2991
Western Australian
Industrial Gazette
PUBLISHED BY AUTHORITY
Sub-Part 9
MONDAY 24 DECEMBER, 2007
Vol. 87—Part 2
THE mode of citation of this volume of the Western Australian Industrial Gazette will be as follows:—
87 W.A.I.G.
CUMULATIVE CONTENTS AND DIGEST APPEAR AT THE END OF THIS PUBLICATION
FULL BENCH—Appeals against decision of Industrial Magistrate—
2007 WAIRC 01230
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
CITATION
CORAM
:
:
HEARD
DELIVERED
FILE NO.S
BETWEEN
:
:
:
:
FILE NO.S
:
BETWEEN
:
ON APPEAL FROM:
Jurisdiction
Coram
Citation
File No
:
:
:
:
FULL BENCH
2007 WAIRC 01230
THE HONOURABLE M T RITTER, ACTING PRESIDENT
SENIOR COMMISSIONER J H SMITH
COMMISSIONER S WOOD
MONDAY, 10 SEPTEMBER 2007, TUESDAY, 11 SEPTEMBER 2007
MONDAY, 12 NOVEMBER 2007
FBA 5 AND FBA 6 OF 2007
CHRISTINE ANNE MILES & RICHARD GLINTON MILES T/AS MILESAWAY
TOURS AND MELROSE FARM PTY LTD T/AS MILESAWAY TOURS
Appellants
AND
WARREN GRAHAM MILWARD, DEPARTMENT OF CONSUMER & EMPLOYMENT
PROTECTION
Respondent
FBA 7 AND FBA 8 OF 2007
WARREN GRAHAM MILWARD, DEPARTMENT OF CONSUMER &
EMPLOYMENT PROTECTION
Appellant
AND
MELROSE FARM PTY LTD T/AS MILESAWAY TOURS AND CHRISTINE ANNE
MILES & RICHARD GLINTON MILES T/AS MILESAWAY TOURS
Respondents
Western Australian Industrial Magistrate’s Court
Industrial Magistrate G Cicchini
(2007) 87 WAIG 1089
M99 of 2007 and M15 of 2007
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WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
87 W.A.I.G.
CatchWords:
Industrial Law (WA) - Appeal against decision of Industrial Magistrate’s Court - Alleged breach of Transport Workers (Passenger
Vehicles) Award 1978 - Claim pursuant to s83(1) Industrial Relations Act 1979 (WA) - Claimant appointed under Public Sector
Management Act 1994 (WA) - Whether the award applied to an industry or to a vocation - Employed as a bus driver or a tour guide
- Validity of appointment as industrial officer under Public Sector Management Act - Meaning of industry or industries to which the
award applied - Appointment of industrial inspector - Appointment of public service officers other than executive officers Whether Claimant was a casual employee under the award - Indicia of casual employment - Test of “Centurion Industries” Context specific nature of a casual worker, casual employee or casual employment - Determining casual worker status under the
award - Concept of “as and when required” as part of casual employment - Meaning of “engaged and paid as such” as part of
casual employment - Whether the de-facto officers doctrine applied - Whether Claimant had “colourable title” to the office Application of presumption of regularity test - Whether there was underpayment of wages - Whether failure to pay rate of wage
prescribed by the award is a continuing breach - When the obligation to pay a casual worker arises - Payment of pre-judgement
interest, disbursements, penalty for breach and amount due - Appeals 5 and 6 of 2007 dismissed - Appeals 7 and 8 of 2007
allowed.
Legislation:
Industrial Relations Act 1979 (WA) (as amended), s7, s35, s37(1), s81A, s81AA, s81CA(2), s82A, s83, s83(3), s83A, s85, s98,
s113(3), s114
Public Sector Management Act 1994 (WA), s3(1), s5, s64, s65(1)
Acts Amendment and Repeal (Industrial Relations) (No 2) Act 1984 (Act 92 of 1984), s6
Criminal Procedure Act 1986 (NSW), s126
Financial Management Act 2006, s3
Industrial Arbitration Act 1912-1925, s40
Industrial Arbitration Act 1979 (WA)
Industrial Conciliation and Arbitration Act 1900 (WA)
Industrial Relations Act 1988 (Cth)
Industrial Magistrates Courts (General Jurisdiction) Regulations 2005, regulation 12(4)
Long Service Leave Act 1967 (SA), s5(1)
Magistrates Court (Civil Procedure) Act 2004, Part 2
Transport Act 1930 (NSW), s101, s123
Transport Workers (Passenger Vehicles) Award 1978
Workers’ Compensation Act 1926-1929 (NSW)
Workmens’ Compensation Act 1906
Workplace Relations Regulations 1989
Result:
Appeals No FBA 5 and 6 of 2007 dismissed
Appeals No FBA 7 and 8 of 2007 allowed
Representation (FBA 5 and FBA 6 of 2007):
Counsel:
Appellant
:Mr G McCorry, as agent
Respondent
:Mr R Andretich, (of Counsel) and with him Mr A Shuy, (of Counsel)
Solicitors:
Respondent
:State Solicitor’s Office
Representation (FBA 7 and FBA 8 of 2007):
Counsel:
Appellant
:Mr R Andretich, (of Counsel) and with him Mr A Shuy, (of Counsel)
Respondent
:Mr G McCorry, as agent
Solicitors:
Appellant
:State Solicitor’s Office
87 W.A.I.G.
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
2993
Case(s) referred to in reasons:
Alestalo v Steves Nedlands Park Nominees Pty Ltd (1997) 77 WAIG 499
Amalgamated Engineers v Parker & Son (1926) 6 WAIG 377
Amcor Limited v The Construction, Forestry, Mining and Energy Union and Others (2005) 214 ALR 56
AMIUE (QLD Branch) v Inghams Enterprises Pty Ltd (2002) QGIG 153
Anthony & Sons Pty Ltd T/as Oceanic Cruises v Fowler (2005) 85 WAIG 1899
Australian Shipbuilding Industry (WA) Pty Ltd v Maritime Workers’ Union (1977) 57 WAIG 458 (ASI)
Award Simplification Decision (1997) 75 IR 272
Bernardino v Abbott [2004] NSWSC 430 (NSW SC)
BHP Billiton Iron Ore Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Place Union of Workers
(Western Australian Branch) & Others (2006) 86 WAIG 1477; [2006] WASCA 124
Bluesuits Pty Ltd t/as Toongabbie Hotel v Graham (1999) 101 IR 28
Bond v R (2000) 201 CLR 213
Cassell v The Queen (2000) 201 CLR 189
Cetin v Ripon Pty Ltd t/as Parkview Hotel (2003) 127 IR 205 (AIRC)
City of Wanneroo v Holmes (1989) 30 IR 362 at 378
Clarkin V B. and P. Delvizis and B and L Petridis T/as Terrace Café T56 Myer, (1994) 61 SAIR 364
Connelly v Wells (1994) 55 IR 73
Dorant v JLV Industries (1996) 76 WAIG 440
Doropoulos v TWU (1989) 69 WAIG 1290
Doyle v Sydney Steel Company Ltd (1936) 56 CLR 545
Farrar v Nationwide Oil Pty Ltd (2001) 167 QGIG 103 (QIRC)
Federated Clerk’s Union v Cary (1977) 57 WAIG 585
Federated Clerks Union of Australia, Industrial Union of Workers, WA Branch v Automatic Totalisators Ltd (Sloan’s Case) (1978)
58 WAIG 1452
Fowler v Anthony & Sons Pty Ltd T/as Oceanic Cruises (2004) 84 WAIG 3855
Foy v The Directors of Terraqua Pty Ltd (2003) 83 WAIG 3319
G J Coles and Company Ltd v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503
Gibson & Roberts v Chubb Security Services Ltd (2004) 84 WAIG 3798
Hamzy v Tricon International Restaurants and Another (2001) 115 FCR 78
Holt v Pemberton Hotel (1997) 77 WAIG 2773
Howe and Kosier v Hutt Street Private Hospital (1987) 25 IR 356, 54 SAIR 423
J and A Transport Pty Ltd v Siostrom (1998) 78 IR 109
James Turner Roofing Pty Ltd v Peters (IAC) (2003) 132 IR 122; (2003) 83 WAIG 427; [2003] WASCA 28
James Turner Roofing v Peters (2002) 82 WAIG 765
Jamieson v Jadebay Corporation t/as Ezi-Gro Orchids (2001) 81 WAIG 2586
Jamieson v McKenna [2002] WASCA 325
Julia Ross Personnel v Wain (2001) 166 QGIG 350
Knight v Bucknill (1913) 6 BWCC 160
Kucks v CSR Ltd (1996) 66 IR 182
Licensed Clubs Association of Victoria and Another v Higgins (1988) 4 VIR 43
Loves Bus and Taxi Service v Zucchiatti (2006) 157 IR 348; 86 WAIG 3351
Luff v Oakley (1986) 82 FLR 91; 65 ACTR 19
MacCarron v Coles Supermarkets Australia Pty Ltd (2001) 23 WAR 355; [2001] WASCA 61
McLaren v The Corporation of the City of Adelaide (1991) 58 SAIR 557
Metals & Engineering Workers Union, Western Australia v Centurion Industries Ltd (1996) 76 WAIG 1287; 66 IR 312
Metropolitan and South-Western Engine-Drivers’ Union of Workers v The Timber Corporation (1910) 9 WAAR 11
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WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
87 W.A.I.G.
Metropolitan Shop Assistants’ and Warehouse Employees’ Industrial Union of Workers v Foy & Gibson Pty Ltd (1912) 11 WAAR
113
Nightingale v Little Legends Childcare (2004) 134 IR 111
Norwest Beef Industries Ltd v Australasian Meat Industry Employees’ Union (WA Branch) (1984) 12 IR 314; 64 WAIG 2124
Parker and Son v Amalgamated Society of Engineers (1926) 29 WALR 90
Peeters v Sunshine General Industries Pty Ltd (1997) 77 WAIG 3493
Personnel Contracting Pty Ltd t/as Tricord Personnel v Construction, Forestry, Mining and Energy Union of Workers (2004)
141 IR 31
Port Noarlunga Hotel v Stewart (1981) 48 SAIR 220
R v Cawthorne; Ex parte Public Service Association of South Australia Inc (1977) 17 SASR 321
R v Janceski (2005) 223 ALR 580
Re Coastal Districts Clerks’ Union (1913) 12 WAAR 26
Reed v Blue Line Cruises Limited (1996) 73 IR 420 (IRCA)
Robe River Iron Associates v Amalgamated Metal Workers’ and Shipwrights Union of Western Australia (1987) 67 WAIG 1097
Ruby v Marsh (1975) 132 CLR 642; [1975] HCA 32
Rushton and Cairns v The Western Australian Turf Club and the Chairman of the Committee of The Western Australian Turf Club
(2001) 81 WAIG 868
Ryde–Eastwood Leagues Club Ltd v Taylor (1994) 56 IR 385
Serco v Moreno (1996) 76 WAIG 937; 65 IR 145
Shugg v The Commissioner for Road Transport and Tramways (New South Wales) (1937) 57 CLR 485
Silberschneider v MRSA Earthmoving Pty Ltd (1988) 68 WAIG 1004
South Australia v Tanner (1989) 166 CLR 161; [1989] HCA 3
Squirrell v Bibra Lakes Adventure World Pty Ltd (1984) 64 WAIG 1834
Stoker v Wortham [1919] 1 KB 499
Stone v Varrone Plastering Pty Ltd (2000) 80 WAIG 1968
The Western Australian Carpenters and Joiners, Bricklayers and Stoneworkers Industrial Union of Workers v Terry Glover Pty Ltd
(1970) 50 WAIG 704
TWU v Pinnacle Services Pty Ltd (1999) 79 WAIG 3567
United Construction Pty Ltd v Birighitti (2003) 83 WAIG 434
United Transport Services Pty Ltd v Evans [1992] 1 VR 240
Wilton v Coal & Allied Operations Pty Ltd (2007) 162 IR 264 (FCA)
Yamasa Seafood Australia Pty Ltd v Watkins [2000] VSC 156
Case(s) also cited:
Brammer v Deery Hotels Pty Ltd (1974) 22 FLR 276
Environmental Protection Authority v Alkem Drums Pty Ltd [1999] NSWLEC 26
Ingamells v Petroff (1934) 50 CLR 451
Jones v Lorne Sawmills Pty Ltd (1923) VLR 58
R v Industrial Appeals Court; Ex parte Barelli’s Bakeries Pty Ltd (1965) VR 615
Transport Workers Union v D B & B Adams & Ors (1980) 60 WAIG 870
Zucchiatti v Loves Bus and Taxi Service (2006) WAIRC 04564
Reasons for Decision
RITTER AP:
The Appeals
1
There are four appeals before the Full Bench. Each of them has been instituted pursuant to s84 of the Industrial Relations Act
1979 (WA) (the Act). The appeals involve two decisions of the Industrial Magistrate’s Court. The decisions were the
determination of two originating claims before the Court which were numbered M99/2006 and M15/2007. There is an appeal
by each of the claimant and the respondent against the decisions on each of the originating claims.
87 W.A.I.G.
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
2995
2
In both originating claims the claimant was named as “Warren Graham Milward, Department of Consumer and Employment
Protection”. In M99/2006 the respondent was named as “Melrose Farm Pty Ltd t/as Milesaway Tours”. In M15/2007 the
respondent was named as “Christine Anne Miles and Richard Glinton Miles t/as Milesaway Tours”. Each of the respondents
traded as Milesaway Tours. Both claims were heard together.
3
Both originating claims alleged Milesaway Tours had breached the Transport Workers (Passenger Vehicles) Award 1978 by
the underpayment, between January 2001 and June 2004, of Mr Gregory John Sladden a former employee bus driver. The
claims sought the imposition of penalties and the payment of the amount of the underpayment to the former employee.
4
As stated each party filed an appeal against both of the sets of final orders issued by the Industrial Magistrate’s Court. Whilst
this was entirely appropriate, it meant there was a duplication of issues across the four appeals, which did not need to be
considered separately in each appeal.
5
For ease of reference I will refer to the claimant at first instance and the appellant in appeals 7 and 8 as “Mr Milward”. I will
refer to the appellant in appeals 5 and 6 and respondent in appeals 7 and 8 as “Milesaway”.
The Final Orders
6
Final orders on each claim were made and were published on 23 May 2007.
7
In M99/2006 the final orders were:-
8
“1.
Judgment for the claimant against the respondent.
2.
There is a finding that the respondent has committed 88 breaches of
the Transport Workers (Passenger Vehicles) Award 1978.
3.
The respondent shall pay a penalty of $45.00 for each breach
amounting to $3,960.00 payable to Consolidated Revenue.
4.
The respondent shall pay to Gregory John Sladden $15,478.01.
5.
The claims for interest and disbursements are dismissed.”
In M15/2007 the final orders were:“1.
Judgement for the Claimant against the Respondents.
2.
There is a finding that the Respondents breached the Transport
Workers (Passenger Vehicles) Award 1978 on 77 separate occasions.
3.
The Respondents shall pay a penalty of $30.00 for each breach
amounting to $2,310.00 which shall be paid into consolidated
revenue.
4.
The Respondents shall pay to Gregory John Sladden $12,344.36.
5.
The claims for interest and disbursement are dismissed.”
Proceedings Before the Industrial Magistrate’s Court
9
Originating claim M99/06 was filed on 28 September 2006 and M15/07 was filed on 2 February 2007, with particulars of
claim annexed. The particulars were in substantially similar terms with necessary changes because of the different legal
persona of the respondent, the dates within which Mr Sladden was employed by that respondent, the rates he was paid and
underpayments alleged.
(a)
Particulars of Claim
10 The particulars of claim commonly claimed or sought:(i)
Mr Milward was an industrial inspector appointed under and subject to Part 3 of the Public Sector
Management Act 1994 (WA) (the PSMA).
(ii)
The claim was made pursuant to s83(1) of the Act.
(iii)
Milesaway operated a tour and charter business in and around the winery region from Busselton in Western
Australia.
(iv)
Milesaway employed Mr Sladden as a casual bus driver from 24 January 2001 to 31 July 2002 (as a
partnership) and 1 August 2002 to 30 June 2004 (as a corporation).
(v)
Mr Sladden was engaged as a bus driver and as such his employment with the respondent was bound by the
Transport Workers’ (Passenger Vehicles) Award No R 47 of 1978 (the award).
(vi)
Mr Sladden at all times drove a bus with less than 25 adult passengers as specified in clause 10(1)(a) of the
award.
(vii)
Mr Sladden was at all material times an adult for the purposes of the award.
(viii)
Mr Sladden’s rates of pay were set out.
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87 W.A.I.G.
(ix)
Milesaway failed at various times to pay Mr Sladden, as a casual employee, the correct rate of pay in
accordance with clauses 6(2), 6(3), 6(4), 6(5), 6(6) and 6(9) of the award being payments for ordinary hours,
overtime, hours worked on a Saturday, hours worked on a Sunday, hours worked on a Public Holiday and
hours worked at night.
(x)
Claim M99/2006 asserted underpayment of Mr Sladden on 303 occasions. Claim M15/2007 asserted
underpayment of Mr Sladden on 244 occasions.
(xi)
In Claim M99/2006 an order was sought that Milesaway pay to Mr Sladden outstanding wage entitlements
of $15,478.01. In Claim M15/2007 an order was sought that Milesaway pay to Mr Sladden outstanding
wage entitlements of $12,363.72.
(xii)
In each claim there was also an order sought for payment of “pre judgement interest”, disbursements and a
penalty for the breaches of the award.
11 Attached to each filed claim were printed documents which purported to set out the amounts of the underpayments. Included
on the documents were the dates and times when Mr Sladden worked.
12 The way in which Mr Milward structured the claims meant that to succeed in proving each breach and underpayment, it was
necessary to establish that Mr Sladden was employed as a casual worker by Milesaway and the employment was covered by
the award.
(b)
Particulars of Defence
13 Milesaway filed two identical particulars of defence on 14 February 2007. The particulars of defence were in the form of a
pleading to each of the paragraphs of the particulars of claim. The effect of the particulars of defence was that the following
were in issue and/or asserted:(i)
Whether Mr Milward was an industrial inspector.
(ii)
Whether the respondent operated a tour and charter business. It was claimed it was a tour business.
(iii)
Whether Mr Sladden was employed as a bus driver. It was claimed he was a tour guide.
(iv)
Whether Mr Sladden’s employment was subject to the provisions of the award.
(v)
Milesaway did not admit the rates of pay of Mr Sladden as Mr Milward had possession and control of their
records about the payments to Mr Sladden.
(vi)
Milesaway were not under an obligation to pay Mr Sladden the amounts claimed because the award did not
apply to their business.
The Hearing
(a)
Witnesses
14 The claims proceeded to a hearing on 21 and 22 February 2007 and 2 May 2007.
15 The following witnesses gave evidence in support of the claims:-
(b)
(i)
Mr Michael Holmes, a public servant.
(ii)
Mr Adam Howard, a former industrial inspector.
(iii)
Mr Gregory Logan-Scales, an industrial inspector.
(iv)
Mr Gregory Sladden, the employee whose payment was the subject of the claims.
(v)
Mr Warren Milward, the complainant.
(vi)
Mr Jeffrey Radisich, the former Executive Director of the Labour Relations Division of the Department of
Consumer and Employment Protection and since February 2006 the Director of the Western Operations of
the Australian Building and Construction Commission.
Relevant Evidence of Mr Sladden
16 As will be set out later, the evidence about the type of employment Mr Sladden had with Milesaway is important in deciding
one of Milesaway’s grounds of appeal. The relevant evidence of Mr Sladden was:(i)
Mr Sladden answered an advertisement that Milesaway placed in the Busselton-Margaret River Times on
7 December 2000. (T35, exhibit 17). The text of the advertisement was:“Tour Guide Driver
Must have ‘F’ class licence, Senior First Aid Cert. Casual position
involving weekend work. Past applicants need not apply.
(Phone) 9754 2929 evenings
Milesaway Tours”
(ii)
Mr Sladden had an interview with Mr Richard (Rick) Miles. He was told the position was “casual”. If
successful he would be required to do a trial run to see if he liked the job and then three training runs at his
own expense to train for the job. (T36).
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WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
2997
(iii)
A few days after the interview Mr Sladden received a telephone call from a woman whose name he did not
recall and was told “that I could have the job – was I interested in doing a trial run …”. Mr Sladden said he
would and then arranged to meet a driver to go out for the day on a tour. (T36).
(iv)
Mr Sladden then went to the premises of Milesaway and met “Tanya”. After conversations between Mr
Sladden, Tanya and Mrs Christine Miles it was agreed that Mr Sladden would do a training run and not a
trial run with Tanya. (T36/37).
(v)
After the training run with Tanya, Mr Sladden did two other training runs with different drivers. (T39).
(vi)
Mr Miles did not at any stage sign an employment contract. (T37).
(vii)
After the three training runs, Mr Sladden did his first solo run. He met Mrs Miles who showed him how to
check the vehicle and make up a cheeseboard for the wine tour. He was also shown the booking documents.
(T41).
(viii)
Mr Sladden drove and provided commentary for the Milesaway wine tours but not canoe tours. He also did
Charters, taking people to a destination without commentary and transfers. Transfers were simply the
movement of passengers from one point to another.
(ix)
Mr Sladden also said that he was at times “called in” just to clean buses and on a couple of occasions did
what he called a brochure run. There, he drove throughout the Margaret River wine region topping up
brochures at venues. (T43).
(x)
Mr Sladden had additional training in mid 2001. Procedures were introduced whereby drivers had to do an
inspection of vehicles as laid out in a book presented to the drivers. The driver’s manual contained
procedures and instructions which they were required to sign and hand back to management. The drivers
were also required to do a driver fatigue examination or certificate on the internet. (T39).
(xi)
From around June 2001, daily vehicle checks were made and recorded in books kept in the buses. This
continued until Mr Sladden’s cessation of employment. (T40).
(xii)
After giving details of what the bus driving involved, Mr Sladden was asked: “How would you be
reallocated another job or shift?”. Mr Sladden answered: “Generally, when you arrived into the depot,
once you finished you’d would phone into the office, and it was generally Christine Miles that you spoke to.
It would be then told what you would be doing the next day, or the next shift.” (T42).
(xiii)
When later asked about allocation of shifts, Mr Sladden said this occurred by “the phone call when you
arrived in the night before. You would phone in to the office and then you were told what you would be
doing the next day”. (T47).
(xiv)
Mr Miles was asked “how would you know that you had to do a transfer as part of your employment”. He
answered: “You were told by whoever told you what you were doing that day”. (T43).
(xv)
The charter runs came about by Mr Sladden telephoning “into the office and you maybe advised, tomorrow
you’re doing a charter.” (T42).
(xvi)
The rate of pay was the same for every job Mr Miles did and it was a flat rate of pay per hour without any
payment of overtime, penalties or minimum hours. (T43).
(xvii) Mr Sladden said that consistently with what he was told by Mr Miles at his interview (T36) he thought his
rate of pay was determined by the award. (T44). On two occasions Mr Sladden was told by “Sharon, the
secretary” that there had been increases in the rate of pay because the award rate had increased. Mr Sladden
said Sharon also said “we are all being paid illegally – something should be done about it. When I said
‘What does that mean?’ she said the hours we are working we should be on permanent employment. It
wasn’t long after this that I believe that Sharon took herself off being casual to actually being paid
permanent employment”. (T44).
(xviii) Mr Sladden said he did not speak to his employer about the rate of pay and would not have been game to do
so because of Mr Miles’ temperament. (T44).
(xix)
Mr Miles was asked how many hours per week he worked on average. He said that his “week could be one
tour, two tours, up to seven days.” (T44). He said he averaged about 35 hours per week. Mr Sladden also
said that during school term he taught music and generally did not work on a Wednesday. His hours would
vary from week to week from 15 – 20 hours to around 60 hours. (T44).
(xx)
Asked what days he “typically” worked, Mr Sladden said “typical was always weekends; Thursdays; it
really varied. I could often work Monday, Tuesday but generally the Wednesday I had off because of
teaching. I would work any day, but it was always weekends”. (T44). Mr Sladden also said he would at
times work more than one shift per day. (T44).
(xxi)
In consultation with Mrs Miles, Mr Sladden developed and then drove a scenic tour. (T45). He said “the
scenic tour was every Thursday. But as the tour grew – it became quite a successful tour – as it grew, there
was times when – because the bus I was using then was the Toyota, which was 22 seaters. When we had
more than that, another driver would be used to drive the larger buses to conduct the scenic tour, because
for some unknown reason I was not permitted to drive the larger buses.” (T46).
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87 W.A.I.G.
(xxii) In cross-examination Mr Sladden said he did a lot of work on Thursdays, Saturdays and Sundays but
worked on the other days too. Thursday was very consistent because it was the scenic tour. (T55).
(xxiii) Mostly Mr Sladden commenced work in the morning. (T56).
(xxiv) The time and wages records of Milesaway for Mr Sladden were received as exhibit 5 during the evidence of
Mr Howard. (Additionally as I said earlier the particulars of claim attached a week by week list of the
dates, hours and payments made to Mr Sladden. The list was accepted as accurate by the Industrial
Magistrate and there is, at least following the abandonment of ground 3 in the Milesaway appeal, no
challenge to this finding. The list is discussed below.)
(xxv) At the beginning of his employment Mr Sladden was paid by cheque on Mondays but this was changed to
Tuesdays not long after.
(xxvi) Mr Sladden’s employment ended in October 2004. In May of that year, he was charged with driving (his
own vehicle and not involving his employment) with a blood alcohol content in excess of 0.08%. This went
to court in July 2004 when he was suspended from driving. Mr Sladden said he did a little bit of work for
Milesaway during his suspension. He went out on one occasion with Mrs Miles driving, and did
commentary. On another occasion after Mr Sladden obtained an extraordinary driver’s license, he
transferred some luggage in his own vehicle from the airport to an accommodation house. Mr Sladden also
assisted with cleaning buses in the depot and did one run with a new driver which was essentially a training
run for that driver. (T48/49).
(xxvii) During the period of his suspension, Mr Sladden discussed his position with Mrs Miles and was told that
insurance premiums would increase because of his conviction. Therefore if he wanted to drive after his
suspension he would be required to pay a $1,000 bond. Mr Sladden then said he asked Mrs Miles for a
separation certificate which she gave him so that he could claim unemployment benefits.
(xxviii) Mr Sladden’s separation certificate (exhibit 9) recorded that Mr Sladden had been employed by Milesaway
from 27 November 2001 until 9 May 2004. It was not clear why the separation certificate nominated 9 May
as the last day of work.
17 The week by week list I referred to in (xxiv) covered the period from the week commencing Monday, 22 January 2001 to the
week ending Sunday, 20 June 2004. This period totals 178 weeks. Mr Sladden did not work at all in 11 of these weeks.
Additionally in the six weeks from 10 May to 20 June 2004 Mr Sladden only worked two days. This might have been because
Mr Sladden was by then being charged albeit not yet convicted of the driving under the influence offence. A calendar setting
out the days worked, on a week by week basis, according to the schedules to the particulars of claim, is attached as Schedule 1
to these reasons. The shaded dates are those on which Mr Sladden worked.
