicant has not made out this aspect of her claim.
ACCESSSORIAL LIABILITY
By paragraph 62 of her Statement of Claim, the applicant claims:
62. From 1 December 2022, the second, third and fourth respondent knew that:
a.the Award applied to the first respondent’s employment of staff working in the hospitality industry.
b.a level 1, wage level 1, minimum rate of $21.97 per hour was not sufficient to satisfy the first respondent’s minimum obligations under the Award; and
c. an employee, employed as a Kitchen Attendant with appropriate certifications and experience, was entitled to be paid at Wage Level 2 per hour plus relevant casual loading (where relevant).
Particulars
i.On various dates in December being 6, 12, 22 & 23 2022, including February 2023 & 27, 2023, and 9 March 2023, the applicant wrote to the first respondent regards their obligation relevant to unpaid payments and entitlements, (Prior Complaints).
ii.On 16 March 2023:
1.the second respondent stated to the applicant that the first respondent had ‘fulfilled all of its obligations regarding your payments and entitlements’
2.However, on 22 December 2022, 6 March 2023, 21 December 2023 and 1 April 2024, the first respondent rectified some of the payments.
(A)Between 7 September 2023 to 20 December 2023, the first respondent failed to pay the applicant all wages and entitlements due. Following notification by applicant, the first respondent began to make piecemeal restitution from 21 December 2023 to date. Some payments are still outstanding from this period.
63.By reason of the matters alleged in paragraph 3, 4, 5 and 62 above, the second, third and fourth respondent:
a.had actual knowledge of, or was wilfully blind as to, the factual matters which comprise each of the alleged contraventions pleaded in paragraphs 13, 17, 22, 26, 31, 36, 40, 43, 45, 47, 49, 51, 53 and 55 above against he first respondent; and
b.were an intentional participant in the factual matters which comprise those contraventions alleged against he first respondent.
64.By reason of the matters pleaded in paragraphs 3, 4, 5 and 62 above, the second third and fourth respondent:
a. aided, abetted, counselled or procured; and/or
b.was, by their acts or omissions; directly or indirectly, knowingly concerned in or a party to the contraventions alleged against the first respondent.
65.By reason of the matters pleaded in paragraphs 63 and 64 above, and pursuant to s 550(1) of the FW Act, the second, third and fourth respondent was involved in the alleged contraventions pleaded in paragraphs 13, 17, 22, 26, 31, 36, 40, 43, 45, 47, 49, 51, 53 and 55 above against the first respondent.
It is said for the respondents that as pleaded, it is arguable that the accessorial liability claims are limited to the misclassification claim and the consequential underpayment of wages and other entitlements flowing from that misclassification. By paragraph 65 of the statement of claim, the applicant does refer to the other claims made including the claims which I have found proven namely, the breach of clause 11.5 of the Award and section 536 of the Act in respect of 4 December 2022 payment.
In her closing submissions, the applicant said:[68]
… I move on to address … the accessorial liability declarations … paragraph (62) to (65). The evidence before this court establishes that the second, third and fourth respondents were directly involved in the contraventions committed by the first respondent, which is the employer, is outlined under section 550(1) of the Fair Work Act 2009. … the legal framework under section 550(1) … a person is involved in a contravention if they aided, abetted, counselled, procured the contravention, induced or attempted to induce the contravention, were knowingly concerned in or a party to the contraventions, or conspired with others to effect the contraventions.
… the second and third respondents are the directors and owners of the first respondent. And the fourth respondent is their financial controller. They meet this test as they had actual knowledge of the employer’s breaches, failed to rectify them, even following a notification of the contravention of the activities and actively engaged in misrepresenting legal obligations to avoid paying me my entitlements.
… the actual knowledge of the breach is evidenced. And this is evidenced by repeated notifications from myself regarding unpaid wages, incorrect superannuation, misclassification and ignored or denied until partial payment … began to be made. … The other actual knowledge of the breaches by the respondents … are the employer admission confirming their reliance on incorrect superannuation advice, yet failing to rectify their legal obligations despite being informed. The other actual knowledge is the systemic failure to issue correct payslips and deliberate delays in processing entitlements, violating s 536 of the Fair Work Act.
