Mustica v The Hive Fairfield Pty Ltd

IN THE MAGISTRATES’ COURT OF VICTORIA

AT MELBOURNE

INDUSTRIAL DIVISION

Case No. MAG-CI-230175081

ELISABETH MUSTICA	Plaintiff
and
THE HIVE FAIRFIELD PTY LTD	Defendant

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MAGISTRATE:	K Fawcett
WHERE HELD:	Melbourne
DATE OF HEARING:	12 February, 15 April, 16 April 2024, written submissions 27 May 2024, 7 June 2024.
DATE OF DECISION:	24 July 2024
CASE MAY BE CITED AS:	Mustica v The Hive Fairfield Pty Ltd
MEDIUM NEUTRAL CITATION:	[2024] VMC 14

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INDUSTRIAL LAW – Fair Work Act 2009 (Cth) ss 45, 557C, 789GD – Coronavirus Economic Response Package (Payments and Benefits) Act 2020 (Cth) – Coronavirus Economic Response Package (Payments and Benefits) Rules 2020 (Cth) – Alleged contravention of the Children’s Services Award 2010 – Presumption where records not provided – Alleged failure to satisfy the jobkeeper wage condition.

APPEARANCES:

For the Plaintiff

Sheldon Oski
United Workers’ Union

For the Defendant

Rebecca Harding

i9 Education

HER HONOUR:

INTRODUCTION

The Plaintiff Ms Mustica was employed as a part time Qualified Educator by the Defendant, The Hive Fairfield Pty Ltd (the Hive), at the Hive Early Learning Centre Fairfield, from 20 January 2020 until 10 January 2022 (the Employment).
Ms Mustica was employed pursuant to a written contract of employment with a commencement date of 20 January 2020 but signed on 26 August 2020 (Contract).
The Children’s Services Award 2010 (Award) applied to Ms Mustica’s employment, and she was employed at Award classification ‘Level 3.4 (Diploma).’
Ms Mustica claims that over the period of her employment she was not paid as required by the Award for 301.86 hours. Ms Mustica claims that the Hive has contravened s 45 of the Fair Work Act 2009 (Cth) (FW Act), which provides that a person must not contravene a term of a modern award (the Underpayment Claim). The Hive disputes that Ms Mustica worked the hours claimed and contends that she was paid for all hours worked. Ms Mustica also claims she was underpaid for public holidays and personal leave. A claim for unpaid annual leave was not pressed.
Pursuant to s 545(3) of the FW Act, an eligible State or Territory court may order an employer to pay an amount to an employee of the employer if the court is satisfied that the employer was required to pay the amount under the FW Act or a fair work instrument, and the employer has contravened a civil remedy provision by failing to pay the amount. Section 539(2) of the FW Act identifies the relevant civil remedy provisions, which include s 45.
Ms Mustica further claims the Hive did not pay her two $1500 fortnightly jobkeeper payments to which she was entitled for the fortnights beginning 30 March 2020 (First Fortnight) and 16 April 2020 (Second Fortnight), in contravention of former s 789GD of the FW Act (the JobKeeper Claim). The Hive denies being obliged to make the jobkeeper payments, contending that Ms Mustica was provided with the opportunity to opt in to the JobKeeper scheme at the relevant time but failed to do so until 20 May 2020. Section 545(3) of the FW Act also gives jurisdiction to the Court to order the Hive to pay any amount required to be paid under s 789GD to Ms Mustica.[1]
[1]See paragraphs 149 - 150 below.
Ms Mustica also claims superannuation pursuant to the Award, and pre-judgment interest in respect of the sums claimed.
The United Workers’ Union (Union) represented Ms Mustica in the proceeding, and the Hive was represented by its Senior Operations Manager.
Ms Mustica gave evidence by way of an affidavit, witness statement in reply, supplementary witness statement and oral evidence.
The following witnesses gave evidence for the Hive, by way of witness statements and oral evidence:
(a)Ms Rebecca Harding, Senior Operations Manager, i9 Education. Ms Harding was Acting Centre Director of the Hive when it first opened in May/June 2019 and acted as Centre Director on multiple occasions after it had opened;
(b)Ms Nicole Parsons, Operations Support Manager, i9 Education. Ms Parsons had payroll responsibilities for the Hive and also acted as Centre Director of the Hive during Ms Mustica’s employment, after Ms Amie Jahn resigned and before Ms Ferreira was appointed, and after Ms Ferreira resigned and before Ms Suzanne Mandile was appointed;
(c)Ms Kobe Ferreira, previous Room Leader and Centre Director at the Hive from around June 2020 to March 2023; and
(d)Ms Fakeha Hasan, Kindergarten Teacher and Educational Leader at the Hive since 2019.
Two witness statements were filed by the Hive for witnesses who did not give evidence. This included Ms Amie Jahn, former Centre Director of the Hive, who I accept was unavailable to give evidence at the hearing of the matter due to her own employment commitments. I have not had regard to either witness statement.

THE UNDERPAYMENT CLAIM

The applicable legal obligations

The Award governed Ms Mustica’s entitlement to payment from the Hive. Clause 14.1 of the Award sets out the total minimum weekly wages payable for each classification level, along with the minimum hourly rate. For a Level 3.4 (Diploma) employee such as Ms Mustica, the hourly rates at the relevant times were:
(a)From 1 July 2019 - $25.66
(b)From 1 July 2020 - $26.01
(c)From 1 July 2021 - $26.66
Ms Mustica was engaged as a part time employee. The Award deals with part time employment at cl 10.4. It provides:
10.4 Part-time employment
(a) An employer may employ a part-time employee in any classification in this award.
(b)       A part-time employee is an employee who:
(i)        works less than full-time hours of 38 per week;
(ii)       has reasonably predictable hours of work; and
(iii)receives, on a pro rata basis, equivalent pay and conditions to those of full-time employees who do the same kind of work.
(c) At the time of engagement the employer and the part-time employee will agree in writing on a regular pattern of work, specifying at least the hours worked each day, which days of the week the employee will work and the actual starting and finishing times each day.
(d)
(i)Changes in the agreed regular pattern of work may only be made by agreement in writing between the employer and employee. Changes in the days to be worked or in starting and/or finishing times (whether on-going or ad hoc) may also be made by agreement in writing. An agreement in writing may be made by any electronic means of communication.[2]
(ii)Where agreement cannot be reached, the employer may change the days the employee is to work by giving seven days’ notice in advance of the change in accordance with clause 21 — Ordinary hours of work and rostering.
….
(f) A part-time employee who agrees to work in excess of their normal hours will be paid at ordinary time for up to eight hours provided that the additional time worked is during the ordinary hours of operation of the early childhood service. No part-time employee may work in excess of eight hours in any day without the payment of overtime paid for at the rates prescribed in clause 23 — Overtime and penalty rates.
(g) A part-time employee employed under the provisions of this clause must be paid for the ordinary hours worked at the rate of 1/38th of the weekly rate prescribed in clause 14 — Minimum wages.
[2]The last sentence of clause 10.4(d)(i) was added with effect from Ms Mustica’s first pay period after 1 November 2020: Children’s Services Award 2010 [2020] FWCFB 3011; FW Act s 165(3).
Clauses 23.1(b), 23.2(a) and 23.2(c) of the Award deal with overtime rates for part time employees. They relevantly provide:
23.1 Entitlement to overtime rates
….
(b)A part-time employee is paid at overtime rates in the circumstances specified in clause 10.4(f).
….
23.2 Overtime rates
(a)Full-time and part-time employees will be paid overtime at the rate of 150% of the hourly rate (plus any all-purpose allowance payable) for the first 2 hours and 200% of the hourly rate (plus any all-purpose allowance payable) after 2 hours. In calculating overtime, each day’s work will stand alone.[3]
….
(c)Where, due to a genuine and pressing emergency situation, an employee is required to remain at work after their normal finishing time such time will be paid at the ordinary rate for the employee’s classification. Provided that such emergency overtime does not exceed one hour per week. For the purposes of this subclause an emergency situation may include a natural disaster affecting a parent, another employee or the centre/service, the death of a child or parent, or a child requiring urgent hospitalisation or medical attention.[4]
[3]This provision was inserted into the Award with effect from Ms Mustica’s first full pay period after 20 November 2020: Children’s Services Award 2010, FWCFB, PR723880 (30 October 2020); FW Act s 165(3). Prior to this, cl 23.2(a) provided that ’[o]vertime will be paid at the rate of time and a half for the first two hours and double time thereafter. In calculating overtime, each day’s work will stand alone’: Children’s Services Award 2010 [2009] AIRCFB 945. For the purposes of this proceeding there is no material difference in the provisions.

Summary of evidence

Payslips

Both parties relied on Ms Mustica’s payslips, and it was not in dispute that these reflected what Ms Mustica was paid during the relevant period.

Ms Mustica’s Record

Ms Mustica said in her Affidavit dated 27 October 2023 that she had kept a record of all hours worked during her employment, compiled from her contemporaneous notes and her memory (Ms Mustica’s Record). To the extent Ms Mustica’s Record relates to dates on which she claims an underpayment, it is summarised in the column of the Table at Appendix A to this decision titled ‘Ms Mustica’s Record’.

An earlier version of Ms Mustica’s Record was provided to the Hive by the Union prior to the commencement of the proceeding (Original Record). There were several differences between Ms Mustica’s Record and the Original Record. Differences in hours and additional content which relate to dates on which an underpayment is claimed are identified in the column of the Table at Appendix A titled ‘Ms Mustica’s Record.’

Ms Mustica said in her witness statement in reply dated 22 December 2023 that she had revised the Original Record because the Hive had provided records to contradict her claim, and for a small number of days her record was incorrect, and she revised it. However, she said most of her record had not changed and she is confident it is accurate.

In her oral evidence on 12 February 2024, Ms Mustica said when she first gave her Original Record to the Union it was just to her best knowledge, and when she revised it she had moved houses and tried to get all the correct information to get the right hours, using WhatsApp where she received her rosters and also further looking into boxes and finding other hours. She said she still had that material at home.

Ms Mustica then said in her Supplementary Witness Statement dated 1 April 2024 that the documentary evidence she found after she moved was reviewed by the Union who told her none of it related to the hours of work still in dispute, and that this was not the only reason she revised her Original Record, it was also in response to some of the evidence provided by the Hive.

In her oral evidence on 15 April 2024 Ms Mustica said that she created her Original Record every day after she finished her shift. Ms Mustica said for personal reasons she wanted to make sure she had the record so when she checked her payslips later, she knew how many hours she was contracted to do.

A further copy of Ms Mustica’s Original Record, marked up and colour coded by the Hive, indicates the Hive’s initial response regarding the hours claimed by Ms Mustica (Initial Response). This material is referenced where relevant in the column of the Table at Appendix A titled ‘the Hive’s evidence’.

The Hive’s Records

Ms Harding agreed in her oral evidence that all the documentary evidence to support the Hive’s position had been filed with the Court, to the best of her knowledge, and there was no other documentary evidence which had not been filed.
The Hive’s records for the period up to 28 May 2020 comprised hard copy ‘Educator Daily Sign in and Out Sheets’ (HC Timesheets). The content of the HC Timesheets in respect of days for which an underpayment is claimed is summarised in the columns of the Table at Appendix A titled ‘The Hive’s evidence’, ‘The Hive signed in times’ and ‘The Hive signed in hours’ for the period to 28 May 2020.
Ms Mustica said she did not recall filling in the sign in and sign out times on the HC Timesheets, and believed someone else had filled those out. She was asked why she denied the accuracy of these records when she had amended her initial claim based on these records being correct. Ms Mustica responded that when she first got all her evidence submitted, it was off the top of her head, but she went back over it and changed them.
Ms Harding agreed that the HC Timesheets were the primary mechanism by which the Hive kept track of hours of work at that time. She said the HC Timesheets were not the true representation of all shifts worked by Ms Mustica, with only 13 shifts having a sign in or sign out time. She accepted the HC Timesheets did not include evidence of Ms Mustica signing the entries related to her and that the HC Timesheets did not cover 21 of Ms Mustica’s 37 claims in this period, however said that Ms Mustica had acknowledged that there was a 30 hour agreement and was paid for that. She agreed around 60 per cent of employees had signed the HC Timesheet but disagreed the absence of Ms Mustica’s signature suggested someone else had written her name. She agreed Ms Mustica had been paid for days which there was no record of her shift on the HC Timesheets, saying this was based on what the Centre Director completed daily. She said Ms Mustica having been paid 7.5 hours a day is evidence she worked 7.5 hours a day.
For the period from 30 May 2020, the Hive relied on data from its digital platform EasyEmployer. In an email dated 27 August 2021 Ms Harding described EasyEmployer to employees as follows:
EasyEmployer is your online rostering and leave platform. You can set your sign in pin, see your roster, apply for leave and approve your shifts. A communication function is also available in EasyEmployer. …. It is recommended that all employees log into EasyEmployer at the end of the week to confirm your paid hours are correct. Checking your shifts are entered correctly will minimise any pay errors. A blue line next to the shift shows that you have approved your worked hours. A green line means that your Centre Director has approved your work hours.

The EasyEmployer data relied on by the Hive included:

(a) an ‘Attendance Report’;

(b) a Spreadsheet, which had earlier been provided to the Union, which Ms Harding said was the same data as in the Attendance Report, but also included comments from the employee and the manager;

(c) Screenshots of changes and approvals to some shifts in July 2020 (July Screenshots); and

(d) Screenshots of approval of shifts for 30 November to 13 December 2020 (December Screenshots).