18 The table below sets out the total number of the days of the week worked over the 178 week period, according to the calendar:Day of the week
MONDAY
TUESDAY
WEDNESDAY
THURSDAY
FRIDAY
SATURDAY
SUNDAY
Total days worked
27
31
41
135
76
142
128
19 The calendar and table confirm Mr Sladden’s evidence that he did not always work on the same days but he worked mostly on
Thursday, Saturday and Sundays and much less often on Wednesdays.
20 The total number of days worked, as shown on the table, is 580 out of the 1,246 (178 x 7) days during the 178 week period. In
considering the table however it is more representative to discount the last 43 days or 6 weeks during which Mr Sladden only
worked two days. According to the schedule to the particulars of claim, Mr Sladden worked an average of 24.53 hours over
the whole 178 week period, including the 11 weeks when he did not work.
(c)
Milesaway’s Lack of Evidence
21 At the conclusion of the evidence of Mr Radisich, the agent for Milesaway informed the court that he wished to make a
submission of no case to answer. The court was also informed that if the no case submission was not successful, Milesaway
elected not to call evidence.
(d)
The Submissions of Milesaway
22 The Industrial Magistrate adjourned for the purpose of reading written submissions which had been prepared by both parties,
and then heard oral submissions. The relevant submissions of the agent for Milesaway were:(i)
The evidence did not establish that Mr Sladden’s major and substantial duties were to drive a bus, so the
award did not apply to his employment.
(ii)
Mr Milward had not established the award applied to the employment of Mr Sladden. This was because
there was no such thing, at law, as a vocational award which could apply to bus drivers. Mr Milward was
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required to establish the award applied to an industry and the employment of Mr Sladden by Milesaway was
in that industry. It was submitted the award did not on its face or by reference to the respondents of the
award set out what the industry was. Accordingly, some evidence of this was required but none had been
produced.
(iii)
In any event, the evidence did not establish that Mr Sladden was employed as a casual employee.
(iv)
The documents attached to the particulars of claim were not part of the particulars of claim and were not
properly before the court in such a way or supported by evidence so that they could be relied upon.
(v)
Mr Milward was not competent to bring the proceedings as he had not been validly appointed as an
industrial inspector and the de facto officer’s doctrine did not apply.
23 On issue (c), relevant to a ground of appeal Milesaway’s agent submitted:-
(e)
(i)
Mr Sladden worked regularly for four years on Thursdays and weekends generally starting between
10am and 12pm.
(ii)
Mr Sladden worked an average of 35 hours per week except during school holidays.
(iii)
There was the expectation of continued employment, whether Mr Sladden was going to work on a
particular day or not.
(iv)
On the “test” of “Centurion Industries” Mr Sladden was not a casual employee. (The reference to
Centurion Industries is to the decision of the Full Bench in Metals & Engineering Workers Union,
Western Australia v Centurion Industries Ltd (1996) 76 WAIG 1287; 66 IR 312).
Mr Milward’s Submissions
24 Mr Milward’s counsel made submissions in opposition to each point made by Milesaway’s agent. He maintained the claims
ought to succeed. On the casual employment issue he submitted:(i)
Mr Sladden was a casual worker under the award.
(ii)
Under the award a casual worker should receive a loading of 20% in addition to the ordinary rate of pay.
Mr Howard gave evidence that the rate of pay of Mr Sladden was generally in line with the award which
included the 20% loading. The level of the rate of pay by the employer was therefore that of a casual
employee and not a part-time employee.
(iii)
Mr Sladden did not receive entitlements that would be given to a part-time worker, such as a pro-rata
entitlement to annual leave, sick leave and public holidays.
(iv)
There was a variation of hours and duties from week to week and day to day.
25 There were brief submissions in reply by the agent for Milesaway. The Industrial Magistrate then reserved his decision.
(f)
Hearing on Final Orders
26 On 23 May 2007 the Industrial Magistrate published his reasons for decision and the court convened to decide the appropriate
orders to make. After hearing submissions from Mr Milward’s counsel and the agent for Milesaway, his Honour gave
supplementary reasons for decision and issued the orders set out earlier. The reasons for decision were given extempore and
later edited by his Honour. They were included in the appeal book in the edited form.
The Industrial Magistrate’s Primary Reasons
(a)
Course of Reasons
27 In his primary reasons for decision, the Industrial Magistrate set out in summary what the claims were about, the relevant
factual background, summarised the evidence of each of the witnesses. The Industrial Magistrate summarised the evidence
about Mr Sladden’s engagement, the work he did, his rate of pay and the cessation of employment. His Honour dealt
sequentially with the issues that had been raised by Milesaway at the hearing.
(b)
Capacity to Bring the Claims
28 The first issue which the Industrial Magistrate considered was whether Mr Milward had the capacity to bring the claims. His
Honour firstly summarised the relevant evidence. I will not at this stage deal with that evidence. I will do so later when
considering a ground of appeal on the issue. His Honour referred to s83(1)(b) of the Act which empowered an industrial
inspector to apply to the court to enforce an award.
29 His Honour referred to the presumption of validity of a public appointment such as that of an industrial inspector and the
rebuttable nature of the presumption. His Honour cited Yamasa Seafood Australia Pty Ltd v Watkins [2000] VSC 156 at [95][101], Cassell v The Queen (2000) 201 CLR 189 and United Transport Services Pty Ltd v Evans [1992] 1 VR 240.
30 His Honour then recorded the argument of Milesaway that the material before the court cast doubt on whether Mr Milward was
validly appointed.
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87 W.A.I.G.
31 His Honour quoted s98(1) of the Act which provides:“Industrial Inspectors for the purposes of securing the observance of the
provisions of this Act and of awards, industrial agreements and orders in
force thereunder may be appointed under and subject to Part 3 of the Public
Sector Management Act 1994.”
32 His Honour then referred to Mr Milward’s identification card which contained a certificate of appointment that he was
purportedly appointed pursuant to s98 of the Act. His Honour referred however to the fact that his appointment as an industrial
inspector could only be made under and subject to the PSMA. His Honour referred to a submission by Milesaway about s64 of
the PSMA. The submission was there was no evidence which established Mr Milward’s position of Senior Investigations
Officer (Office No PLR 1107) was an Industrial Inspector’s office, post or position.
33 His Honour also referred to the submission on behalf of Mr Milward that all industrial inspectors were appointed by the
Minister as an industrial inspector under s98(1) of the Act, irrespective of whether or not their position title was industrial
inspector for the purposes of the PSMA. It was submitted that having regard to s98(1) of the Act and s64(1) of the PSMA, the
construction that would promote the purpose or underlying object of both acts would be one where the Minister was
responsible for appointing industrial inspectors. His Honour also referred to the submissions on behalf of Mr Milward that the
construction of the law and events submitted by Milesaway would cause inconvenience.
34 His Honour also referred to Mr Milward’s submission that if he was not properly appointed as an industrial inspector his act in
commencing the proceedings was valid under the “doctrine of de facto officers”. His Honour said that the “doctrine provides
that where an office exists but the title to it of a particular person is defective, the acts of the de facto public officer done in the
apparent execution of his duty cannot be challenged on the ground that he had no title to the office”. His Honour referred to
the reasons of Anderson J in Jamieson v McKenna [2002] WASCA 325, with which Templeman J and Sheppard AUJ agreed
at paragraph [13] where his Honour said the essential conditions for the operation of the doctrine were:(i)
That the office occupied and exercised was an office “de jure”, that is, one which existed in law.
(ii)
That the acts carried out were within the scope of the office.
(iii)
That the person carrying out the functions of the office had colourable title to the office.
35 His Honour also quoted from the reasons of Anderson J at paragraph [14] where it was said that “the doctrine was a strong one
[with] its purpose being … to protect the public interest … from the chaos and uncertainty that would ensue if actions taken by
individuals apparently occupying government offices could later be invalidated by exposing defects in the official’s titles”.
36 The Industrial Magistrate said Mr Milward occupied and exercised the office of industrial inspector which was one which
existed in law. His Honour said in bringing the “claims he carried out an act which was within the scope of the office and at
all material times he had colourable title to the office of industrial inspector as is indicated by the certificate of his
appointment”. His Honour concluded on this issue by saying that there was “considerable force in [Milesaway’s] argument.
However even if [Milesaway] were to be successful in their contention that Mr Milward was not validly appointed as an
industrial inspector, the doctrine of de facto officers would operate so that his acts in bringing these claims cannot be
challenged”.
(c)
Mr Sladden a Bus Driver
37 His Honour next considered whether Mr Sladden was a bus driver. His Honour referred to the contention of Milesaway that a
person who drove a bus in the course of his or her employment was not necessarily employed as a bus driver for the purposes
of the award. His Honour referred to the submission that the test was “whether the work, the major and substantial duties of
the employee, brought the employees within the scope of the Award”; citing Federated Clerk’s Union v Cary (1977) 57 WAIG
585 and Doropoulos v TWU (1989) 69 WAIG 1290. It is not necessary to recount his Honour’s reasons on this issue in detail
as it is not the subject of a ground of appeal. Generally however, his Honour found that on the basis of Mr Sladden’s evidence
his major and substantial employment was to drive a bus. Although he also provided commentary this was founded upon his
driving of a bus. All of his duties were predicated upon him being able to drive and driving a bus. His Honour included that
Mr Sladden was a bus driver which was a calling within the award.
(d)
Industries to which the Award Applied
38 His Honour then considered whether there was evidence before the court of the industry or industries to which the award
applied. His Honour referred to the submission that the scope clause of the award made no or no implied reference to the
industry or industries carried on by the named respondents but only to the type of bus being driven. His Honour also referred
to the submission that there was no evidence before the court of what industry or industries the named respondents to the
award or engaged in or whether those industries were the same as that carried on by Milesaway. His Honour referred to
Parker and Son v Amalgamated Society of Engineers (1926) 29 WALR 90 and the submission that there needed to be a finding
of fact as to the industry carried on by the named respondents as at the date of the award. In the absence of any evidence on
the issue it was submitted the court could not know what industry the award applied to and could not conclude Milesaway were
engaged in an industry to which the award applied.
39 His Honour set out the scope clause of the award which was as follows:“3. - SCOPE
This Award shall apply to all bus drivers (including Service, Tour, Charter
and School Bus drivers) employed in the classifications described in Clause
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10. - Wages of this Award, except those workers employed by the Western
Australian Government Railways, the Eastern Goldfields Transport Board,
and the Metropolitan (Perth) Passenger Transport Trust.”
40 His Honour also set out s37(1) of the Act. Section 37(1) is:“37.
Effect, area and scope of awards
(1)
An award has effect according to its terms, but unless and to
the extent that those terms expressly provide otherwise it shall,
subject to this section —
(a)
extend to and bind —
(i)
all employees employed in any calling
mentioned therein in the industry or industries
to which the award applies; and
(ii)
all employers employing those employees;
and
(b)
operate throughout the State, other than in the areas
to which section 3(1) applies.”
41 His Honour also referred to the definition of “industry” in s7 of the Act which in paragraph (c) included “any calling, service,
employment, handicraft, or occupation or vocation of employees”.
42 His Honour then quoted from the reasons of the Full Bench in TWU v Pinnacle Services Pty Ltd (1999) 79 WAIG 3567 at
3568/9 where Sharkey P said:“What the industry is in every case is primarily a question of construction of
the award. It may be that the question is not only primarily but finally a
question of construction. Some awards, too, as a matter of construction, fail
to give the final answer and require, for that purpose, findings of fact to be
made. In this case, the final answer was and is provided by the award both
primarily and finally.
The award applies to an industry identified by and only by the vocation of bus
drivers employed in the classifications contained in clause 10 of the award.
The classifications contained in clause 10 include tour bus drivers.
Mr Downsborough was undoubtably, on the evidence, a bus driver, and,
indeed, a tour bus driver.
The construction, therefore, of clauses 3 and 10 of the award provide the final
answer. The industry to which the award applies is bus driver. The award
applied to Mr Downsborough whose vocation was bus driver in the industry
of bus driver and in the classification of bus driver. The award applied to his
employer pursuant to s.37(1) of the Act.”
43 His Honour concluded that “Mr Sladden was undoubtedly employed as a tour bus driver.” He said that Milesaway “were in
the business of providing tour and chartered bus services. It follows that the award applied to Mr Sladden whose vocation was
a bus driver in the industry of bus driver in the classification of bus driver and that the award applied to his employers
pursuant to s37(1)” of the Act. His Honour said that the court was bound to follow Pinnacle Services.
(e)
Casual Employment
44 His Honour then considered the issue of whether Mr Sladden was a casual employee. His Honour quoted clause 14(5) of the
award which defined “Casual Worker” in the following terms:“(5)
“Casual Worker” shall mean a worker engaged and paid as such. A
Casual Worker shall receive a loading of 20 per cent in addition to
the ordinary rate.”
45 In determining this issue, his Honour simply said:“There can be no doubt that Mr Sladden was employed as a casual employee
and paid as such. He did not receive the benefits attendant upon an employee
holding down a full or part time position. Furthermore, notwithstanding that
he was consistently employed, there was no guarantee of ongoing
employment. His hours varied dependant upon various contingencies.
Following each day’s work he would be instructed as to when next to work.
There was no certainty or regularity attaching to his employment. It follows
that he was a casual employee.”
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(f)
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87 W.A.I.G.
Underpayment
46 His Honour then considered the issue of whether there was adequate evidence of underpayment. His Honour accepted the
relevant calculations but found the claim against Milesaway for the period leading up to 2 February 2001 was not maintainable
because it related to a period more than six years prior to the commencement of the proceedings (s82A of the Act).
Accordingly, with respect to M15/2007, his Honour found Mr Sladden was underpaid $19.33 less than that alleged making the
total underpayment $12,344.39. With respect to M99/2006, his Honour found Milesaway underpaid Mr Sladden $15,478.01.
(g)
Number of Breaches
47 His Honour then referred to s83 of the Act which he said “seemingly” suggested each separate failure to comply with a
provision of the award constituted a contravention of it. His Honour said that its proper construction needed to be viewed in
light of what was said in Silberschneider v MRSA Earthmoving Pty Ltd (1988) 68 WAIG 1004 per Olney J at 1005 and James
Turner Roofing Pty Ltd v Peters (IAC) (2003) 132 IR 122; (2003) 83 WAIG 427; [2003] WASCA 28). His Honour said these
authorities supported the contention of Milesaway that each breach was constituted by the failure at the end of each pay period
to pay the correct rate of pay. His Honour then said that on 77 separate occasions Mr and Mrs Miles failed to pay Mr Sladden
his correct rate of pay under the award and on 88 separate occasions Melrose Farm Pty Ltd failed to do so.
Supplementary Reasons
48 In the supplementary reasons for decision his Honour firstly disallowed the claim for disbursements. It is unnecessary for the
purposes of the appeal to examine that issue.
49 On the claim for prejudgment interest, his Honour said he was bound by the decision of the Full Bench in Foy v The Directors
of Terraqua Pty Ltd (2003) 83 WAIG 3319 so “that the claim for interest is not maintainable”.
50 His Honour then considered the question of penalty. After taking into account what he specified as relevant considerations, his
Honour ordered a penalty of $45.00 for the 88 breaches of the award committed by Melrose Farm Pty Ltd making a total
amount of $3,960.00 to be paid to consolidated revenue. In M15/2007, his Honour ordered that Mr and Mrs Miles pay a
penalty of $30.00 per breach amounting to $2,310.00 to be paid into consolidated revenue. His Honour also made the orders
for repayment to Mr Sladden set out earlier.
The Grounds of Appeal - Milesaway
51 The grounds of appeal in each appeal brought by both Milesaway and Mr Milward were identical. During the course of the
hearing, Milesaway abandoned ground 3 of their grounds of appeal. Their remaining grounds are:“1.
The Industrial Magistrate wrongly construed section 37 of the
Industrial Relations Act 1979 and the award and erred in law in
finding that the award applied to the Appellant by reason of the
vocation of Mr Sladden as a bus driver and that there was no
requirement for the Respondent/Claimant to adduce evidence of the
industry of the employers at the date the award issued.
Particulars
The Industrial Magistrate applied the decision of the Full Bench in
TWU –v- Pinnacle Services Pty Ltd (1999) 79 WAIG 3567 that the
award “applies to an industry identified by and only by the vocation
of bus drivers employed in the classifications contained in clause 10
of the award.” The Full Bench decision is contrary to the authority of
the Industrial Appeal Court in Australian Shipbuilding Industries
(WA) Pty Ltd v Maritime Workers Union (1977) 57 WAIG 458 that a
vocational award – one applying solely by reason of the vocation of
the persons employed – is a thing unknown to the law. The Industrial
Magistrate in relying on the decision failed to find that the
Respondent/Claimant had not produced evidence of the industries to
which the award applied and that the Appellant was engaged in one of
those industries.
2.
The Industrial Magistrate erred in fact and in law in finding that the
proceedings were competently brought by the Respondent/Claimant,
in that the Industrial Magistrate wrongly construed the provisions of
the Public Sector Management Act 1994 and the Industrial Relations
Act 1979 and wrongly applied tests for the presumption of regularity
and the de-facto officer doctrine.
Particulars
(a)
On a proper construction of the Public Sector Management
Act 1994 and the Industrial Relations Act 1979 the Industrial
Magistrate should have found that a valid appointment as an
industrial inspector required that the person be appointed as a
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WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
public service officer to an office, post or position identified as
that of industrial inspector and that the Respondent/Claimant
was not so appointed.
(b)
The Industrial Magistrate wrongly applied a presumption of
regularity test in circumstances where the presumption was
not applicable because it was the Respondent/Claimant who
put the appointment of Mr Milward as an industrial inspector
at issue and bore the onus of establishing that fact.
(c)
The Industrial Magistrate wrongly applied the de-facto officer
doctrine in finding that Mr Milward occupied and exercised
the office of industrial inspector, in that the doctrine properly
only applies to an office where the putative appointee to that
office has a defective but colourable title and the acts carried
out were within the scope of that office. Mr Milward validly
occupied an office which existed at law but it was not the
office of an industrial inspector and the acts carried out –
commencing the proceedings against the Appellants – were
not within the lawful scope of the office he validly occupied.
…
4.
5.
The Industrial Magistrate erred in fact and in law in finding that Mr
Sladden was a casual employee in that –
(a)
the lack of receipt of benefits attendant upon an employee
holding full time or part time employment does not in law infer
an alternate employment status;
(b)
consistent employment over a period of more than four years
is properly inferable as a guarantee of ongoing employment;
(c)
variability in hours worked arising out of the contingencies
inherent in the employer’s business and the requirement to
ascertain what work was scheduled for the following day is
not a test of whether the employment was casual and the
evidence of Mr Sladden established that the work was regular
and there was an expectation that it would be available;
(d)
the award definition of casual employment does not derogate
from the common law definition.
The Industrial Magistrate erred in law in imposing a separate penalty
for each week Mr Sladden was found to have been underpaid, in that
on a proper construction of the Industrial Relations Act 1979 and
authority, a failure to pay the rate of wage prescribed by an award is
a continuing breach and in the absence of express provision for
penalties for a continuing breach, only one penalty should be
imposed.”
Grounds of Appeal- Mr Milward
52 In Mr Milward’s appeals there was a single ground as follows:“The learned Magistrate erred in law in failing to make orders for the
Respondents to pay pre-judgment interest in accordance with regulation 12(4)
of the Industrial Magistrates Courts (General Jurisdiction) Regulations 2005.
Particulars
(a)
Regulation 12(4) of the Industrial Magistrates Courts (General
Jurisdiction) Regulations 2005 provided for the payment of interest in
the circumstances relating to the matter at first instance.
(b)
The decision of Terrence Gordon Foy v The Directors of Terraqua Pty
Ltd (2003) 83 WAIG 3319 is limited to is circumstances which were
not relevant to the matter under consideration by the learned
Magistrate.
(c)
If the decision of Terrence Gordon Foy v The Directors of Terraqua
Pty Ltd (2003) 83 WAIG 3319 is capable of applying to the
circumstances considered by the learned Magistrate then the decision
was incorrectly decided and it should not be followed.”
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The Hearing of the Appeal
53 In accordance with the relevant practice direction the parties filed outlines of submissions and lists of authorities prior to the
hearing. At the hearing, with the consent of both parties, submissions were heard in the following sequence. Firstly, the agent
for Milesaway made his submissions in support of their appeals. Secondly, counsel for Mr Milward responded to the appeals
brought by Milesaway and made submissions in support of Mr Milward’s appeals. Thirdly, the agent for Milesaway
responded to Mr Milward’s appeals and made submissions in reply on the appeals brought by Milesaway. Fourthly, counsel
for Mr Milward made submissions in reply on his appeals.
54 It is convenient to first consider the appeals of Milesaway and then those of Mr Milward.
Milesaway Appeal – Ground 1
55 Milesaway submitted the Industrial Magistrate was in error in applying Pinnacle Services to find the award applied to
Mr Sladden’s employment. Milesaway recognised that Pinnacle Services was about the same award as the present case and it
decided the award applied “to an industry identified by and only by the vocation of bus drivers employed in the classifications
contained in clause 10 of the award” (3568).
56 Milesaway submitted Pinnacle Services was wrongly decided because it was contrary to the Industrial Appeal Court decision
of Australian Shipbuilding Industry (WA) Pty Ltd v Maritime Workers’ Union (1977) 57 WAIG 458 (ASI). This decision was
not referred to in the reasons of the Full Bench in Pinnacle Services and it was submitted that one could infer the Full Bench
had not been made aware of the decision.
57 ASI was about whether an employee whose employment was covered by the Metal Trades (General) Award was also bound by
the Ship Painters and Dockers’ Award. One of the submissions was that if an industry award and a vocational award
contained inconsistent provisions then the employer was bound by the industry award and not the vocational award. It was
submitted that the Metal Trades Award was an industry award and therefore applied. Burt CJ said at 458:“A vocational union is, of course, a commonplace idea. It is a union of
workers organised with respect to a vocation and hence with respect to
“industry” in the sense of para. (b) of the definition to be found in s.6. A
vocational award is, however, another thing and is a thing unknown to the
law. One cannot have a vocational award in gross. Every award must relate
to an industry either in terms or by reference to the industry in which the
employers parties to it are engaged. Every award must state the “callings” of
the workers bound by it and expressly or by implication the industry in the
sense of the business of the employer to which it relates. Having done so it
has the binding effect given to it by s.85 of the Act.”
58 Burt CJ decided however that there was no inconsistency because both awards could be complied with. Wickham J agreed
with the reasons of the Chief Justice and published short reasons of his own which did not address the question of a vocational
award. Wallace J agreed with both sets of reasons.
59 Burt CJ did not cite either authority or the relevant sections of the then Industrial Arbitration Act 1912 to support the paragraph
quoted. Also, his Honour’s observations were obiter and therefore not strictly binding.
60 Milesaway also relies upon earlier authority which it submits is consistent with the reasoning in ASI. For exampled in
Metropolitan Shop Assistants’ and Warehouse Employees’ Industrial Union of Workers v Foy & Gibson Pty Ltd (1912)
11 WAAR 113, Burnside J at 124 said that “shopkeeping is not an industry, but that it comprises every form of industry; that it
is a combination of many industries; dependant upon what you sell in the shop; that shopkeepers’ assistants are engaged in
probably every industry in life”. Milesaway also cited Metropolitan and South-Western Engine-Drivers’ Union of Workers v
The Timber Corporation (1910) 9 WAAR 11 where Burnside J held the vocation of a worker did not mark out an industry.
His Honour at page 14 said for example “The mere fact that a man happens to drive an engine does not necessarily place him
in the same calling as a man driving another engine”. Milesaway also referred to the reasons of Burnside J in Re Coastal
Districts Clerks’ Union (1913) 12 WAAR 26. His Honour said that “industry” had two distinct meanings, the occupation of
the employer and the occupation of the worker.
61 It was submitted by Milesaway however that it was only the occupation of the employer which was relevant for the issue of
award coverage. In further support Milesaway cited Amalgamated Engineers v Parker & Son (1926) 6 WAIG 377. This
appeal was about a complaint against an employer bound by an agreement declared to have the effect of an award with a
common rule. It was alleged the employer breached the agreement by not paying a motor mechanic the wage prescribed by the
agreement. The Magistrate upheld the complaint but the Full Court allowed an appeal. Burnside J with whom McMillan CJ
and Northmore J agreed, observed that the Magistrate had not made a finding about what the industry was. Burnside J referred
to s40 of the Industrial Arbitration Act 1912-1925 (the IA Act) and in particular the meaning of the words “engaged in any
industry in which it relates”. His Honour said the word “industry” is used in the IA Act in many ways. His Honour said
however the object of the legislature was to enable agreements to be made so as to ensure that the interests of persons mutually
engaged should be protected. His Honour then said that if this was correct “the common object which it is sought to obtain by
the combined efforts of the employer and the worker indicates the industry in which they are engaged”. His Honour said that
unless “that common object be the determining factor then it is impossible to define the industry to which the agreement
relates”. His Honour said that if the vocation of the worker was the determining factor, the driver of a horse drawn vehicle
transporting human remains would be in the same industry as the driver of a horse drawn vehicle transporting animal bodies
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from an abattoir to the shop of a retail butcher. In the context of his Honour’s reasons it appears that he did not accept this to
be a sound notion. His Honour referred to the evidence that the appellants owned a garage and engaged an employee to work
there. His Honour said although the employee could be justifiably classified as a motor mechanic it did not support the
conclusion he was engaged in the sawmilling industry. (Presumably the text of the award lead to the possibility of a motor
mechanic being within that industry). His Honour held the Magistrate had erred in deciding the agreement extended to every
enterprise in which motor mechanics were employed to keep motors in order.
62 Milesaway also supported this ground by reliance upon The Western Australian Carpenters and Joiners, Bricklayers and
Stoneworkers Industrial Union of Workers v Terry Glover Pty Ltd (1970) 50 WAIG 704. There the Industrial Appeal Court
allowed an appeal against a decision by an Industrial Magistrate which dismissed a complaint on the basis that the respondent
was not bound by the Building Trades Award. Each member of the court wrote separate reasons. Burt J however said at page
705:“Each and every award must relate to an industry and what the industry is, is
in every case primarily a question of construction of the particular award. It
may be that the question is not only primarily but finally a question of
construction, and it may be that the award as a matter of construction fails to
give the final answer and requires for that purpose that findings of fact be
made.
An award if made in terms “to relate to the shipbuilding industry” would be
of the first-mentioned kind. Aw award expressed to relate, as the one under
construction here is expressed to relate, to “the industries carried on by the
respondents set out in the schedule attached to this award” is of the other
kind. In such a case the industry to which the award relates cannot be made
known without definition of the industries carried on by the respondents. And
this is necessarily a question of fact.
The received docturine [sic] – Parker’s case (1926) 29 W.A.L.R. 90 – is that
“the common object which it is sought to attain by the combined efforts of the
employer and the worker indicates the industry in which they are engaged”.
Vilips v Carpenters Union (1962) W.A.R. 27. The idea of common object is
not without its difficulties. Scanlan’s New Neon Ltd. v. Tocheva Ltd (1942) 67
C.L.R. 169 at p.196 per Latham C.J. An analysis may show it to be illusory
unless it be understood as being synonymous with the business or undertaking
of the employer coupled with the assumption that the object of that business or
undertaking, in the sense in which that word is used in company law, is one
common to the employer and the worker employed by him.
