Fair Work Act 2009 (Cth)

JUDGMENT OF: Auxiliary Deputy President Magistrate Carrel

Money claim for underpaid wages, annual leave allowances and superannuation - No appearance by respondent - Intermittent engagement by the respondent in the proceedings - Interests of justice for hearing to proceed in the respondent's absence - Whether the applicant was employed as a chef by the respondent - What were the terms agreed with respect to employment and pay HELD: The applicant was employed as a chef - The applicant was employed firstly on a casual basis and then on a permanent salaried basis - The salary agreed between the parties did not satisfy the requirements of the Restaurant Industry Award 2020 to be considered an annualised salary arrangement - The applicant is entitled to overtime payments in addition to his base salary - The respondent has failed to pay wages, overtime and superannuation.

Fair Work Act 2009 (Cth)

1. Daniel Coutinho Monteiro says that he was employed by the respondent to carry out duties working as a chef at its restaurant named "My Maria", for 4 weeks between 15 July 2024 and 11 August 2024.
2. The claim made by Mr Coutinho Monteiro is for unpaid wages of $3,623.58, outstanding annual leave entitlements of $473.68 and superannuation payments of $727.65.
3. The hearing was scheduled for 4 March 2025. Mr Coutinho Monteiro attended the hearing. The respondent did not.
4. For the reasons that follow, the hearing proceeded in the absence of the respondent and Mr Coutinho Monteiro is found to be an employee of the respondent who has been underpaid. Further clarification from the Mr Coutinho Monteiro is required prior to orders being made fixing the quantum of the underpayment.

1. Mr Coutinho Monteiro lodged his claim in the Tribunal on 10 October 2024. No response was filed by the respondent as required by r 23 of the South Australian Employment Tribunal Rules 2024. Notwithstanding that default, as is the usual course, the matter was listed for conciliation. The Commissioner's referral document prepared at the conclusion of conciliation indicated that the respondent had not engaged in that process and attempts by the Commissioner to contact the respondent were unsuccessful.
2. On 3 December 2024, the case was listed before me for a directions hearing. On that date, Mr Iouri Gvadjava appeared and confirmed he was the director of the respondent. This is consistent with details within the ASIC Company Extract filed by Mr Coutinho Monteiro.
3. Mr Gvadjava requested time to consider the application made by Mr Coutinho Monteiro. Accordingly, the proceedings were adjourned to 20 December 2024 and Registry sent the respondent copies of Mr Coutinho Monteiro's application and supporting documents via an email address confirmed by Mr Gvadjava to be correct.
4. At the directions hearing on 20 December 2024, Mr Gvadjava attended once again for the respondent and requested further time to attempt to resolve the matter. I made directions that included the respondent either pay the amount in full as claimed, or file a response on the approved form (P01) outlining the basis on which the claim was denied, by 14 January 2025.
5. By email and letter dated 23 December 2024, Registry again sent the respondent copies of the applicant's claim documents, although on this occasion, the hard copy letter was returned from Australia Post, marked "Refused".
6. At a directions hearing on 17 January 2025, as no response had been lodged by the respondent the applicant sought default judgment. On hearing from Mr Gvadjava as to the reasons for default, the respondent was given until 20 January 2025 to file a response.
7. On 18 January 2025, the respondent filed its response in which it denied liability wholly for the claim made by Mr Coutinho Monteiro. Essentially, the respondent says there is no evidence that Mr Coutinho Monteiro had been employed at My Maria and in any event, the documents provided by Mr Coutinho Monteiro contradicted his assertion of being employed on a full-time salaried basis. Further, the respondent denied that a document purporting to be a payslip that it had generated had come from its accountant. Relevantly, the respondent's contact details disclosed an email address consistent with that used by the Tribunal for service of documents since on or about 5 November 2024.
8. Given the respondent's denial of the claim, at a further directions hearing on 24 January 2025 (during which both parties were present), the matter was listed for formal hearing on 4 March 2025. The usual notice of hearing was sent to the parties via their nominated email addresses confirming the time and date of the trial.
9. In addition to the notice of hearing sent to the parties on 24 January 2025, I caused a reminder to be sent via email to both parties on 3 March 2025. On 4 March 2025 Mr Coutinho Monteiro appeared and was ready to proceed. Mr Gvadjava did not.
10. Pursuant to s 84(3) of the South Australian Employment Tribunal Act 2014 and reg 6(1)(c) of the South Australian Employment Tribunal Regulations 2015, service has been affected on the respondent.
11. In the circumstances, I was satisfied that the respondent had sufficient notice of the hearing. Indeed, the date was set in consultation with the parties to ensure that both parties were available. In the absence of any communication from the respondent, Mr Gvadjava has not provided any evidence of a reasonable cause for his absence. Given the nature of the claim, the delay thus far and the history of proceedings as outlined above, I determined that the respondent had been given a reasonable opportunity to participate and be heard in the proceedings. As such, it was in the interests of justice that the hearing proceed.