The Attendance Report data and Spreadsheet data relating to dates on which an underpayment is claimed is referred to in the columns of the Table at Appendix A titled ‘The Hive’s evidence’, ‘The Hive’s rostered hours’, ‘The Hive signed in times’ and ‘The Hive signed in hours’ for the period from 30 May 2020 onwards. Both the Attendance Report and Spreadsheet display Ms Mustica’s rostered hours and her actual/clocked hours.

The July Screenshots display the entering, changing and approving of shifts. They had been provided to the Union by email from Ms Harding on 13 January 2023 stating ‘In respect of Elisabeth's denial of accepting her shifts each pay period I have attached the history of all shifts for week commencing 13^th July 2020 as an example. We will be happy to supply you with contact details for the IT team at EasyEmployer to verify that this was acknowledged by a unique log in issued to Elisabeth.’ Ms Harding said these records demonstrated that Ms Mustica approved the shifts for which she got paid. She confirmed that where the Hive had entered hours of work, the login would be the Hive, not Ms Mustica.

For 13 July 2020, the screenshots show:

(a) the ‘actual shift’ commenced at 7.49am. The finish time is not displayed.

(b) The ‘pay shift’ and the ‘actual shift start time and end time’ were updated by the Centre Director Ms Jahn on 14 July 2020 at 11.42 am and 11.43am respectively. The record displays a change to the start time from 7.49am to 8.00am.

(c) The ‘actual shift’ was ‘confirmed by user’ with Ms Mustica identified as the action user on 15 July 2020 at 5.05pm.

(d) The ‘pay shift’ was ‘updated’ and the ‘actual shift approved by manager’ by Ms Jahn on 27 July 2020 at 5.18 pm.

(e) ‘Actual shift confirmed by user’ occurred on 4 August 2020 but the action user is stated as ‘easyemployer administrator’ not Ms Mustica.

For 14 July 2020 the actual shift start time was changed from 7.54am to 8am by Ms Jahn, approved by Ms Jahn then ‘actual shift confirmed by user’ by Ms Mustica. A staff meeting shift at 7pm was created and approved by Ms Jahn then confirmed by Ms Mustica.

For 15 July 2020 the actual shift start time was updated from 8.04am to 8am by Ms Jahn, and ultimately confirmed by user by ‘easyemployer administrator’ not Ms Mustica.

For 16 July 2020 Ms Mustica does not appear as an action user, with the actual shift confirmed by ‘easyemployer administrator’.

The December Screenshots display a blue line in respect of the shifts for 30 November, 1- 3 December and 9 December 2020. They do not display a blue line for the shifts on 7, 8 or 10 December 2020. The accompanying email from Ms Harding states ‘educators were encouraging to notify any pay discrepancies or to confirm shift approved hours were correct. A green line means hours are approved by Centre Director. A blue line means hours are confirmed as correct by educator. … I have reviewed Elisabeth’s hours and can see that these have been confirmed as correct by Elisabeth at the end of each pay period.’

Neither the July Screenshots nor the December Screenshots relate to any of the dates on which underpayment is claimed by Ms Mustica.

Ms Mustica’s evidence was that she did not know how to add a comment on EasyEmployer.

Why Ms Mustica worked the additional hours claimed

Ms Mustica’s oral evidence on 12 February 2024 was that she worked every hour claimed because those were the hours she was rostered on to work. Her explanation for the difference between the Hive’s records and hers was that they were her rostered hours, so that’s why she worked. She said the roster was on EasyEmployer and she got it weekly through her phone. She had to sign on to see the roster and it was also emailed. She does not have the rosters anymore.
In her subsequent oral evidence on 15 April 2024, Ms Mustica said there were times she had to start early or finish a bit later due to ratio cover; it is a legal requirement and mandatory. She worked more than her rostered hours for ratio purposes. Sometimes she would have to work longer and sometimes she would get to work early, and team members would ask if she could start earlier as they were short staffed. She did not at the time understand that ratio was calculated ‘under the roof’ but does now. She believed it was her legal obligation to stay back and that she had no choice.
Ms Harding said she had been at the Hive of an afternoon and multiple times approached Ms Mustica and said she could finish, unless there was a reason why not. Generally educators know their finish time. They know how many children there are and if the room feels busy they can confirm the under roof ratio is correct, otherwise they would leave at their rostered time. If there are ever any questions they could go to the Centre Director and ask if it is ok for them to finish. They are never expected to stay back without having been asked to stay back. Ms Harding agreed it was possible a Director did not note down a finish time and instead relied on rostered time but said in almost 7 years they have never had that issue other than in the fortnight directly after the relevant pay period. She said the Hive expected an employee to ask a manager if they needed to keep working due to ratio. If the employee could not locate the centre manager, they could add a note in the system.

Ms Ferreira said there were occasions that Ms Mustica was required by her to stay back for ratio.

The Contract and rostered hours

Clause 5 of the Contract provides:
You are employed Part Time. Your normal working hours will be Upto [sic] 38 Hours/Week however the employer does expect flexibility in this position in order to meet work commitments
….
When ratio requirement requires you to work for more than 15 minutes over your rostered work hours, time in lieu will be accumulated upon approval from your Manger [sic]. Time in lieu hours can be paid with Manager’s approval after 4 weeks from date of accrual.
Ms Mustica said that her weekly hours varied from time to time, but her usual hours were four weekday shifts of 8.5 hours each, usually starting at 8.15am and ending at 5.15pm, with an unpaid 30 minute meal break. She later said she had a contract for 30 hours which was an understanding between herself and Ms Jahn, and was not in writing. She worked whatever Ms Jahn rostered her, be it 34 or 35 hours.
Ms Harding said the Hive has no record of any agreement for Ms Mustica to work minimum hours, based on the Contract.
Ms Parsons said everyone was contracted to work between 2 and 38 hours, and hours were determined on the number of children and educators available.
A document titled ‘Director’s expectations’ (Director’s Expectations document) sent to all employees stated relevantly:
Rosters will be on CCLMS by Monday each week for the following week. The rosters are designed according to the centre needs, all educators must be available to work any shift throughout the week unless a set shift has been agreed upon by management in writing.
When the numbers of children are low; please inform the Centre Director to organise someone to leave early, to have extra planning, or assist in another room if needed
An email from Ms Parsons to Ms Mustica dated 3 December 2021 dealt with rostered shifts and stated:
… At this stage operationally I can’t guarantee you 7-4 everyday. I can look at offering shifts within these hours if I can but once again operationally I have to look at the centre overall.
I have added your shifts into EasyEmployer:
Monday 7:15-4
Tuesday 7:15-4
Wednesday 9-4
Thursday 9-4
Ms Parsons said this arrangement was only for that week and arrangements would change throughout December. That was what Ms Mustica was rostered, and her actual hours would depend on the number of children and how many staff were needed.

Sign in requirements and payment practices

An email dated 10 February 2020 from Ms Jahn to various recipients including Ms Mustica stated:
As I have been completing your timesheets there are a few things I have noticed
·People arriving late for their shifts
·Educators not signing in or out or both
It is a requirement that you arrive at least 10 to 5 mins before your shift time to ensure you are on the floor at the time your shift starts. I understand traffic and things happen that are out of our control but it is all happening much to [sic] often. I would like to see significant changes in this area and will be following up expectations noted on your staff file if this continues.
If you do not sign in and out of rozen correctly this fortnight you will be paid accordingly. It is easier for me to keep up with permanent part time educators as their shifts are set for the fortnight, casuals I cannot keep up with your shift times pleas [sic] ensure you are signing in and out of rozen so you are all paid correctly at the end of the fortnight
An email dated 19 March 2020 from Ms Jahn to various recipients including Ms Mustica stated:
Good Afternoon Team,
You have all read and signed the directors expectations and I have attached this document to the email
I would like to address the fact that many of you are arriving either right on time or late for your shift, this is not acceptable and will not be tolerated
I will no longer be adjusting your timesheets to reflect the correct time and your pays will be affected If you need to complete something before your shift begins you need to organise a shift swap with someone that is either starting late or finishing earlier
We all need to work around our work hours and there is only so much I can do to accommodate this
If the roster has been published then it’s your responsibility to swap with the educator that has been given that shift
If you can give me notice and the roster has not been published I can change the shift time from my end
I am keeping an eye on the timesheets and will be handing any educator that does not arrive at least 5 minutes before their shift a directors expectation talk which will be placed on your staff file
You need to give yourselves time before you start, to sign in, put your belongings away and a possible toilet stop
You are required to be on the floor in ratio at the time your shift begins
The Director’s Expectations document stated relevantly:
Educators are expected to be at the centre at least 5 minutes prior to the start of their shift. Educators must have put belonging away, taken staff children into their rooms (if applicable), signed into CCLMS and be in their rooms ready to work at their rostered shift start time.
Educators are expected to be in their rooms, engaged in duties, until their shift finish time. Educators must not collect staff children (if applicable), their belongings or have signed out prior to their rostered finish time unless as requested by the Centre Director.
An email dated 15 June 2020 from Ms Jahn to various recipients including Ms Mustica stated:
Just a few notes about EasyEmployer
Please do not sign into your shift if its more then [sic] 15 minutes before you start
I also need all of you to log into the app and confirm all of your shifts once the roster has been completed
I have also noticed that while completing the timesheets for this pay period, a few of you did not sign in at all, please sign in everyday it is imperative to ensure you are all paid correctly
Ms Harding said that rostered work only applies from when the employee arrives in the room in which they are working, unless agreed with the manager. She agreed that if the employee was in the room, working, engaged in duty they are entitled to be paid, but not based just on sign in or sign out times. Ms Harding said the sign in and out times in the Hive’s records reflected that the iPad was located in the Director’s office at the main entrance, and employees would sign in then put their belongings in the staff room and would sometimes get their belongings then sign out. Ms Harding said that EasyEmployer was designed to only pay on rostered hours unless there is an approval otherwise.
Ms Harding said that the Hive paid in 15 minute increments, meaning that the Hive did not pay an employee for working less than 15 minutes before or after their rostered times. She agreed that the Contract did not say Ms Mustica will not get paid if the period is less than 15 minutes.
Ms Parsons said unless she approved someone going home early or staying late, rostered hours would apply.

Ms Mustica’s sign in practices

Ms Mustica said that when she remembered, she would always try to sign in and sign out, but sometimes she would forget or sometimes the iPad was not working. Sometimes she would remember and sign in later in her shift. Sometimes she would forget to sign back in after her break. Only once did she leave early and signed out and put a note on the time sheet.

Ms Harding said she had had conversations with Ms Mustica asking why she had not signed out for the day. There were occasions when Ms Mustica was waiting for another staff member to drive her home. She observed and engaged in a conversation with Ms Mustica and Ms Hasan regarding signing out when Ms Mustica was waiting for Ms Hasan to finish work to drive her home. Ms Harding and Ms Hasan both advised Ms Mustica that she needed to sign out and could then come back and assist Ms Hasan in finishing her set up for the day. Ms Harding amended timesheets where she had advised Ms Mustica she was not needed for ratio on more than one occasion. She had to remind Ms Mustica to sign out or ask her if she had signed out yet. On one occasion Ms Mustica laughed in response, acknowledged that she had not signed out yet, and needed to be asked again to sign out before she did so. Ms Harding also witnessed the Centre Directors asking Ms Mustica to sign out before leaving. No disciplinary action was taken against Ms Mustica for her failure to sign in or out.

Ms Harding said where an employee did not sign in or out, the Centre Director would do it, and the employee could see it. Usually the Director has a running sheet as they are checking for ratios. If a Director had not seen an employee’s arrival or departure time, they would generally verbally discuss with the employee the next day or check their diary as to whether the employee was needed to stay back past their rostered time for ratio, and if not they would only be paid for their rostered finish time.

Ms Harding said she held two team meetings during the time Ms Mustica was employed where she discussed how to sign in and out, how to confirm hours are correct at the end of the pay period and how to raise any pay enquiries. Minutes were sent after both meetings. Ms Mustica did not raise any concerns with her pay or request assistance to sign in or out.

Ms Ferreira said Ms Mustica finished early where numbers allowed and on occasion had to be reminded to sign out after she had already ceased work. There were multiple occasions where Ms Ferreira had to ask Ms Mustica to sign out because she had been told she could finish her shift and go home but she would often wait around for other staff members to finish.

Ms Ferreira said where there were paper records, staff were required to sign in and out of the rooms, and the time of sign in and out would be checked to make sure shifts were recorded correctly. If someone did not sign out she would have a conversation with them so she could manually add to the timesheets. Once timesheets were completed they go to the staff members, and they confirm whether they are incorrect or correct. She did not believe she was mistaken as to start and finish times. She assumed an educator would tell her if there was an incorrect time as the timesheets are available for the staff member to see after they had been amended.

Ms Hasan observed Ms Mustica sign in and out both using EasyEmployer and the paper system. Ms Mustica was aware she had to sign in and out, and sometimes didn’t because she said the Director would know and had seen her, then would go back to it. Sometimes Ms Mustica would wait for Ms Hasan and say it was ok, she did not need to sign out, Ms Hasan would finish on time but still needed time to clean up and Ms Mustica would stay back and do it. On those occasions sometimes Ms Mustica finished at the same time as Ms Hasan but not because of ratio, because she was waiting for Ms Hasan. Ms Hasan said that the Centre Director would fill in the sign out times when Ms Mustica did not.