Be this as it may the application of that doctrine requires that one makes a
finding – which I emphasise is a fact finding – as to the industry carried on by
the named respendents [sic] as at the date of the award. This having been
done, the limits of the industry are then established. This may be done upon
the consideration of the industry carried on by one respondent, or it may be
done by, so to speak, adding the industry of one respondent to that of another,
so creating an industry to which the award relates, which is wider in its
spread then the industry carried on by any single respondent.”
63 Milesaway submitted the present scope clause made no express or implied reference to the industry or industries carried on by
the named respondents; only to the type of bus being driven. It was also submitted that the list of the respondents to the award
did not give any indication of what the industries were in which any of them were engaged. Accordingly, evidence was
required about the nature of the industry or industries to which the award applied. In the absence of such evidence the court
could not properly find the award was applicable to the employment of Mr Sladden by Milesaway.
64 In his submissions, counsel for Mr Milward said the Industrial Magistrate was correct to follow Pinnacle Services, and that the
decision was in accordance with the statutory scheme now contained in the Act.
65 Counsel cited s37(1) of the Act. He submitted the “common rule” for which s37(1) of the Act provides is in relation to
employers and employees in the “industry or industries to which the award applies”. He submitted the use of the plural shows
that more than one industry may be the subject of an award.
66 Counsel next relied upon the definition of industry in s7 of the Act which is:““industry” includes each of the following —
(a)
any business, trade, manufacture, undertaking, or calling of
employers;
(b)
the exercise and performance of the functions, powers, and
duties of the Crown and any Minister of the Crown, or any
public authority;
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(c)
87 W.A.I.G.
any calling, service, employment, handicraft, or occupation or
vocation of employees,
whether or not, apart from this Act, it is, or is considered to be,
industry or of an industrial nature, and also includes —
(d)
a branch of an industry or a group of industries;”
67 Counsel submitted definition (c) was applicable to the present award. He also noted that part of the definition which specifies
that something may be an industry, because of the contents of the definition, whether or not it was otherwise so.
68 Counsel submitted that the Industrial Magistrate was correct to follow Pinnacle Services and the industry to which the award
applied was that of a bus driver. Additionally that Mr Sladden was a bus driver within that industry and in the classification of
a bus driver in clause 10 of the award. Accordingly, s37(1) of the Act applied to govern the employment of Mr Sladden by
Milesaway.
69 The lynchpin of the argument of Milesaway is that the Industrial Magistrate erred because s37(1) of the Act could not apply to
an industry defined solely by the work engaged in by employees. The immediate problem this submission faces is that
definition (c) of “industry” in s7 of the Act provides otherwise. For the purposes of the Act an industry does include a calling,
occupation or vocation of employees. A bus driver fits this description.
70 Clause 3 of the award refers to the bus drivers employed in the classifications described in clause 10. Clause 10 is the wages
clause which provides for the classification of bus driver (including service, tour, charter and school bus drivers) driving a
passenger vehicle having seating capacity for either under or over 25 adult persons. There is a wage differentiation for bus
drivers driving passenger vehicles with seating capacity for 25 adult persons or more.
71 The authorities which the agent for Milesaway relied upon were not authorities which construed the sections and definitions in
the present Act. Additionally, and with great respect, Burt J in ASI does not set out the chain of reasoning which led him to
conclude in the way earlier quoted. With respect to the reasoning of Burnside J that “industry” has more than one meaning
throughout the Act, I am unable to see that this is so in the present Act. Although the definitions in s7(1) are prefaced by
“unless the contrary intention appears”, s37 of the Act does not demonstrate any intention for “industry” to have a different
meaning from the definition.
72 It is a rule of statutory construction that ordinarily a defined word will have the same meaning throughout an Act. In my
opinion there is nothing in the definition and the Act which displaces this ordinary rule.
73 Industrial relations law in Western Australia has since 1900 been built around having a single statute which has mainly dealt
with the subject. There have however been many legislative changes. The history of the legislation from the enactment of the
Industrial Conciliation and Arbitration Act 1900 (WA) to the Act in the form that it was in December 1990 is traced in Brown
M.V., Western Australia Industrial Relations Law, Second Edition, University of Western Australia Press 1991. The system of
industrial relations has changed over time in that the intent, coverage and impact of the legislation has varied. In my opinion
this has the effect that caution should be exercised before simply transposing earlier judicial comments into the construction of
the Act today. These comments may have been made through a different legal prism within a different industrial relations
paradigm. This may apply even to words or expressions that have earlier counterparts which are the same or similar. What
might seem slight or subtle changes to the definitions of important words or expressions in the legislation can therefore have a
significant effect.
74 In my opinion this ground of appeal illustrates the point. The present definition of “industry” was inserted into the Act, as part
of a substituted s7, by s6 of the Acts Amendment and Repeal (Industrial Relations) (No 2) Act 1984 (Act 92 of 1984). The
Industrial Arbitration Act 1979 (WA) when enacted had the following definition of “industry”:““Industry” includes each of the following –
(a)
any business, trade, manufacture, handicraft, undertaking, or
calling of employers on land or water;
(b)
the exercise and performance of the functions, powers, and
duties of the Crown and any Minister of the Crown, or any
public authority;
(c)
any calling, service, employment, handicraft, or occupation or
vocation of employees, on land or water,
whether or not, apart from this Act, it is, or is considered to be,
industry or of an industrial nature, and also includes (d)
a branch of an industry or a group of industries,
and expressions cognate with “industry” shall bear correlative
meanings;”
75 This is the same as the present definition, except for the deletion of “handicraft”, “on land or water” and what is stated after
“industries” in (d).
76 In 1926 (when Parker was decided) and 1977 (when ASI was decided), the definition of “industry” in the then Industrial
Arbitration Act was as follows:-
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3007
““Industry” includes –
(a)
Any business, trade, manufacture, handicraft, undertaking, or
calling of employers on land or water;
(b)
Any calling, service, employment, handicraft, or industrial
occupation or vocation of workers, on land or water; and
(c)
A branch of an industry or a group of industries;”
77 After 1979 there were two important aspects of the definition which were different from 1977 when Burt CJ made his
observations in ASI. The first, in the preamble, is “each of the following”. This emphasises the disjunctive nature of the
examples of “industry” given in (a)-(d). The second is “whether or not, apart from this Act, it is, or is considered to be,
industry or of an industrial nature”. Accordingly, the observation by Burt CJ in ASI that a “vocational award” is otherwise
“unknown is the law”, is now immaterial. If a “vocational award” is within the definition of “industry” in s7 of the Act, as in
my opinion it is, then whether or not it was before then “known to the law” does not matter.
78 This is not to say that the making of a vocational award will always necessarily be made by a Commissioner. Issues of
industrial coverage by an organisation and the award being consistent with the objects of the Act will be relevant
considerations in the exercise of the discretion of whether or not to do so.
79 For reasons I have set out, in my opinion ground 1 has not been established.
Milesaway Appeal – Ground 2
80 The reasons of the Industrial Magistrate show that he did not make a decision about whether or not Mr Milward was validly
appointed as an industrial inspector. Instead, the Industrial Magistrate said in effect that even if this was so, the de facto
officer’s doctrine applied and accordingly, the claims would not fail even if there was a problem with the validity of the
appointment.
81 In light of this, Milesaway accepted that to succeed on this ground of appeal it was necessary to establish that the de facto
officer’s doctrine did not apply to Mr Milward’s appointment even if there was a validity problem. In their submissions,
Milesaway sought to establish both. Counsel for Mr Milward, on the other hand, defended the ground on the basis that he was
validly appointed or in the alternative, the Industrial Magistrate was not in error in deciding that the de facto officer’s doctrine
applied. The first issue to consider is whether Mr Milward was validly appointed.
82 Section 7 of the Act defines an “industrial inspector” to mean “an industrial inspector appointed pursuant to this Act”. I have
earlier quoted s98(1) of the Act about the appointment of industrial inspectors. Section 98(2) provides:“(2)
Subject to this Act, an industrial inspector shall perform such duties
and shall make such investigations and reports in relation to the
observance of the provisions of this Act and of any instrument to
which this section applies as the Minister directs.”
83 Section 98(1) of the Act is therefore about appointment whereas 98(2) is about direction by the Minister to perform duties,
investigations and reports about the things specified. The appointment under s98(1) must be “under and subject to Part 3 of
the” PSMA. Pursuant to s83(1) of the Act an industrial inspector is one of the people/entities who may apply to an Industrial
Magistrate’s Court for the enforcement of a provision of, amongst other things, an award.
84 Part 3 of the PSMA is comprised by ss34-67 of the Act. The part is entitled “Public Service” and contains three divisions with
the respective titles “General”, “Senior Executive Service”, and “Public service officers other than executive officers”.
85 Section 64 of the PSMA is about the appointment of public service officers other than executive officers and is in the following
terms:“64. Appointment of public service officers other than executive
officers
(1)
(2)
Subject to this section and to any binding award, order or
industrial agreement under the Industrial Relations Act 1979
or employer-employee agreement under Part VID of the
Industrial Relations Act 1979, the employing authority of a
department or organisation may in accordance with approved
procedures appoint for and on behalf of the Crown a person
as a public service officer (otherwise than as an executive
officer) on a full-time or part-time basis —
(a)
for an indefinite period as a permanent officer; or
(b)
for such term not exceeding 5 years as is specified in
the instrument of his or her appointment.
An appointment under subsection (1) shall be to such level of
classification and remuneration as is determined by the
relevant employing authority —
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WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
(3)
(a)
in accordance with approved procedures; and
(b)
as being appropriate to the functions to be performed
by the person so appointed.
87 W.A.I.G.
The employing authority of a department or organisation
shall —
(a)
in accordance with approved procedures; and
(b)
at the time of the appointment of a person under
subsection (1) or, if that employing authority
considers it impracticable to make the appointment
concerned at that time, at a later time,
appoint the person to fill a vacancy in an office, post or
position in the department or organisation.
(4)
Subject to subsection (5), a person appointed under
subsection (1)(b) cannot apply for an appointment under
subsection (1)(a) unless the relevant vacancy has first been
advertised in public service notices or in a daily newspaper
circulating throughout the State.
(5)
Subsection (4) does not apply to a person —
(a)
appointed under subsection (1)(b); and
(b)
having, or occupying an office, post or position
having, the lowest level of classification at which
persons of the same prescribed class as that person
are at the relevant time recruited into the Public
Service.
(6)
The employing authority of an organisation shall not make an
appointment under subsection (1) unless the written law under
which the organisation is established or continued authorises
or requires the appointment or employment of public service
officers for the purposes of that organisation.
(7)
Nothing in this section prevents a public service officer who
holds an office, post or position in one department or
organisation from being appointed, whether by way of
promotion or otherwise, to an office, post or position in
another department or organisation.”
86 Section 3(1) of the PSMA defines “appoint” to include “promote”.
87 The expression “employing authority”, used in s64, is defined by s5 of the PSMA to mean, in relation to a department or
organisation (both defined terms in s3):“5.
Employing authorities defined
(1)
For the purposes of this Act, but subject to this section —
“employing authority” means, in relation to —
…
(c)
a department or organisation or an employee (other
than a chief executive officer or chief employee)
employed in a department or organisation —
(i)
subject to subparagraph (iii), if a chief
executive officer or chief employee is the
accountable authority of the department or
organisation, the chief executive officer or
chief employee;
(ii)
subject to subparagraph (iii), if a board,
committee or other body established under a
written law is the accountable authority of the
department or organisation, that board,
committee or other body; or
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(iii)
3009
if a written law confers on a person or board,
committee or other body the power to appoint
or employ staff, the person or board,
committee or other body;”
88 Section 5(2)(b) of the PSMA defines the expression “accountable authority” to have the meaning given by s3 of the Financial
Management Act 2006. The parties acted on the basis that the chief executive officer of the Department of Consumer and
Employment Protection (DOCEP) was the accountable authority and therefore the employing authority who had the power to
appoint industrial inspectors.
89 In my opinion, how an appointment is made pursuant to s98(1) of the Act and Part 3 of the PSMA will depend on whether the
person who is to be appointed is already a public service officer or not. If so and they are to be appointed to the office of an
industrial inspector this may be done by transfer, promotion or some other method like deployment. All of these are consistent
with Part 3 of the PSMA. If the person who is to be appointed is not already a public service officer they can be appointed as a
public service officer and to the office of industrial inspector under Part 3.
90 Mr Radisich gave evidence about the process of appointment of an industrial inspector. He said the job of an industrial
inspector would be advertised and a selection would be made. There would then be an appointment of the successful applicant
as a “public servant”. Then they would subsequently be appointed as an industrial inspector. (T88). Mr Milward was
however already a permanent public service officer. Therefore the method of appointing him as an industrial inspector under
s98(1) did not have to be as described by Mr Radisich. It could be via the first method set out above. That is Mr Milward
could be appointed as an industrial inspector by transfer, promotion or being otherwise deployed to the office. The intention of
the Act in combination with the PSMA could not, in my opinion, be that an existing public service officer would need to, in
some way, cease being a public service officer and then appointed as an industrial inspector, for a valid appointment to be
made. Additionally as “appoint” includes “promote”, in the PSMA, there is an issue about whether only a public service
officer could be promoted to being an industrial inspector. Again in my opinion this would be too narrow a construction of
s98(1) of the Act in combination with Part 3 of the PSMA. This is because the PSMA in Part 3 provides for ways other than
promotion, for an officer to obtain an office, classification or duties.
91 Mr Radisich also gave evidence about the purported appointment of Mr Milward as an industrial inspector. Mr Radisich said
that he had been the Executive Director of the Labour Relations Division of DOCEP. He then had the general management of
the division, which was one of four or five divisions of the department. (T86). The division was comprised by three
directorates, one of which was the compliance directorate within which Mr Milward was employed.
92 Mr Radisich was shown exhibit 24. This was an identification card of Mr Milward. The card purported to certify that
Mr Milward had been appointed as an industrial inspector under s98 of the Act. It contained a certificate of appointment
signed by Mr Radisich as Executive Director and was dated 7 October 2005. The card also contained a note that the
appointment was valid for a period of two years from the date of the signature.
93 Mr Radisich was also shown a letter signed by him to Mr Milward dated 15 August 2005 which confirmed his permanent
transfer to the position of Senior Investigations Officer of the Labour Relations Division. The transfer was said to be affected
in accordance with s65(1) of the PSMA. This subsection provides:“(1)
If an employing authority considers it to be in the interests of its
department or organisation to do so, that employing authority may
transfer at the same level of classification a public service officer
other than an executive officer from one office, post or position in that
department or organisation to another such office, post or position —
(a)
for which that public service officer possesses the requisite
qualifications; and
(b)
the functions assigned to which are appropriate to that level of
classification.”
94 Attached to the letter was a job description form which said the position was a classification level 6, titled Senior
Investigations Officer. The primary functions of the job were said to be to manage the investigation of industrial complaints
and breaches of industrial laws and to provide information to employers and employees on employment entitlements. The
reporting relationships section of the form said that industrial inspectors were under the direct responsibility of the office. The
form did not expressly say the person holding the position of Senior Investigations Officer was an industrial inspector. As
stated however the certification contained in the identification card purported to show that an appointment of Mr Milward as an
industrial inspector had been made.
95 Mr Radisich said he would process appointments to the position of industrial inspector via s98 of the Act and a delegation from
the Minister for Consumer and Employment Protection. Mr Radisich referred to an instrument dated 14 September 2001. This
document, which was exhibit 25, was headed “Instrument of Delegation” and then had the sub-heading of “Labour Relations
Co-Ordination in the WA Public Sector”. The document then said that the Minister delegated to the Executive Director of
Labour Relations of DOCEP the authority to deal with four named items. The third of these was “issuing identity cards certify
individuals as Industrial Inspectors in accordance with the provisions of S.98” of the Act. Mr Radisich said he organised for
the instrument of delegation to be made. Mr Radisich also said the transfer of Mr Milward I have referred to was affected
pursuant to an instrument of delegation signed by the General Director of DOCEP, authorising Executive Directors to
undertake certain management functions.
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87 W.A.I.G.
96 When cross-examined, Mr Radisich was asked whether as Executive Director he had been the employing authority for the
purposes of s64 of the PSMA. He answered that he was not. The Director General of the Department had been. It was then
put to him that he had no power to appoint Mr Milward as an industrial inspector. He said that he did not agree, he believed he
did by the instrument of delegation signed by the Minister.
97 There are some difficulties with the evidence about the appointment. The delegation from the Minister was about issuing
identity cards. This was not, under the Act, a function of the Minister. Although a sensible administrative practice, the Act is
silent on the issuing of identity cards. The Minister may direct, as described in s98(2), and it may be that it was the power he
intended to delegate. Whether the delegation to issue identity cards carried with it the authority to give directions under s98(2)
of the Act is a difficult question. It is not one however that needs to be answered in this appeal.
98 It is at least arguable that Mr Milward was validly appointed as an industrial inspector. This is because he had been appointed
as an officer under s64 of the PSMA. Additionally, the position of Senior Investigations Officer, to which Mr Milward was
transferred, may have implied within it an appointment as an industrial inspector.
99 In any event, however, even if Milesaway succeeded in establishing the appointment was irregular and the presumption of
validity rebutted, the Industrial Magistrate’s conclusion on the de facto officer’s doctrine was not in error in my opinion.
100 I have earlier referred to the Industrial Magistrate’s reasons on this issue and his reliance upon paragraph [13] of the reasons of
Anderson J in Jamieson. Anderson J there set out three essential conditions for the operation of the doctrine. The first of these
was that the office occupied and exercised was an office which existed in law. In this instance the office of industrial inspector
is one which does exist in law under s98 of the Act. The second condition is that the act carried out was within the scope of the
office. In this instance the relevant act was the commencement of the claims against Milesaway. This act is within the scope
of the office of an industrial inspector. (Section 83(1)(b) of the Act).
101 The question of whether the doctrine applied therefore devolves into an issue of whether Mr Milward had “colourable title” to
the office. In Jamieson, Anderson J did not examine the boundaries of what was “colourable title”. His Honour held at
paragraph [13] however that Mrs Bennett-Borlase, a former Stipendiary Magistrate who continued to hear and determine
criminal cases despite reaching a statutory retirement age, had “colourable title” because she lawfully occupied the position for
many years and continued to occupy it without any challenge after the expiration of her entitlement ([13]). In paragraph [12]
his Honour said that no-one knew Mrs Bennett-Borlase had attained the statutory retiring age and she acted, was treated and
had a public reputation as a Magistrate.
102 In paragraph [14] Anderson J referred to an earlier decision of the Full Court of the Supreme Court about the de facto officer’s
doctrine; MacCarron v Coles Supermarkets Australia Pty Ltd (2001) 23 WAR 355; [2001] WASCA 61. In MacCarron the
issue arose as to whether there was sufficient proof that a complaint had been instituted by a person authorised by the
Commissioner for Occupational Health, Safety and Welfare. There was a difficulty in that the Commissioner had continued to
act in the relevant position after his term of office had expired. In paragraphs [16]-[17] of his reasons, Kennedy J referred to
the paper by Sir Owen Dixon entitled De Facto Officers, republished in Jesting Pilate in 1965. Kennedy J at paragraph [16]
said Sir Owen said it was not clear what would fulfil the condition of colourable title. His Honour at paragraph [17] quoted
from page 236 of Sir Owen’s paper:“The exact nature of this requirement has not been worked out by English
authority. Probably it will be found to be satisfied by the existence of any set
of circumstances which reasonably justifies a general assumption by those
dealing with or coming under the supposed authority of the de facto officer
that he is a lawful officer.
In the United States, the matter has received much consideration. As a result,
the view appears to be accepted that sufficient colour exists, not only when the
assumption of, or continuance in, office is referable to a title supposedly good
though actually defective, but also when there is such a general or official
acquiescence in the de facto incumbent's execution of the office that, in the
circumstances of the case, a public reputation or assumption of the lawfulness
of his authority arises. [State v Carroll (1871) 38 Conn 449; 9 Am Rep 409,
at 427. Petersilea v Stone (1876) 119 Mass 465.]”
103 In his reasons, Wallwork J at paragraph [83] referred to the reasons of McHugh JA in G J Coles and Company Ltd v Retail
Trade Industrial Tribunal (1986) 7 NSWLR 503 at 525 where his Honour said the “the acts of a de facto public officer done in
apparent execution of his office cannot be challenged on the ground that he has no title to the office. It matters not that his
appointment to the office was defective or has expired or in some cases even that he is a usurper”. Murray J agreed with the
conclusion of Kennedy and Wallwork JJ that the doctrine applied. His Honour said at paragraph [149] that there was “no
doubt that the doctrine is part of our law. It has long been recognised as a matter of public policy for the protection it affords
to those who deal with those who purport to hold public office, in reliance upon the validity of their appointment and their
lawful capacity to exercise the powers apparently vested in them”.
104 In Jamieson Anderson J also referred to the article De Facto Officers by Professor Enid Campbell, (1994) 2 Australian Journal
of Administrative Law page 5. In this article Professor Campbell at pages 9-12 reviewed the “colour of office” requirement.
Professor Campbell quoted from the paper of Sir Owen Dixon referred to earlier. Professor Campbell then analysed two
authorities being R v Cawthorne; Ex parte Public Service Association of South Australia Inc (1977) 17 SASR 321 and Luff v
Oakley (1986) 82 FLR 91; 65 ACTR 19. In the former, a majority of the South Australian Supreme Court said the issue
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depended upon whether the officer had the reputation of being the officer they were presumed to be. Sangster J with whom
Jacobs J agreed said the requirement of reputation meant “no more than the generally accepted belief as to the person in
question being the holder of the office in question, held by those coming before him, or being concerned with him in that
office” (page 344).
105 In R v Janceski (2005) 223 ALR 580, a five member bench of the NSW Court of Criminal Appeal considered the legality of a
conviction based upon an indictment signed by a barrister at the Bar, briefed to prosecute for the Crown, but not authorised to
sign indictments under s126 of the Criminal Procedure Act 1986 (NSW). Spigelman CJ who wrote the major judgment, at
paragraph [101] referred to the affirmation of the doctrine in the joint judgment of four justices of the High Court in Cassell.
His Honour at paragraph [103] also confirmed the doctrine only applied where the validity of an appointment was at issue as
opposed to the determination of what powers can be exercised by the holder of the office. His Honour also cited Bond v R
(2000) 201 CLR 213. Spigelman CJ concluded that the signature of the barrister on the indictment alone did not have
sufficient colour of authority for the purposes of the statutory scheme under consideration. The appeal against conviction was
allowed.
106 In the present case however I am satisfied the Industrial Magistrate did not err in finding there was colourable title. His
Honour said the colourable title was “indicated by the certificate of his appointment”. There was also other evidence which
supported this conclusion being:(i)
The evidence from Mr Holmes, a team leader within the Labour Relations Division of DOCEP, with
responsibility to keep a record of industrial inspectors appointed under s98 of the Act. Mr Holmes said
there were records of Mr Milward being appointed as an industrial inspector (T5/6).
(ii)
Mr Holmes also said he knew Mr Milward. He was a work colleague within the division and appointed as
an industrial inspector (T6).
(iii)
Mr Milward thought he was an industrial inspector as part of his position as Senior Investigations Officer.
He said that at least in some respects his work was not different from that of an industrial inspector but just
performed at a higher level (T85).
(iv)
Mr Milward also referred to his appointment card and said this authorised him to carry out the functions and
powers contained in s98 of the Act (T84).
(v)
Mr Radisich from his evidence clearly thought Mr Milward was an industrial inspector, as appointed by
him.
107 There was also no evidence of the validity of Mr Milward’s appointment being previously questioned. This combination of
facts and circumstances sufficiently establishes Mr Milward had colourable title to the office of industrial inspector. There was
a purported appointment as an industrial inspector, made or evidenced by the issuing of the appointment card by Mr Radisich.
Despite the possible deficiency of appointment Mr Milward acted as though he had the powers of an industrial inspector and
was recognised and had the reputation of an industrial inspector. This is sufficient for the de facto officer’s doctrine to apply in
this case.
108 I therefore do not uphold this ground of appeal.
Milesaway Appeal - Ground 4
(a)
The Ground and the Reasons
109 The ground asserts the Industrial Magistrate erred in finding Mr Sladden was a “casual worker” under the award throughout
the period of the alleged underpayment. I have earlier quoted in full his Honour’s reasons for the finding. They are brief and
do not set out what the Industrial Magistrate thought the award definition meant or what evidence was required to prove Mr
Sladden was a casual worker.
(b)
The Award
110 The award applies to three types of employees or workers; full-time, part-time and casual.
111 The definition of a casual worker in clause 14(5) of the award has been quoted earlier. A full-time employee under the award
is to work an average of 38 ordinary hours per week (clause 6 of the award) and is paid the weekly wage set out in clause 10.
112 A part-time worker is defined in clause 14(4) of the award as follows:“(4)
‘Part-Time Worker’ shall mean a worker regularly employed to work
a lesser number of hours per week than 38. A Part-Time Worker shall
receive pro rata entitlement to annual leave, sick leave and public
holidays in the same proportion as the number of hours worked per
week bears to 38 hours.”
113 Being a casual worker has the following consequences under the award:(i)
There is a minimum daily payment (clause 12(5)(b) and (c)).
(ii)
Exclusion from the notice clause (clause 14(1)).
(iii)
Payment of a 20% loading in addition to the ordinary rate of pay (clause 14(5)).
(iv)
A “casual hand” is to be notified at the end of the day if their services are not required the next day and
failing that a full day’s wages are paid. (Clause 14(6)).
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(v)
(c)
87 W.A.I.G.
Exclusion from entitlement to sick leave (clause 15(8)).
(vi)
Exclusion from entitlement to annual leave (clause 16(8)).
(vii)
Exclusion from entitlement to bereavement leave (clause 18(1)).
(vii)
Exclusion from entitlement to maternity leave (clause 20(1)(a)).
(ix)
Entitlement to proportional payment of location allowance (clause 24(5)).
(x)
Clause 19 provides that the long service leave provisions published in 66 WAIG pages 1-4 are incorporated
into the award. I will refer to this later. For present purposes I mention these provisions were the Long
Service Leave Standard Provisions as consolidated before the Commission in Court Session on
15 December 1977 (the LSLSP). Clause 4(2) of the LSLSP refers to the rate of pay for determining the
entitlement of “casuals and part time workers”. This is the only reference to “casuals”.
The Evidence and Submissions of the Parties at First Instance
114 I have earlier set out the relevant evidence of Mr Sladden. As mentioned Milesaway adduced no evidence on the issue at the
hearing. I have also set out earlier the submissions made by the parties at first instance.
(d)
Submissions of the Parties on Appeal
115 Milesaway’s submissions on this ground were set out in paragraphs [63]-[73] of their written submissions. They may be
summarised as follows:(i)
An employee not being paid or granted the award entitlements of a full-time or part-time employee (eg
annual leave, sick leave, paid public holidays) does not mean they are not a full-time or part-time employee
under the award.
(ii)
The approach to determining whether employment is casual was set out in Centurion, which has been
affirmed by other Full Bench decisions (Serco v Moreno (1996) 76 WAIG 937; 65 IR 145; Gibson &
Roberts v Chubb Security Services Ltd (2004) 84 WAIG 3798; Anthony & Sons Pty Ltd T/as Oceanic
Cruises v Fowler (2005) 85 WAIG 1899).