1. In oral evidence, Mr Coutinho Monteiro said that he relocated to South Australia in July 2014 from New South Wales, where he had been working as a chef for approximately five years. In addition to his practical experience, Mr Coutinho Monteiro has a Certificate III and IV in Cookery and a Diploma in Hospitality Management.
2. On arrival in Adelaide, Mr Coutinho Monteiro promptly commenced a search for employment in the hospitality industry. One job application that he submitted was for a cook vacancy at a restaurant called "La Chica" located in Glenelg.
3. On 14 July 2024, Mr Coutinho Monteiro received a text message from "Toni" in response to his La Chica application.[1] I take notice of the respondent's nomination of "Toni Maria Odgers" as an additional respondent in proceedings in its filed Response, and to reference of Ms Odgers not being the owner of "My Maria" rather being employed as its manager. Mr Coutinho Monteiro understood Toni to be the owner of the restaurant.
4. In her text message, Ms Odgers invited Mr Coutinho Monteiro to attend an interview the following day at an address in Prospect. That address was the premises of "My Maria" restaurant.
5. On the morning of 15 July 2024, Mr Coutinho Monteiro attended for the interview as arranged and says that he was offered a trial shift that evening starting at 5:00pm at My Maria, rather than La Chica. Although My Maria was further away from Mr Coutinho Monteiro's home, he agreed to the trial shift as a sous-chef.
6. Mr Coutinho Monteiro says after he completed the shift, Ms Odgers offered him employment as part of the team at My Maria. The agreement reached was that the role would be casual for the first week and paid "casual rates", although no specific rate was discussed. Thereafter, he would be employed on a full-time basis with an annual salary agreed at $80,000.00.[2] Mr Coutinho Monteiro was provided with an employee details form[3] to complete to enable the respondent to pay his wages and superannuation, which he duly completed and returned to Ms Odgers on 22 July 2024.[4]
7. Mr Coutinho Monteiro understood that he would be paid on a weekly basis, with payment being made into his bank account each Wednesday. On Saturday 27 July 2024, Mr Coutinho Monteiro sent Ms Odgers a text message enquiring about his pay and provision of a payslip. In her reply, Ms Odgers advised that the bookkeeper would be sending them out "tomorrow". Mr Odgers further advised that the reason for the delay was that she needed to check his hourly rate before putting him on a salary.
8. On 28 July 2024, Mr Coutinho Monteiro received payment of wages totalling $979.34 gross for the pay period 15 July 2024 to 21 July 2024. The payslip provided by the respondent indicates that Mr Coutinho Monteiro was paid at a rate of $31.09 per hour for a level 3 chef.[5] The payment related to 19.75 base hours and 11.75 base hours on a Sunday. The payslip reveals that a superannuation payment of $107.73 was to be paid into Mr Coutinho Monteiro's nominated superannuation fund.
9. While the net pay noted within the payslip is $843.34, a sum of $859.65 was paid into Mr Coutinho Monteiro's bank account by the respondent as 'wages'.[6] However, no superannuation payment is recorded in Mr Coutinho Monteiro's superannuation account.[7]
10. With respect to administrative processes for rostering and hours of work, Mr Coutinho Monteiro advised that hospitality working hours can be complicated, and he expected to be working in excess of 38 hours per week. He says that his hours of work were set each week, by the head chef who produced a weekly roster every Sunday night for the following week. Mr Coutinho Monteiro would take a picture of the roster and then at the end of the week, he would send Ms Odgers a text message confirming the actual hours that he had worked.[8]
11. On 1 August 2024, Mr Coutinho Monteiro sent a message with his hours of work from 22 July 2024 to 28 July 2024 for his first week as a full-time chef at My Maria. Mr Coutinho Monteiro confirmed that he received payment of $1,222.46 net from the respondent into his bank account on 4 August 2024.
12. The following week, Mr Coutinho Monteiro sent Ms Odgers a text message with his hours for 29 July 2024 to 4 August 2024.[9] He also says that during the week, he had given Ms Odgers one week's notice of his resignation, as he had found a job closer to home.
13. Having followed up when he would receive his wages, Ms Odgers replied on 10 August 2024 that "everyone will be pay tomorrow" (sic).[10] Despite that assurance, Mr Coutinho Monteiro says he did not receive a payslip or any wages into his bank account.
14. On 11 August 2024, Mr Coutinho Monteiro provided his hours of work for the 5 August 2024 to 11 August 2024. In a series of disgruntled text messages, Ms Odgers complained to Mr Coutinho Monteiro that he had accepted a full-time job, then given her no time to replace him and noted that he basis for his acceptance of a full-time position was: "80k on sorry did you forget that".[11] Mr Coutinho Monteiro replied that as he had not received a contract, he had no guidance of the notice period required. He reiterated that he had not been paid for the week and requested his payslips.
15. Mr Coutinho Monteiro says that on his last day of work (which was during the second week of not being paid), he finished one shift and started a break. He had been told by other staff members that they had also not been paid. Given concerns about payment, he advised a colleague that he was not prepared to return for his later shift and "waste money", if he was not going to get paid.[12] Mr Coutinho Monteiro did not return to My Maria.
16. By text messages on 13 August 2024 and 18 August 2024, Mr Coutinho Monteiro again sought payment of his outstanding wages for the last two weeks of his employment with My Maria. Ms Odgers reply indicated that the respondent denied Mr Coutinho Monteiro was owed wages for two weeks, and that there was only one week outstanding, having worked for three weeks.
17. By letter dated 31 August 2024,[13] Mr Coutinho Monteiro sent the respondent a written formulation of his claim. He is not seeking any consideration of his first week's pay as a casual employee, other than the non-payment of superannuation.