Ms Parsons observed Ms Mustica signing in and out. Ms Mustica did not write messages. At times when Ms Mustica was leaving the centre Ms Parsons would ask if she had signed out and she had not. Ms Parsons would keep a note of the number of children, the times she would send people home and ask people to cover people. Ms Mustica would need to be reminded it was ok to leave. Ms Parsons assumed that she was walking out the door a significant time after she had finished.

Where Ms Mustica left without signing out, Ms Parsons would look to see what time she worked and generally kept a note of what time people left or if she asked someone to stay back. She would approve timesheets on that basis, and educators can look through and identify any discrepancies. It was possible that this resulted in a discrepancy of one or two minutes. Ms Parsons worked until 6.30-7pm and would know if she had sent anyone home or asked anyone to stay back and would make that adjustment. All educators could then see that through EasyEmployer.

Queries about pay and hours of work during the employment

Ms Mustica said she raised queries verbally on several occasions about her pay and hours of work not being correct during her employment. She said Ms Jahn said she would speak to payroll about it and it was not done. She left it in Ms Jahn’s hands, as she believed as Centre Director, it was her job.
An email dated 6 January 2021 from Ms Mustica to Ms Jahn stated ‘Could you please fix my time sheet I do 8.5 hours’. The email attached two timesheet extracts, for 29 December and 30 December 2020. A reply email from Ms Jahn dated the same day stated ‘The days you have sent through were days you were sent home early’.

Ms Mustica raised a further query by message on 11 March 2021. The messages stated as follows:

Plaintiff, 9.24pm: Hi kobi how are you sorry to interrupt but I forgot to sign out I needed tostay [sic] back due to ratio, I finished at 5.40.
Plaintiff, 9.27pm: Also do you know if my timesheet for last Monday 1-3 was fixed as I did 8.5 hours not 6hours [sic]
Reply, 9.38pm: Just email both these questions to Nicole please. Just because I can’t fix the time sheet as I’m not there tomorrow. Nicole did last weeks time sheets too. I’m Sure [sic] she fixed it but if you email her she can confirm!
Reply, 9.38pm: Her email is in the email Rebecca sent last week
Reply, 9.39pm: If you can’t find it let me know and I’ll send it to her  sorry I can’t help!

Ms Mustica emailed Ms Parsons on 11 March 2021 as follows:

Hi Nicole
How are you? Sorry to interrupt your evening. I forgot to sign out today I finished work at 5.40 due to ration [sic] and also on the 1-3 I did 8.5 hour’s not 6 hour’s I forgot to sign in on the ipad as it didn’t work on that sign in morning.

Ms Harding said to the best of her knowledge, Ms Mustica did not raise any concerns with her pay. If an issue had been raised with the Centre Director usually it would be referred to in their weekly report.

Ms Ferreira said in her witness statement that no pay queries were ever raised by the Plaintiff with her. In her oral evidence she said she realised she had forgotten and confirmed that she remembered the occasion on 11 March 2021 but did not recall any others. She agreed it was possible she had forgotten other queries.

Ms Parsons said she did not remember specifically Ms Mustica raising concerns as to her pay being incorrect on EasyEmployer or timesheets, or being underpaid, however she did find the one email that was sent through which was the only notification she had. She conducted a search of her emails and found only this one.

Evidence as to specific dates

Ms Harding said:

(a) In respect of 31 December 2020, Ms Mustica was not rostered to work and there was no leave application submitted, no sign in or sign out.

(b) In respect of 9 June 2021, there was no rostered shift, sign in or sign out.

(c) In respect of 11 June 2021, the attendance record shows 9:00am - 5:30pm, with clocking in at 8.39am and clocking out at 5.39pm.

(d) In respect of 15 June 2021, Ms Mustica was rostered from 9:00am to 5.15pm and signed in at 8.45am and out at 5.17pm, and was paid based on her rostered hours.

Consideration

Ms Mustica’s entitlement to payment

Ms Mustica bears the onus of proving her underpayment claim on the balance of probabilities, subject to the operation of s 557C of the FW Act which Ms Mustica relies on in part in respect of the claim.[5] Ms Mustica’s entitlement to payment arises from the Award. The Award frames her entitlement to be paid based on her ‘work’. Clause 10.4(g) provides that a part time employee ‘must be paid for the ordinary hours worked at the rate of 1/38^th of the weekly rate prescribed’ and cl 10.4(f) provides that ‘[a] part-time employee who agrees to work in excess of their normal hours will be paid at ordinary time for up to eight hours…’ and ‘[n]o part-time employee may work in excess of eight hours in any day without the payment of overtime…’.
[5]See further paragraph 111 below.

Further, clause 10.4 of the Award requires the times, days and hours of the relevant ‘work’ for which Ms Mustica is entitled to be paid to be agreed with the Hive as the regular pattern of work, as rostered by the Hive in the the absence of agreement to changes to the regular pattern of work or agreed between Ms Mustica and the Hive for hours in excess of normal hours. . These provisions illustrate that the ‘work’ for which Ms Mustica is entitled to payment must be agreed to or required by the Hive. The entitlement to payment for work does not arise in respect of work performed unilaterally by Ms Mustica.

Underpayments based on Ms Mustica’s Record

On balance, I am not satisfied that Ms Mustica’s Record is an accurate reflection of the agreed or rostered hours she worked. I considered her evidence in respect of the records was unreliable.
Ms Mustica’s evidence as to how the records were compiled, when they were compiled and the material on which they were based was inconsistent, general and unspecific. She initially said she had kept a record of all her hours worked at the time and compiled it from her contemporaneous notes and her memory. She ultimately said at first it was just from her best knowledge, then subsequently she used other documents and information, including looking into boxes when she moved houses, and looking at rosters on WhatsApp to get the right hours.
There were no supporting documents to substantiate Ms Mustica’s Record, notwithstanding that she said she had relied on such documents in part to compile the Record. To the extent that Ms Mustica said she based it on contemporaneous notes, these were not available. Ms Mustica ultimately said the Union had reviewed the extra documentary material and it did not bear on her claim. No explanation was provided as to the detail of what the material was, why it was no longer available or why she had said she relied on it. Ms Mustica did not produce any rosters to support her evidence that the Record reflected her rostered hours. In many respects, for the period after 30 May 2020, the Hive’s records of Ms Mustica’s rostered hours differ from the hours in Ms Mustica’s Record.
Further, there were significant differences between Ms Mustica’s Record and the Original Record. Whilst Ms Mustica’s evidence sought to minimise these differences, they were numerous. Of the 126 individual underpayments alleged in Ms Mustica’s Record, more than a quarter were amended from the Original Record. Further, some of the differences between the times worked were substantial. For example, on some dates where the Original Record stated hours worked as from 8.15am to 5.15pm, these were changed to 11am to 7pm, or 7am to 4pm. Further, the Original Record claimed hours worked on occasions which Ms Mustica’s Record subsequently stated were public holidays related to carer’s leave. Ms Mustica did not explain in any detail why these changes were made, other than based on the response from the Hive to the Original Record.
Further, I considered Ms Mustica’s evidence that she kept a contemporaneous record to check her payslips to be inconsistent with Ms Mustica’s general approach to her engagement with the Hive’s own system for monitoring hours of work. I am satisfied that Ms Mustica was aware of the requirement to sign in and out, based on her own evidence, the emails from Ms Jahn addressing this subject in February, March and June 2020 and the evidence of the Hive witnesses. I am satisfied both on Ms Mustica’s evidence, and the evidence of Ms Harding, Ms Ferreira, Ms Hasan and Ms Parsons that Ms Mustica nonetheless regularly did not sign in or out. Further, I am satisfied on the evidence of Ms Harding, and the July Screenshots and December Screenshots, that EasyEmployer allowed employees to check, make alterations to and approve shifts. The July Screenshots evidence Ms Mustica doing so, as do the comments on the Spreadsheet on a small number of occasions. I am satisfied based on this that she was aware of this functionality notwithstanding her evidence that she did not know how to add a comment. However, I am satisfied that, with a small number of exceptions, Ms Mustica did not utilise EasyEmployer to check her hours were recorded correctly.

Further, Ms Mustica did not give clear or consistent evidence about how it was she came to have worked the additional unpaid hours which appeared on her Record. She initially said it was because those were the hours she was rostered to work, as emailed to her through EasyEmployer. She subsequently said it was in part due to ratio requirements. Whilst I accept that employee start and finish times were adjusted by the Centre Manager to address ratio requirements, including Ms Mustica’s, Ms Mustica’s evidence was unclear as to whether she had been requested or directed to perform this work, and if so by whom, or whether she understood it was required due to the number of children on a given day. This evidence also lacked any specificity as to which dates or hours were worked for what reason.
Further, I am satisfied based on the EasyEmployer system records, the emails tendered by Ms Mustica and the evidence of Ms Parsons and Ms Ferreira that Ms Mustica did on occasion question her pay and hours. I was not persuaded that Ms Mustica regularly did so. I accept this only related to a small number of dates, in circumstances where Ms Mustica’s claim related to consistent alleged underpayments over a period of almost two years. Ms Mustica offered no real explanation as to why she had not sought to address these issues at the time. I accept that there may be many reasons why an employee does not agitate a systemic underpayment issue with their employer during the employment. However in this matter, Ms Mustica did not offer any cogent explanation as to why a small number of issues were raised, but not the systemic issues she now alleges. I consider this undermines the reliability of the allegations she makes as to her underpayment.
Finally, on balance I considered the Spreadsheet and Attendance Record to be a more reliable record than Ms Mustica’s Record. These contained multiple rostered times and clocked/actual times that were inconsistent with Ms Mustica’s Record. Even allowing for late changes to rostered hours, regular failure to sign in and out by Ms Mustica and assuming that the Centre Director regularly entered or amended the sign in and out times, in many instances it is not possible to reconcile these records with Ms Mustica’s Record. In addition, despite no time sheets having been produced by the Hive in respect of the majority of the days claimed by Ms Mustica for the period prior to 30 May 2020, pay slips were produced for this period which state the hours worked in the relevant pay periods. It was not argued for Ms Mustica that s 557C of the FW Act had any application in respect of this period.[6] I am not satisfied that Ms Mustica worked beyond the hours for which she was paid during this period.
[6]See further paragraph 111 below.
Accordingly, as I am not satisfied that Ms Mustica worked the hours and days set out in her Record, I am not satisfied that Ms Mustica has been underpaid in this respect. I have indicated in Appendix A which items are in this category by referring to them as ‘Category 1.’
There are two further matters to address regarding the underpayments based on Ms Mustica’s Record.
Firstly, Ms Mustica appeared to suggest that at times she worked more than her rostered hours because of ratio requirements of her own volition because she believed it was a legal obligation and she had no choice. I accept that the requirement or authorisation to work additional hours by an employer may be indirect or arise implicitly from the circumstances, but I am not satisfied that occurred here. I am satisfied on the evidence of Ms Mustica, Ms Ferreira, Ms Parsons and Ms Harding that the Centre Director determined shift finishing times on a daily basis in response to ratio requirements. Ms Harding’s evidence was that usually the Director has a running sheet as they are checking for ratios. Ms Parsons would keep a note of the number of children, the times she would send people home and ask people to cover people. Ms Harding said that an employee is not expected to stay back due to ratio unless they are asked, that an educator knows how many children there are and if the room feels busy they can confirm the under roof ratio is correct, or ask the Centre Director if it is ok for them to finish. The Director’s Expectations document requires employees to inform the Centre Director when the numbers of children are low to, amongst other things, ‘organise someone to leave early’. I am satisfied that it was the Centre Director who actively determined work requirements related to ratio, and there was no implicit requirement that Ms Mustica personally assess ratio requirements and work accordingly.
Secondly, cl 10.4(c) of the Award requires the employer and the part-time employee to agree in writing on a ‘regular pattern of work, specifying at least the hours worked each day, which day of the week the employee will work and the actual start and finish times each day.’ Ms Mustica’s Contract states her normal working hours will be ‘[u]pto [sic] 38 Hours/Week.’
Many of the alleged underpayments in Ms Mustica’s Record reflect four 8.5 hour days, and the Original Record overwhelmingly reflects these hours. However, I do not accept Ms Mustica’s evidence that she had an agreement with the Hive to work 8.5 hours per day, 4 days a week. Her evidence was inconsistent as to the number of hours agreed. The agreement was not documented. Ms Harding’s evidence was that she had no knowledge of such an agreement. Further, the terms of the alleged agreement are inconsistent with Ms Mustica’s Contract and her rostered hours of work evidenced by the Hive’s records. It was not alleged in this proceeding that the Hive was in contravention of clause 10.4(c) of the Award. In response to my raising of this issue, the Hive maintained the Contract was Award compliant, but did not identify how. In any event, whilst the failure to have such an agreement, or rostering hours contrary to such an agreement, may contravene the Award, it does not give rise to an entitlement to be paid for the agreed hours where those hours are not worked.

Underpayments based on the Hive’s records

Ms Mustica claims in the alternative that she was underpaid based on the Hive’s own records, as they demonstrate a failure to pay Ms Mustica for all the hours which those records show she worked.
For the period from June 2020 onwards, for each work day the Hive’s Spreadsheet and Attendance Records, taken together display:

(a) ‘rostered’ start and finish times, unpaid break duration and total hours;

(b) ‘clocked’ start and finish times, unpaid break duration and total hours; and

(c) ‘paid’ start and finish times and total hours.