(iii)
Centurion set out a number of indicia for determining if an employee is a casual employee.
(iv)
Even where parties describe an employment relationship as casual, they cannot by the use of a label make
the nature of the relationship something different to what it in fact was (Centurion).
(v)
The award definition of casual worker is the same as that in Centurion.
(vi)
The evidence established that Mr Sladden worked an average of 35 hours per week, working typically on
weekends (T44) and on Thursdays (T55), a lot of the time starting between 10:00am and 12 noon (T56)
over a period of four and a half years.
(vii)
Regular employment over a period of four and a half years is “not properly inferable as anything but a
guarantee of ongoing employment, subject to the vicissitudes of any contract of employment”.
(viii)
The evidence did not support a finding that Mr Sladden was a casual employee as the expression was
understood in Centurion.
116 Mr Milward’s counsel submitted:-
(e)
(i)
The Industrial Magistrate had not erred in concluding Mr Sladden was a casual employee. (AB31).
(ii)
Mr Sladden’s hours varied as did his days of work. (T44).
(iii)
The availability, amount and type of work was at the discretion of Milesaway. The work mainly involved a
mixture of tours, transfers and charters.
(iv)
Mr Sladden was not given notice of termination when his employment ceased.
(v)
The advertisement which Mr Sladden answered and the information Mr Sladden received was that the
position was casual.
(vi)
Evidence was not adduced by Milesaway that Mr Sladden was engaged otherwise than as a casual or that he
was paid otherwise than as such.
The Construction of An Award
117 In Amcor Limited v The Construction, Forestry, Mining and Energy Union and Others (2005) 214 ALR 56, Kirby J at [96] and
Callinan J at [129], quoted with approval from the reasons of Madgwick J in Kucks v CSR Ltd (1996) 66 IR 182 at 184, where
his Honour made the following observations about the interpretation of an award:“It is trite that narrow or pedantic approaches to the interpretation of an
award are misplaced. The search is for the meaning intended by the framer(s)
of the document, bearing in mind that such framer(s) were likely of a practical
bent of mind: they may well have been more concerned with expressing an
intention in ways likely to have been understood in the context of the relevant
industry and industrial relations environment than with legal niceties or
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jargon. Thus, for example, it is justifiable to read the award to give effect to
its evident purposes, having regard to such context, despite mere
inconsistencies or infelicities of expression which might tend to some other
reading. And meanings which avoid inconvenience or injustice may
reasonably be strained for. For reasons such as these, expressions which have
been held in the case of other instruments to have been used to mean
particular things may sensibly and properly be held to mean something else in
the document at hand.”
118 The approach to construing awards or industrial instruments was also set out by Brinsden J in Norwest Beef Industries Ltd v
Australasian Meat Industry Employees’ Union (WA Branch) (1984) 12 IR 314 at 319; 64 WAIG 2124; and Robe River Iron
Associates v Amalgamated Metal Workers’ and Shipwrights Union of Western Australia (1987) 67 WAIG 1097 at 1098.
These reasons were approved by Pullin J in (with whom Wheeler and Roberts-Smith JJ agreed) in BHP Billiton Iron Ore Pty
Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Place Union of Workers (Western Australian
Branch) & Others (2006) 86 WAIG 1477; [2006] WASCA 124 at paragraphs [19]-[23]; (Pullin J also quoted from City of
Wanneroo v Holmes (1989) 30 IR 362 at 378).
119 In Norwest Beef Brinsden J said at page 319/2127:“The principles applied in interpreting awards are the same principles as are
applied in the Courts of law for the constructions of deeds, instruments and
statues:”
120 In Robe River Brinsden J said at page 1098:“There is not much dispute between the parties as to the correct way to go
about construing the terms of the Agreement and no criticism is made of
Commissioner Kennedy’s approach in that regard. All I think I need do is to
refer to my own remarks in Norwest Beef Industries Limited and Derby Meat
Processing Co Ltd v. West Australian Branch, Australian Meat Industry
Employees Union 64 WAIG 2124 at p. 2127. That was a case dealing with an
award but there is no difference in approach to that to be applied to the
construction of an ordinary agreement as in this Agreement. The meaning of
a provision in the Agreement is to be obtained by considering the terms of the
Agreement as a whole.”
121 Also, to not dissimilar effect to the reasons of Madgwick J in Kucks, the observations made by Kennedy J in Robe River at
1100 are relevant. His Honour said:“It is not in issue that, as Mr Stone for the respondent contended, in
interpreting an award or industrial agreement the words used are to be given
their “ordinary common sense English meaning” or their “ordinary and
natural meaning”. Allowance must be made for the fact that the award or
industrial agreement may have been drafted by industrial rather than
necessarily by skilled draftsmen, so that there should not be “too literal
adherence” placed on the strict technical meaning of words, but that the
matter should be viewed broadly to give the agreement a meaning consistent
with the intention of the draftsman. Subject to this, the rules to be applied in
interpreting an industrial agreement are those applied in the interpretation of
statutes, deeds or other documents.”
122 I will endeavour to construe the award in accordance with the combined effect of these reasons.
(f)
The Award Definitions
123 As stated earlier, the award contains a definition of casual worker and it provides the consequences of being a casual worker.
The award also applies to and directly and indirectly defines full-time workers and part-time workers. The structure of the
award is that the three types of workers are mutually exclusive in that a person could not be more than one type of worker at
the same time.
(g)
Review of Centurion
124 Milesaway, quite understandably, referred to Centurion and the Full Bench decisions which have followed it, on the meaning
and method of determination of a “casual” worker under the award. In my own reasons in Loves Bus and Taxi Service v
Zucchiatti (2006) 157 IR 348; 86 WAIG 3351 at [45], I said (with the agreement of Beech CC and Mayman C) that the
Commissioner at first instance was not in error in applying Centurion which was the “correct approach” in construing the
present award. In my opinion however the law as stated in Centurion and subsequent decisions now requires review and
restatement.
125 In part this is because of what might be described as an increased “casualisation” of the workforce, although views differ on
the extent of this. The Australian Bureau of Statistics 1367.5 – Western Australian Statistical Indicators, June 2006 said in a
feature article:
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87 W.A.I.G.
“The significant growth in part-time employment in Western Australia over
the past 20 years has been associated with the increasing casualisation of the
state's labour force, and there is a strong link between working part-time
hours and working on a casual basis. Casual employees can be defined as
employees who are not entitled to either paid holiday or paid sick leave in
their main job. Compared to permanent employees (those who are entitled to
paid holiday and paid sick leave), casual employees tend to be younger and
less well educated, more likely to have higher levels of variable hours and
more than one job, and tend to be employed in industries and occupations that
offer jobs which are part-time and which require lower levels of skill. These
types of jobs attract younger workers who want to combine work with study
and women who want to combine work and family responsibilities.
Between 1992 and 2004, the number of persons employed on a casual basis in
Western Australia increased by 69.0%, more than three times the rate of
increase in the number of persons employed on a permanent basis (19.3%).
An average of 6,396 casuals were added to the state's labour force each year
over this period. Consequently, the proportion of casual workers rose from
15.1% in 1992 to 19.7% in 2004.
The strong link between working part-time hours and working on a casual
basis is supported by the large proportion of casual employees who work
part-time. Over the past 12 years, the proportion of casual employees who
work part-time has fluctuated between 65.7% and 75.7%, or between
approximately two thirds and three quarters of the casual workforce.
However, growth in the number of casual employees who work full-time has
been stronger over this period, rising by 87.7% compared to growth of 61.9%
in the number of part-time casuals. As a result, the proportion of full-time
casuals increased from 27.4% in 1992 to 30.4% in 2004.”
126 Mr Anthony O’Donnell in ‘Non-Standard’ Workers in Australia: Counts and Controversies, (2004) 17 AJLL 1 at pages 4-5
said a weakness of the ABS approach to determining who casual employee were was that it would wrongly include “owner
managers”. He said
“Given such owner-managers commonly do not give themselves paid holiday
or sick leave, they tended to be classified by the ABS as ‘casual’ employees.
Conversely, the category ‘permanent’ employee did not distinguish between
those workers with an open-ended contract of employment terminable by
notice and those with a contract for a fixed-term or specified task.”
127 In Transitions from Casual Employment in Australia, Project 09/05, Melbourne Institute of Applied Economic and Social
Research, December 2006 at page 1 there is reference to the distinctive feature of the Australian labour market of “the high
incidence of casual employment”. Statistics of the ABS are referred to which for August 2005 suggested that 27% of all
employees in their main job were casual employees. It was then said that if owner managers were removed from the definition
of casual employees the percentage was 24%. Growth in casual employment was also supported by the observation that the
rate of casual employment was 16% in 1984.
128 Mr Ian Watson in Contented Workers in Inferior Jobs? Re-Assessing Casual Employment in Australia, (2005) 47(4) JIR 371392 said on that page, citing relevant reports, that: “Between 1990 and 2000, casual density overall rose from 19% to 27%,
while among the full time workforce it doubled from 6% to 12%”.
129 Finally, in the article Fact, Fiction and Function of Part Time and Casual Work in the Labour Market, ACCI Review, Issue
106, December 2003, page 5 at page 6 there is a reference to growth in casual employment from 15% to 27% since the 1980’s.
130 These articles and reports are just a sample of the many on the subject. There are also many articles which debate the merit of
casual employment for employers, employees, the economy and the community generally. The articles cited above to some
extent address these issues, as does Ms Rosemary Owens, The ‘Long-Term or Permanent Casual’ – An Oxymoron or a ‘well
enough understood Australianism’ in the Law?, (2001) Australian Bulletin of Labor 118.
131 As a “casual” employee often “exchanges” a pay loading for entitlement to paid leave, notice, other entitlements and in some
circumstances a loss of coverage under unfair dismissal legislation, it is significant to look closely at the meaning of and
criteria for determining casual employment status. It is of course beyond the scope of this appeal to consider whether increased
casualisation and the “exchange” referred to is legally, economically or socially desirable.
(h)
Centurion
132 In Centurion the Full Bench considered whether there had been a breach of the Metal Trades (General) Award 1966. In that
award, clause 5 defined a “casual employee” to be “an employee engaged and paid as such”. There were, however other
clauses of the award which deemed employees with particular characteristics to be casual. (See page 1288). This is different
to the present award.
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133 The Full Bench in Centurion did not clearly construe the clause of the award that is the same as the present definition. It did
not explain what “engaged and paid as such” meant. This is despite the Full Bench saying the employee “was not engaged as
or employed as a casual employee”, although “he labelled himself a casual employee and was paid as such”. (Page 1289).
134 Earlier the Full Bench said the award did not “exclude any common law prescription or definition of casual employee”.
(Page 1288). The Full Bench discussed what a casual employee was apart from the deeming provisions of the Metal Trades
Award. At page 1288 it said:“The concept of casual employment within the common law of employment
untrammelled by an award prescription is generally taken to connote an
employee who works under a series of separate and distinct contracts of
employment entered into for a fixed period to meet the exigencies of particular
work requirements of an employer, rather than under a single and on-going
contract of indefinite duration (see Stewart v Port Noarlunga Hotel (1980) 47
SAIR 406 at 420 and Squirrell v Bibra Lakes Adventure World Pty Ltd t/a
Adventure World) ...” (emphasis in original)
135 With respect I do not think this statement about casual employment is of much present assistance for these reasons. Firstly the
context of the observations by Olsson P in Stewart is not closely aligned to the present. The issue was whether there was
“continuous service under a contract of service” under s5(1) of the Long Service Leave Act 1967 (SA). Also the way in which
Olsson P decided the issue was not accepted on appeal. (See Port Noarlunga Hotel v Stewart (1981) 48 SAIR 220). There
Haese DP, with whom the other members of the Court agreed, pointed out the imprecision of the term “casual worker” and
said it was “fortunate” the relevant legislation did not use it. (Page 226). Squirrell v Bibra Lakes Adventure World Pty Ltd
(1984) 64 WAIG 1834, the other authority cited, also relied on the reasons of Olsson P. In addition, Squirrell was an unfair
dismissal and not a breach of award case.
136 Secondly in the current context the expression “casual worker” is “trammelled” by award prescription. This is because the
meaning of casual worker in the award is affected by the content of the award as a whole and the meanings of the mutually
exclusive categories of full-time and part-time workers.
137 Thirdly the test is equally applicable to someone employed, for example, for three consecutive fixed term full-time positions
of a significant duration. I do not think such an arrangement could be described as “casual” at common law.
138 Fourthly the test does not apply until there has been a “series” of contracts of employment. A bus driver engaged on a one off
basis to work for a week does not fit the test but should be classified as a casual worker under the award. The test therefore has
insufficient criteria to be workable. The point is, with respect, well made by Dr Joo-Cheong Tham (as he now is) in Legal
Conceptions of Casual Employment in J Teicher, P Holland and S Turberville (eds), The Proceedings of the 17th AIRAANZ
Conference: Refereed Papers, AIRAANZ, 2003, 612. Dr Tham said at page 615:“… the common law meaning of casual employment is not a test as to when
casual employment arises in that it does not supply criteria for determining
when such a form of employment exists. Rather, it implies an incident of such
employment once casual employment has been found to exist, namely, that
such employment consists of a series of distinct contracts.”
139 Fifthly as explained in greater detail later the assertion in Centurion about the concept of casual employment at common law
does not seem to be correct.
140 The next paragraph in Centurion at page 1288 was:“Certain indicia may be indicative of the nature of the contract, but they are
not necessarily determinative taken alone. These may include –
(a)
The classifying name given to a worker initially accepted by the
parties.
(b)
The provisions of the relevant award.
(c)
The reasonable expectation that work would be available to him.
(d)
The number of hours worked per week.
(e)
Whether his employment was regular.
(f)
Whether the employee worked in accordance with a roster published
in advance.
(g)
Whether there was a reasonable and mutual expectation of continuity
of employment.
(h)
Whether notice is required by an employee prior to the employee
being absent on leave.
(i)
Whether the employer reasonably expected that work would be
available.
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87 W.A.I.G.
Whether the employee had a consistent starting time and set finishing
time.”
141 The Full Bench then said there might be other indicia and cited Licensed Clubs Association of Victoria and Another v Higgins
(1988) 4 VIR 43. (The Full Bench cited Licensed Clubs Association as “(SC Vic)” which may be a reference to the Supreme
Court of Victoria. If so Licensed Clubs Association was not a decision of the Supreme Court but instead a decision of the Full
Session of the Industrial Relations Commission of Victoria, constituted by Marsh DP, Eggington and Conway CC).
142 Again, with respect, I also do not think the last quoted paragraph from Centurion to be of much present assistance. This is
because what casual employment is remains unspecified, other than by reference to the earlier mentioned “series of contracts”
concept which is itself unhelpful in my respectful opinion. In the paper by Dr Tham, cited above, this “factors approach” is
traced to Licensed Clubs Association. However, the relevant issue there, in an unfair dismissal claim, was whether
Mrs Higgins had been dismissed or had been a casual employee and not therefore employed on a continuing contract.
143 The Commission in Licensed Clubs Association, citing authorities, said “casual employee” did not have a “precise legal
meaning” and “the issue of the terms on which the actual casual employee was engaged becomes one of fact”. (Page 55). The
Commission said the relevant issue was whether, on the facts, there was a “continuing contract”. The Commission examined
relevant authorities and set out tests (or indicia) for “whether or not there is a continuing contract of service”. (Page 54).
144 Dr Tham, in the paper cited, refers to Ryde–Eastwood Leagues Club Ltd v Taylor (1994) 56 IR 385, Full Bench of the
Industrial Relations Commission of NSW, as a decision which followed Licensed Clubs Association. That case also involved
an unfair dismissal claim and whether the Commission had jurisdiction; it being asserted that Mr Taylor had not been
dismissed as he was engaged as a “casual” pursuant to the relevant award. Dr Tham, after reviewing Licensed Clubs
Association and Ryde-Eastwood Leagues said that their ratio does “not constitute a test of casual employment. What it does is
supply a series of factors to determine whether an employee is engaged on an ongoing contract or a series of distinct contracts
for the purpose of ascertaining whether a worker has been dismissed”. (Page 617). I respectfully agree.
145 Dr Tham then cites a “trifecta of decisions” from the New South Wales Industrial Relations Commission and also Centurion as
having transformed the factors enunciated in Licensed Clubs Association “into a test of casual employment”. This analysis
increases, with respect, the unsatisfactory nature of the Centurion approach in the context of litigation to enforce an alleged
breach of the award.
(i)
The Common Law and Casual Employment
146 As set out above I doubt the assertion in Centurion about the common law concept of casual employment. In the paper by Dr
Tham cited above, at page 614 it is said that the reasons of Olsson P in Stewart are the first assertion of a clear common law
meaning of casual employment. Mr O’Donnell in ‘Non-Standard’ Workers in Australia: Counts and Controversies, at page 9
says that “arguably, … in the first decades of the [20th] century, [there was] no ‘common law understanding’ of casual
employment”. (See also pages 11 and 12). At page 13 Mr O’Donnell said that “casual employment in Australia is largely the
creation of the award system rather than the common law”.
147 The point made about the common law is borne out by early authorities. In Knight v Bucknill (1913) 6 BWCC 160 the Court
of Appeal considered the expression “a person whose employment is of a casual nature”, which was an exclusion from the
meaning of “workman” in the Workmens’ Compensation Act 1906. Cozens-Hardy MR said at page 177:“I am quite unable to give a general definition of casual, as opposed to
regular, employment which would meet every case. I do not even think it
desirable to define within precise limits employment which is casual and
employment which is not.”
148 Buckley LJ said at pages 177/178 that casual employment was best understood by reference to what it was not; being
“permanent” or “periodical” employment. The Lord Justice gave the following quaint examples:““Suppose that a host, when from time to time he entertains his friends at
dinner or his wife gives a reception or a dance, has been in the habit for many
years of employing the same men to come in and wait at his table or assist at
the reception, it may be said that their employment is regular. But the
employment is of a casual nature.” Another instance is where a man who
goes in for pheasant shooting always engages the same men for his shoots as
beaters. In a sense their employment is regular, but it is also casual each time
he asks them to come.” (The first quotation was from the Lord Justice’s
earlier reasons in Hill v Begg [1908] 2 KB 802 at 805).
149 Hamilton LJ in Knight at page 178 said:“It would appear to refer to something midway between the regular
employment of a workman and a simple engagement for a single day; and I
think that “casual” is here used not as a term of precision, but as a colloquial
term.”
150 The reasons of Hamilton LJ were quoted with approval by two members of the Court of Appeal in Stoker v Wortham [1919] 1
KB 499. Both Knight and Stoker were in turn cited with approval by McTiernan J in Doyle v Sydney Steel Company Ltd
(1936) 56 CLR 545 at 565. The context was the expression “a casual worker”, which affected average weekly earnings for
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compensatory purposes in the Workers’ Compensation Act 1926-1929 (NSW). His Honour said the term “casual worker” was
not capable of exact definition. Similarly, Starke J at page 551 said:“The description “casual worker” is not one of precision : it is a colloquial
expression, and where, upon all the facts, there is a reasonably debatable
question whether the work is casual or regular, the question is one of fact for
the commission.”
151 In turn Dixon J at page 555 said:“But unfortunately what is casual employment is ill defined. Indeed it is
scarcely too much to say that it seems open to a tribunal of fact to treat most
forms of intermittent or irregular work as casual.”
152 Evatt J said a true casual worker was engaged in different trades, callings or occupations (page 561) and “belongs to no one
trade or industry” (page 562).
153 In Shugg v The Commissioner for Road Transport and Tramways (New South Wales) (1937) 57 CLR 485, the High Court
considered whether a “body builder” employed in the “omnibus service” of the respondent was an “officer” for the purpose of
s123 of the Transport Act 1930 (NSW) and accordingly entitled to a paid day of leave because he had worked on a public
holiday. It was argued that as the appellant was employed under s101 of the Transport Act as a “casual employee” he could
not be an “officer”. The Court by 4-1 majority held that the appellant was entitled to the day of paid leave. The appellant had
been employed continuously for 3½ years. Latham CJ (with whom McTiernan J agreed) said at page 490 that the word
“casual” contained an implication that there was “a certain haphazard and discontinuous element in employment…”
154 Dixon J at page 496 said:“The expression “casual” is a word of indefinite meaning which elsewhere
has caused difficulty. We are apt to associate with the word elements of
chance or of discontinuity. We perhaps think of casual employment as
occasional or intermittent. But it has been found so difficult to fix any definite
tests for casual employment that under Workmen’s Compensation Acts refuge
has been taken in treating it as a question of fact in each case.”
155 Neither Evatt J nor Starke J (dissenting) made any observations relevant to this appeal.
156 Many cases, in different contexts, have cited Knight, Stoker and/or Doyle to support the proposition that casual employment
has no fixed meaning. Examples are Bernardino v Abbott [2004] NSWSC 430 at [16]-[17] (NSW SC); Cetin v Ripon Pty Ltd
t/as Parkview Hotel (2003) 127 IR 205 at [57] (AIRC); Wilton v Coal & Allied Operations Pty Ltd (2007) 162 IR 264 at [103]
(FCA); Reed v Blue Line Cruises Limited (1996) 73 IR 420 at page 424 (IRCA); Stewart (Full Bench) at 226; Ryde-Eastwood
Leagues Club at pages 393-394 (NSW IRC); and see also Ms R Owens, The ‘Long Term or Permanent Casual’ – An
Oxymoron or a ‘well enough understood Australianism’ in the Law? at pages 119/120).
157 To like effect Beech C in Serco at page 153 (IR) said:“However the designation “casual” does not have any fixed or precise
meaning and does not admit of only one definition. In industrial relations the
term “casual” may be used to describe a number of different factual contracts
of employment.”
158 This theme was taken up in the joint reasons of Coleman CC and Beech SC in Gibson & Roberts at paragraph [94]:“On appeal, both appellants have argued that they were part-time employees.
Necessarily, the outcome of the argument will depend upon the facts in each
case. This is because, as both parties recognise, in industrial relations, the
term “casual” may be used to describe a number of factual contracts of
employment. The term “casual employee” has no fixed meaning and the true
nature of any employment relationship will depend upon the facts and
circumstances of each case (Community & Public Sector Union and Others v
The State of Victoria (2000) 95 IR 54 at [10]).”
159 All of this is consistent with what Hall P said in AMIUE (QLD Branch) v Inghams Enterprises Pty Ltd (2002) QGIG 153 at
154 that “casual employment is a popular rather than a legal concept”. Whilst I do not disagree with this observation it is
only partially helpful in the present context as the award assumes an understanding of what a casual worker is.
160 The above analysis highlights though that it is unsafe for the Commission to try and build an understanding of the meaning or
nature of casual work or employment, for the purpose of the award, upon the shaky footing of an asserted well known common
law meaning.
(j)
Context Specific Nature of a “Casual Worker”, “Casual Employee” or “Casual Employment”
161 In my opinion the meaning of “casual” when used in legislation, industrial awards, other industrial instruments or contracts of
employment depends upon the particular text used and the relevant context. The context includes the overall object and
scheme of the legislation/industrial instrument/contract, the surrounding provisions and the purpose of the reference to
“casual”. The context therefore includes the reason for determining if an employee is “casual”. As set out earlier, in some of
the cases the discussion has been in the context of deciding if the former employee can invoke unfair dismissal jurisdiction.
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There it has been held that whether the employee has been paid or described as a casual employee does not, at least always,
determine whether there has been a dismissal. In my opinion the method of analysis required to decide whether there has been
a dismissal cannot, at least always, be simply transposed into providing a method for analysing whether an employee is a
casual worker in a claim for a breach of award. This is one of the points which emanates from the earlier discussion of
Centurion, its reliance on Licensed Clubs Association and the observations by Dr Tham and Mr O’Donnell.
162 Authorities which have recognised the distinction between being a casual under an award, or at least being paid as such, and
whether employment was continuing for unfair dismissal purposes include: Stone v Varrone Plastering Pty Ltd (2000) 80
WAIG 1968 per Beech C at 1970, Reed at page 424, J and A Transport Pty Ltd v Siostrom (1998) 78 IR 109 at 113, Julia Ross
Personnel v Wain (2001) 166 QGIG 350 at 350-351 (Hall P) and Farrar v Nationwide Oil Pty Ltd (2001) 167 QGIG 103
(QIRC); and see Mr O’Donnell at page 13.
163 Additionally, casual workers/employees are defined differently across awards. There are quantitive and qualitive definitions or
combinations of both (see Stewart, Full Court page 226). The award definition in Centurion was a combination of both; the
present award definition is qualitive. (See also the quotation from Squirrell below).
164 The context specific nature of the issue is well illustrated by the changing opinions about the meaning of a “casual” employee
as a basis for exclusion from unfair dismissal legislation in the federal sphere. Moore J of the Industrial Relations Court of
Australia considered the issue in Reed under the former Industrial Relations Act 1988 (Cth). His Honour did so in part by
reference to the international Convention Concerning Termination of Employment at the Initiative of the Employer and
Recommendation Concerning Termination of Employment at the Initiative of the Employer. This was because the legislation
was then largely based on these international instruments to which Australia was a signatory. In Cetin, the Full Bench of the
Australian Industrial Relations Commission said the reasons in Reed needed to be treated with caution because of legislative
changes which removed the close link between the legislation, the Convention and the Recommendation. In Nightingale v
Little Legends Childcare (2004) 134 IR 111 another Full Bench at paragraph [9] decided a submission about the meaning of
“casual employee” based on Cetin was “misguided” because of further legislative change. The Full Bench favoured the
construction placed on the expression by an earlier AIRC decision, Bluesuits Pty Ltd t/as Toongabbie Hotel v Graham (1999)
101 IR 28. This was because the legislation had been again amended so that it resembled a form considered in Toongabbie.
165 The lack of a single meaning of “casual” was addressed by the Full Commission of the Industrial Relations Commission of
New South Wales (Bauer and Hungerford JJ, Murphy CC) in Ryde-Eastwood Leagues Club when it said at 401/2:“It is apparent that two classes of employee colloquially described as
“casual” can readily be identified in the organisation of industrial
relationships. The first class refers to those employees who are truly casual
in the sense that there is no continuing relationship between the employer and
the employee. The second class is where there is a continuing relationship
which amounts to an ongoing or continuing contract of employment; it is this
second class of contract which, for the reasons set out earlier by us, is of such
a nature as to attract the Commission’s jurisdiction under Pt 8 of Ch 3 of the
Act.”
166 The “jurisdiction” referred to included the power to reinstate a dismissed employee. I agree that there are at least two ways in
which casual employment is commonly thought of or defined in legislation/awards.
167 The Full Commission in Ryde-Eastwood Leagues Club also gave an example of an ongoing contract of casual employment as
follows at page 399:“… in consideration of a payment by X to Y, in accordance with the relevant
award or enterprise agreement for work actually performed, X agrees to
employ Y as a casual employee on work as mutually agreed as and when it
arises from time-to-time pursuant to a weekly roster published by X at least
seven days in advance of such work and Y agrees to make himself available to
perform such work subject to the release of Y allowed by X for illness,
holidays and other reasonable cause. Such a contract, in our opinion, would
represent an appropriate common law contract of employment to give effect to
an ongoing or continuing enforceable contract of casual employment. It
would not conflict with nor be contrary to the Award here.”