…
The High Court reinforced that accessorial liability serves a critical deterrent against workplace non-compliance.
[68] Court transcript of proceedings on 13 March 2025 at page 28.
The applicant refers to the decision in FWO v Happy Cabby as standing for the proposition that it is not enough for an employer to claim ignorance or eventual rectification and that the failure to act despite actual knowledge constitutes a contravention. Again, that case does not stand for the proposition advanced by the applicant. In FWO v Happy Cabby, the employer admitted to contravening the FW Act and the relevant award and the second respondent admitted his involvement in the contravention.
The issue before the court in FWO v Happy Cabby was limited to the level of penalties to be imposed. The court was not required to determine whether the second respondent in that instance had been involved in the employer’s contravention for the purposes of section 550. It is also relevant that in that case, the contraventions arose out of effectively a sham contracting arrangement, whereby the employer represented to the employees that they were independent contractors not employees.
This decision is therefore of limited relevance in determining whether the 2nd to 4th respondents are also liable for any breach by the first respondent due to the operation of section 550.
It is submitted for the respondents that for a claim to be made out under section 550, it is not sufficient for the applicant to show that the respondents or any of them, were directly involved in the contraventions, but rather what is required is that they had the requisite knowledge of the essential elements of the contravention.
Moreover, it is submitted for the respondents that any correspondence from the applicant to the respondents regarding her various grievances after the event does not establish accessorial liability. Moreover, in relation to Ms Elzinga’s involvement, it is submitted that her involvement was limited to trying to sort out administrative payment issues when raised by Ms Mazi. Moreover, it is submitted that it would be a particularly serious matter to find that a payroll officer could be held to be an accessory under section 550 for doing no more than processing pay slips. There is much force to this submission.
The applicant submits that each of the individual respondents had knowledge of the breaches and failed to rectify them even after being made aware of the contraventions. The applicant points to the repeated communication between herself and the respondents about her claims regarding unpaid wages, incorrect superannuation and misclassification of her position. She says that the second to fourth respondents have given evidence of their actual knowledge of these contraventions.
The applicant refers to and relies upon the decision of Fair Work Ombudsman v Yenida Pty Ltd & Anor [2018] FCCA 1342 in which the court found that ‘accessorial liability applies where decision-makers fail to rectify breaches despite actual knowledge.’ [69]
[69] Court transcript of proceedings on 13 March 2025 at page 27.
The applicant also refers to and relies upon Tattsbet Ltd v Morrow [2015] FCAFC 62 at paragraph [6].[70]
[70] This was a case in adverse action which considered the issue of whether the applicant was an employee or an independent contractor. For that reason it is unclear what relevance the decision has on the operation of section 350 of the FW Act.
The necessary elements to make out accessorial liability under section 350 are well settled. Neither party referred the court to any authority which clearly sets out the principles which apply to establish accessorial liability. However, EZY Accounting 123 Pty Ltd v Fair Work Ombudsman [2018] FCAFC 134 is a Full Court of the Federal Court decision which has considered this issue. Relevantly, the court referred (with approval) to the following observations by White J in Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365:
176.Although the general principles relating to accessorial liability are settled, their application to a case such as the present is not without difficulty. In order to aid, abet, counsel or procure the relevant contravention, the person must intentionally participate in the contravention with the necessary intention: York v Lucas (1984) 158 CLR 661 at 667. In order to have the requisite intention, the person must have knowledge of the ‘essential matters’ which go to make up the events, whether or not the person knows that those matters amount to a crime … Although it is necessary for the person to be an intentional participant and to have knowledge of the matters or things constituting the contravention, it is not necessary for the person to know that those matters or things do constitute a contravention. … That is to say, it is not necessary that the accessory should appreciate that the conduct in question is unlawful.