Ms Mustica’s alternative claim is based on the submission that she is entitled to be paid for the hours reflected in the ‘clocked’ records. However the Hive submitted that the ‘rostered’ hours and ‘paid’ hours were the best record of the hours that Ms Mustica worked and was entitled to be paid for, and that clocked hours do not properly reflect the hours for which Ms Mustica is entitled to be paid.
I am satisfied on balance that Ms Mustica’s clocked hours reflect when she attended the workplace. Notwithstanding that I have accepted that Ms Mustica regularly failed to sign in and out, the evidence of Ms Harding, Ms Parsons and Ms Ferreira establishes that when Ms Mustica did not do so, the Centre Director would do so on her behalf. Further, to the extent that the Centre Director observed Ms Mustica remaining at the workplace and not clocking out after her shift, the Centre Director was able to rectify this. The July Screenshots demonstrate that the Centre Director has the capability to alter and update ‘actual shift start time and end time’ in EasyEmployer as the screenshot for 14 July 2020 illustrates Ms Jahn having done so. Further, there is a function for ‘actual shift to be approved by manager’ completed by Ms Jahn. Further again, ‘easyemployer administrator’, which I infer is an administrative user other than Ms Mustica, was able to confirm an actual shift updated start time.
However, I do not consider that the time at which Ms Mustica arrived and departed from the workplace automatically equates to time she is entitled to be paid for. Ms Mustica is entitled to be paid for work, within the meaning of the Award, when it is agreed to or required by the Hive.
In general, with some exceptions set out below, I am not satisfied that the differences between Ms Mustica’s clocked hours and the rostered/paid hours reflect an underpayment. It was not disputed that the location of the iPad is in the Director’s office at the main entrance to the centre. I accept Ms Harding’s evidence that the clocked hours reflect this, and that there is commonly some delay between clocking in then commencing a shift, and between finishing a shift and clocking out. On most occasions, the difference between Ms Mustica’s rostered and paid hours on the one hand, and her clocked hours on the other, is a small number of minutes. I am not satisfied in these instances that the clocked hours are evidence of the Hive agreeing to or requiring Ms Mustica working beyond her rostered hours. I consider this more likely simply reflects her arrival and departure from the workplace to perform her rostered shift. I have indicated in Appendix A which items are in this category by referring to them as ‘Category 2.’
The first exception to my general conclusion is that I consider Ms Mustica is entitled to be paid for her attendance at the workplace 5 minutes prior to the commencement time for her rostered shift, as I consider this period constitutes ‘work’ within the meaning of the Award.
I am satisfied on the evidence of Ms Parsons and Ms Harding, Ms Jahn’s emails of 10 February 2020 and 19 March 2020 and the Director’s Expectations document that the Hive required and directed employees to be at the workplace and to sign in no later than 5 minutes before they were required to be on the floor in their relevant room for ratio purposes at the time their shift begins. Further, I am satisfied that the email of 19 March 2020 threatens disciplinary action for breach of this requirement, by stating ‘I am keeping an eye on the timesheets and will be handing any educator that does not arrive at least 5 minutes before their shift a directors expectation talk which will be placed on your staff file’.
The reason for this direction is articulated in the email of 19 March 2020 to be to allow ‘time before you start to sign in, put your belongings away and a possible toilet stop’ and that employees are ‘required to be on the floor in ratio’ at the time their shift begins. The Director’s Expectations document also refers to this time being required for employees to put their belongings away, signing in, and being in their rooms ready to work at their rostered shift start time.
I consider that upon attendance at the workplace in accordance with that direction, Ms Mustica had made herself available for work and was effectively under the instruction of the Hive, and that this is sufficient to constitute ‘work’ as that term is used in the Award. I do not consider the fact that Ms Mustica was permitted to attend to matters such as putting her belongings away during the five minute period derogates from this conclusion. Whilst these are activities of a personal character, it cannot be said that this time is Ms Mustica’s personal time, as she is confined to activities within the workplace. Further, the act of signing in is connected with Ms Mustica’s work, in that it is the entry point for the workplace, and I consider is not readily described as a personal activity in the context of the direction to do it no later than 5 minutes before the commencement of a rostered shift. Whilst taking a ‘toilet stop’ is an activity of a personal character, I doubt it would be suggested that an employee is not otherwise permitted to do so during working hours.
Finally, notwithstanding that the direction does not require Ms Mustica to be present in the relevant room prior to the rostered commencement time, her presence at the workplace means she is readily available to do so, to the benefit of the Hive. Ms Mustica’s evidence was that sometimes when she attended work early team members would ask if she could start earlier as they were short staffed for ratio. I am satisfied based on this evidence that on occasions Ms Mustica did in fact commence in her allocated room prior to the rostered commencement time during this period. This evidence was not contradicted by any of the Hive’s witnesses and the evidence of those witnesses corroborated the active monitoring of ratio requirements by the Centre Director and the adjustment of employee hours accordingly.
I consider that underpayments have occurred in this respect and I have indicated in Appendix A which items are in this category by referring to them as ‘Category 3.’
The second exception to my general conclusion is where Ms Mustica clocked on after her rostered start times. I infer that on these occasions Ms Mustica was either late for her rostered shift or clocked on after she had commenced work. On each of these occasions, Ms Mustica was not paid between the time she clocked on and the next 15 minute time increment. I consider it unlikely that the explanation for this was a delay of up to 15 minutes in commencing work following Ms Mustica signing in. Ms Harding’s evidence was that the Hive paid in 15 minute increments only, meaning that the Hive does not pay employees for portions of work time that are less than 15 minutes. On the basis of this evidence I consider it probable that the explanation for the deviation between Ms Mustica’s sign in time and the time from which she was paid reflects the Hive’s practice of paying only in 15 minute increments. The Award at cl 10.4(b)(iii) describes a part time employee as an employee who ‘receives, on a pro rata basis, equivalent pay and conditions to those of full-time employees who do the same kind of work.’ Ms Mustica is entitled to payment on a pro rata basis. There is no limit present in the Award authorising what is, in effect, the rounding down of time worked to the nearest 15 minute increment.
On occasions where Ms Mustica had arrived or clocked on late, I consider she is entitled to payment upon signing in. Ms Mustica was already required to be at work by virtue of the roster on these occasions and I consider she is entitled to be paid from the time of her attendance at the workplace.
Accordingly, I consider Ms Mustica has been underpaid in this respect and I have indicated in Appendix A which items are in this category by referring to them as ‘Category 4.’
The final exception to my general conclusion is a small number of occasions where there is a more significant deviation between the rostered hours and the clocked hours (15 minutes or more) which I consider cannot simply be explained as a short delay. Further, on some occasions, a note on the Spreadsheet states ‘needed to stay back for ratio’. On these occasions, I am satisfied that the clocked hours are a more reliable indicator of the hours worked by Ms Mustica than the rostered hours. Accordingly, I consider Ms Mustica has been underpaid in this respect and I have indicated in Appendix A which items are in this category by referring to them as ‘Category 5.’

Public Holidays and Personal Leave

Public Holidays

In respect of Public Holidays, on some occasions Ms Mustica alleged non-payment and on others claimed payment for 8.5 hours where 7.5 hours had been paid. For reasons already given, I am not satisfied that Ms Mustica’s Record is an accurate record of when Ms Mustica was rostered to work. On each occasion that a public holiday was unpaid, the Hive’s records indicate that Ms Mustica was not rostered to work. On the basis of the Hive’s records I do not consider that an underpayment arises in these circumstances.
Ms Mustica’s claim that 8.5 hours should be paid in respect of those public holidays where she was rostered to work appears to be based on her claim that she had an agreement to work four 8.5 hour days. Having found that there was no such agreement, I am not satisfied that any underpayment has occurred for this reason either. I have indicated in Appendix A which items relate to public holidays by referring to them as ‘Category 6.’

Personal Leave

In respect of Ms Mustica’s claim for underpayment of personal leave entitlements, she said a request for her employee records including her leave records was made from the Union to the Hive on 13 January 2022, and the records provided by the Hive from Ms Harding on 27 January 2022 did not include a record of the balance of her entitlement to personal leave. She submitted that s 557C of the FW Act has application in light of the failure of the Hive to provide these records.
Ms Harding said that EasyEmployer would say the amount of accrued personal leave and said the Hive emailed the Union including the dates Ms Mustica was not paid due to leave not being accrued, but agreed Ms Mustica’s leave balance had not been provided to the Union or tendered to the Court. She said further that she did not understand the leave balance to have previously been questioned or records requested.
Ms Harding said that some personal leave hours were not paid due to Ms Mustica not having the required leave balance accrued to cover it. She referred to Ms Mustica’s claim for personal leave on 30 March 2021, stating that she had been paid 1.94 hours, but 6.56 hours were not paid because she did not have the leave accrued. Ms Harding said further that on 7 July 2021, based on the Attendance Record, 1.64 hours of personal leave was paid, and 5.86 hours was unpaid due to Ms Mustica not having enough leave accrued.
Ms Harding also referred to payment not having been made where the requirements of the Director’s Expectations document were not met. The Directors Expectations document contained the following provisions regarding personal leave:
If an educator is absent due to illness it is their responsibility to contact the director prior to 2pm to inform them if they will be attending the centre to work the next day. Opening educators must contact the Director prior to 8pm in the instance that they will not be fit to work the following day. After this time educators must arrive at work at the opening time and contact the director at 6:30am who will organise a replacement ASAP.
…
Personal Leave requests must provide [sic] be received at least 2 hours prior to the commencement of your shift. Medical certificates are requested for all personal leave and are a compulsory requirement for personal leave taken before or after annual leave, a public holiday, a weekend, a rostered day off or if you are absent 2 or more consecutive days.
A number of medical certificates for Ms Mustica were in evidence from the Hive, however the only one relating to a date claimed was for 1 July 2021, in respect of which Ms Mustica claims she worked and did not make a claim for personal leave.
Section 557C regulates how the Court must approach evidentiary matters in the absence of an employer making available a record for inspection. It provides relevantly as follows:
557C Presumption where records not provided
(1)If:

(a) in proceedings relating to a contravention by an employer of a civil remedy provision referred to in subsection (3), an applicant makes an allegation in relation to a matter; and

(b) the employer was required:

…
(ii)by regulations made for the purposes of subsection 535(3) to make available for inspection a record;

…
in relation to the matter; and

(c) the employer failed to comply with the requirement;

the employer has the burden of disproving the allegation.

(2)Subsection (1) does not apply if the employer provides a reasonable excuse as to why there has not been compliance with subsection 557C(1)(b).

(3) The civil remedy provisions are the following:

…

(b) section 45 (which deals with contraventions of modern awards);

Section 535(1) provides that an employer is required to make and keep for 7 years employee records of the kind prescribed by the regulations in respect of each of its employees. Section 535(2) provides that those records must be in a form and contain the information prescribed by the regulations. Section 535(3) provides that the regulations may provide for inspection of those records.

Regulation 3.36 of the Fair Work Regulations 2009 (Cth) (FW Regs) provides:

(1)For subsection 535(1) of the Act, if an employee is entitled to leave, a kind of employee record that the employer must make and keep is a record that sets out:
(a) any leave that the employee takes; and
(b)the balance (if any) of the employee’s entitlement to that leave from time to time.

Regulation 3.42 of the FW Regs provides:

(1)For subsection 535(3) of the Act, an employer must make a copy of an employee record available for inspection and copying on request by the employee or former employee to whom the record relates.

I consider that s 535(1) of the FW Act and r 3.36 of the FW Regs required the Hive to make and keep a record of Ms Mustica’s personal leave taken, and the balance of that leave from time to time, and that r 3.42 of the FW Regs required those leave records to be made available for inspection and copying on request by Ms Mustica. I am satisfied on the evidence of Ms Mustica, not contested by Ms Harding, that the leave records were not made available. Accordingly, s 557C provides that the Hive has the burden of disproving the allegation of underpayment with respect to personal leave, unless the Hive provides a reasonable excuse as to the non-compliance.

The Union’s request for records on behalf of Ms Mustica clearly states that leave records are requested. Ms Mustica’s Record, including the earlier version provided to the Hive, identified dates on which Ms Mustica has claimed non-payment of personal leave. Ms Mustica’s Statement of Claim identifies that in some weeks she claimed an underpayment arising from the taking of paid personal leave. Ms Mustica’s Statement in Reply at paragraph 6 refers to the Hive’s failure to provide records of the balance of her entitlement to leave. Ms Mustica’s Reply identifies that she relies on s 557C(1)(c). The hearing of the matter was adjourned twice to allow the Hive to file and serve further documents on which it relied, and Ms Harding gave evidence that she had provided all relevant documents. In all the circumstances, I do not consider Ms Harding’s explanation that she did not understand the leave balance to have previously been questioned or records requested to be a reasonable excuse.

Accordingly, the Hive bears the burden of disproving the allegations of underpayment with respect to personal leave.

Clause 25 of the Award provides that personal/carer’s leave is provided for in the NES. The NES entitlement to Personal Leave includes at s 107(1) and s 107(2) a requirement that an employee give notice of the taking of leave, which must be given as soon as practicable (which may be a time after the leave has started). To the extent that the Hive relies on notice not having been given, I consider the effect of s 557C requires the Hive to positively satisfy me that this did not occur as soon as practicable. To the extent that the obligations in the Director’s Expectations document require something more than that, I do not consider they provide a legal basis for failure to pay personal leave.

Further, to the extent that there is no direct evidence before me as to the available accrued leave, I consider s 557C requires me to assume that accrued leave was available.

However, having determined not to give any weight to Ms Mustica’s Record as evidence of the hours she worked or was entitled to leave in respect of, to the extent that the Hive’s records assert that Ms Mustica was entitled to a specified number of hours of leave, I consider this sufficient to meet the burden imposed on it by s 557C.