168 I agree with Ryde-Eastwood Leagues that casual employment or engagement is not a description which only applies to
employment on the basis of a series of single contracts. For example in my opinion there can be a single contract of
employment between parties where the days and hours which an employee might work is on an as and when required basis.
The terms of the contract will include the rate of pay and in effect specify that the days and times when work will be done are
to be arranged in the future. The dates and times of work are not therefore fixed. The dates and times of employment may
depend on the nature of the employer’s business which has for example a fluctuating and not necessarily predictable trade.
The Industrial Appeal Court in Federated Clerks Union of Australia, Industrial Union of Workers, WA Branch v Automatic
Totalisators Ltd (Sloan’s Case) (1978) 58 WAIG 1452 at 1454 contemplated that a continuing casual contract could exist on
an “as and when required” basis.
169 My opinion is supported by the reference to “casuals” in the LSLSP, mentioned earlier. The LSLSP is expressly incorporated
by reference into the award. The reference to “casuals” implies that a “casual worker” under the award can, at least in theory,
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qualify for long service leave. The LSLSP provides for long service leave after continuous employment with a single
employer over a period of 15 years, although some breaks in continuity are excepted. (See clause 2(6)). The existence of at
least a theoretical prospect that a “casual” may qualify for long service leave adds weight to the argument that a casual worker
under the award is not solely a worker employed under one or a series of separate contracts.
(k)
Centurion Not to Be Followed
170 From this analysis I conclude that Centurion is not an authority which should be followed in this appeal in deciding what the
award definition means nor the method for determining whether a worker is “casual”. I do not therefore accept the contention
that if there was “ongoing employment” or a “continuing contract” Mr Sladden could not for that reason be a “casual worker”
under the award.
171 Indeed given the malleable nature of “casual” it is perhaps not, at least now, the best way to delineate in an award the group of
employees who are not entitled to leave but instead paid a loading. The confusion which a reference to “casual” may cause is
illustrated by Fowler v Anthony & Sons Pty Ltd T/as Oceanic Cruises (2004) 84 WAIG 3855 (Smith C), and on appeal,
Anthony & Sons Pty Ltd T/as Oceanic Cruises v Fowler (2005) 85 WAIG 1899. In the context of an unfair dismissal claim,
Smith C at [36] said “the Applicant had a continuing contract of service, even though it was a contract, which could be
described as a “casual” contract of employment which did not entitle the Applicant to be paid sick or annual leave”. Smith C
found there was a dismissal when there was a failure to roster the applicant as a skipper for a ferry service. On appeal (cited
above) Sharkey P, with the agreement of Kenner C and Mayman C, rejected a ground of appeal that the Commissioner erred in
deciding there was a dismissal. Sharkey P said at [48], “the Commissioner was correct to find that the employment was not
casual”. This appears to be different from what the Commissioner said her finding was. I think what Smith C had in mind
was the type of casual engagement referred to as the second category in Ryde-Eastwood Leagues Club. Sharkey P also said in
paragraph [48] said that he meant “casual” in the sense of a “series of separate and distinct contracts of employment entered
into for a fixed period …”. Although this may show Sharkey P did not entirely misunderstand what Smith C decided, the
confusion that can be caused by the epithet “casual” is evident. (I also note that in these decisions Ryde-Eastwood Leagues
was wrongly described as a decision of the “Australian Commission”).
(l)
The Award Definition Revisited
172 The definition of a casual worker under the award is not very illuminating. There is a circularity in that to be a casual worker
someone must be engaged as a casual worker. This begs the question of what a casual worker is, in the context of the award,
and what the engagement of a casual worker “as such” entails. When the definition of “casual worker” is inserted into the
loading entitlement in clause 14(5) there is more circularity. This part of the clause would in effect then read: “A worker
engaged and paid as a casual worker shall receive a loading of 20 per cent in addition to the ordinary rate.” This has the
somewhat nonsensical outcome that the basis on which a worker is paid is taken into account to determine their rate of pay.
These drafting difficulties must be dealt with in the way contemplated by Madgwick J in Kucks and Kennedy J in Robe River.
173 This leads in my opinion to the following:-
(m)
(i)
The purpose of the casual worker category is to allocate to a set of workers an entitlement to a 20% pay
loading instead of other benefits under the award.
(ii)
A casual worker is different from a part-time worker who does have a pro rata entitlement to annual leave
and other award benefits, but not the 20% loading.
(iii)
A casual worker is not a worker who is “regularly employed” to work less than 38 hours per week, as this is
a part-time worker.
(iv)
Instead a casual worker is someone who has been “engaged and paid as such”.
(v)
There remains an issue of construction as to what “engaged and paid as such” means.
(vi)
The reference to engagement as a casual worker requires an understanding of what a casual worker is.
“Engaged and Paid As Such”
174 The scope of the definition of casual worker in the award depends in part on what “engaged and paid as such” means and
refers to.
175 In Loves Bus at paragraph [45] I said, about the same award as the present:“I also do not think that the Commissioner was in error in not finding the
respondent was engaged as a casual, pursuant to clause 14(5) of the award.
This definition refers to a “worker engaged and paid” as a casual worker.
This definition means that just because somebody is paid as a casual
employee does not mean that they are a casual employee under the award.
This is because they must also be “engaged as such”. The reference to the
engagement of the worker in my opinion directs attention to the basis upon
which the worker was employed as a matter of law and fact. It does not
simply direct attention to the label placed upon the status of the worker by the
parties. This is because in my opinion engagement involves a broader notion
than this. …”
176 Neither party submitted there was any error in this passage from Loves Bus. There are two aspects to what I said. The first is
that it is insufficient to just pay a worker as a casual worker under the award for them to be properly characterised as one. The
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second is that it is not sufficient for a worker to be a “casual worker” under the award that the employer, the employee or both
describe the position “casual”. My view there expressed is consistent with other aspects of employment law, like the
distinction between an employee and contractor which is not solely dependent upon the label of the parties. (See Personnel
Contracting Pty Ltd t/as Tricord Personnel v Construction, Forestry, Mining and Energy Union of Workers (2004) 141 IR 31
per Steytler J at paragraphs [24]-[26] and [41]). The same point has been made in “casual employment” cases such as
McLaren v The Corporation of the City of Adelaide (1991) 58 SAIR 557 at 575 (SA I Ct) and in Centurion at page 1288.
177 The opinion I expressed in Loves Bus does not however seem to have been universally held. Fielding C in Squirrell in obiter
observations expressed a different opinion. Squirrell is cited in Centurion in the first paragraph quoted earlier. It was an
unfair dismissal application in which whether there had been a dismissal was a live issue. This was because the employee was
said to have been employed as a “casual” on a series of contracts. Fielding C found there was a dismissal which was unfair.
He also referred to the common law “concept of casual employment”, using the same language later adopted by the Full Bench
in Centurion. The Commissioner said the distinction between a casual employee and that of an employee who “works parttime on the basis of a single and ongoing contract” was “frequently difficult to distinguish”; there are “many borderline
situations” so the distinction “can be very blurred” (page 1835). Fielding C said it was ultimately a question of fact, citing
Doyle. At page 1836 in Squirrell, the Commissioner said:“One has only to examine the various awards of this Commission to find that
a casual employee is defined in varying ways. In some awards, for example,
the definition is based on the hours worked each week, and in others it is
based on the fact that the employee is paid at an hourly rate, and in others on
a combination of both those factors. It is not uncommon to find such an
employee defined as being one "who is engaged and paid as such", by which I
take it to be that the label given to the employee by the parties at the time of
engagement is to be the governing factor. Thus it is possible for a "casual
employee" so defined to work for eight hours a day over a constant time of the
day, seven days a week throughout a whole year. In those circumstances, it
would be unlikely although not conceptually impossible, that the work was in
reality done under a series of separate and distinct contracts. That is well
illustrated by Port Noarlunga Hotel v. Stewart (supra) [sic – at first instance],
where the award defined a “casual employee” simply by reference to hours of
work being less than 40 per week. In the main, industrial awards tend to
classify all those employees who are not to be entitled to the normal holiday
benefits and the like as “casual employees”, whether or not their employment
is to be on a truly casual basis, that is under a series of separate contracts.”
(emphasis added)
178 As I have said the obiter opinion of Fielding C in Squirrell as to what “engaged and paid” as a casual employee means is
different from the analysis flowing from paragraph [45] in Loves Bus, quoted earlier. As stated, neither party suggested the
latter was wrong. Having reconsidered the issue I remain of the view that it is the correct construction of the award. As set out
earlier at common law the label of the parties is not the “governing factor” in deciding whether someone is an employee and if
so what type. Therefore I do not think this is what the drafters of the award would intend to prescribe unless it was a clear
conclusion derived from the language used and the context. The present award is not in this category. The language used
supports the alternative construction which I set out in Loves Bus. In my opinion, it is that construction which was intended by
the drafters of the award. One reason for the principle referred to is that it attempts to remove the possibility that although the
parties “agreed” a person was a casual (or independent contractor), this was foisted upon an employee by an employer with
dominant “bargaining power”, for the purpose of not providing the award entitlements of full-time or part-time employees
and/or not being subject to unfair dismissal laws.
179 Additionally, although there have been numerous references to Squirrell in later decisions of the Commission, including ones
involving an award where a casual worker is described as one who has been “engaged and paid as such”, I have not found
support for the opinion of Fielding C that in such a case the label placed by the parties is the “governing factor”. In Dorant v
JLV Industries (1996) 76 WAIG 440 at page 441, Gifford C referred to the relevant definition in the Metal Trades (General)
Award 1966. The Commissioner said the definition “provides no assistance in resolving the question posed. There may be the
implication, however, that the term is intended to correspond with the common law meaning of the term, namely as a separate
and distinct engagement that concludes at the end of the period of engagement, where such engagement may be intermittent
rather than regular. In a case such as this, it is necessary not simply to rely upon the common law meaning, but rather upon
the context of the engagement.” Gifford C then quoted from Squirrell, Ryde-Eastwood Leagues Club and Licensed Clubs
Association. Gifford C looked at the “tests” contained in Licensed Clubs Association and decided there was no continuing or
ongoing employment relationship between the applicant and the respondent. The unfair dismissal application before him was
therefore dismissed on the basis that the applicant “was a true casual and his contract to work on that day merely came to an
end at the conclusion of the work performed”. (Page 442). This does not support the opinion of Fielding C in Squirrell.
180 In Holt v Pemberton Hotel (1997) 77 WAIG 2773, George C heard an unfair dismissal application in which the issue arose as
to whether or not there had been a dismissal. It was alleged the applicant was a casual employee who had not been dismissed.
George C upheld this assertion. In doing so he quoted the above paragraph from Squirrell including the reference to a casual
employee being “engaged and paid as such”. George C then referred to the applicant’s employment being regulated by the
Hotel and Tavern Workers’ Award 1978 where a casual employee was described in these terms. George C referred to the fact
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that both parties had labelled the employment as casual. George C then said that that is “only one of a range of indicia to be
taken into account and of itself does not reveal the true nature of the relationship”. In support of this, George C quoted from
the reasons of Haese DP in Stewart (Full Court). George C then determined the issue by consideration of indicia. George C
did not consider whether his acceptance of the reasons of Fielding C included what the Commissioner said about “engaged and
paid as such”. The way in which he decided the application did not however revolve around the label being the governing
factor. George C in Peeters v Sunshine General Industries Pty Ltd (1997) 77 WAIG 3493 at 3494 decided a question as to
whether an employee had been “engaged and paid” as a casual employee in the same way.
181 In Jamieson v Jadebay Corporation t/as Ezi-Gro Orchids (2001) 81 WAIG 2586, Wood C dealt with an unfair dismissal claim
in which he said that a “principal point of contention between the parties was whether the applicant was employed as a casual
for the term of her employment or on a part time basis”. (Page 2587). Wood C then referred to clause 8 of the Horticultural
(Nursery) Industry Award 1980 where a casual employee was said to mean one who “is engaged and paid as such”. At
paragraph [12], Wood C said “an employee is not necessarily a casual employee simply because they are labelled as such”,
citing Squirrell and said it “is but one of the indicia for determining whether an employee is casual”. Wood C then referred to
and quoted the indicia set out in Centurion, and determined the application on that basis. Wood C took the same approach,
without reference to Squirrell in Rushton and Cairns v The Western Australian Turf Club and the Chairman of the Committee
of The Western Australian Turf Club (2001) 81 WAIG 868. In that case, there was an unfair dismissal application by two
applicants whose employment was covered by the Municipal Employees’ (Western Australia) Turf Club Award 1992 which
relevantly defined “casual employee” in the same way.
182 Although these authorities suffer from some of the Centurion difficulties outlined earlier, there is no support in any of them for
the opinion of Fielding C that in an award where a casual worker is defined as in the present, the label placed on the position
by the parties is the “governing factor”.
183 In the article Towards an Understanding of Standard Employment Relationships Under Australian Labour Law (2007)
20 AJLL 123 at 140 by Dr Tham, he says:“Turning to the circumstances in which a worker would be considered a
‘casual employee’ under provisions conferring minimum entitlements, this
very much depended upon award and statutory definitions of ‘casual
employee’. The overwhelming majority of federal awards adopted an
expansive definition that stipulated that a ‘casual employee’ was one
‘engaged as such’ or ‘engaged and paid as such’. Such a definition
principally relied upon the designation placed by the parties on their
employment relationship and whether or not the casual loading was paid.
The breadth of this definition was, however, tempered by a prohibition against
engaging and re-engaging casual employees in order to avoid award
obligations.” (footnotes omitted)
184 Dr Tham did not cite any authority for the point about the “designation placed by the parties”. In his 2003 article however Dr
Tham referred to the Federal award method of defining casual employees as “engaged as such”. Dr Tham said this became the
most common Federal method of designating casual employees after the expression was adopted in the Award Simplification
Decision (1997) 75 IR 272 at 283, 357. (The same point is made by Ms Owens in her article at page 121). In the Award
Simplification Case the Commission did not explain what the expression meant. Dr Tham (2003) asserts there have been two
approaches to construing the phrase. One is to use the Licensed Club Association factors method as in Centurion. The other is
to treat the worker as engaged as casual if they are paid casual loading and “not paid leave entitlements”. Toongabbie is cited
as an example. (Page 619).
185 With respect I do not accept that either method is the way the current issue should be resolved. In my opinion the Centurion
method is problematic as discussed. The Toongabbie method is in my opinion wrong as it inverts the process, at least in the
present award. Despite the circularity in the definition, in my opinion it is casual worker status which dictates whether leave
and other entitlements apply, not the other way around. As submitted by the agent for Milesaway, not being given an
entitlement may simply be because the award was breached.
186 My opinion is supported by Ryde-Eastwood Leagues Club. The award in that case defined a casual employee as a person
“other than a weekly or part-time employee, who is engaged as such and paid as such.” (Page 394). The Commission at page
395 said:“In other words, in our view, the Award does not, as a matter of law, regulate
the terms on which casual employees may be engaged but only the payments
to be made to them once a contract of employment as a casual is entered into
as that concept is defined in cl 3 of the Award.”
187 My opinion is also to some extent supported by the decision of the Full Industrial Commission of South Australia in Howe and
Kosier v Hutt Street Private Hospital (1987) 25 IR 356, 54 SAIR 423. These were two appeals against a decision which held
the appellants were part-time employees who, although dismissed, were not found to have been harshly, unjustly or
unreasonably so. The respondent contended there was error in the finding that the appellants were part-time employees; it
being argued they were really casual employees. Both appellants worked in the kitchen area of the respondent’s hospital. Their
employment was covered by the Hospitals Etc Ancillary Employees Award. Clause 9(a) of that award provided that a “casual
employee is one engaged and paid as such. A casual employee shall be paid per hour 1/38 of the appropriate weekly wage
prescribed by clause 6 of this award for the classification in which the employee is employed plus 20 per centum in
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additional.” Clause 9(c)(i) defined a part-time employee to be “one engaged to work regularly for more than eighteen hours
per week but less than thirty-eight hours per week. For ordinary working hours a part-time employee shall be paid per hour
1/38 of the weekly rate for the work she performs …”. Judge Allan, AP with whom Russell J and Eglinton C agreed, said the
Commissioner erred in failing to find the appellants were casual employees. As to the definition of a casual employee Allan J
said:“It does not have anything to say about, for example, the number of hours per
week a casual employee is required or permitted to work. It is sufficient if a
person is employed as a casual and paid as such. (emphasis added). The
respondent understood the appellants were casual employees. There is a
specific finding by the Commissioner that the appellant Howe understood that
she was employed as a casual. I think it is a reasonable inference from the
facts relating to the case of the appellant Kosier that she also understood
herself to be employed as a casual. In those circumstances, it is hard to know
what else could be required for the purpose of finding that they were engaged
as casuals. The Commissioner seems to have proceeded on the basis, at least
in part, that, if an employee worked regularly, whatever that might mean, for
more than eighteen hours per week, but less than thirty eight hours per week,
that employee was deemed to be a part-time employee. (emphasis in original)
… Whether they in fact worked for more than eighteen hours per week on a
regular basis is beside the point. The important question is what they were
engaged to do; the number of hours actually worked by them being equally
consistent with them being casual employees as being part-time employees.”
(emphasis in original). (Page 426/427 SAIR).
188 His Honour concluded that what occurred was not a dismissal but a failure by the respondent to offer the appellants further
work. The decision is supportive of my view given the reference to “employed” as an appropriate synonym in the context to
“engaged”. If however Judge Allan intended to decide that in all cases the understanding of the employee was the determining
factor as to whether they were a “casual” employee then I respectfully disagree. From the context of the discussion however I
do not think this was the intent.
189 I therefore adhere to the view I expressed in Loves Bus that “engaged … as such” looks at how the employee was engaged or
employed as a matter of law and fact. It is not simply a matter of looking at the designation of the parties although this can be
a relevant consideration. To reiterate, the principal reason for this is linked to the primary purpose of an award. An award
provides a safety net of employment conditions which may not be contracted out of (s114 of the Act) subject to any
inconsistent Commonwealth statutory scheme and/or legally permissible industrial instrument; for example an Australian
Workplace Agreement made under the Workplace Relations Act 1996 (Cth). If the issue of whether somebody was a “casual
worker” was dependent solely upon the designation of the parties, in a situation of unequal bargaining power it could lead to a
foisting of a classification, with consequences for entitlements, upon an employee in circumstances where they were clearly
not “casual”. In my opinion this is unlikely to have been the intention of the drafters of the award.
190 I add to what I said in Loves Bus with the observation that the initial engagement of a worker as casual or non casual may
change over time. Therefore when looking at whether the award has been breached, it is necessary to decide whether at the
relevant time the worker was engaged as a casual worker. This may not always be dependent upon the nature of the
engagement on the first occasion the worker was employed. For example a worker may be first engaged on an as and when
required basis as earlier described. This might develop however into an agreement where the days and times worked become
so regular that it would be a mischaracterisation for the worker to be classified as a “casual”.
191 It may also be that what the parties have agreed can only be inferred after a period of time by examining what has occurred.
The same point has been made in authorities about deciding if a worker is an employee or independent contractor. As stated
by Gleeson CJ in Connelly v Wells (1994) 55 IR 73 at 74, the conduct of the parties may need to be examined for the purpose
of reaching a conclusion about the terms and conditions on which they were contracting with one another. Similarly, Anderson
J in United Construction Pty Ltd v Birighitti (2003) 83 WAIG 434 at [14] said that in the case of informal oral agreements, the
content of the arrangement may be inferred by examining events which succeeded the contract and from the course of dealing
between the parties. His Honour said it was permissible to examine the conduct of the parties to see what their agreement was
in its entirety.
(n)
Common Understanding of the Meaning of Casual Work/Employment
192 If the label of the parties is not the “governing factor” in determining casual worker status under the award, the question
remains what is? In my opinion the definition of “part time worker” as a mutually exclusive category is important. Also
because the definition of a casual worker under the award is in effect someone who was engaged as a casual worker, the
context requires a general understanding of what casual work is commonly thought of or understood as being, aside from its
contractual niceties.
193 On this issue the comments by Latham CJ and Dixon J in Shugg are in my opinion helpful. Also, despite accepting there was
no precise or universal meaning of “casual work”, Moore J in Reed described the characteristic of casual employment as being
where “… the employer can elect to offer employment on a particular day or days and when offered, the employee can elect to
work. Another characteristic is that there is no certainty about the period over which employment of this type will be offered.
It is the informality, uncertainty and irregularity of the engagement that gives it the characteristic of being casual”. Similarly,
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Beech C in Stone said “merely because an employee is paid as a casual, does not mean that he is a casual employee in the
sense of irregular, uncertain or intermittent employment”. The reference by Buckley LJ in Knight to casual employment not
being “permanent” or “periodic” is also helpful. In Hamzy v Tricon International Restaurants and Another (2001) 115 FCR
78, the Full Court of the Federal Court (Wilcox, Marshall and Katz JJ) in construing “casual employee” in the Workplace
Relations Regulations 1989, at paragraph [37] cited the reasons of Moore J in Reed with apparent approval. The Full Court
then said at paragraph [38]:“The essence of casualness is the absence of a firm advance commitment as to
the duration of the employee’s employment or the days (or hours) the
employee will work. But that is not inconsistent with the possibility of the
employee’s work pattern turning out to be regular and systematic.”
194 In McLaren, McCusker P reviewed cases about casual employment in the SAIRC and then expressed his opinion about the
effect of them. This opinion was accepted as authoritative by the Full Commission in Clarkin V B. and P. Delvizis and B and
L Petridis T/as Terrace Café T56 Myer, (1994) 61 SAIR 364. The following passage from McLaren was quoted:“… The primary issue is to ascertain what the parties to the contract in fact
agreed as to the character of that employment. The mere label of “casual” or
the payment of casual rates will not determine the matter. Misdescription, for
whatever reason, will not permit the avoidance of the true character of the
relationship.
… In ascertaining the parties intent, the ordinary rules of the law of contract
apply. (I leave aside for the moment any impact an applicable award may
have). The process will look at the indicia for and against the intention of
casual employ. Did the agreement indicate an intent of spasmodic, infrequent
or occasional attendance requiring further undertakings to be made between
the parties, or did it indicate an intent of regular and predetermined
attendance which needed no further arrangements to be made between the
parties as to those future attendances.”
195 In my opinion all of these provide helpful generalised understandings of what “casual work” is thought of to mean, subject to
the point I made earlier about the nature of the agreement and employment type changing and evolving over time. As I have
said earlier, I do not regard it as essential for the characterisation of a casual worker under the award that the worker be
engaged on a single or series of separate contracts of employment.
(o)
The Part-Time Worker Definition
196 The definition of part-time worker in clause 14(4) of the award also has ambiguity. This is in the use of the expression
“regularly employed to work a lesser number of hours”. “Regularly” could either apply to the employment or to both the
employment and the number of hours. “Regularly” is the adverb of regular which has different shades of meaning. It means at
times “usual”, “fixed”, “periodic” or “uniform”, amongst other synonyms. (See The Macquarie Dictionary, 4th Edition, 2006).
The definition could be construed to mean that an employee would only be a part-time worker under the award where the
number of hours worked each week was the same. Mr Andretich in his submissions seemed to favour this construction. On
this basis however a worker whose contract of employment was such that he was to be working each week, undertaking the
same duties, but where the number of hours to be worked was variable, was not a part-time worker under the award. I will
comment on this again shortly.
197 It is relevant that clause 14(4) concludes with the entitlement of a part-time worker to annual leave, sick leave and public
holidays. Part-time workers have a pro rata entitlement in the same proportion as the number of hours worked per week bears
to 38 hours. This part of the clause is more workable upon a fixed hours construction of “part-time worker”. It is not
unworkable however on a variable hours construction. This is because both annual leave and sick leave are entitlements which
are obtained after a period of employment. For annual leave the entitlement occurs “after a period of 12 months’ continuous
service” with an employer. (Clause 16(1)). The sick leave entitlement accrues at the rate of 1/6th of a week for each completed
month of service with an employer. (Clause 15(1)(c)). Accordingly, the number of hours worked each week could be
ascertained over the period of 12 months or 1 month respectively to determine the pro rata entitlement.
198 Clause 12(5)(b) and (c) of the award contain minimum payments for part-time employees on service, tour and charter buses
and school buses respectively. The former three types of work have a minimum payment for any day upon which work is
performed as required or directed by an employer, of four hours at the appropriate rate of wage prescribed by the award.
Clause 11(2) provides that the payment of wages is to be pro rata where less than a full week is worked. I do not think though
that these clauses bear on the present construction issue.
199 As a part-time worker under the award is entitled to pro rata annual leave, sick leave and public holidays, in my opinion the
preferable construction is that “regularly” does not require a fixed number of hours each week. If this were so, a bus driver
engaged to and employed continuously for 48 weeks, Monday to Friday, but whose hours varied say between 20 to 30 hours
per week would not at the end of that 48 weeks be entitled to pro rata annual leave. I do not think this conclusion is what was
intended by the drafters of the award. In my opinion “regularly” is used in the sense that the fact of the employment is
ongoing, fixed or certain but the hours to be worked each week need not be fixed. The hours may depend, for example, on
how long a bus route takes to drive each day. The effect of this construction is that a fixed number of hours worked each week
is not essential to be a part-time worker under the award.
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200 Another issue is whether for the purpose of being a part-time worker under the award the same duties need to be engaged in
each week, even if the hours differ. Again I do not favour a restrictive approach. Otherwise a driver whose duties varied in a
single week of a year’s work would not for that week be a part-time worker under the award. I do not think that this is what
was intended.
201 Accordingly, in my opinion, for someone to be “regularly employed” and therefore a part-time worker under the award they
can be employed with fixed hours and/or duties, but this is not necessary for the classification to apply. Outside those types of
part-time workers there is a category where the issue of whether they are a part-time worker becomes an evaluative judgment.
Whether there is regular employment is a question of fact and degree dependent upon all facts and circumstances. This will
include the express agreement between the parties and the quantity and regularity of the hours worked. It is also relevant,
when deciding what the proper categorisation is or was to bear in mind the purpose of the task. That is to make a decision
about whether the employee is to have or should have had entitlement to for example annual leave and sick leave, or a 20%
pay loading instead.
(p)
Determining Casual Worker Status Under the Award
202 For the purpose of the award in my opinion a casual worker is one who is not engaged to work so “regularly” that they are
properly characterised as a part-time worker. Instead they are workers whose work is intermittent, uncertain, lacking in a firm
advance commitment, spasmodic, occasional or involving a non-predetermined attendance. This is not a test or checklist but a
description which tries to set out the essence of the generalised understanding of what casual work is, based on the earlier
authorities. As stated by the Full Federal Court in Hamzy simply because, looking back, there turned out to be a systematic
pattern of work does not necessarily mean someone was other than a casual worker. Additionally employers and employees, to
comply with the award, need to know and decide in prospect rather than retrospect whether someone is a part-time or casual
worker.
203 Consistent with what was said in McLaren, deciding whether someone was engaged as a casual worker requires an
examination of what the parties intended and agreed about how, when and what work is to be carried out. If the parties agree
that the worker will perform the same duties and work the same hours each week (and the ordinary hours are less than 38), the
worker will be part-time under the award. If on the other hand the worker is engaged to work on a one off basis for a day they
will obviously be casual. Within these bookends there is a range of possibilities where the distinction might be less clear.