177. Actual, rather than imputed knowledge is required. …
178.The notion of being ‘knowingly concerned’ in a contravention has a different emphasis from aiding, abetting, counselling or procuring a contravention. To be knowingly concerned in a contravention, the person must have engaged in some act or conduct which ‘implicates or involves him or her’ in the contravention so that there be a ‘practical connection between’ the person and the contravention. …
179.As indicated, these principles are not in doubt. The more difficult question arises from their application to the circumstances of this case, and in the identification of the essential facts about which an accessory must have actual knowledge.
(citations omitted)
As put another way by Justice Mortimer as her Honour then was in Robinson v BMF Pty Ltd (in Liq) (No 3) [2022] FCA 1519 at [243]:
243. … Inherent in all these descriptions is the requirement that for a person to be liable under s 550, they must have actively engaged in conduct that demonstrates a sufficient link to the contravening conduct, and sufficient knowledge of it.
In this case, the only contraventions found are the failure to pay the applicant for 4 December 2022 within the agreed period and the failure to include the period of work to which the payment related in the pay slip issued on 23 February 2023.
Having regard to the evidence before me, I find that none of the 2nd to 4th respondents were knowingly involved in the requisite sense in circumstances where at the time the payment became due and payable, they believed that the payment had been made.
The circumstances which led to each of these contraventions occurred due to administrative errors and in both cases, the deficiencies were rectified when they were brought to the attention of the first respondent.
To the extent that the applicant says that she raised the issue of the underpayment in relation to 4 December in the period from December 2022 to February 2023 when it was rectified, two issues arise. First, the breach relates to the failure to do certain things at a particular point in time. In relation to the payment, the failure to make the payment within a week of the work being performed. In relation to the payslip, the failure to provide a pay slip with details of the period in respect of which the payment was made, within a day of the payment. There was a temporal element to both of these breaches. As evidenced by the payslip issue, the fact that this was rectified three days later does not erase the contravention, although as stated, it may be a factor that is relevant to the issue of penalty.
Moreover, the correspondence from the applicant made a range of demands, many of which have not been substantiated in these proceedings. It is therefore not as simple as saying that the applicant brought these errors to the respondent’s attention and they were ignored. In relation to the payment issue for 4 December 2022, not only was the applicant saying that she had not been paid, but she maintained that she had not been fully paid for that shift in circumstances where the first respondent had unlawfully deducted an amount from her pay.
Having regard to the totality of the evidence, the applicant has not established that any of the respondents were knowingly involved in the failure to pay her for the shift on 4/5 December 2022. This was ultimately rectified on 23 February 2023. I find that the failure to make the payment for the 4/5 December shift was a result of a combination of factors, including the applicant’s failure to record her time on Deputy as and when she worked, the entry of that time manually, the applicant’s error in providing her bank details and the deterioration in the relationship following the incident on 11 December 2022 which made it impossible for the first respondent to communicate with the applicant to rectify the error as they had clearly done on 9 December 2022 in relation to the initial pay bouncing back.
Similarly, I find that the applicant has not established that any of the individual respondents was ‘knowingly involved’ in the payslip breach regarding the information included in the payslip issued on 23 February 2023.
I therefore find that the applicant has not established that the 2nd to 4th respondents or any of them were knowingly involved in the contravention by the first respondent of section 536 of the FW Act.
PENALTY
Having reached the conclusion that the first respondent has contravened:
·section 536 of the FW Act in relation to the pay slip issued for work undertaken by the applicant on 4 December 2022; and
·clause 11.5, also in relation to the payment made for work undertaken by the applicant on 4 December 2022;
the court must determine whether any, and if so what, penalty ought be ordered in respect of these contraventions against the first respondent.
It is appropriate to hear further submissions from the parties on the question of penalty in respect of the contraventions as found.
CONCLUSION
For each of these reasons I make the declarations and orders set out at the commencement of these written reasons.
I certify that the preceding three hundred and two (302) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Associate:
Dated: 15 August 2025
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