1. As a matter of law, a legally enforceable contract of employment does not need to be in writing; it may be made verbally between the parties. However, employment as a chef is regulated by National Employment Standards[14] and the Restaurant Industry Award 2020 (the Award). Clause 4 of the Award provides that the Award covers employees throughout Australia in the restaurant industry.
2. The Award classifies cooks into grades depending on their duties and relevant qualifications. Work as a chef falls under the classification of 'cook'. Further, the Award provides for ordinary hours of work and rostering arrangements,[15] breaks, casual loading,[16] and wages and allowances.[17]
3. In this matter, I observed Mr Coutinho Monteiro to be an impressive witness. He gave evidence in a straightforward and measured manner. He was forthcoming in his concession of failing to return for the second half of his last shift at the restaurant, when he did not have to do so. His oral evidence regarding his employment with the respondent and the terms agreed between them was supported by consistent documentary material, including: his bank and superannuation statements for the relevant periods, the employee details form, a payslip, and his text message records.
4. I accept his evidence in its entirety and find that Mr Coutinho Monteiro was employed by the respondent as a chef at the My Maria restaurant between 15 July 2024 and 11 August 2024, a period of three weeks and six days. Mr Coutinho Monteiro's experience and trade qualifications are consistent with his designation as a level 3 chef, as specified on the one payslip provided by the respondent, and the classification of grade 3 cook within the Award.
5. I am satisfied on Mr Coutinho Monteiro's evidence that there were two successive employment contracts entered into with the respondent. The first, for one week on a casual basis to be paid "casual rates". Thereafter, on a full-time salaried basis for $80,000.00 per year. I accept the hours of work Mr Coutinho Monteiro says that he worked and as conveyed to Ms Odgers at the end of each week by text message. I find that Mr Coutinho Monteiro was not paid any wages from 29 July 2024 to 11 August 2024.
6. Mr Coutinho Monteiro's claim is set out in his calculation document.[18] The respondent, having not been present at the hearing, has not provided any evidence to challenge the calculations.
7. Mr Coutinho Monteiro says that he should be paid overtime in addition to his salary. Relevantly, cl 20 of the Award permits annualised wage arrangements to be reached between an employer and full-time employee, of an amount that is at least 25% more than the minimum wages and provided that the annualised wage does not disadvantage the employee.