In respect of item 63, 2 June 2021, the Spreadsheet shows that Ms Mustica’s rostered hours were from 9am to 3pm, and a note states that she was a no show. She was not paid. Accepting Ms Mustica was a no-show, there was nonetheless no evidence from the Hive as to whether she failed to give notice as soon as practicable. Accordingly, I consider Ms Mustica is entitled to be paid personal leave. However, accepting Ms Mustica was rostered from 9am to 3pm that day, and inferring she would have taken a ½ hour unpaid break, I consider the evidence sufficient to disprove the claim to 8.5 hours paid personal leave, and find that she was entitled to 5 hours 30 minutes of paid personal leave.

In respect of item 69, 16 June 2021, 7.5 hours of personal leave has been paid, and Ms Mustica claims 8.5 hours. The Attendance Record states that Ms Mustica was not rostered. I have already indicated that I do not consider Ms Mustica had an agreement to work 8.5 hours a day. Further, I do not consider she has an entitlement to personal leave as she was not rostered to work. I am satisfied based on the Hive’s records that there was no underpayment.

In respect of item 70, 17 June 2021, the Attendance Record states that Ms Mustica was rostered from 9am to 3pm. Ms Mustica was paid for 5 and a half hours of personal leave. I have already indicated that I do not consider Ms Mustica had an agreement to work 8.5 hours a day. I am satisfied on the basis of the Hive’s records that there was no underpayment.

In respect of item 72, 23 June 2021, the Attendance Record states ‘not rostered’ and 5 and a half hours of personal leave has been paid. As there was no agreement to work 8.5 hours a day and Ms Mustica was not rostered to work, I am satisfied on the basis of the Hive’s records that there was no underpayment.

In respect of item 75, 7 July 2021, I am satisfied on Ms Harding’s evidence that Ms Mustica was paid for 1.64 hours due to not having a further accrual of leave at that time. Accordingly there was no underpayment.

In respect of item 96, 16 September 2021, I am satisfied based on the attendance note ‘not rostered’ and the absence of rostered hours on the Spreadsheet that Ms Mustica was not rostered to work and based on the Hive’s records I am satisfied there was no underpayment.

In respect of items 100 and 101, 28 and 29 September 2021, the Spreadsheet shows that Ms Mustica’s rostered hours were from 8:15am to 5:15pm on both days, and a note states regarding both days that she was a no show. She was not paid. Accepting Ms Mustica was a no-show, there was nonetheless no evidence from the Hive as to whether she failed to give notice as soon as practicable. Accordingly, I consider Ms Mustica is entitled to be paid personal leave for her rostered 8 hours and 30 minutes each day, assuming an unpaid break of ½ hour.

In respect of item 103, 11 October 2021, I am satisfied based on the attendance note ‘not rostered’ and the absence of rostered hours on the Spreadsheet that Ms Mustica was not rostered to work and accordingly based on the Hive’s records, there was no underpayment.

In respect of item 113, 23 November 2021, I am satisfied based on the attendance note ‘not rostered’ and the absence of rostered hours on the Spreadsheet that Ms Mustica was not rostered to work and accordingly I am satisfied based on the Hive’s records that there was no underpayment.

In respect of item 115, 2 December 2021, I am satisfied on the basis of the Initial Response that Ms Mustica did not provide a medical certificate. However, the Hive evidence does not address whether Ms Mustica provided any other form of evidence which would satisfy the requirement in s107(3)(a) of the FW Act that the leave was taken for permissible reasons. Ms Mustica claimed a total underpayment of 5 hours and 30 minutes for this occasion, and I am satisfied that Ms Mustica was paid for 2 hours and 19 minutes. Accordingly I consider Ms Mustica is entitled to the balance of 3 hours and 11 minutes.

I have indicated these items in Appendix A by referring to them as ’ Category 7.’

Rate of payment to be applied

Ms Mustica did not initially claim any of the alleged underpayment at overtime rates, however I invited further submissions from the parties as to the applicability of the overtime provisions in respect of the underpayments claimed. The Union submitted that any underpayment where Ms Mustica had worked beyond 8 hours in a day should be paid at the overtime rates, with the applicable rate being 150 per cent. The Hive submitted that overtime rates were not applicable because there was no relevant agreement that Ms Mustica work in excess of her normal hours as required by cl 10.4(f), and that the State of Emergency in place in Victoria between 16 March 2020 and 15 December 2021 enlivened the exception in cl 23.2(c).
I consider that to the extent Ms Mustica’s claim has been successful, and relates to a day on which she has worked in excess of 8 hours, the Award requires her to be paid at overtime rates for the portion of the work in excess of 8 hours. I consider cl 10.4(f) to be satisfied when additional work is authorised and performed. Based on the text of cl 23.2(c) I consider it has application to emergencies of an immediate and one-off nature in respect of the requirement to remain at work, and I don’t consider that the ongoing State of Emergency is within its scope.

THE JOBKEEPER UNDERPAYMENT

Evidence and findings

It was not in dispute that Ms Mustica was not paid $1500 for the First Fortnight or Second Fortnight. It was not in dispute that Ms Mustica was not attending work at that time, or that the Hive was eligible for JobKeeper.
Ms Mustica said the first time she was contacted by anyone from the Hive about JobKeeper was 19 May 2020 when she was sent an email with a Nomination Notice, which she filled out and emailed back the same day. That email was not in evidence. Nobody from the Hive contacted her before that. Ms Jahn the Centre Director did not try to contact her about it, and she did not receive any email on 16 April 2020 or 17 April 2020. The first time she saw the email dated 17 April 2020 was during the hearing of 12 February 2024. A search of her email account did not discover the email, and she does not believe she received it.
Ms Harding said that when free childcare came into effect on 2-3 April 2020, there was an opportunity for early childhood sector employers to apply for JobKeeper. Information about the scheme was shared through the i9 digital platform and it was promoted in the media. The Hive was accepted for the scheme. The scheme required employers to provide a JobKeeper Employee Nomination Notice (Nomination Notice) to employees. The Nomination Notice required employees to sign a declaration that they were eligible for the scheme. The advice Ms Harding received at the time from the Australian Taxation Office (ATO) was that employers could not claim JobKeeper in respect of an employee unless the Nomination Notice had been returned. Further, the Nomination Notice was required to be returned by the end of April 2020 for eligibility for payments for the fortnights beginning on 30 March 2020 and 13 April 2020.
Ms Harding said that on 16 April 2020 at 11.11am she sent an email to all employees including Ms Mustica. A copy of the email was tendered in PDF form. It states it was sent from [email protected] and in the ‘cc’ line was the address [email protected]. The subject was ‘The FF JobKeeper eligibility’ and the email stated:
Good morning,
Thank you to everyone that has emailed Amie regarding JobKeeper eligibility.
Please be aware we have not confirmed our eligibility for JobKeeper and we will send written notification to eligible employees if you are nominated on our application form. [emphasis in original]
Eligibility criteria will be based on the Australian Government eligibility criteria including our ability to confirm that each eligible employee is currently engaged in order to receive JobKeeper Payments.
Amie has the attached JobKeeper employee nomination form sent to the centre this morning. It would be much appreciated if you complete and return this by 5pm Friday 17 April 2020.
We will keep you updated on our application process and your eligibility.
Ms Harding confirmed [email protected] remained her current email address. She agreed the original 16 April 2020 email had not been tendered, saying a screen shot had been taken from the centre. She said she could access the email from the Hive but she could not access the original email because she cannot access any of her emails prior to 2021 due to a system change. She said Ms Mustica was blind copied into the email. Ms Harding is confident she sent it to Ms Mustica. At the time she cross referenced and everything was double checked. When asked if she was 100 per cent certain she said she would bet her job on it.
Ms Harding said she sent the email to Ms Mustica’s personal email address, which was the email address used regularly for communication, and where pay slips and rosters were sent. Other emails from the Centre Director of the Hive on 10 February and 19, 27 and 31 March 2020 about operational matters, which included Ms Mustica as a recipient at the same email address, were provided. Ms Harding cannot say for certain that Ms Mustica received the email, but email was the primary method of communication, and she had no reason to believe it was not received. There was no other discrepancy or dispute as to whether Ms Mustica received emails. Ms Harding had a lot of email communication at that time, and no concerns were raised with her that her emails were not being received.
Ms Harding said she received three emails back from other employees but did not receive a response from Ms Mustica. Ms Harding asked the Centre Directors to call people they did not have Nomination Notices for, including at the close of business on 17 April 2020.
The Hive also relied on an email from the Centre Director to employees including Ms Mustica dated 17 April 2020 at 6.03pm showing Ms Mustica as a recipient. The subject line of the email is ‘Job Keeper’. It states, relevantly, ‘[p]lease ensure you have handed the job keeper application forms back to Rebecca by close of business today’.
Ms Harding agreed that it would make sense that Ms Mustica would fill out the Nomination Notice straight away if she had received it if she had wanted to claim, but said there were other government supplements including payments for stay at home parents that were significantly higher than JobKeeper at the time and she assumed Ms Mustica must have been in receipt of other government supplements. The Hive did not receive the Nomination Notice from Ms Mustica, and Ms Mustica was not registered at that time because for each employee registered, the Hive had to declare that the completed Nomination Notice had been received. Even though they were running at a loss, the Hive only claimed if they had the form.
A further email dated 20 May 2020 was tendered from Ms Harding to Ms Mustica stating ‘We confirm that you have applied for and been accepted for JobKeeper from Monday 18 May 2020’. Ms Harding said she sent this once she received the Nomination Notice from Ms Mustica on 18 May 2020, when she submitted it to the ATO and got acknowledgement it was accepted.

Findings

I am satisfied on the evidence of Ms Harding, and the other emails from March 2020, that the email address the Hive used for Ms Mustica was the correct address and was regularly used for work related matters.
I am satisfied on the evidence of Ms Harding, and the Hive’s email records that Ms Mustica was sent the email dated 16 April 2020 by Ms Harding. Whilst the sent email was not available to verify the recipients, I am satisfied the screenshot was genuine. I considered Ms Harding’s recollection of sending the email was clear, and her evidence about it was detailed and direct. Ms Harding was the responsible person on behalf of the Hive for ensuring that employees were sent the Nomination Notice. It was in the interests of the Hive to obtain the jobkeeper payment in respect of as many of its employees as possible as it was ‘running at a loss’. Ms Harding’s confidence that she double checked the recipients persuaded me that Ms Mustica was included as a recipient.
It was conceded by Ms Mustica that the 17 April 2020 email was sent by the Hive.
I am satisfied on the evidence of Ms Mustica and Ms Harding that no Nomination Notice was provided by Ms Mustica to the Hive until 18 May 2020.

Consideration

The Union on behalf of Ms Mustica submitted that the Hive contravened s 789GD of the FW Act as it was required, and failed, to satisfy the ‘wage condition’ in respect of the First Fortnight and Second Fortnight. The Hive submitted it was not required to do so, as Ms Mustica had not opted into the scheme at that time.
Schedule 1 Part 1 of the Coronavirus Economic Response Package Omnibus (Measures No. 2) Act 2020 (Cth) (Coronavirus Act) introduced Part 6-4C ‘Coronavirus economic response’ into the FW Act, including s 789GD. Section 789GD provided:
789GD Obligation of employer to satisfy the wage condition
If:
(a) an employer qualifies for the jobkeeper scheme; and
(b)the employer would be entitled to jobkeeper payment for an employee for a fortnight if (among other things) the employer satisfied the wage condition in respect of the employee for the fortnight;
the employer must ensure that the wage condition has been satisfied in respect of the employee by the end of the fortnight.
Note: 1 This section is a civil remedy provision (see Part 4-1).
Note 2: Under the jobkeeper payment rules, a jobkeeper payment is a payment to an employer for a particular employee for a fortnight.
Schedule 1 Part 1 of the Coronavirus Act also amended s 539(2) of the FW Act to include s 789GD as a relevant civil remedy provision. Schedule 1 took effect on 9 April 2020, in respect of the period commencing on the fortnight beginning on 30 March 2020. Schedule 1 Part 2 of the Coronavirus Act repealed these provisions on 29 March 2021. Accordingly, s 789GD was in effect and was a civil remedy provision in respect of the First Fortnight and Second Fortnight.
At the relevant time, s 789GD required an employer to ensure the ‘wage condition’ is satisfied in respect of an employee, by the end of a fortnight.
‘Wage condition’ was defined in s 789GC to mean ‘the wage condition set out in the jobkeeper payment rules.’ ‘Jobkeeper payment rules’ was defined in s 789GC to mean rules made under the Coronavirus Economic Response Package (Payments and Benefits) Act 2020 (Cth) (JobKeeper Act).
The Coronavirus Economic Response Package (Payments and Benefits) Rules 2020 were made under the JobKeeper Act on 9 April 2020 (JobKeeper Payment Rules). Section 10 of the JobKeeper Payment Rules, ‘Wage condition’, provides in effect that the wage condition will be satisfied by an employer for a fortnight if in that fortnight, the sum of the amount paid to an individual, tax withheld in respect of the individual, superannuation contributions for the individual and any agreed deductions in respect of the individual total $1500 or more.
Accordingly, the Hive did not ensure that the wage condition had been satisfied in respect of Ms Mustica by the end of the First Fortnight or the Second Fortnight.
However, the obligation in s 789GD applied only to employers that met two specified criteria. The first was that the ‘employer qualifies for the jobkeeper scheme’ (s 789GD(a)). The Hive did so qualify, and it was not contended otherwise. The second criteria was that ‘the employer would be entitled to jobkeeper payment for [the] employee for [a] fortnight if, among other things, the employer satisfied the wage condition in respect of the employee for the fortnight’ (s 789GD(b)).
‘Jobkeeper payment’ was defined in s 789GC to mean:
a payment that:
(a)is payable by the Commonwealth in accordance with the jobkeeper payment rules; and
(b) is known as jobkeeper payment