204 Then the facts and circumstances will need to be considered and an evaluation made about whether the employee is/was
regularly employed. In deciding this, various things could be relevant such as:-
(q)
(i)
What were the express terms of the agreement.
(ii)
The way the agreement has been performed in practice; and/or what were the terms of the agreement, as
inferred from what has occurred.
(iii)
The frequency of the work and the number of hours worked.
(iv)
Whether the same or different duties were performed
(v)
How it is determined when work is done and what duties are performed; and how and when this is
communicated between the employer and employee.
Mr Sladden’s Employment Type Under the Award
205 On this analysis, just because Mr Sladden did not work the same duties or number of hours each week does not of itself mean
he was not a part-time worker under the award.
206 Although the position was described as “casual” in the advertisement and in the initial interview it is not clear what was meant
by the description. In the circumstances, I think it probably meant that the days or hours to be worked were not fixed; that
there was to be an element of “as and when required or agreed”.
207 In my opinion there was a continuing contract of employment between Mr Sladden and Milesaway, from the commencement
of his employment until its termination. There was a continuing contract of employment in my opinion for the following
reasons:(i)
The process of engagement including the advertisement, the interview and the training runs was not
consistent with someone who was going to be engaged on a series of contracts as opposed to a continuing
contract.
(ii)
Although the advertisement and Mr Miles both used the word “casual” there was no elaboration upon what
this meant. In particular there was no suggestion that it would involve a series of contracts as opposed to an
ongoing contract.
(iii)
The training which Mr Sladden received in mid 2001, some six months after he was first engaged, was
again consistent with a continuing contract.
(iv)
Mr Sladden’s evidence about the work to be performed after the completion of a job or shift were consistent
with a continuing contract. Overall, the position was that Mr Sladden was to be told when he was next
working. His evidence did not suggest it was if and when.
(v)
In my opinion the hours worked each week did not in themselves establish there was a continuing contract
as opposed to a series of contracts. However, the development of the scenic tour, for example, which was
driven most Thursdays after it was set up, was consistent with a continuing contract of employment.
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(vi)
The events which occurred after Mr Sladden lost his motor vehicle drivers license were also consistent with
a continuing contract. The contract was brought to an end by agreement between the parties when Mr
Sladden was advised he would need to pay a $1,000 bond if he wanted to continue to drive after his
suspension.
(vii)
The separation certificate and the terms of the separation certificate were also consistent with a continuing
contract.
208 As stated earlier however the conclusion that there was a continuing contract does not of itself mean Mr Sladden was not a
“casual worker” but instead a “part-time” worker. To determine this question involves the type of analysis referred to earlier.
209 I think it apparent that Milesaway ran a business which did not have the need for the same number of buses to be driven and
therefore bus drivers working each day. The number of buses and types of tours or trips they would operate was dependent in
part at least on the number of bookings they received. To run a business with this type of flexibility Milesaway needed a pool
of bus drivers which they could call upon to work when required. The working days of the bus drivers were therefore not the
same each week. There was an “as and when required” element to the work. In the case of Mr Sladden though, something of
a pattern developed. The pattern involved the non working on Wednesdays, the work on the scenic tour on Thursdays and
work on Saturdays and Sundays.
210 Mr Sladden said he generally did not work on Wednesdays during school terms as he also worked as a music teacher on that
day. From the table above, the total number of Wednesdays worked was relatively low. From the calendar, from February
2001 to the end of that year he only worked on three Wednesdays. The figure was 11 in 2002, 15 in 2003 and 10 in 2004. The
dates when Mr Sladden worked on Wednesdays mostly seemed to coincide with dates when the school holidays would, as a
matter of common knowledge, have been occurring.
211 Mr Sladden’s evidence was not precise on when the Thursday scenic tour was first developed. His evidence in chief was
contained in this question and answer:“I now want to focus on what your duties were throughout the remainder of
your employment, and any changes that may have taken place?
---My duties were driving buses to conduct the tours or the charters or
transfers as directed. I did approach Christine Miles at one stage suggesting
that maybe we have a different tour to a wine tour, because we were having
passengers who weren't there for the wines, and it was suggested of a scenic
tour; and Mrs Miles said to me that it had been tried in the past but didn't
work. The matter of a couple of weeks later I received a phone call at home
from Christine Miles, who had obviously thought about it and said, "Would
you be interested in putting a scenic tour together, design a scenic tour?"
which I did in my own time. I took this to Christine Miles and there was
nothing much done about it for a couple of weeks at least, and then a scenic
tour did start, but one that Christine Miles had designed and it was quite
different to the one I had designed. I was put onto this first scenic tour, and
the wording was, "If this works it's your baby."” (T45)
212 Mr Sladden also said the scenic tour was “every Thursday” although he did not always drive the buses on tour. (T46). In crossexamination Mr Sladden said he was not sure when the scenic tour first occurred. He was asked if it was in the first or second
year of his employment. Mr Sladden again said he did not know; he was going to say the first year but he did not know.
(T55/56).
213 The calendar shows that from the beginning of September 2001 there was a marked increase in the frequency and regularity of
the number of Thursdays worked. From September 2001 to December 2001 all but 1 Thursday was worked. In 2002 all but 9
Thursdays were worked and one of the 9 was Boxing Day. In 2003 for every week that Mr Sladden worked (he did not work
at all in 6 weeks) he worked on every Thursday except 2 and 1 of these was Christmas Day. In 2004, up to 9 May when the
record of his employment virtually ceases, he only did not work on 1 Thursday and that was New Year’s Day.
214 In examination in chief Mr Sladden gave this evidence which I summarised earlier:“How many hours per week did you work, on average?
--- Your week could be one tour, two tours, up to seven days. So average I
would say would be around 35 hours a week. Apart from school holidays,
when there was - I worked most of the time in school holidays, but when there
was no school holidays I was teaching music still, so generally I didn't work
on a Wednesday.
So your answer is that your hours would vary from week to week?
---Hours would vary from week to week.
What's a short week?
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87 W.A.I.G.
---A short week? 20 hours, 15 hours.
What about a long week?
---A long week? I've done around 60-something hours.
What days did you typically work during the week?
---Though they varied, typical was always weekends; Thursdays; it really
varied. I could often work Monday, Tuesday but generally the Wednesday I
had off because of teaching. I would work any day, but it was always
weekends.” (T44)
215 The table shows Mr Sladden worked more Saturdays than Thursdays and slightly less Sundays but these were clearly the 3
days when he most often worked. From 24 January to 1 September 2001 Mr Sladden worked all but 4 Saturdays and one of
these was in a week when he did not work at all. From 1 September to 31 December 2001 he only did not work on 3 Saturdays.
The number was 6 in 2002 and 15 in 2003 but in this year he did not work at all in 6 weeks. In 2004 he only did not work on 2
Saturdays.
216 The calendar shows that from 6 September 2001 to the end of that year, Mr Sladden worked on each of Thursday, Saturday
and Sunday, in the same week, for a total of 11 out of 17 weeks. In 2002 the figure was 27 weeks and in 2003 it was 30 weeks.
In 2004 up until 9 May 2004 the figure was 13 out of 19 weeks. This does not entirely support Mr Sladden’s generalised
evidence that he “always” worked on Thursdays, Saturdays and Sundays but it does indicate something of a pattern of work on
each of these three days in the same week.
217 The calendar shows Mr Sladden did not work at all during some weeks from January 2001 to May 2004. The total of these
weeks was 1 in 2001, 0 in 2002, 6 in 2003 (including a period from 22 June to and inclusive of 23 July when he did not work
at all) and 0 in 2004 up until 10 May 2004. Mr Sladden was not asked to give evidence about why he did not work during
these weeks and how this was arranged with Milesaway. It seems clear he did not have paid leave but he may at least on some
occasions have been taking agreed unpaid leave. It is unsafe to speculate about this though.
218 In my opinion Mr Sladden was a casual employee under the award when he was first employed. This is because he was to
work as and when required and there was an insufficient regularity about the employment for him to be a part-time worker
under the award. His work at that time fitted the description given by Milesaway to the job. Up until September 2001 there
was intermittence, irregularity and uncertainty in the employment of Mr Sladden. There was in the terms of the Full Court of
the Federal Court in Hamzy, an absence of a firm advance commitment as to the duration of his employment or the days or
hours Mr Sladden would work. As stated in McLaren, the parties did not intend nor did the employment entail a regular and
pre-determined attendance. Accordingly, in my opinion the Industrial Magistrate did not err in finding that Mr Sladden was a
casual employee as defined by the award up until September 2001.
219 After 1 September 2001 the pattern of employment changed. I think it can reasonably be inferred from the evidence of the
days when Mr Sladden worked and his oral evidence that the Thursday scenic tour then commenced. Mr Sladden’s evidence
was to the effect that the scenic tour was on every Thursday and he generally drove the tour unless a larger bus (more than
22 seats) was required. The calendar shows that from 1 September 2001 onwards there was very frequent work on Thursdays,
as well as on Saturdays and Sundays. In addition there was the lack of working on Wednesdays except during school holidays.
The evidence demonstrates there was a pattern and/or some general understanding that Mr Sladden would mostly work on
Thursdays on the scenic tour and not on Wednesdays. He also worked on most Saturdays and only 14 less Sundays. On the
other 3 days of the week Mr Sladden continued to work as and when required.
220 From 1 September 2001 therefore the work of Mr Sladden was something of a mixture. It was irregular and intermittent work
on 3 days of the week. There was a regularity of non work on Wednesdays. There were the scenic tours on Thursdays and the
pattern or understanding of work on most Thursdays, Saturdays and Sundays. I remind myself again however that the issue is
not whether looking back there was a pattern of employment (Hamzy).
221 The issue of how to characterize Mr Sladden as a worker under the award for this period is not easy. It is, I think a question of
fact and degree, having regard to the purpose of the casual and part-time worker categories under the award.
222 The point about fact and degree is illustrated by Alestalo v Steves Nedlands Park Nominees Pty Ltd (1997) 77 WAIG 499.
There Beech C at page 499 said, albeit in an unfair dismissal case:“Before dealing with the question of the evidence and the facts, it is also
important to note that an issue has arisen that Mr Alestalo was employed as a
casual employee and the issue arises as to whether or not, as a casual, he has
been dismissed. There is a difference between a casual employee not being
offered further work because of a downturn in work and a casual employee
being dismissed. In the former there is possibly not a dismissal, but in this
case the facts reveal that Mr Alestalo, although classified as casual, was
employed on a regular basis and had been so for approximately fourteen
months. The regularity of his employment was that he was employed every
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3027
Wednesday night, and indeed his evidence is that he was employed on that
basis. Further, his evidence is that the onus was upon Mr Alestalo to inform
the Hotel if he was not going to be available on a Wednesday night rather
than on the Hotel to say when, or how frequently on each occasion, it wanted
Mr Alestalo to attend for work. On that basis I agree with Mr Alestalo that,
although he was designated casual, his employment was not as a true casual.
Rather, his employment had a more regular or part time nature about it at
least on the facts as they apply to Mr Alestalo. On that basis I do not see his
classification as casual as being a difficulty to be overcome for the purposes
of this matter.”
223 On the evidence the parties did not revisit the “casual” characterisation of Mr Sladden’s employment when the greater
regularity of Thursday work and/or the scenic tour commenced. Therefore the label originally placed on the employment was
not one that took into account what the work in practice became. On the other hand Mr Sladden did not question his “casual”
status or any entitlement to leave instead of the 20% loading. Milesaway continued to purport to pay Mr Sladden as a casual
worker under the award and he did not question this. Admittedly, on Mr Sladden’s uncontradicted evidence, Mr Miles was not
someone amenable to workplace discussions. Mr Sladden simply accepted the payments made to him which he believed were
made on the basis that they were consistent with the award. His belief was based on what Mr Miles said to him at the outset
about the award and also what “Sharon” said about his payments. These facts temper to some extent the importance of the
description initially given by the parties about the type of worker which Mr Sladden was. The overall nature of what was
agreed and how, when and what work Mr Sladden did is more significant.
224 I do not find the issue of Mr Sladden’s employment classification under the award after 1 September 2001 to be easy to
resolve. After anxious consideration I have arrived at the conclusion that the Industrial Magistrate did not err. Overall in my
opinion Mr Sladden best fitted the description/definition of a “casual worker” as opposed to a “part-time worker” under the
award. This is because, although some patterns developed, there was an intrinsic variability about the whole of Mr Sladden’s
employment. Some uncertainty about when Mr Sladden would work always remained. This was especially so for Monday,
Tuesday and Friday. Even for Thursday, Saturday and Sunday there was variability. Working on Thursdays, on the scenic
tour, was dependent at least on there not being more than 22 passengers. If there were then Mr Sladden did not drive the tour.
Despite the work patterns that developed Mr Sladden’s evidence was that he asked at the end of each day when and what work
he would do next. This shows a lack of a “firm advance commitment” (Hamzy) or “predetermined attendance” (McLaren) and
the “uncertainty and irregularity” (Reed) which are hallmarks of the generally understood meaning of casual work. Given the
alternative possibilities of being a casual worker or part-time worker under the award, I think Mr Sladden’s employment best
fitted the casual worker definition/classification. As an evaluative judgment his employment was not so “regular” to make the
part-time worker classification the best fit. Accordingly, appeal ground 4 is not established.
(r)
A Final Word about Centurion
225 As a final word I add that what I have said about the law on casual employment, in my opinion restates or departs from
Centurion in that:
(i)
There is no fixed meaning of what casual employment is so that the enquiry is context specific.
(ii)
Accordingly the word does not necessarily have the same meaning in different legislative contexts or
awards or industrial instruments. Also the task and method in assessing whether there has been a dismissal
or whether a person is a casual employee under an award are not necessarily identical.
(iii)
The method employed by Centurion is problematic for the reasons outlined earlier. In particular it adopted a
method aimed at determining whether there was a continuing contract or a whether a dismissal had
occurred, and tried to transpose that into answering the question of whether someone was a casual worker
under an award. Also what underpinned Centurion was that casual employment at common law required a
separate contract of employment on each occasion when the person worked for the same employee. As set
out earlier I do not believe this was the state of the common law. Additionally the Centurion method had the
tendency to divert the question and process into one of ascertaining whether there was an ongoing contract.
(iv)
The list of factors approach set out in Centurion is at least at times therefore an inapt method to ascertain
whether someone was a casual worker under an award.
(v)
Linked to (c) and (d), my perception is that after Centurion the Commission at times measured the
circumstances against the Centurion factors to see if a single factor was present and therefore the
employment or the employment relationship was ongoing. This had the tendency, in any given case, for
undue weight to be placed on one factor, when often to determine if employment is casual, a qualitative and
holistic assessment and evaluative judgment needs to be made. This is of course subject to the context, as
referred to in (a) above, requiring a different methodology.
(vi)
In at least some contexts therefore, and in my opinion the present award is one of them, the classification of
“casual worker” does not depend on the existence of a series of contracts. In fact to look to see if there are a
series of contracts, where on each occasion a fresh agreement is made, will in my opinion often be a search
for a non existent legal construct and in any event not required for the purpose at hand.
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87 W.A.I.G.
Milesaway Appeal - Ground 5
226 In this ground Milesaway asserted that any failure to pay the rate of wage prescribed by the award was a continual breach and
therefore only one penalty for each employer should have been imposed by the Industrial Magistrate. It was submitted this
followed from the legislative scheme, the award and the characteristics of the employment relationship. It was submitted that a
breach of the award did not occur until the obligation to pay the wage arose and it was only at that time that it could be
determined whether there was an underpayment. Mr McCorry referred to clause 11(8) of the award which is:“(8)
Termination of Employment
An employee who lawfully leave his employment or is dismissed for
reasons other than misconduct shall be paid all moneys due to him at
the termination of his service with the employer. Provided that in the
case of an employee whose ordinary hours are arranged in
accordance with paragraph (c) or (d) of subclause (1) of Clause 7. Implementation of 38 Hour Week of this award and who is paid
average pay and who has not taken the day off due to him during the
work cycle in which his employment is terminated, the wages due to
that employee shall include a total of credits accrued during the work
cycle as detailed in the Special Note following paragraph (b) of
subclause (2) of this clause. Provided further, where the employee
has taken a day off during the work cycle in which his employment is
terminated, the wages due to that employee shall be reduced by the
total of credits which have not accrued during the work cycle.”
227 It was submitted that an obligation to pay crystallised at the time when an employee left his employment. It was also
submitted that although the award required full-time employees to be paid weekly there was no similar obligation for casual
workers. It was submitted that clause 11 of the award did not specify an occasion for payment of a casual worker other than on
termination. It was submitted therefore that up until termination occurred, or there was a demand for payment by a casual
worker, there was no obligation to pay the wages due under the award. At that time the obligation of the employer would be to
pay all sums due. If there was an underpayment, then there was only a single breach and not multiple breaches.
228 Mr McCorry cited in support of his argument Silberschneider where Olney J said at page 1005 that an “employer's obligation
under the award is normally to pay one sum of the money for each pay period ...”. It was submitted because there was no
obligation to make a weekly payment under the award, the Industrial Magistrate erred in finding there had been a breach of the
award for each week where it was proved there was an underpayment.
229 Counsel for Mr Milward referred to the evidence that Mr Sladden was paid on a weekly basis and submitted the award,
properly construed, provided for remuneration on a weekly basis. It was submitted that it was implicit that payment would be
from week to week. It was also submitted the submission of Milesaway had been previously rejected by a Full Bench in James
Turner Roofing v Peters (2002) 82 WAIG 765 and in particular paragraphs [76]-[78]:“76
Mr McCorry's submission that there could only be one breach of the
award in respect of each refusal to make payment of any entitlement
under the award, whether allowance, pay, overtime, etc, has no merit.
A breach does not occur when there is a demand to pay an amount
due under an award, nor does the question of whether a breach has
occurred depend on the amount which is to be paid at the end of each
pay period. It is simply the fact that every time a failure to comply
with a provision of the award or a breach of a provision of the award
occurs or is committed, by a failure to pay or otherwise, then that
constitutes a separate breach. There is no requirement for any
demand to be made as there is in contractual matters. A failure to pay
a prescribed allowance is a breach, for example, a failure to pay
overtime is a breach, for example, a failure to pay holiday pay is a
breach, and they are all manifestly separate breaches. That is, of
course, where the award so prescribes and the employee is entitled
under the award to the amount which he claims was not paid to him or
her.
77
There needs to be no demand as I have observed. The proceedings
under s.83(3) of the Act are enforcement proceedings where, inter
alia, penalties may be imposed. They are not proceedings for the
recovery of a debt, although concomitant orders to pay amounts not
paid or underpaid may, of course, be made.
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WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
78
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It is manifestly clear that on each occasion a party fails to comply
with a provision of an award or contravenes it by his/her/its act a
separate breach is committed. In the face of that simple proposition,
the ground is not made out and there is no merit in that ground.”
230 Although there was an appeal against that decision which was allowed, the Industrial Appeal Court did not deal with or
comment on the present issue. (The citation for the Industrial Appeal Court decision has been earlier provided).
231 It was submitted by counsel for Mr Milward that the overall structure of the award was that wages would be paid to casual
workers weekly. Clauses 10 (Wages) and 11 (Payment of Wages) of the award were cited in support of this argument. Clause
11(1) and (2) provided:“11. - PAYMENT OF WAGES
(1)
Wages shall be paid in the employee's time on a particular day to be
determined by the employer. The day having been so determined shall
not be altered more than once in three months. All wages shall be paid
enclosed in an envelope, which shall be clearly endorsed on the
outside with the particulars enumerated hereunder … [then set out in
tabular form were name, hourly rate, overtime, allowance, penalties,
gross wage, deductions and nett wage] … Provided that at the option
of the employer, the particulars mentioned may be stated on a slip of
paper and included in the envelope.
(2)
Each employee shall be paid the appropriate rate shown in Clause 10.
- Wages of this award. Subject to subclause (3) of this clause payment
shall be pro rata where less than the full week is worked.”
232 It was also submitted that the contention of Milesaway that the award did not contain any obligation to pay a casual worker
until there was a cessation of employment (or demand) could not have been the intention. It was submitted the obligation to
pay did not only crystallise upon termination or demand.
233 I do not accept that this ground of appeal has been established. Although the award could have been more clearly drafted to set
out when the obligation to pay a casual worker occurred, it needs to be construed in accordance with the principles set out
earlier about the drafters and drafting of awards. Accordingly I cannot accept it was the intention of the drafters of the award
to not include an obligation for payment of wages to a casual worker until either demand or the termination of employment.
The sensible and preferred construction of the award is that if a casual worker is engaged for a week or longer then the
obligation to pay arises each week as with other workers under the award. If the casual employment is, for example, for a
single day of work then the obligation to pay would arise at the end of the day or perhaps the end of the week. This is not
inconsistent with clause 11(1) and 11(2). My opinion is consistent with the Full Bench decision in James Turner Roofing
which on this issue was correctly decided in my respectful opinion.
Mr Milward’s Appeal
234 The single ground asserts the Industrial Magistrate erred in failing to make orders, in each claim, for Milesaway to pay prejudgment interest in accordance with regulation 12(4) of the Industrial Magistrates Courts (General Jurisdiction) Regulations
2005. This regulation provides:“(4)
Unless good cause is shown to the contrary, if a Court orders a party
to pay a sum of money under the Act section 83A, the Court must
order the party to pay interest on the sum, at such rate as it thinks fit,
from the date when the cause of case arose to the date when the
judgment is made.”
235 As set out earlier the Industrial Magistrate thought he was bound by Foy to conclude that interest was not payable.
236 Foy involved an application to enforce an order made by the Commission under s83 of the Act. The order did not provide for
the payment of interest. An order of enforcement was made by the Industrial Magistrate. This was made on the basis of a
consent order. The consent order did not include any payment of interest. There was another application to the Industrial
Magistrate which sought the payment of pre-judgment interest. The issue on appeal was whether in these circumstances the
Industrial Magistrate should have made an order for prejudgment interest by a variation of the consent order.
237 The Full Bench was comprised by Sharkey P, Scott and Wood CC. They each wrote separate reasons for concluding there was
no basis for the variation of the consent order. Sharkey P alone went on to consider the issue of the validity of the then
relevant regulation. In doing so, he acknowledged that he could not declare the regulation to be invalid. Sharkey P
nevertheless suggested the regulations did not validly provide jurisdiction for an Industrial Magistrate to award interest.
238 These observations were clearly obiter and only made by one member of the Full Bench. Additionally they concerned a
statutory regime prior to the one presently in existence. In my opinion therefore the Industrial Magistrate erred in deciding he
was bound by Foy to decide “the claim for interest was not maintainable”.
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87 W.A.I.G.
239 In my opinion the Industrial Magistrate was mandated by the regulation quoted earlier to make an award of interest unless
good cause was shown. Counsel for Mr Milward sought the matter to be remitted to the Industrial Magistrate for further
consideration and determination of this issue.
240 The agent for Milesaway sought to avoid this outcome by submitting the Industrial Magistrate did not have any jurisdiction to
award interest, not on the basis of Foy, but because the present statutory regime did not provide any valid jurisdiction to do so.
241 The agent for Milesaway referred to the jurisdiction of the Industrial Magistrate’s Court provided by s81A and s81AA of the
Act and then referred to s81CA(2) about the procedures of the Industrial Magistrate’s Court. This subsection is:“(2)
Except as otherwise prescribed by or under this Act or another law —
(a)
the powers of an industrial magistrate’s court; and
(b)
the practice and procedure to be observed by an industrial
magistrate’s court,
when exercising general jurisdiction are those provided for by the
Magistrates Court (Civil Proceedings) Act 2004 as if the proceedings
were a case within the meaning of that Act.”
242 It was submitted the Act did prescribe otherwise because of s113(3) of the Act which is:“(3)
The Governor may make regulations for the purpose of regulating the
practice and procedure before an industrial magistrate’s court, for
and incidental to the exercise of its powers and jurisdiction under this
Act, and prescribing the costs to be allowed in proceedings before an
industrial magistrate’s court, and the fees to be paid, and the
allowances to witnesses in respect thereof and the enforcement of a
judgment, order, direction, or other decision of an industrial
magistrate’s court.”
243 It was submitted therefore that s81CA(2) did not have application because regulations have been made by the Governor. It
was also submitted there was no power for the Governor, provided by the Act, to make a regulation of the type contained in
regulation 12(4).
244 It was submitted, based upon the High Court decisions of South Australia v Tanner (1989) 166 CLR 161; [1989] HCA 3 and in
Ruby v Marsh (1975) 132 CLR 642; [1975] HCA 32, that regulation 12(4) was not a regulation for the purpose of regulating
practice and procedure, because it provided jurisdiction for the Industrial Magistrate to award interest. The agent for
Milesaway supported this contention by saying that interest was legislated for in Part 2 of the Magistrates Court (Civil
Procedure) Act 2004 as opposed to Parts 3 to 6. Part 2 involved matters of jurisdiction whereas Parts 3 to 6 involved matters
of practice and procedure.
245 In his submissions, counsel for Mr Milward focused upon the nature of the proceedings before the Industrial Magistrate as
being claims under s83A of the Act for the recovery of an underpayment, as an incident of a s83 enforcement application.
Section 83A is as follows:“(1)
Where in any proceedings brought under section 83(1) against an
employer it appears to the industrial magistrate’s court that an
employee of that employer has not been paid by that employer the
amount which the employee was entitled to be paid under an
instrument to which that section applies the industrial magistrate’s
court shall, subject to subsection (2), order that employer to pay to
that employee the amount by which the employee has been underpaid.
(2)
An order may only be made under subsection (1) —
(a)
in respect of any amount relating to a period not being more
than 6 years prior to the commencement of the proceedings;
or
(b)
if the employer concerned appears to the industrial
magistrate’s court, or has been found under section 83E, to
have contravened section 102(1)(a) or (b) by reason of having
failed —
(i)
to produce or exhibit a record relevant to the
proceedings;
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WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
(ii)
to allow such a record to be examined; or
(iii)
to answer a question relevant to the proceedings
truthfully to the best of the employer’s knowledge,
information and belief, as the case requires,
3031
in respect of any amount relating to a period not being more than
6 years prior to that failure.
(3)
When an order is made under subsection (1), the amount stated in the
order shall be taken to be a penalty imposed under this Act and may
be recovered accordingly, but on recovery shall be paid as stated in
the order under section 83F.
(4)
Nothing in this section limits the operation of section 83.”
246 It was submitted the regulation was valid because of s113(3) which enabled regulations to be made to make more effective the
remedies under the Act.
247 In my opinion the ground has been established. As stated the Industrial Magistrate was in error in deciding that Foy bound him
to conclude the claim for interest was not maintainable.