(a) An employer and a full-time employee may enter into a written agreement for the employee to be paid an annualised wage of an amount that is at least 25% more than the minimum wages prescribed in clause 18 multiplied by 52 for the work being performed in satisfaction, subject to 20.1(b), of any or all of the following provisions of the award:

(d) Where a written agreement for an annualised wage arrangement is entered into, the agreement must specify:

(ii) which of the provisions of this award will be satisfied by payment of the annualised wage;

(iii) the outer limit number of ordinary hours which would attract the payment of a penalty rate under the award and the outer limit number of overtime hours which the employee may be required to work in a roster cycle under clause 20.1(b) without being entitled to an amount in excess of the annualised wage in accordance with clause 20.1(c).

(e) The employer must give the employee a copy of the agreement and keep the agreement as a time and wages record.

(i) by the employer or the employee giving 12 months' notice of termination, in writing, to the other party and the agreement ceasing to operate at the end of the notice period; or

(ii) at any time, by written agreement between the employer and the individual employee.

1. Accordingly, records of the starts and finishing times of work, breaks, minimum rates, split shift allowances, overtime, penalty rates and payment of annual leave must be kept. Additionally, rostering provisions and limitations must be adhered to for an employee on an annualised wage arrangement.
2. Here, there is no evidence that parties entered into a written agreement for an annualised wage that satisfies the requirements of the Award, or that the respondent as the employer kept adequate records. In these circumstances, I find that the express oral agreement to pay Mr Coutinho Monteiro $80,000.00 per year did not constitute an annualised salary arrangement under the Award, but related to payment for working the hours of a full-time employee. In accordance with the Award, a full-time employee is an employee engaged to work an average of 38 ordinary hours per week over a period of no more than 4 weeks.[19]
3. I accept Mr Coutinho Monteiro's submission that he is entitled to be paid overtime for hours worked in excess of 38 hours. Mr Coutinho Monteiro's claim includes 3.5 hours of overtime for the week commencing 22 July 2024, and 5.5 hours of overtime for the week commencing 29 July 2024. He does not claim overtime for his final working week. While he did not work 4 weeks on a fulltime basis, the hours worked for the 3 weeks of his fulltime employment indicate that he worked over an average of 38 hours per week.
4. Noting that Mr Coutinho Monteiro is self-represented, table 7 within cl 23.4 of the Award provides for overtime to be payable on the following scale:

1. Mr Coutinho Monteiro claims overtime payable at 150% only. I therefore give Mr Coutinho Monteiro an opportunity to revise his calculations prior to the making of final Orders.
2. Further, having found that Mr Coutinho Monteiro was employed on a full-time basis from 22 July 2024, he was entitled to accrue annual leave. I find that Mr Coutinho Monteiro was not paid his annual leave entitlements following his employment coming to an end due to his resignation. I accept the basis on which Mr Coutinho Monteiro has calculated his outstanding annual leave entitlements.
3. Lastly, having found Mr Coutinho Monteiro to have been employed by the respondent, the respondent was under an obligation to make superannuation contributions to Mr Coutinho Monteiro's chosen fund. I accept his oral evidence and the documents from his superannuation fund that the respondent has not made any superannuation contributions. Accordingly, Mr Coutinho Monteiro is entitled to his unpaid superannuation payments.

[2] Transcript p 20 (it should be noted that transcript pages have been numbered incorrectly. This evidence can be found on the fifth page).

[14] Fair Work Act 2009 (Cth).

[15] Restaurant Industry Award 2020 cl 15 (Award).

[17] Ibid Part 4.