The JobKeeper Payment Rules defined ‘jobkeeper payment’ at s 3 to mean a jobkeeper payment payable to an entity under s 14 of the Jobkeeper Act (with the amount being $1500, pursuant to s 13 of the Jobkeeper Act).
Section 14 of the JobKeeper Payment Rules provided (relevantly) that if the Commissioner is satisfied that an entity is entitled under s 6 to a jobkeeper payment for a fortnight, the Commissioner must pay the entity the jobkeeper payment.
Accordingly, for s 789GD to have required the Hive to make a payment to Ms Mustica, the Hive must have been entitled to a payment under the scheme from the Commissioner in respect of Ms Mustica.
The Hive’s entitlement to a payment under the scheme from the Commissioner in respect of Ms Mustica was governed by s 6 of the JobKeeper Payment Rules. Section 6 set out several criteria required to be met in order for an employer to be entitled to a jobkeeper payment for an individual for a fortnight. Section 6(1)(c), in particular, required the individual to be an ‘eligible employee’ of the employer for the fortnight.
Section 9 of the JobKeeper Payment Rules sets out the meaning of an eligible employee. Again, there were several criteria required to be satisfied. Section 9(1)(b) required that the individual satisfy the requirements in s 9(2) and 9(3).
Section 9(2) required the individual to be aged 16 or over, an employee (other than a casual employee) or a long term casual employee of the entity, and an Australian resident for the purposes of or within the meaning of specified legislation.
Section 9(3) provided:
Nomination requirements
(3) The requirements are that:
(a)the individual has given to the entity a notice (the nomination notice) in the approved form stating that:
(i)the individual satisfies the requirements in subsection (2) and in paragraph (b) of this subsection in relation to the entity; and
(ii)the individual agrees to be nominated by the entity as an eligible employee of the entity for the purposes of the jobkeeper scheme; and
(b) at the time the individual gives the entity the nomination notice:
(i) the individual is not excluded under subsection (4) from being an eligible employee of the entity for the fortnight in which the time occurs; and
(ii) if the individual is a long term casual employee of the entity—the individual is not also an employee (other than a casual employee) of another entity; and
(iii) the individual has not given any other entity, or the Commissioner, a nomination notice under this subsection or subsection 12(4).

A further requirement for an employer to be entitled to a jobkeeper payment, set out in s 6(1)(e), was that the employer had notified the Commissioner in the approved form at or before the time referred to in s 6(2) that the employer elected to participate in the jobkeeper scheme. Section 6(2) of the Jobkeeper Payment Rules provided that the time for that notification, in respect of an entitlement arising in the first or second jobkeeper fortnight, was at the end of the second jobkeeper fortnight.[7] Pursuant to s 6(5), this date was 26 April 2020. As Ms Mustica did not provide a Nomination Notice to the Hive until 18 May 2020, the nomination requirement in s 9(3), required to be satisfied by s 9(1)(b) in order for an individual to be an ‘eligible employee’ for the purposes of s 6(1)(e), was not met until 18 May 2020. Accordingly, it was outside the time required by s 6(2).
[7]These are the same dates as the First Fortnight and Second Fortnight in respect of which Ms Mustica claims payment is due.

It follows that the Hive would not have been entitled to a jobkeeper payment for Ms Mustica from the Commissioner if the Hive had satisfied the wage condition in respect of her, because having not returned the Nomination Notice, she was not an eligible employee in respect of the First Fortnight or Second Fortnight. Accordingly, the obligation of an employer to satisfy the wage condition in s 789GD did not apply to the Hive in respect of Ms Mustica for the First Fortnight or Second Fortnight.

Ms Mustica argued that because the Hive was required to satisfy the wage condition in s 789GD, it was incumbent on the Hive to facilitate the return of the Nomination Notice by Ms Mustica. However, this misstates the requirements of the JobKeeper Payment Rules, which are that the individual had given the entity the notice, not that the entity had obtained the notice from the individual. It also misstates the operation of s 789GD. The obligation under that section to satisfy the wage condition only arose if the Hive was entitled to a jobkeeper payment for Ms Mustica, and it was only so entitled if Ms Mustica was an eligible employee (including having met the notification requirements).

In any event, even if the JobKeeper Payment Rules by implication required the Hive to facilitate the provision of the Nomination Notice to it by Ms Mustica, I consider in light of my findings that it did so. The Hive emailed Ms Mustica twice in respect of the Nomination Notice. I do not consider the Hive to be responsible for Ms Mustica’s failure to receive or act upon those emails.

The Jobkeeper Underpayment claim is not made out.

SUPERANNUATION

Clause 20.2 of the Award provides:

An 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.

To the extent the Hive has failed to make payments due to Ms Mustica, I accept it has also failed to make superannuation contributions on these payments and is required to do so.

PRE-JUDGMENT INTEREST

Section 547 of the FW Act provides that the Court must include an amount of interest unless good cause is shown to the contrary, and the Court must take into account the period between the day the relevant cause of action arose and the day the order is made.

No good cause has been shown to the contrary and I am satisfied that pre-judgment interest is payable.

CONCLUSION

The parties are directed to confer and seek to agree on a form of order reflecting the amounts payable by the Hive to Ms Mustica based on the items set out in Appendix A and file any agreed form of order with the Court by 4pm on 31 July 2024. In the absence of agreement, each party is to file and serve their proposed final orders by 4pm on 31 July 2024. If required a further short hearing will be conducted to resolve any matters associated with the final orders.

APPENDIX A – SUMMARY OF EVIDENCE AND DECISION

2020

Ms Mustica’s Record	The Hive’s evidence	The Hive rostered hours	The Hive signed in times	The Hive signed in hours	The Hive Paid hours	Ms Mustica’s alleged hours	Decision
1	Monday 20/1 8:15 -5:15 Added ‘forgot to sign in’ from Original Record	No time records in evidence Payslip evidence Defence states paid 7.5 hours	Unknown	Unknown	Unknown	7.5	8.5	No underpayment Category 1
2	Tuesday 21/1 8:15 -5:15 Added ‘forgot to sign in’ from Original Record	No time records in evidence Payslip evidence Defence states paid 7.5 hours	Unknown	Unknown	Unknown	7.5	8.5	No underpayment Category 1
3	Wednesday 22/1 8:15 - 5:15 Added ‘forgot to sign in’ from Original Record	No time records in evidence Payslip evidence Defence states paid 7.5 hours	Unknown	Unknown	Unknown	7.5	8.5	No underpayment Category 1
4	Thursday 23/1 8:15 -5:15 Added ‘forgot to sign in’ from Original Record	No time records in evidence Payslip evidence Defence states paid 7.5 hours	Unknown	Unknown	Unknown	7.5	8.5	No underpayment Category 1
5	Monday 27/1 8:15 -5:15 Added ‘forgot to sign in’ from Original Record	No time records in evidence Payslip evidence Defence states paid 7.5 hours for public holiday	Unknown	Unknown	Unknown	7.5	8.5	No underpayment Category 6
6	Tuesday 28/1 8:15 -5:15 Added ‘forgot to sign in’ from Original Record	No time records in evidence Payslip evidence Defence states paid 7.5 hours	Unknown	Unknown	Unknown	7.5	8.5	No underpayment Category 1
7	Wednesday 29/1 8:15 - 5:15 Added ‘forgot to sign in’ from Original Record	HC Timesheet No entry for Ms Mustica Defence states paid 7.5 hours	Unknown	Unknown	Unknown	7.5	8.5	No underpayment Category 1
8	Wednesday 5/2 8:15 - 5:15 Added ‘forgot to sign in’ from Original Record	HC Timesheet No entry for Ms Mustica Defence states paid 7.5 hours	Unknown	Unknown	Unknown	7.5	8.5	No underpayment Category 1
9	Thursday 6/2 8:15 - 5:15 Added ‘forgot to sign in’ from Original Record	HC Timesheet No entry for Ms Mustica Defence states paid 7.5 hours	Unknown	Unknown	Unknown	7.5	8.5	No underpayment Category 1
10	Monday 10/2 7:00 - 4:00 sign in did not work Added ‘sign in did not work’ from Original Record - Original Record noted hours as 8:15 - 5:15	HC Timesheet and Initial Response Signed in at 7am, no finish time recorded Defence states paid 7.5 hours	Unknown	Unknown	Unknown	7.5	8.5	No underpayment Category 1
11	Tuesday 11/2 7:00 -4:00 Added ‘sign in did not work’ from Original Record - Original Record noted hours as 8:15 - 5:15	HC Timesheet entry and Initial Response Signed in 7-3 Defence states paid 7.5 hours	Unknown	7-3	7.5	7.5	8.5	No underpayment Category 1
12	Wednesday 12/2 8:15 - 5:15 Added ‘forgot to sign in’ from original record	HC Timesheet No entry for Ms Mustica Defence states paid 7.5 hours	Unknown	Unknown	Unknown	7.5	8.5	No underpayment Category 1
13	Thursday 13/2 7:00 -4:00 Added ‘sign in did not work’ from Original Record - Original Record noted hours as 8:15 - 5:15	HC Timesheet and Initial Response Signed in at 7, no finish time recorded Defence states paid 7.5 hours	Unknown	7-?	Unknown	7.5	8.5	No underpayment Category 1
14	Monday 17/2 7:00 - 4:00 Added ‘sign in did not work’ from Original Record - Original Record noted hours as 8:15 - 5:15	HC Timesheet and Initial Response Signed in 7-3 Defence states paid 7.5 hours	Unknown	7-3	7.5	7.5	8.5	No underpayment Category 1
15	Tuesday 18/2 7:00 -4:00 Added ‘sign in did not work’ from Original Record - Original Record noted hours as 8:15 - 5:15	HC Timesheet and Initial Response Signed in at 7, no finish time recorded Defence states paid 7.5 hours	Unknown	7-?	Unknown	7.5	8.5	No underpayment Category 1
16	Thursday 20/2 7:00 -4:00 (Original Record noted hours as 8:15 – 5:15)	HC Timesheet and Initial Response Signed in at 7am, signed out for lunch at 10.17am. Did not sign back in from lunch and did not sign out. Defence states paid 7.5 hours	Unknown	Unknown	Unknown	7.5	8.5	No underpayment Category 1
17	Thursday 27/2 11:00 - 7:25 (Original Record noted hours as 8:15- 5:15)	HC Timesheet and Initial Response Signed in 11-7, timesheet then amended to 11-7.25. Initial Response – all children signed out by 6.36pm Defence states paid 7.5 hours	Unknown	11-7.25	7.75	7.5	7.75	No underpayment Category 1
18	Tuesday 3/3 11:00 -7:00 (Original Record noted hours as 8:15- 5:15)	HC Timesheet and Initial Response No timesheet entry for Ms Mustica Defence states paid 7.5 hours	Unknown	Unknown	Unknown	7.5	7.5	No underpayment Category 1
19	Wednesday 4/3 8:15 - 5:15	HC Timesheet signed in 11am signed out 2.50pm Defence states paid 4 hours for work and 3.5 hours personal leave.	Unknown	11-2.50	3h 50m	7.5	8.5	No underpayment Category 1
20	Monday 9/3 8:15 - 5:15	HC Timesheet (appears to be for 9 March) 8.45 – 5.15	Unknown	8.45-5.15	8	7.5	8.5	No underpayment Category 1
21	Tuesday 10/3 8:15 -5:15	HC Timesheet No entry for Ms Mustica Defence states paid 7.5 hours	Unknown	Unknown	Unknown	7.5	8.5	No underpayment Category 1
22	Wednesday 11/3 8:15 - 5:15	HC Timesheet 8.45 – illegible entry under finish lunch – no finish time Defence states paid 7.5 hours	Unknown	Unknown	Unknown	7.5	8.5	No underpayment Category 1
23	Thursday 12/3 8:15 -5:15	No time records in evidence	Unknown	Unknown	Unknown	7.5	8.5	No underpayment Category 1
24	Monday16/3 8:15 - 5:15	No time records in evidence	Unknown	Unknown	Unknown	7.5	8.5	No underpayment Category 1
25	Tuesday 17/3 8:15 -5:15	No time records in evidence	Unknown	Unknown	Unknown	7.5	8.5	No underpayment Category 1
26	Wednesday 18/3 8:15 - 5:15	No time records in evidence	Unknown	Unknown	Unknown	7.5	8.5	No underpayment Category 1
27	Thursday 19/3 8:15 -5:15	No time records in evidence	Unknown	Unknown	Unknown	7.5	8.5	No underpayment Category 1
28	Wednesday 13/5 8:15 - 5:15	No time records in evidence Defence states paid 7.5 hours	Unknown	Unknown	Unknown	7.5	8.5	No underpayment Category 1
29	Thursday 14/5 8:15 -5:15	No time records in evidence Defence states paid 7.5 hours	Unknown	Unknown	Unknown	7.5	8.5	No underpayment Category 1
30	Monday 18/5 8:15 - 5:15	No time records in evidence	Unknown	Unknown	Unknown	7.5	8.5	No underpayment Category 1
31	Tuesday 19/5 8:15 -5:15	No time records in evidence	Unknown	Unknown	Unknown	7.5	8.5	No underpayment Category 1
32	Wednesday 20/5 8:15 - 5:15	No time records in evidence	Unknown	Unknown	Unknown	7.5	8.5	No underpayment Category 1
33	Thursday 21/5 8:15 -5:15	No time records in evidence	Unknown	Unknown	Unknown	7.5	8.5	No underpayment Category 1
34	Monday 25/5 8:15 - 5:15	No time records in evidence	Unknown	Unknown	Unknown	7.5	8.5	No underpayment Category 1
35	Tuesday 26/5 8:15 -5:15	No time records in evidence	Unknown	Unknown	Unknown	7.5	8.5	No underpayment Category 1
36	Wednesday 27/5 8:15 - 5:15	No time records in evidence	Unknown	Unknown	Unknown	7.5	8.5	No underpayment Category 1
37	Thursday 28/5 8:15 -5:15	No time records in evidence	Unknown	Unknown	Unknown	7.5	8.5	No underpayment Category 1
38	Monday 1/6 9:00 - 6:00 Original Record noted hours as 8:15- 5:15	Spreadsheet, Attendance record 1.35 hours (81 minutes) unpaid break recorded Attendance report notes ‘long break’ – no comments on the spreadsheet Initial Response EasyEmployer signed in at 10.15am, adjusted by Centre Director to 9am	9:00 – 17:30	9:00 – 17:30 (Less 81 mins)	7.15	9:00 - 17.30 7.15	8.5	No underpayment Category 1
39	Tuesday 2/6 8:15 - 5:15 Added ‘sign in did not work’ from Original Record	Spreadsheet, Attendance Record Initial Response EasyEmployer sign in at 8.45am	9:00 – 17:30	8:45 – 17:35	8.33	9:00-17:30 8	8.5	Entitled to extra 5 minutes Category 3 Otherwise Category 2 Over 8 hours in a day
40	Wednesday 3/6 8:15 - 15:15	Initial Response EasyEmployer sign in at 8.55am	9:00 – 17:30	8:55 – 17:34	7.77	9:00-17.30 7.62	8.5	Entitled to extra 5 minutes Category 3 Otherwise Category 2
41	Thursday 4/6 8:15 - 5:15	Initial Response EasyEmployer sign in at 8.54am	9:00 – 17:30	8:54 – 17:34	8.17	9:00-17.30 8	8.5	Entitled to extra 5 minutes Category 3 Otherwise Category 2 Over 8 hours in a day
42	Thursday 11/6 8:15 -5:15	Initial Response EasyEmployer sign in at 8.39am	9:00 – 17:30	8:39 – 17:39	8.5	9:00-17.30 8	8.5	Entitled to extra 5 minutes Category 3 Otherwise Category 2 Over 8 hours in a day
43	Monday 15/6 8:45 - 5:15 Original Record noted hours as 8:15- 5:15	Initial Response EasyEmployer sign in at 8.45am, sign out 5.17pm Attendance Record note Left early	9:00 – 17:30	8:45 – 17:17	8.03	9:00-17.15 7.75	8	Entitled to extra 5 minutes Category 3 Otherwise Category 2
44	Tuesday 16/6 8:45 -5:15 Original Record noted hours as 8:15 - 5:15	Initial Response EasyEmployer sign in at 8.48am	9:00 – 17:30	8:48 – 17:30	8.2	9:00-17.30 8	8, alternatively 8.2	Entitled to extra 5 minutes Category 3 Otherwise Category 2 Over 8 hours
45	Wednesday 17/6 8:15 - 5:15	Initial Response No sign in or out	9:00 – 17:30	9:00 – 17:30	8	9:00-17.30 8	8.5	No underpayment Category 1
46	Thursday 18/6 8:15 -5:15	Initial Response No sign in or out	9:00 – 17:30	9:00 – 17:30	8	9:00-17.30 8	8.5	No underpayment Category 1
47	Monday 22/6 8:15 - 5:15 Added sign in did not work from Original Record	Initial Response No sign in or out	9:00 – 17:30	9:00 – 17:30	8	9:00-17.30 8	8.5	No underpayment Category 1
48	Tuesday 23/6 8:15 -5:15 Added sign in did not work from Original Record	Initial Response No sign in or out	9:00 – 17:30	9:00 – 17:30	8	9:00-17.30 8	8.5	No underpayment Category 1
49	Wednesday 24/6 8:15 - 5:15 Added sign in did not work from Original Record	Initial Response No sign in or out	9:00 – 17:30	9:00 – 17:30	8	9:00-17.30 8	8.5	No underpayment Category 1
50	Monday 6/7 8:00 - 5:00 Original Record noted hours as 8:15 - 5:15	Initial Response EasyEmployer sign in at 7.53am sign out 4.47pm	8:00 – 17:00	7:53 – 16:47	8.4	8:00-16:45 8.25	8.5	Entitled to extra 5 minutes Category 3 Otherwise Category 2 Over 8 hours
51	Thursday 9/7 7:00 - 4:00 Original Record noted hours as 8:00 - 5:00	Initial Response EasyEmployer sign in at 6.55am until 3.27pm Attendance Record Note Left early	8:00 – 17:00	7:00 – 15:15	7.75	7:00-15:15 7.75	8.5	No underpayment Category 1
52	Tuesday 1/12 8:30 -11:30. Original Record noted hours as 8:15 - 5:15	Initial Response EasyEmployer sign in 8.08am Attendance Record Note Left early	8:15 – 17:15	8:08 – 10:30	2.37	8:15 – 10.30 2.25	3	Entitled to extra 5 minutes Category 3 Otherwise Category 2
53	Thursday 31/12 8:15 -5:15 Added iPad not working from Original Record	No records	None	None	None	None	8.5	No underpayment Category 1