248 In addition, I do not accept the collateral attack by Milesaway about the validity of the regulation. In my opinion, the
regulation was validly made in accordance with s113(3) of the Act. Section 113(3) provides authority for the Governor to
make regulations about a number of different topics. One of these is to make regulations “for and incidental to the exercise of
[the Industrial Magistrate’s Court’s] powers and jurisdiction” under the Act. Regulation 12(4) provides for the payment of
interest. This is incidental to the exercise of the jurisdiction and power to make an order that an employee be paid the amount
of an underpayment. It is incidental in that it makes the power of the Industrial Magistrate more effective in putting the
employee in the position s/he would have been if they had been paid as and when required by the award or other industrial
instrument. This is the purpose of an award of interest, as confirmed by the High Court in the cases earlier cited. In my
opinion it does not matter that the power or jurisdiction to award interest is properly described as a matter of substance rather
than procedure. This is because the submission by the agent for Milesaway, that s113(3) of the Act only applies to procedural
matters, reads the subsection too narrowly. It provides for a number of disjunctive topics. As I have said one of these are
regulations incidental to the powers of the Industrial Magistrates Court. In my opinion regulation 12(4) meets this description
and is therefore valid.
249 The consequence is that the matter ought to be remitted to the Industrial Magistrate for further consideration and
determination. Consistently however with my conclusion on ground 4 of the Milesaway appeals, the question of any and what
interest to be awarded by the Industrial Magistrate will only be for the breaches of the award that occurred when Mr Sladden
was a casual worker, as set out earlier.
Orders
250 Due to the conclusions I have reached in my opinion the following minutes of proposed orders should be made. In appeals 5
and 6 of 2007, that the appeals be dismissed. In each of appeals 7 and 8 of 2007 that:
1.
The appeal is allowed.
2.
The orders made by the Court are set aside.
3.
The matters be remitted to the Industrial Magistrate for determination
in accordance with the reasons of the Full Bench.
251 As appeals 5 and 6 are to be dismissed it is strictly not necessary to publish a minute of proposed order. (S35 of the Act). In
this case of consolidated appeals and a joint hearing however I think it is the preferable course to do so.
3032
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
SCHEDULE 1
87 W.A.I.G.
87 W.A.I.G.
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
3033
3034
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
87 W.A.I.G.
87 W.A.I.G.
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
3035
3036
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
87 W.A.I.G.
87 W.A.I.G.
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
3037
3038
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
87 W.A.I.G.
87 W.A.I.G.
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
3039
SMITH SC:
252 I have had the benefit of reading in draft the reasons for decision of His Honour, the Acting President. I agree with those
reasons and have nothing to add.
WOOD C:
253 I have had the benefit of reading in draft the reasons for decision of His Honour, the Acting President. I agree with those
reasons and have nothing to add.
2007 WAIRC 01238
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
PARTIES
CHRISTINE ANNE MILES & RICHARD GLINTON MILES T/AS MILESAWAY TOURS
APPELLANT
-andWARREN GRAHAM MILWARD
RESPONDENT
CORAM
FULL BENCH
THE HONOURABLE M T RITTER, ACTING PRESIDENT
SENIOR COMMISSIONER J H SMITH
COMMISSIONER S WOOD
DATE
THURSDAY, 15 NOVEMBER 2007
FILE NO/S
FBA 5 OF 2007
CITATION NO.
2007 WAIRC 01238
Decision
Appeal dismissed
Appearances
Appellant
Mr G McCorry, as agent
Respondent
Mr R Andretich, (of Counsel) and with him Mr A Shuy, (of Counsel)
Order
This matter having come on for hearing before the Full Bench on 10 September 2007 and 11 September 2007, and
having heard Mr G McCorry, as agent, on behalf of the appellant, and Mr R Andretich, (of Counsel) and with him Mr
A Shuy, (of Counsel), on behalf of the respondent, and reasons for decision having been delivered on 12 November
2007, it is this day, 15 November 2007, ordered that:1.
The appeal is dismissed.
By the Full Bench
[L.S.]
(Sgd.) M T RITTER,
Acting President.
3040
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
87 W.A.I.G.
2007 WAIRC 01239
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
PARTIES
MELROSE FARM PTY LTD T/AS MILESAWAY TOURS
APPELLANT
-andWARREN GRAHAM MILWARD
RESPONDENT
CORAM
FULL BENCH
THE HONOURABLE M T RITTER, ACTING PRESIDENT
SENIOR COMMISSIONER J H SMITH
COMMISSIONER S WOOD
DATE
THURSDAY, 15 NOVEMBER 2007
FILE NO/S
FBA 6 OF 2007
CITATION NO.
2007 WAIRC 01239
Decision
Appeal dismissed
Appearances
Appellant
Mr G McCorry, as agent
Respondent
Mr R Andretich, (of Counsel) and with him Mr A Shuy, (of Counsel)
Order
This matter having come on for hearing before the Full Bench on 10 September 2007 and 11 September 2007, and
having heard Mr G McCorry, as agent, on behalf of the appellant, and Mr R Andretich, (of Counsel) and with him Mr
A Shuy, (of Counsel), on behalf of the respondent, and reasons for decision having been delivered on 12 November
2007, it is this day, 15 November 2007, ordered that:1.
The appeal is dismissed.
By the Full Bench
(Sgd.) M T RITTER,
Acting President.
[L.S.]
2007 WAIRC 01240
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
PARTIES
WARREN GRAHAM MILWARD, DEPARTMENT OF CONSUMER & EMPLOYMENT
PROTECTION
APPELLANT
-andMELROSE FARM PTY LTD T/AS MILESAWAY TOURS
RESPONDENT
CORAM
FULL BENCH
THE HONOURABLE M T RITTER, ACTING PRESIDENT
SENIOR COMMISSIONER J H SMITH
COMMISSIONER S WOOD
DATE
THURSDAY, 15 NOVEMBER 2007
FILE NO/S
FBA 7 OF 2007
CITATION NO.
2007 WAIRC 01240
87 W.A.I.G.
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
Decision
3041
Appeal allowed
Appearances
Appellant
Mr R Andretich, (of Counsel) and with him Mr A Shuy, (of Counsel)
Respondent
Mr G McCorry, as agent
Order
This matter having come on for hearing before the Full Bench on 10 September 2007 and 11 September 2007, and
having heard Mr G McCorry, as agent, on behalf of the appellant, and Mr R Andretich, (of Counsel) and with him Mr
A Shuy, (of Counsel), on behalf of the respondent, and reasons for decision having been delivered on 12 November
2007, it is this day, 15 November 2007, ordered that:1.
The appeal is allowed.
2.
The orders made by the Court are set aside
3.
The matter is remitted to the Industrial Magistrate for determination in
accordance with the reasons of the Full Bench.
By the Full Bench
(Sgd.) M T RITTER,
Acting President.
[L.S.]
2007 WAIRC 01241
PARTIES
CORAM
DATE
FILE NO/S
CITATION NO.
Decision
Appearances
Appellant
Respondents
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
WARREN GRAHAM MILWARD, DEPARTMENT OF CONSUMER & EMPLOYMENT
PROTECTION
APPELLANT
-andCHRISTINE ANNE MILES & RICHARD GLINTON MILES T/AS MILESAWAY TOURS
RESPONDENTS
FULL BENCH
THE HONOURABLE M T RITTER, ACTING PRESIDENT
SENIOR COMMISSIONER J H SMITH
COMMISSIONER S WOOD
THURSDAY, 15 NOVEMBER 2007
FBA 8 OF 2007
2007 WAIRC 01241
Appeal allowed
Mr R Andretich, (of Counsel) and with him Mr A Shuy, (of Counsel)
Mr G McCorry, as agent
Order
This matter having come on for hearing before the Full Bench on 10 September 2007 and 11 September 2007, and
having heard Mr G McCorry, as agent, on behalf of the appellant, and Mr R Andretich, (of Counsel) and with him Mr
A Shuy, (of Counsel), on behalf of the respondents, and reasons for decision having been delivered on 12 November
2007, it is this day, 15 November 2007, ordered that:1.
The appeal is allowed.
2.
The orders made by the Court are set aside
3.
The matter is remitted to the Industrial Magistrate for determination in
accordance with the reasons of the Full Bench.
By the Full Bench
[L.S.]
(Sgd.) M T RITTER,
Acting President.
3042
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
87 W.A.I.G.
PRESIDENT—Matters dealt with—
2007 WAIRC 01270
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
PRESIDENT
CITATION
:
2007 WAIRC 01270
CORAM
:
THE HONOURABLE M T RITTER, ACTING PRESIDENT
HEARD
:
MONDAY, 22 OCTOBER 2007
DELIVERED
:
FRIDAY, 30 NOVEMBER 2007
FILE NO.
:
PRES 4 OF 2007
BETWEEN
:
JULIE-ANNE FRIESSBOURG
Applicant
AND
WILLIAM THOMAS JOHN VALLI
Respondent
CatchWords:
Industrial Law (WA) - Application to stay operation of order - Instituting an appeal - Stay of order principles - Appeal against order
allowing referral out of time - Appeal heard - Substantive hearing to take place next day - Delay in seeking stay - Balance of
convenience considerations - Inconvenience hardship and cost to parties - Consequences of granting stay - Application granted
Legislation:
Industrial Relations Act 1979 (WA), s26, s29(1)(b)(i), s29(3), s49(11)
Result:
Application granted
Representation:
Counsel:
Applicant
:
Ms M Saraceni (of Counsel), by leave
Respondent
:
Mr D Schapper (of Counsel), by leave
Solicitors:
Applicant
:
Respondent
:
Case(s) referred to in reasons:
Eastland Technology Australia Pty Ltd and Others v Whisson and Others (2003) 28 WAR 308
John Holland Group Pty Ltd v CFMEU (2005) 85 WAIG 3918
MRTA of WA Inc v Tsakisiris (2007) 87 WAIG 2577
Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
Robe River Iron Associates v AMWSU (1988) 68 WAIG 1709
Seacode Nominees Pty Ltd v Nigel Anthony Penfold (2005) 85 WAIG 3926
The St Cecilia’s College School Board v Carmelina Grigson (2006) 86 WAIG 1260
Case(s) also cited:
Merredin Customer Service Pty Ltd as Trustee for Hatch Family Trust t/a Donovan Ford/Merredin Nissan and Donovan Tyres v
Roslyn Green 2007 WAIRC 00035
Reasons for Decision (Given Extempore and Edited from the Transcript)
RITTER AP:
1
I have before me today an application for a stay under s49(11) of the Industrial Relations Act 1979 (WA) (the Act). The
application seeks an order that the operation of the decision of the Commission, constituted by an order dated 17 July 2007 in
the matter of William Thomas John Valli v Julie-Anne Friessbourg 2007 WAIRC 00611 be wholly stayed pending the outcome
of the appeal by Julie-Anne Friessbourg (the applicant) heard by the Full Bench on 10 October 2007.
87 W.A.I.G.
2
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
The application has attached to it a schedule which sets out the reasons why the stay is sought. These are:“1.
This is an application for a stay of the decision of Commissioner
Wood dated 17 July 2007 in the matter of William Thomas John Valli
v Julie-anne Friessbourg [2007 WAIRC 00612] (Decision).
2.
In the Decision Commissioner Wood granted the Respondent’s
extension of time application to lodge his unfair dismissal claim under
s.29(3) of the Industrial Relations Act 1979 (WA) (Act).
3.
The Applicant has instituted an appeal against the Decision which
was filed in the Registry on 7 August 2007 (Appeal).
4.
The Appeal to the Full Bench of the Western Australian Industrial
Relations Commission (Commission) was heard on 10 October 2007.
5.
The Applicant applies under s.49(11) of the Act for the Decision to be
stayed in whole until the outcome of the Applicant’s appeal against
the Decision is known.
6.
The Applicant is a person of sufficient interest to the Decision, being
the Respondent to the original proceedings and the Appellant in the
Appeal.
7.
There is a serious question to be determined between the parties to the
appeal, namely, the issue of whether the learned Commissioner erred
in the exercise of his discretion in granting the Respondent’s extension
of time application (the applicant to the original proceedings before
Commissioner Wood). This issue is at the heart of the Appeal.
8.
The Appeal deals with issues of substance which are genuinely
arguable and the Applicant’s appeal has a reasonable prospect of
success. This fact favours the granting of a stay.1
9.
The Full Bench’s determination of the appeal (once handed down)
will finally determine the issue of an extension of time. In the event
the Full Bench finds in favour of the Appellant, there would be no
matter to be heard and determined by Commissioner Wood. If
Commissioner Wood proceeds as scheduled with the hearing, there
may be 2 decisions of the Commission which may be contrary to each
other. This would not be equitable nor would it be consistent with the
Commission’s statutory obligations under section 26 of the Industrial
Relations Act 1979.
10.
In light of the fact that the Full Bench’s decision has not yet been
handed down, the Applicant would be severely prejudiced by having
to incur the costs of a hearing on the substantive application before
Commissioner Wood. The balance of convenience therefore favours a
stay being granted until the outcome of the Appeal is known. The
matter cannot sensibly proceed any further until that issue is
determined.
11.
The guiding principles in relation to the granting of a stay are clearly
established in John Holland Group Pty Ltd v CFMEU (2005) 85
WAIG 3918 at [32]-[38], Seacode Nominees Pty Ltd v Nigel Anthony
Penfold (2005) 85 WAIG 3926 at [6]-[8], [12]-[17]; The St Cecilia’s
College School Board v Carmelina Grigson (2006) 86 WAIG 1260;
Eastland Technology Australia Pty Ltd and Others v Whisson and
Others (2003) 28 WAR 308; and Robe River Iron Associates v
AMWSU (1988) 68 WAIG 1709 at 1710.
12.
The Applicant applies for a stay of the Decision as it is necessary to
preserve the subject matter and the integrity of the litigation, so that
the appeal is not rendered nugatory.
13.
The Respondent will suffer no prejudice by reason of the stay being
granted, other than a short delay before the matter proceeds, if the
Full Bench finds in his favour.
1
Merredin Customer Service Pty Ltd as Trustee for Hatch
Family Trust t/a Donovan Ford/Merredin Nissan and
Donovan Tyres v Roslyn Green 2007 WAIRC 00035”
3043
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87 W.A.I.G.
3
The application was required to be listed expeditiously because it was made on 18 October 2007 and in the absence of the stay
being granted the Commission will hear the substantive application tomorrow. I am advised by counsel the substantive
application is listed for a one day hearing, although it may or may not be then completed.
4
The following dates in this matter seem to be relevant. The application which was before Commissioner Wood was heard on
19 June 2007. Commissioner Wood’s reasons for decision and order were published on 17 July 2007. The notice of appeal,
which became in effect a notice of application for leave to appeal was filed on 21 August 2007. I pause here to mention that at
any time after that date it would have been open for the applicant to have sought a stay. The Commission sent to the parties on
14 September 2007, a notice of the listing of the hearing of application/appeal before the Full Bench on 10 October 2007. The
Commission’s first instance file shows that on 4 October 2007 the substantive hearing of the application at first instance was
listed for hearing on 23 October 2007. So the position was that when the Full Bench heard the matter on 10 October 2007,
there had been a listing on 4 October 2007 for a hearing before Commissioner Wood to take place on 22 October 2007. These
dates show there has been delay in seeking the stay. I will return to this issue again later.
5
Another relevant fact that I have been informed about is that there has been no application directly to Commissioner Wood to
adjourn tomorrow’s hearing. Such an application could still occur if the stay is not granted. I should also mention that
informal communications from Commissioner Wood’s chambers, which I do not with respect place much weight on, are that
the Commissioner intends to go ahead and hear the matter tomorrow if the stay is not granted.
6
I will discuss shortly the argument of Mr Schapper this morning. Firstly it is appropriate to set out s49(11) and (12) of the
Act:“(11)
At any time after an appeal to the Full Bench has been instituted
under this section a person who has a sufficient interest may apply
to the Commission for an order that the operation of the decision
appealed against be stayed, wholly or in part, pending the hearing
and determination of the appeal.
(12)
An application under subsection (11) shall be heard and
determined by the President.”
7
The most recent opportunity I had to consider whether a stay should be granted or not was in MRTA of WA v Tsakisiris (2007)
87 WAIG 2577. As to the relevant principles, I refer in particular to paragraphs [72] to [77] of those reasons. In relation to
s49(11) it is clear that the applicant has a sufficient interest in the matter. Also on the basis of my earlier decision in John
Holland Group Pty Ltd v CFMEU (2005) 85 WAIG 3918 there is no legal prohibition to the granting of the stay on the basis
that leave under s49(2a) of the Act, has not at least as yet, been granted by the Full Bench. As I said in the reasons in MRTA,
usually the most important consideration in deciding a stay application will be the consequences of whether or not it is granted.
I also made it clear in those reasons that the Act does not automatically stay the operation of the orders of the Commission at
first instance when an appeal is filed. The usual course is that there is no stay and accordingly there must be something about
the particular circumstances of the case which make it just and fair to make a stay order. These circumstances might be
described as special or unusual, but whatever title is applied the reason for granting the stay is because it is just and fair in the
circumstances of the case.
8
In MRTA I also quoted from the reasons of O’Dea P in Robe River Iron Associates v AMWSU (1988) 68 WAIG 1709 at 1710.
I will not now repeat that quotation but I consider that what His Honour there said takes on particular significance in this
application given the appeal has already been heard by the Full Bench. I think it would be even more inappropriate to try and
second guess what the other Commissioners as part of the Full Bench might have made of the application and the appeal we
have heard.
9
Also, with respect to delay, I refer to paragraph [81] of MRTA. I emphasise what I there said with reference to Queensland v
JL Holdings Pty Ltd (1997) 189 CLR 146 at 154. That is despite the validity of the old maxim that justice delayed is justice
denied, delay does not have a sole mortgage upon the requirements of the justice of an individual case. I am also told, relevant
to delay, that if the application is not heard tomorrow by Commissioner Wood, it will be able to be heard relatively soon after
the appeal decision is delivered, if the appeal is unsuccessful.
10 Mr Schapper made a number of submissions in his usual succinct but cogent style. I will endeavour to do justice to them in
listing them. Mr Schapper and also Ms Saraceni referred to the form of the order that was made by Commissioner Wood.
Regrettably we do not have before us in the appeal book the final sealed form of the order. Both parties seem to accept that the
order in the unsealed form in the appeal book is one that I can act on. It is in the form of a declaration and says that it would be
unfair not to accept the respondent’s application pursuant to s29(1)(b)(i) of the Act. There was some discussion before the Full
Bench as to whether the appropriate section was there listed. In my view at present it does not matter for the purpose of
determining the appeal and nor does it matter today. It may well be that the section should have been described, if it needed to
be described, in terms of both s29(1)(b)(i) and s29(3) of the Act, but I do not think that is material today.
11 There was also reference made by Mr Schapper to the fact that the order was in the form of a declaration and whether a stay
could be ordered against a declaration and if so what the consequences might be. In s49(11) of the Act the reference is to a
stay of the operation of the decision. In my opinion, the operation of this decision is the effect that the declaration has had,
which is that the Commission has jurisdiction because it is prepared to accept the application out of time. If the stay is granted,
in my view the effect would be that the operation of that order is stayed. Therefore there is no operating decision made by the
Commission that it has the jurisdiction to accept the application so the Commission could not presently go on and hear the
substantive application. In my opinion therefore the consequence of a stay being granted is clear.
87 W.A.I.G.
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
3045
12 Mr Schapper also pointed out with some force that the “test” is not stated as one of the balance of convenience and that I ought
not confuse my role today with one of determining simply where the balance of convenience lies. Mr Schapper submitted that
in cases likes MRTA, I have said that whether a stay is granted will often devolve into a question of whether absent a stay the
appeal was to be rendered nugatory. With respect to Ms Saraceni’s submissions that the appeal would be rendered nugatory,
Mr Schapper says that that is incorrect. What would really occur is that there would be an inconvenience or potential
inconvenience for the appellant and that that is not the same thing as an appeal being rendered nugatory. Mr Schapper also
points out that the ordinary course is that a successful respondent is entitled to the fruits of their litigation. I accept what
Mr Schapper says that here the fruit of litigation is to have the hearing of the matter determined on the basis that the
Commission does have the jurisdiction to proceed. Mr Schapper also points out that the appellant could have applied for an
adjournment of the hearing before Commissioner Wood and no formal application to adjourn has as yet been made.
Mr Schapper also submits that although there could be a waste of time element if the stay is not granted, this is different from
an appeal being rendered nugatory and would not and should not be the sole test of determining whether the application is
granted. It is submitted that I should exercise some discipline in deciding the application and not simply convert my decision
into one based upon a test of the balance of convenience. Mr Schapper also refers to the fact that the matter before the Full
Bench is certainly at this stage just an application for leave to appeal. Mr Schapper points out that somebody in that position
ought not to be in a better position than an appellant who appeals as of right, simply because of the timeline and facts and
circumstances of this case, referred to earlier.
13 I have given close consideration to each of these arguments of Mr Schapper and have thought about the consequences of
whether the stay is granted or not. There are various permutations depending upon whether the stay is or is not granted,
whether the application before Commissioner Wood succeeds or not, and whether or not the appeal succeeds. There are other
permutations dependent upon whether the hearing does or does not get heard within a day before Commissioner Wood or
whether Commissioner Wood having heard the matter reserves the decision and then that decision is still reserved at the time
the Full Bench hands down its decision. But within those permutations there are a number of distinct possibilities that I have
focused upon. One possibility is a waste of time, money and inconvenience for all concerned if the hearing proceeds
tomorrow. This affects the parties and the Commission although Commissioner Wood might be in a better position to consider
that issue from his perspective. There are also possible witnesses as well and I have been told that witnesses have at least been
subpoenaed on behalf of the applicant.
14 If the stay was granted and the appeal succeeded, then there would have been a good purpose served in the granting of the stay.
If the stay is granted and the appeal is lost, then there is some delay to be occasioned by the applicant before
Commissioner Wood in having his substantive application determined. In that instance then there is hardship to the present
respondent, but on the basis of what I have been told as to when the matter might be heard before Commissioner Wood, it
might not be as substantial a prejudice as it would be if there was a likely long delay.
15 If there is no stay granted and if the appeal is lost, then the matter will proceed upon a course that should have occurred in any
event in that the hearing will occur. There is then, as I said, other permutations based upon whether the stay is not granted and
whether the action succeeds, is lost, is adjourned or part heard. I have considered all of those matters.
16 I accept Mr Schapper’s submission that the test is not simply one of balance of convenience. However, the balance of
convenience is a matter of variable substance in determining these types of matters. In some instances it may well take a back
seat; in other instances it might be more significant. In my view, the issue of balance of convenience does loom as being of
some significance in this case in assessing whether it is just to grant the stay. It does so because of the close proximity
between where we are now and the hearing tomorrow and also the timing of the hearing before the Full Bench and the stage
that the application/appeal has reached. There is a counter argument that the applicant has been the author of their misfortune
and I accept that there is some weight in that. Overall though my concern is that there could be a waste of time and effort and
money and an inconvenience to all concerned if the stay is not granted. This is because if the appeal is allowed, the hearing
before Commissioner Wood is one that should not have taken place and will have been a waste of time and resources. By a
narrow margin I think for this reason it is just in the circumstance to grant the stay. Accordingly, I will allow the application.
2007 WAIRC 01296
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
PARTIES
JULIE-ANNE FRIESSBOURG
APPLICANT
-andWILLIAM THOMAS JOHN VALLI
RESPONDENT
CORAM
THE HONOURABLE M T RITTER, ACTING PRESIDENT
DATE
MONDAY, 22 OCTOBER 2007
FILE NO/S
PRES 4 OF 2007
CITATION NO.
2007 WAIRC 01296
3046
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
Decision
87 W.A.I.G.
Application granted
Appearances
Applicant
Ms M Saraceni (of Counsel), by leave
Respondent
Mr D Schapper (of Counsel), by leave
Order
This matter having come on for hearing before me on 22 October 2007, and having heard Ms M Saraceni (of
Counsel), by leave, on behalf of the applicant, and Mr D Schapper (of Counsel), by leave, on behalf of the
respondent, and reasons for decision being given ex tempore and to be edited and published at a future date, it is this
day, 22 October 2007, ordered that:1.
The operation of the decision of Commissioner Wood dated 17 July
2007 be stayed until the determination of the application for leave to
appeal and the appeal if leave be granted or until further order.
2.
The parties have liberty to apply on 48 hours notice for the purpose of
seeking any variation to or revocation of the first order made.
(Sgd.) M T RITTER,
Acting President.
[L.S.]
PUBLIC SERVICE ARBITRATOR—Awards/Agreements—Variation of—
2007 WAIRC 01248
WA HEALTH - HSU AWARD 2006
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
PARTIES
HEALTH SERVICES UNION OF WESTERN AUSTRALIA (UNION OF WORKERS)
APPLICANT
-vDIRECTOR GENERAL OF HEALTH IN RIGHT OF THE MINISTER FOR HEALTH AS THE
METROPOLITAN HEALTH SERVICE
RESPONDENT
CORAM
PUBLIC SERVICE ARBITRATOR
COMMISSIONER P E SCOTT
DATE
TUESDAY, 20 NOVEMBER 2007
FILE NO/S
P 14 OF 2007
CITATION NO.
2007 WAIRC 01248
Result
Award Varied
Order
HAVING heard Mr G Bucknall on behalf of the applicant and Mr P Heslewood on behalf of the respondent, and by consent, the
Public Service Arbitrator, pursuant to the powers conferred under the Industrial Relations Act 1979, hereby orders:
THAT the WA Health – HSU Award 2006 be varied in accordance with the following Schedule and that such variation
shall have effect from the beginning of the first pay period commencing on or after the 19th day of November 2007.
(Sgd.) P E SCOTT,
Commissioner,
[L.S.]
Public Service Arbitrator.
SCHEDULE
1.
Clause 13 – Meal Money: Delete subclause (1) of this clause and insert the following in lieu thereof:
(1)
An employee required to work overtime before or after the employee’s ordinary working hours on any day shall, when
such additional duty necessitates taking a meal away from the employee’s usual place of residence, be supplied by the
87 W.A.I.G.
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
3047
employer with any meal required or be reimbursed for each meal purchased at the rate of $9.00 for breakfast, $11.05 for
the midday meal, and $13.25 for the evening meal: Provided that the overtime worked before or after the meal break
totals not less than two (2) hours. Such reimbursement shall be in addition to any payment for overtime to which the
employee is entitled.
2.
Clause 19 – Motor Vehicle Allowance: Delete subclause (4) of this clause and insert the following in lieu thereof:
(4)
Allowance for Towing Employer's Caravan or Trailer
In the cases where employees are required to tow employer's caravans on official business, the additional rate shall be 7.0
cents per kilometre. When an employer's trailer is towed on official business the additional rate shall be 4.0 cents per
kilometre.
3.
Clause 25 – Removal Allowance: Delete paragraph (1)(c) of this clause and insert the following in lieu thereof:
(c)
The employee shall be reimbursed by the new employer:
(i)
The actual reasonable cost of conveyance for the employee and dependants;
(ii)
The actual cost (including insurance) of the conveyance of an employee's household furniture, effects
and appliances up to a maximum volume of thirty five (35) cubic metres, provided that a larger
volume may be approved by the employer in special cases;
(iii)
An allowance of $534.00 for accelerated depreciation and extra wear and tear on furniture, effects and
appliances for each occasion that an employee is required to transport furniture, effects and
appliances: Provided that the employer is satisfied that the value of household furniture, effects and
appliances moved by the employee is at least $3,199.00;
(iv)
Reimbursement of reasonable expenses in kennelling and transporting of domestic pet or pets up to a
maximum amount of $169.00;
Pets are defined as dogs, cats, birds or other domestic animals kept by the employee or the
employee’s dependents for the purpose of household enjoyment;
Pets do not include domesticated livestock, native animals or equine animals.