2021

Ms Mustica’s Record	The Hive’s evidence	The Hive rostered hours	The Hive signed in times	The Hive signed in hours	The Hive Paid hours	Ms Mustica’s alleged hours	Decision
54	Wednesday 31/3 Annual Leave 8.5 hours	Initial Response Highlighted green Annual Leave Attendance Record Note Not rostered Annual Leave	7.5 Hours Annual Leave	7.5 Hours Annual Leave	7.5	7.5	8.5	Not pressed
55	Thursday 1/4 Annual Leave 8.5 Hours	Initial Response Highlighted green Annual Leave Attendance Record Note Not rostered Annual Leave	7.5 Hours Annual Leave	7.5 Hours Annual Leave	7.5	7.5	8.5	Not pressed
56	Monday 3/5 8:00 - 5:30 Original Record noted hours as 8:15 - 5:15	Initial Response EasyEmployer sign in 8.07am sign out 5.31pm	8:15 - 17:15	8:07 - 17:31	8.9	8:15-17:30 8.75	8	Entitled to extra 5 minutes Category 3 Otherwise Category 2 Over 8 hours
57	Wednesday 5/5 8:15 - 5:15	Initial Response Highlighted green Spreadsheet note Needed to stay back for ratio	8:15 - 17:15	8:15 - 17:30	8.75	8:15-17.15 8.5	8.5, alternatively 8.75	Entitled to extra 15 minutes Category 5 Over 8 hours
58	Thursday 6/5 8:15 - 5:15	Initial Response Highlighted green Spreadsheet note Needed to stay back for ratio	8:15 - 17:15	8:14 - 17:31	8.78	8:15-17.30 8.75	8.5	No underpayment Category 2
59	Wednesday 19/5 8:00 - 5:32 Original Record noted hours as 8:15 - 5:15	Initial Response EasyEmployer sign in 8.07am sign out 5.32pm Spreadsheet note Needed to stay back for ratio	8:15 - 17:15	8:07 - 17:32	8.92	8:15-17.30 8.75	8, alternatively 8.92	Entitled to extra 5 minutes Category 3 Otherwise Category 2 Over 8 hours
60	Thursday 20/5 Annual leave	Initial Response Highlighted green Annual Leave Attendance Record Note Not rostered Annual Leave	7.5 hours	9:00 - 16:30	7.5	7.5	8.5	Not pressed
61	Tuesday 25/5 8:15 -5:15	No content on Initial Response, Attendance Record, Spreadsheet	None	None	None	None	8.5	No underpayment Category 1
62	Tuesday 1/6 8:15 - 3:40. Original Record noted hours as 8:15 - 5:15	Initial Response EasyEmployer sign in 8.11am sign out 3.40pm	9:00 - 15:00	8:11 - 15:40	6.98	9:00 – 14:15 4.75	6.92, alternatively 6.98	Entitled to extra 2 hours 14 minutes Category 5
63	Wednesday 2/6 Sick Leave With Cert 8.5 hours	Initial Response Highlighted green Sick Leave With Cert Spreadsheet note Attendance Record note No show	9:00 - 15:00	None	None	None	8.5	Entitled to extra 5hours 30 minutes paid personal leave Category 7
64	Thursday 3/6 8:15 - 5:15	Initial Response Highlighted green	8:15 - 17:15	8:18 - 17:09	8.35	8:15 – 17:00 8.25	8.5	No underpayment Category 2
65	Monday 7/6 7:45 - 4:45	Initial Response EasyEmployer sign in 8.48am sign out 3.08pm	9:00 - 15:00	8:48 - 15:08	5.83	9:00 – 15:00 5.5	8.5	Entitled to extra 5 minutes Category 3 Otherwise Category 2
66	Wednesday 9/6 8:15 - 5:15	No content on Initial Response, Attendance Record or Spreadsheet	None	None	None	None	8.5	No underpayment Category 1
67	Monday 14/6 8:15 - 5:15 public holiday Original Record noted hours as 8:15 - 5:15	Initial Response Public holiday	7.5 Hours	Public Holiday	7.5	9:00-16:30 7.5	8.5	No underpayment Category 6
68	Tuesday 15/6 8:45 -4:08. Original Record noted hours as 8:15 - 5:15	Initial Response EasyEmployer sign in 8.45am sign out 4.08pm	9:00 - 15:00	8:45 - 16:08	6.88	9:00-16:00 6.5	6.88	Entitled to extra 5 minutes Category 3 Otherwise Category 2
69	Wednesday 16/6 8:15 - 5:15 carers leave 8.5 hours Original Record noted hours as 8:15 - 5:15	Initial Response Carer’s leave Attendance Record note Not rostered Carers Leave with Certificate	None	None	None	7.5	8.5	No underpayment Category 7
70	Thursday 17/6 Sick Leave With Cert 8.5 hours	Initial Response Highlighted green sick leave with cert Attendance Record Note Sick leave with certificate Staff meeting	5.5 hours	Leave	5.5	5.5	8.5	No underpayment Category 7
71	Monday 21/6 8:15 - 3:00 Original Record noted hours as 8:15 - 5:15	Initial Response EasyEmployer sign in 8.17am sign out 2.54pm Attendance Record note Started late left early	8:00 - 15:00	8:17 - 14:54	6.12	8:30-15:00 6	6.25	Entitled to extra 13 minutes Category 4
72	Wednesday 23/6 8:15 - 5:15 carers leave 8:5 hours Original Record noted hours as 8:15 - 5:15	Initial Response Carer’s leave Attendance Record Note Not rostered Carers Leave with Certificate	None	None	None	5.5	8.5	No underpayment Category 7
73	Thursday 24/6 8:15 -5:15 Added sign in did not work from original record	Initial Response No sign in or out. Paid shift 9-3	9:00 - 15:00	9:00 - 15:00	5.5	9:00 – 15:00 5.5	8.5	No underpayment Category 1
74	Thursday 1/7 11:00 -5:30	Initial Response Highlighted green Attendance Record note Started late	11:00 - 17:30	12:00 - 17:30	5	12:00 – 17:30 5	6	No underpayment Category 1
75	Wednesday 7/7 Carers Leave with cert 8.5 hours	Initial Response Highlighted green Carers leave with cert	7.5 hours	None	None	1.64	8.5	No underpayment Category 7
76	Monday 12/7 8:15 - 5:15 Added Forget to sign in from Original Record	Initial Response EasyEmployer sign in 8.20am sign out 5.06pm Attendance Record note Started late left early	8:15 - 17:15	8:20 - 17:06	8.27	8:30-17:00 8	8.5	Entitled to extra 10 minutes Category 4 Over 8 hours
77	Tuesday 13/7 8:15 -3:00	Initial Response EasyEmployer sign in 9.26am sign out 3.02pm Attendance Record note Started late	8:15 - 15:00	9:26 - 15:02	5.1	9:30-15:00 5	6.25	Entitled to extra 4 minutes Category 4
78	Wednesday 14/7 8:15 - 3:00	Initial Response EasyEmployer sign in 8.21am sign out 2.06pm Attendance Record note Started late	8:15 - 14:00	8:21 - 14:06	5.25	8:30-14:00 5	6.25	Entitled to extra 9 minutes Category 4
79	Monday 19/7 8:15 - 5:15	Initial Response Highlighted green Attendance Record note Started late	8:15 - 17:15	8:17 - 17:16	8.48	8:30-17:15 8.25	8.5	Entitled to extra 13 minutes Category 4 Over 8 hours
80	Monday 26/7 8:15 - 5:15	Initial Response EasyEmployer sign in 8.16am. Paid shift 8.15am - 5 Attendance Record note Started late left early	8:15 - 17:15	8:16 - 17:00	8.23	8:15-17:00 8.25	8.5	No underpayment Category 1
81	Tuesday 3/8 8:15 -5:30 Original Record noted hours as 8:15 - 5:15	Initial Response EasyEmployer sign in 8.16am sign out 5.31pm Attendance Record note Started late Spreadsheet note ‘needd to st… Checked with kristy was not needed for ratio	8:15 - 17:15	8:16 - 17:31	8.75	8:30-17:15 8.25	8.75	Entitled to extra 14 minutes Category 4 Over 8 hours
82	Wednesday 4/8 8:15 - 5:15	Initial Response EasyEmployer sign in 8.37am sign out 5.20pm Attendance Record note Started late	8:15 - 17:15	8:37 - 17:20	8.22	8:45-17:15 8	8.5	Entitled to extra 8 minutes Category 4 Over 8 hours
83	Monday 9/8 8:15 - 5:30 Added forgot to sign in from Original Record	Initial Response EasyEmployer sign in 12.01pm sign out 5.25pm Attendance Record note Started late	8:15 - 17:15	12:01 - 17:25	4.9	12:15-17:15 4.5	8.75	Entitled to extra 14 minutes Category 4
84	Thursday 12/8 8:22 -5:23pm	Initial Response EasyEmployer sign in 8.22am sign out 5.23pm Attendance Record note Started late	8:15 - 17:15	8:22 - 17:23	8.52	8:30-17:15 8.25	8.52	Entitled to extra 8 minutes Category 4 Over 8 hours
85	Tuesday 17/8 8:15 -5:15 Added sign in did not work from Original Record	Initial Response EasyEmployer sign in 8.18am paid shift 8.30-5.15 Attendance Record note Started late	8:15 - 17:15	8:18 - 17:15	8.45	8:30-17:15 8.25	8.5	Entitled to extra 12 minutes Category 4 Over 8 hours
86	Thursday 19/8 9:00 -3:00 Original Record noted hours as 8:15 - 5:15	Initial Response EasyEmployer sign in 8.53am paid shift 9-3 Attendance Record note Started late Spreadsheet note Need to stay back for ratio	8:15 - 17:15	8:53 - 17:26	8.05	9:00-17:15 7.75	5.5, alternatively 8.05	Entitled to extra 18 minutes Category 4 Category 5 5 minutes over 8 hours
87	Monday 23/8 9:00 - 6:00 Original Record noted hours as 8:15 - 5:15	Initial Response EasyEmployer sign in 8.51am sign out 5.38pm Attendance Record note Started late	8:15 - 17:15	8:51 - 17:38	8.28	9:00-17:15 7.75	8.5	Entitled to extra 32 minutes Category 4 Category 5
88	Tuesday 24/8 Annual Leave	Initial Response Highlighted Green Annual Leave	None	None	None	None	8.5	Not pressed
89	Wednesday 25/8 8:30 - 5:30 Original Record noted hours as 8:15 - 5:15	Initial Response EasyEmployer sign in 8.36am sign out 5.36pm Attendance Record note Started late Spreadsheet note ‘ Stayed bac… Checked numbers and was not needed for ratio’	8:15 - 17:15	8:36 - 17:36	8.5	8:45-17:15 8	8.5	Entitled to extra 9 minutes Category 4 Over 8 hours
90	Thursday 26/8 8:30-5:30 Original Record noted hours as 8:15 - 5:15	Initial Response EasyEmployer sign in 8.37am sign out 5.31pm Attendance Record note Started late Spreadsheet note ‘needed to s… Was not needed for ratio was told to leave on time	8:15 - 17:15	8:37 - 17:31	8.4	8:45-17:15 8	8.5	Entitled to extra 9 minutes Category 4 Over 8 hours
91	Monday 30/8 8:15 - 5:15	Initial Response EasyEmployer sign in 8.11am sign out 5.03pm Attendance Record note Left early	8:15 - 17:15	8:11 - 17:03	8.37	8:15-17:00 8.25	8.5	Entitled to extra 04 minutes Category 3 Over 8 hours
92	Tuesday 31/8 8:15 -5:15	Initial Response EasyEmployer sign in 8.19am sign out 5.14pm Attendance Record Note Started late left early	8:15 - 17:15	8:19 - 17:14	8.42	8:30 -17:15 8.25	8.5	Entitled to extra 11 minutes Category 4 Over 8 hours
93	Wednesday 1/9 8:15 - 5:15 Added forgot to sign in from Original Record	Initial Response EasyEmployer sign in 8.40am sign out 5.18pm Attendance Record note Started late	8:15 - 17:15	8:40 - 17:18	8.13	8:45 -17:15 8	8.5	Entitled to extra 5 minutes Category 4 Over 8 hours
94	Wednesday 8/9 8:15 - 5:15	Initial Response EasyEmployer sign in 8.25am sign out 5.16pm Attendance Record note Started late	8:15 - 17:15	8:25 - 17:16	8.35	8:30 -17:15 8.25	8.5	Entitled to extra 5 minutes Category 4 Over 8 hours
95	Thursday 9/9 8:15 - 5:15	Initial Response EasyEmployer sign in 8.27am sign out 5.13pm Attendance Record note Started late left early	8:15 - 17:15	8:27 - 17:13	8.27	8:30 -17:15 8.25	8.5	Entitled to extra 3 minutes Category 4 Over 8 hours
96	Thursday 16/9 Carers Leave with cert 8.5 hours	Initial Response Carers Leave with cert highlighted green Attendance Record note Not rostered Carers leave with certificate	None	None	None	None	8.5	No underpayment Category 7
97	Tuesday 21/9 8:15 -5:15	No record on Attendance Record No record on Spreadsheet	None	None	None	None	8.5	No underpayment Category 1
98	Wednesday 22/9 8:15 - 5:15	No record on Attendance Record No record on Spreadsheet	None	None	None	None	8.5	No underpayment Category 1
99	Monday 27/9 8:15 - 5:15	Initial Response EasyEmployer sign in 8.16am sign out 5.03pm Attendance Record note Started late left early	8:15 - 17:15	8:16 - 17:03	8.28	8:30 -17:00 8	8.5	Entitled to extra 14 minutes Category 4 Over 8 hours
100	Tuesday 28/9 Sick Leave With Cert 8.5 hours	Initial Response Sick Leave with cert highlighted green Attendance Record note Spreadsheet note No show	8.15-17.15	None	None	None	8.5	Entitled to extra 8 hours 30 minutes paid personal leave Category 7
101	Wednesday 29/9 Sick Leave With Cert 8.5 hours	Initial Response Sick Leave with cert highlighted green Attendance Record note Spreadsheet note No show	8.15-5.15	None	None	None	8.5	Entitled to extra 8 hours 30 minutes paid personal leave Category 7
102	Monday 4/10 8:15 - 5:30	Initial Response EasyEmployer sign in 8.18am sign out 5.25pm Attendance Record note Started late	8:15 - 17:15	8:18 - 17:25	8.62	8:30 -17:15 8.25	8.75	Entitled to extra 12 minutes Category 4 Over 8 hours
103	Monday 11/10 Carers Leave With cert 8.5 hours	Initial Response Carers Leave with cert highlighted green Attendance Record note Not rostered Carer’s leave with Certificate	None	None	None	None	8.5	No underpayment Category 7
104	Wednesday 13/10 8:15 - 3:16	Initial Response EasyEmployer no sign in or out. Paid hours 8.15-1pm Attendance Record note Left early	8:15 - 17:15	8:15 - 13:00	4.25	8:15 -13:00 4.25	6.5	No underpayment Category 1
105	Wednesday 20/10 8:00 - 5:34 Original Record noted hours as 8:15 - 5:15	Initial Response EasyEmployer sign in 8am sign out 5.34pm Spreadsheet note Needed to stay for ratio	8:15 - 17:15	8:00 - 17:34	9.07	8:15 -17:30 8.75	9	Entitled to extra 5 minutes Category 3 Over 8 hours
106	Thursday 28/10 8:15 - 5:36 Original Record noted hours as 8:15 - 5:15	Initial Response EasyEmployer sign in 8.17am sign out 5.36pm Attendance Record note Started late	8:15 - 17:15	8:17 - 17:36	8.82	8:30 -17:15 8.25	8.75	Entitled to extra 34 minutes Category 4 Category 5 Over 8 hours
107	Monday 1/11 8:15 -11:30	Initial Response EasyEmployer sign in 8.05am sign out 11.16pm Attendance Record note Left early	8:15 - 17:15	8:05 - 11:16	3.18	8:15 -10:00 1.75	3.25	Entitled to extra 1hour 21 minutes Category 3 Category 5
108	Tuesday 2/11 8:15 -5:15 public holiday Original Record noted hours as 8:15 - 5:15	Initial Response Public holiday	None	None	None	9:00-16:30 7.5	8.5	No underpayment Category 6
109	Monday 8/11 8:15 - 5:45	Initial Response EasyEmployer sign in 8.08am sign out 5.41pm Spreadsheet note Stay back due to ratio	8:15 - 17:15	8:08 - 17:41	9.05	8:15 -17:15 8.5	9	Entitled to extra 31 minutes Category 3 Category 5 Over 8 hours
110	Tuesday 9/11 8:15 -5:30	Initial Response Highlighted green Attendance Record note Started late	8:15 - 17:15	8:30 - 17:15	8.25	8:30 -17:30 8.5	8.75	No underpayment Category 1
111	Wednesday 10/11 8:15 - 5:30 Added forgot to sign in from Original Record	Initial Response No EasyEmployer sign in or out. Paid 8.30-5.15	8:15 - 17:15	8:30 - 17:15	8.25	8:30 -17:15 8.25	8.75	No underpayment Category 1
112	Thursday 11/11 8:00 -5:20 Original Record noted hours as 8:15- 5:20	Initial Response EasyEmployer sign in 8.01am sign out 5.19pm	8:15 - 17:15	8:01 - 17:19	8.8	8:15 -17:15 8.5	8.92	Entitled to extra 5 minutes Category 3 Over 8 hours
113	Tuesday 23/11 Carers Leave with Cert 8.5	Initial Response Carers Leave with cert highlighted green Attendance Record note Not rostered Carers Leave with Certificate	None	None	None	None	8.5	No underpayment Category 7
114	Wednesday 1/12 7:45 - 5:15 Original Record noted hours as 7:15 – 16:15	Initial Response EasyEmployer sign in 8.09am sign out 5.16pm	8:15 - 17:15	8:09 - 17:16	8.62	8:15 -17:15 8.5	9	Entitled to extra 5 minutes Category 3 Over 8 hours
115	Thursday 2/12 7:30 -1:30 sick leave with certificate	Initial response Sick leave without certificate	8:15 - 17:15	None	None	8:15-10:34 2.32	5.5	Entitled to extra 3 hours 11 minutes paid personal leave Category 7
116	Monday 6/12 7:15 - 4:15	Initial Response EasyEmployer sign in 7.13am sign out 4.07pm	7:15 - 16:00	7:13 - 16:07	8.4	7:15 -16:00 8.25	8.5	Entitled to extra 2 minutes Category 3 Over 8 hours
117	Tuesday 7/12 7:15 -4:15	Initial Response No EasyEmployer sign in or out. Paid 7.15-4	7:15 - 16:00	7:15 - 16:00	7.5	7:15 -16:00 8.25	8.5	No underpayment Category 1
118	Wednesday 8/12 7:15 - 4:15 Added sign in didn’t work from Original Record	Initial Response No EasyEmployer sign in or out. Paid 8-4	9:00 - 16:00	8:00 - 16:00	7.5	8:00 -16:00 7.5	8.5	No underpayment Category 1
119	Thursday 9/12 7:15 -4:15 Added forgot to sign in from original record	Initial Response No EasyEmployer sign in or out. Paid 7.15-4	9:00 - 16:00	7:15 - 16:00	8.25	7:15 -16:00 8.25	8.5	No underpayment Category 1
120	Monday 13/12 7:15 -4:15 Added sign in didn’t work from Original Record	Initial Response No EasyEmployer sign in or out. Paid rostered hours of 7.15-4	7:15 - 16:15	7:15 - 16:00	8.25	7:15 -16:00 8.25	8.5	No underpayment Category 1
121	Tuesday 14/12 7:15 -4:15 Added sign in didn’t work from Original Record	Initial Response No EasyEmployer sign in or out. Paid rostered hours of 7.15-2	7:15 - 16:15	7:15 - 14:00	6.25	7:15-14:00 6.25	8.5	No underpayment Category 1
122	Wednesday 15/12 7:15 - 4:15 Added forgot to sign in from Original Record	No EasyEmployer sign in or out. Paid rostered hours of 7.45-4	7:15 - 16:15	7:45 - 16:00	7.75	7:45-16:00 7.75	8.5	No underpayment Category 1
123	Monday 20/12 7:30 -4:00	Initial Response EasyEmployer sign in 7.29am. Paid shift 7.30-2.30.	7:30 - 16:00	7:29 - 16:00	8.02	7:30-14:30 6.5	8	Entitled to extra 91 minutes Category 3 Category 5
124	Tuesday 21/12 7:15 -4:15 Added iPad didn’t work from Original Record	No EasyEmployer sign in or out. Paid shift 7.30-4	7:30 - 16:00	7:30 - 16:00	8	7:30-16:00 8	8.5	No underpayment Category 1
125	Wednesday 22/12 7:15 - 4:15	Initial Response - EasyEmployer sign in 7.25am sign out 4.14pm	7:30 - 16:00	7:25 - 16:14	8.32	7:30-16:00 8	8.5	Entitled to extra 5 minutes Category 3 Over 8 hours
126	Thursday 23/12 Annual leave	Initial Response Highlighted green Annual Leave	None	None	None	None	8.5	Not pressed

[2024] VMC 14

24 July 2024