4.
Clause 25 – Removal Allowance: Delete subclause (6) of this clause and insert the following in lieu thereof:
(6)
Where an employee occupies hospital accommodation where furniture is provided and as a consequence is obliged to
store furniture, the employee shall be reimbursed the actual cost of such storage up to a maximum allowance of $992.00
per annum. Actual cost is deemed to include the premium for adequate insurance coverage of the value of the furniture
stored. An allowance under this subclause shall not be paid for a period in excess of four (4) years without the approval
of the employer.
AWARDS/AGREEMENTS—Variation of—
2007 WAIRC 01288
TRANSPORT WORKERS (GOVERNMENT) AWARD, 1952
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
PARTIES
(COMMISSION'S OWN MOTION)
IN THE MATTER OF THE TRANSPORT WORKERS (GOVERNMENT) AWARD, 1952
AND
MINISTER FOR AGRICULTURE AND FOOD AND OTHERS
APPLICANTS
-vTRANSPORT WORKERS' UNION OF AUSTRALIA, INDUSTRIAL UNION OF WORKERS,
WESTERN AUSTRALIAN BRANCH
RESPONDENT
CORAM
SENIOR COMMISSIONER J H SMITH
DATE
FRIDAY, 7 DECEMBER 2007
FILE NO/S
APPL 1668 OF 2003, APPL 927 OF 2005
CITATION NO.
2007 WAIRC 01288
3048
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
Result
87 W.A.I.G.
Award varied
Representation
APPL 927 OF 2005
Applicants
Mr R Heaperman as agent on behalf of the Minister for Agriculture and Food and Others
Respondent
Mr N J Hodgson
Order
HAVING heard Mr R Heaperman as agent on behalf of the Applicants, Minister for Agriculture and Food and Others, and Mr N J
Hodgson on behalf of Respondent, and by consent, the Commission pursuant to the powers conferred on it under the Industrial
Relations Act 1979, hereby orders –
[L.S.]
THAT the Transport Workers (Government) Award, 1952 be varied in accordance with the following schedule and that
such variation shall have effect from the beginning of the first pay period commencing on or after Friday, 7 December
2007.
(Sgd.) J H SMITH,
Senior Commissioner.
SCHEDULE
1.
Delete the entire contents of the Award and insert the following in lieu thereof:
TRANSPORT WORKERS (GOVERNMENT) AWARD, 1952
No. 2A of 1952
1. - AWARD STRUCTURE
1.1 - TITLE
This award shall be known as the Transport Workers (Government) Award, 1952, as amended and consolidated, and shall replace
Award No. 88 of 1947.
1.2 - ARRANGEMENT
1.
1.1
1.2
1.3
1.4
1.5
1.6
2.
2.1
2.2
2.3
2.4
3.
3.1
3.2
3.3
3.4
4
4.1
4.2
4.3
4.4
4.5
5
5.1
5.2
5.3
5.4
5.5
5.6
5.7
5.8
5.9
5.10
Award Structure
Title
Arrangement
Area and Scope
Equal Opportunity
Term
Definitions
Contract of Employment
Contract of Service
Types of Employment
Employment Records
Right of Entry
Hours of Work
Hours
Rostered Days Off
Overtime
Part Time Employees
Wages
Minimum Adult Award Wage
Wages
Supported Wage System
Fares & Travelling Time
Fares Outside the Metropolitan Area
Allowances and Facilities
Junior Workers
Meals
Handling Heavy Articles
Distant work and Change of Depot
Motor Vehicle Allowance
Higher Duties
District Allowances
Traineeships
Salary Packaging
Union Facilities For Union Representatives
87 W.A.I.G.
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
6.
Leave
6.1
6.2
6.3
6.4
6.5
6.6
6.7
6.8
6.9
6.10
6.11
6.12
6.13
6.14
6.15
6.16
6.17
7.
7.1
7.2
8.
9.
10.
11.
Sch. A
Sch. B
Annual Leave
Sick Leave
Carer's Leave
Public Holidays
Long Service Leave
Bereavement Leave
Parental Leave
Trade Union Training Leave
Leave To Attend Union Business
Cultural/Ceremonial Leave
Purchased Leave – 48/52 Wages Arrangement
Deferred Wages Arrangement
Study Leave
Leave Without Pay
Blood/Plasma Donors Leave
Emergency Services Leave
Defence Force Reserves Leave
Consultation & Introduction of Change
Introduction of Change
Consultation
Dispute Resolution Procedure
Named Parties
Other Laws Affecting Employment
Where To Go For Further Information
District Allowance
District Allowance Map
3049
1.3 - AREA AND SCOPE
This award shall apply to all employees who are eligible for membership in the applicant Union employed by the employer named
in Clause 9. – Named Parties, following the vocations mentioned
1.4 - EQUAL OPPORTUNITY
The provision of this award shall be interpreted and applied so as not to discriminate against an employee on any ground on which
discrimination in work is unlawful under the Equal Opportunity Act 1984.
1.5 - TERM
The term of this award shall be for a period of one year from the date of delivery. The date of this award is the 12th day of May,
1952.
1.6 - DEFINITIONS
1.6.1
"Motor driver's assistant" shall mean and include any employee who accompanies the driver to assist in loading,
unloading or delivering.
1.6.2
"Loaders" shall mean and include all employees engaged mainly in loading or unloading any goods, wares, merchandise
or materials on to or from any vehicle.
1.6.3
"Yardperson" shall include all adult employees, not otherwise specified, employed or in connection with a stable, garage
or yard.
1.6.4
"Gross Combination Mass" means:
(a)
In the case of an articulated truck or trailer combination –
The maximum permissible mass (whether described as the gross train mass or otherwise) for the motor vehicle
and the trailer(s) or semi-trailer(s) attached to it, together with the load carried on each, as stated in any
certificate of registration or other certificate that is issued in respect of the motor vehicle by the relevant
Authority or by the corresponding authority of another State or Territory or that is required by law to be painted
or displayed on the motor vehicle; and
(b)
In any other case –
(i)
The maximum permissible mass (whether described as the gross vehicle mass or otherwise) for the
motor vehicle and its load (but including any trailer and its load) as stated in a certificate of
registration or other certificate that is issued in respect of the motor vehicle by the relevant Authority
or by the corresponding authority of another State or Territory or that is required by law to be painted
or displayed on the motor vehicle.
(ii)
This definition is inclusive of that for "Gross Vehicle Mass".
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WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
87 W.A.I.G.
1.6.5
"Junior Employee" shall mean any person under the age of twenty years in receipt of less than the adult wage.
1.6.6
"Low loader articulated vehicle" means a vehicle consisting of a tandem drive prime mover and gooseneck semi-trailer
(not being a drop deck semi-trailer) with the loading area of the semi-trailer a maximum of 1 metre off the ground. The
prime mover and gooseneck semi-trailer being designed and manufactured and plated to operate at the required mass
limited.
1.6.7
"Union" means the Transport Workers' Union of Australia, Industrial Union of Workers, Western Australian Branch.
1.6.8
"WAIRC" and "Commission" means the Western Australian Industrial Relations Commission
2. - CONTRACT OF EMPLOYMENT
2.1 - CONTRACT OF SERVICE
2.1.1
Definitions
(a)
For the purposes of Clause 2.1 – Contract of Service only, the following terms shall have the following
meaning:
(b)
"Casual employee" means an employee as defined in Clause 2.2 - Types of Employment.
(c)
"Fixed term contract employee" means a person engaged by the employer under a contract of employment for a
specified period.
(d)
"Probationary employee" means an employee who is serving a period of probation in accordance with Clause
2.1.2 of this clause.
"Trainee" means an employee engaged in a full time or part time structured employment based training
arrangement, approved by the Western Australian Department of Education and Training and which, on
successful completion, provides the employee with a nationally recognised qualification.
"Traineeship training contract" means the agreement between the employer and the trainee that provides details
of the traineeship and the obligations of the employer and trainee, and that is registered with the Western
Australian Department of Education and Training.
(e)
(f)
2.1.2
2.1.3
Probation
(a)
All employees appointed by the employer shall initially be employed on a probationary period not exceeding
three months.
(b)
Prior to the expiry of a probationary period of employment, the employer shall:
(i)
confirm the appointment;
(ii)
where performance issues have been identified and appropriate support and training to enhance
performance have been documented, extend the employee's period of probation for a further period as
determined by the line manager, but shall not exceed a further three months; or
(iii)
terminate the appointment due to unsatisfactory performance.
(c)
Any employee on a weekly engagement who is ready, willing and available for work shall be provided with a
full week's work by the employer. If a full week's work is not provided, the employee shall be entitled to not
less than the minimum weekly wage prescribed in this award for their class of work. A full week's work for a
part time employee shall equate to the ordinary working hours as agreed between the part time employee and
the employer under Clause 3.1.6.
(d)
The employer shall be under no obligation to pay for any day not worked upon which the employee is required
to present themselves for duty, except where such absence from work is on account of holidays or leave to
which the employee is entitled to under this or any other relevant award.
(e)
An employer may direct an employee to carry out such duties as are within the limits of the employee's skill,
competence and training, including work that is incidental or peripheral to the employee's main tasks or
functions.
Notice of termination of employment by the employer
(a)
The employment of an employee, other than a casual employee, trainee, or fixed term contract employee as
defined in Clause 2.1.1, must not be terminated unless the employer has given the employee the required period
of notice in accordance with the following table or the employer has provided the employee with payment in
lieu of notice.
Period of continuous service
Required period of notice
Not more than 1 year
At least 1 week
More than 1 year but not more than 3 years
At least 2 weeks
More than 3 years but not more than 5 years
At least 3 weeks
More than 5 years
At least 4 weeks
87 W.A.I.G.
2.1.4
2.1.5
2.1.6
2.1.7
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
3051
(b)
The period of notice for an employee, who at the time of being terminated is over 45 years of age and has
completed at least two year's continuous service with the employer, shall be increased by one week.
(c)
The employee may be terminated by the employer giving the employee part of the required period of notice,
with payment in lieu for the remainder of the required period of notice.
(d)
Payment in lieu of notice must equal or exceed the total amounts that, if the employee's employment had
continued until the end of the required period of notice, the employer would have become liable to pay the
employee because of the employment continuing during that period.
(e)
Payment in lieu of notice must be worked out on the basis of:
(i)
the employee's ordinary hours of work, even if they are not standard hours;
(ii)
the amounts ordinarily payable to the employee in respect of those hours including, for example,
allowances, loadings and penalties; and
(iii)
any other amounts payable under the employee's contract of employment.
Termination of an employee for serious misconduct
(a)
An employer may terminate an employee without notice or payment in lieu of notice if the employee is guilty of
serious misconduct. In such cases, wages shall be paid up to the time of dismissal only.
(b)
"Serious misconduct" means misconduct of such a nature that it would be unreasonable to require the employer
to continue the employment of the employee concerned during the required period of notice.
Notice of termination of employment of casual employees
(a)
The employment of a casual employee must not be terminated unless the employer has given the employee one
hour's notice of termination or payment in lieu of one hour's notice.
(b)
Notwithstanding Clause 2.1.5(a) and the exclusion of casual employees in Clause 2.1.3(a), a casual employee
may, subject to the provisions of section 170CBA of the Workplace Relations Act 1996 (Cth) be entitled to
notice of termination as provided for in section 170CM of the Workplace Relations Act 1996 (Cth).
Notice of termination of employment of trainees
(a)
Trainees engaged under a traineeship training contract as defined in Clause 2.1.1(f) are not, at the conclusion of
the contract, entitled to notice or payment in lieu of notice.
(b)
Although the completion of a traineeship does not guarantee the trainee future employment in the public sector,
the employer will cooperate to assist the trainee to be placed in suitable employment, should a position arise.
Notice of termination of employment of fixed term contract employees
Fixed term contract employees as defined in Clause 2.1.1(c) are not, at the conclusion of the contract, entitled to notice or
payment in lieu of notice.
2.1.8
2.1.9
Notice of termination of employment by the employee
(a)
Except as otherwise provided in this clause, an employee, including a probationary employee, shall provide the
employer with one week's notice of termination or forfeit one week's pay in lieu of notice, unless the employer
otherwise approves.
(b)
An employee employed on an ongoing basis as a caretaker shall provide the employer with two week's notice of
termination or forfeit two week's pay in lieu of notice, unless the employer otherwise approves.
(c)
A casual employee shall provide the employer with one hour's notice of termination or forfeit one hour's pay in
lieu of the required notice.
Statement of employment
On termination of service, an employee shall, on request, be given a Statement of Employment setting out the length of
service and duties performed by the employee.
2.1.10
Job search entitlement
(a)
During the period of notice of termination given by the employer, an employee shall be allowed up to one day's
time off without loss of pay during each week of notice for the purpose of seeking other employment. The time
off shall be taken at times that are convenient to the employee after consultation with the employer.
(b)
If the employee has been allowed paid leave for more than one day during the notice period for the purpose of
seeking other employment, the employee shall, at the request of the employer, be required to produce proof of
attendance at an interview or they shall not receive payment for the time absent. For this purpose, a statutory
declaration will be sufficient.
2.2 - TYPES OF EMPLOYMENT
2.2.1
Definitions
2.2.2
For the purposes of this award, the following terms shall have the following meaning, unless defined differently
elsewhere in the award:
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2.2.3
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
87 W.A.I.G.
(a)
"Casual employee" means an employee who is engaged on an hourly basis for a period not exceeding four
weeks in any workplace.
(b)
"Full time employee" means an employee who is engaged for 38 hours per week in accordance with Clause 3.1
– Hours.
(c)
"Part time employee" means an employee who undertakes work for less than the hours designated as full time
by Clause 3.1 – Hours.
A person may be appointed as a full time or part time employee:
(a)
on an ongoing basis; or
(b)
for a fixed term.
2.2.4
A person may be appointed as a casual employee, subject to the provisions of this Clause.
2.2.5
Employees will be employed on an ongoing basis except in the following circumstances where fixed term and casual
contracts may be used:
(a)
special projects;
(b)
to temporarily fill vacancies where a decision has been made to fill that vacancy, whilst the recruitment process
is being undertaken:
(c)
to fill vacancies due to:
(d)
parental leave;
(e)
long service leave;
(f)
sick leave;
(g)
employees' compensation;
(h)
secondments;
(i)
the substantive occupant working in another position that may involve higher duties;
(j)
leave without pay;
(k)
other forms of leave as prescribed in the relevant award/s; and
(l)
any other situations as agreed between the employer and the union, either at an industry or a local level.
2.2.6
Employees appointed on either an ongoing basis or on a fixed term contract shall be advised in writing of their terms of
appointment and such advice shall specify the dates of commencement, hours of work and, in the case of fixed term
contract employees, the cessation of the contract.
2.2.7
Casual employment
2.2.8
(a)
When an employee is appointed on a casual basis and before they are so engaged, they shall be informed of
their casual status and their conditions of employment.
(b)
Casual employees shall receive a 20% loading in lieu of annual leave, sick leave and public holidays.
Part time employment
(a)
A part time employee shall be entitled to the same entitlements as a full time employee, to be provided on a pro
rata basis according to the hours worked by the employee.
(b)
At the time of engagement, the employer and the part time employee will agree in writing on a regular pattern
of work, specifying the hours worked each day, which days of the week the employee will work, and the actual
starting and finishing times each day. Rostered employees shall be informed of their minimum hours of
engagement and the basis upon which rosters are formulated. An agreement concerning a part time employee's
ordinary hours of work shall be consistent with the relevant provisions of Clause 3.1 – Hours.
(c)
The employer and employee may agree, in writing, to a temporary variation to an employee's ordinary working
hours such that:
(d)
(i)
time worked up to eight hours on any day is not to be regarded as overtime but an extension of the
agreed hours for that day and should be paid at the normal rate of pay;
(ii)
additional days worked, up to a total of five days per week, are regarded as an extension of the agreed
hours and should be paid at the normal rate of pay;
(iii)
additional hours worked for which overtime is not paid shall be considered as part of the employee's
ordinary working hours; and
(iv)
any time worked beyond the relevant daily spread of hours and/or days of the week as prescribed in
Clause 3.1 – Hours shall be considered overtime.
Nothing in this Clause prevents the employer and employee from agreeing, in writing, to a permanent variation
to the part time employee's ordinary working hours as established under Clause 2.2.8(b).
87 W.A.I.G.
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
3053
2.3 - EMPLOYMENT RECORDS
2.3.1
Definitions
(a)
(b)
2.3.2
In this clause:
(i)
"industrial instrument" means:
(ii)
an award;
(iii)
an industrial agreement;
(iv)
an order of the Commission under the Industrial Relations Act 1979; or
(v)
an employer-employee agreement.
(i)
"relevant person" means:
(ii)
the employee concerned;
(iii)
if the employee is a represented person, their representative. The term representative includes the
Secretary and duly accredited officials of the union;
(iv)
a person authorised in writing by the employee;
(v)
the Secretary or duly accredited official of the union; and
(vi)
an officer referred to in section 93 of the Industrial Relations Act 1979 authorised in writing by the
Registrar.
Keeping of employment records
(a)
The employer shall keep, or cause to be kept, employment records showing:
(i)
the employee's name and, if the employee is under 21years of age, their date of birth;
(ii)
any industrial instrument that applies;
(iii)
the date on which the employee commenced employment with the employer;
(iv)
for each day:
(v)
(b)
the time at which the employee started and finished work, including roster details if
applicable;
(bb)
the period or periods for which the employee was paid; and
(cc)
details of work breaks including meal breaks;
for each pay period:
(aa)
the employee's designation;
(bb)
the gross and net amounts paid to the employee under the industrial instrument; and
(cc)
all deductions and the reasons for them;
(dd)
all leave taken by the employee, whether paid, partly paid or unpaid;
(ee)
the information necessary for the calculation of the entitlement to, and payment for long
service leave under the industrial instrument;
(ff)
any other information in respect of the employee required under the industrial instrument to
be recorded; and
(gg)
any information, not otherwise covered by this clause, that is necessary to show that the
benefits received by the employee comply with the industrial instrument.
The employer must ensure that:
(i)
(c)
(aa)
the employment records are kept in accordance with the Industrial Relations (General) Regulations
1997 as amended or superseded from time to time;
(ii)
each entry in relation to long service leave is retained:
(iii)
during the employment of the employee; and
(iv)
for not less than 7 years after the employment terminates; and
(v)
each other entry is retained for not less than 7years after it is made.
Form of records
(i)
An employer is to ensure that the employment records of the employer are kept:
(aa)
by making entries in the English language in or on a separate page of a bound or loose-leaf
book kept specifically for that purpose; or
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WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
(d)
2.3.3
87 W.A.I.G.
(bb)
by recording or storing the particulars required to be entered in the employment records by
means of a mechanical, electronic or other device, but so that the particulars so recorded or
stored will remain in the form in which they were originally recorded or stored and will be
capable of being reproduced in written form in the English language;
(cc)
with only one employee's records appearing on any one page;
(dd)
so that the record for each pay period of each employee is identifiable; and
(ee)
in a manner that enables compliance with Clauses 2.3.2 and 2.3.3 of this clause to be readily
ascertained.
A person is not to alter employment records unless the alteration is annotated so as to identify:
(i)
the nature of the alteration;
(ii)
the person making the alteration; and
(iii)
the date on which the alteration was made.
Access to employment records
(a)
(b)
An employer, on written request by a relevant person, must:
(i)
produce to the person the employment records relating to an employee; and
(ii)
let the person inspect the employment records.
The duty placed on an employer by this Clause:
(i)
continues so long as the records are required to be kept under Clause 2.3.2(b);
(ii)
is not affected by the fact that the employee is no longer employed by the employer or that the
industrial instrument no longer applies to them;
(iii)
includes the further duties:
(aa)
to let the relevant person enter premises of the employer for the purpose of inspecting the
records; and
(bb)
to let the relevant person take copies of or extracts from the records; and
(cc)
must be complied with not later than:
at the end of the next pay period after the request is received; or
the seventh day after the day on which the request was made to the employer.
(iv)
If the employer maintains a personal or other file on an employee, the employee shall be entitled to
examine all material contained on that file and take copies at a time that does not result in the
employer's business being unduly interrupted or otherwise hampered.
2.4 - RIGHT OF ENTRY
2.4.1
Right of entry for discussions with employees
(a)
Definitions
(i)
(b)
2.4.2
In this clause:
(aa)
"authorised representative" means a person who holds an authority in force under the
Industrial Relations Act 1979;
(bb)
"relevant employee", when used in connection with the exercise of a power by an authorised
representative of the union, means an employee who is a member of the union or who is
eligible to become a member of the union.
An authorised representative of the union may, on notification to the employer, enter during working hours, any
premises where relevant employees work, for the purpose of holding discussions at the premises with any of the
relevant employees who wish to participate in those discussions.
Right of entry to investigate breaches
(a)
An authorised representative of the union may, on notification to the employer, enter during working hours, any
premises where relevant employees work, for the purpose of investigating any suspected breach of an award,
industrial agreement or order that applies to any such employee, or the Industrial Relations Act 1979, the
Minimum Conditions of Employment Act 1993 or the Occupational Safety and Health Act 1984.
(b)
An "authorised representative" and "relevant employees" have the same meaning as in Clause 2.4.1(a).
(c)
For the purpose of investigating a suspected breach in accordance with this clause, the authorised
representative:
87 W.A.I.G.
(d)
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
3055
(i)
subject to Clause 2.4.2(c)(iv), may require the employer to produce for the representative's inspection,
during working hours at the employer's premises or at any mutually convenient time and place, any
employment records of employees or other documents kept by the employer that are related to the
suspected breach;
(ii)
shall not conduct interviews during normal working hours in the circumstances that will result in the
employer's business being unduly interrupted or otherwise hampered;
(iii)
may make copies of the entries in the employment records or documents related to the suspected
breach;
(iv)
shall treat with confidentiality any information obtained from employment records; and
(v)
may, during working hours, inspect or view any work, material, machinery, or appliance that is
relevant to the suspected breach.
In exercising a power under Clause 2.4.2(c)(i), an authorised representative is not entitled to require the
production of employment records or other documents unless, before exercising the power, the authorised
representative has given the employer concerned:
(i)
at least 24 hours' written notice, if the records or other documents are kept on the employer's premises;
or
(ii)
at least 48 hours' written notice, if the records or other documents are kept elsewhere.
(e)
The provisions of Clause 2.4.2(c)(iv) apply except where, in accordance with section 49I(7) of the Industrial
Relations Act 1979, the Commission has waived the requirement for the authorised representative to give the
employer concerned notice.
(f)
Where the Commission has waived the requirement to give the employer concerned notice of an intended
exercise of a power, the authorised representative must, after entering the premises and before requiring the
production of the records or documents, give the person who is apparently in charge of the premises the
certificate or a copy of the certificate provided by the Commission under section 49I(8) of the Industrial
Relations Act 1979 authorising the authorised representative's exercise of a power without notice.
(g)
If:
(i)
a person proposes to enter, or is on, premises in accordance with Clauses 2.4.2(c)(i) & (ii); and
(ii)
the occupier, including a person in charge of the premises, requests the person to show their authority;
(iii)
the person is not entitled to enter or remain on the premises unless they show the occupier the
authority in force under the Industrial Relations Act 1979.
(h)
The occupier of premises must not refuse, or intentionally and unduly delay, entry to the premises by a person
entitled to enter the premises under Clauses 2.4.2(c)(i) & (ii).
(i)
A person must not intentionally and unduly hinder or obstruct an authorised representative in the exercise of the
powers conferred by this clause.
(j)
A person must not purport to exercise the powers of an authorised representative under this clause if the person
is not the holder of a current authority issued by the Registrar under Division 2G of Part II of the Industrial
Relations Act 1979.
(k)
The parties shall comply with the terms of Division 2G of Part II of the Industrial Relations Act 1979.
3. - HOURS OF WORK
3.1 - HOURS
3.1.1
The ordinary hours of work shall be 38 per week and shall be worked between the hours of 7am and 6pm Monday to
Friday.
3.1.2
Ordinary hours shall be worked within a 20 day cycle of eight hours on the first 19 days in each cycle with 0.4 of one
hour of each such day worked accruing as an entitlement to take the 20th day in each cycle as a paid day off as though
worked.
3.1.3
The ordinary hours of work shall not exceed 8 hours on any one day.
3.1.4
Commencing and finishing times once having been determined, may be varied by agreement between the employer,
employee and where appropriate the Union delegate to suit the circumstances of the establishment, or in the absence of
agreement, by seven days notice of alteration given by the employer to the employee.
3.1.5
Where an employer desires to vary or change the starting time and finishing time, he shall give one week's notice of such
variation or change to his employees and post a notice of the intended change at the depot, garage or yard
3.1.6
At the time of engagement, the employer and the part time employee will agree in writing on a regular pattern of work,
specifying the hours worked each day, which days of the week the employee will work, and the actual starting and
finishing times each day. Rostered employees shall be informed of their minimum hours of engagement and the basis
upon which rosters are formulated.
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WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
87 W.A.I.G.
3.2 - ROSTERED DAYS OFF
3.2.1
An employer and employee may, by agreement, allow rostered days off to accumulate, and such accumulated days shall
be taken at a mutually convenient time.
3.2.2
An employer and an employee may, by agreement, substitute the day the employee is to take off for another day.
3.2.3
Where an employer desires to vary or change the usual starting and finishing time he shall give one weeks notice of such
variation or change to the employees concerned and post a notice of the intended change at the depot, yard or garage.
3.2.4
This clause shall not operate so as to allow an employee to accrue an entitlement to rostered days off while that employee
is on long service leave.
3.2.5
This clause shall not operate so as to allow an employee who is rostered off duty to claim either sick leave or
compassionate leave in substitution for such rostered day off.
3.2.6
An employee shall accrue an entitlement of 24 minutes per day whilst on sick leave towards his rostered day off.
However, his sick leave entitlement shall be debited by eight hours for each days absence.
3.2.7
An employee on employees compensation:
(a)
For a period of less than one complete 20 day work cycle shall accrue time towards a rostered day off.
(b)
For periods of one or more complete 20 work cycle shall not accrue time towards a rostered day off.
(c)
For a period of less than one complete 20 day work cycle and a rostered day off falls within the period, the
employee will not be re-rostered for an additional day off.
(d)
For periods of one or more complete 20 day work cycle no Rostered Day Off is accrued.
3.2.8
There will be no entitlement to payment for time accrued towards a rostered day off on either termination or dismissal,
nor will there be any requirement to accumulate a full credit prior to being entitled to a rostered day off.
3.2.9
Overtime provisions will not apply until after eight hours have been worked on each day, or in the case of part-time
employees until after the hours normally worked on that day.
3.2.10
Implementation of the 38-hour week for full time employees shall be applied to part-time employees on a proportionate
basis.
3.2.11
There will be no rostered days off duty applicable to employees whilst on leave without pay.
3.2.12
The provisions of this clause do not apply to casual employees.
3.2.13
No Higher Duties Allowances will be payable to employees covered by this award when required to act in another
position whilst the permanent occupant is on a rostered day off duty.
3.3.1
Subject to Clause 3.3.4, all time worked:-
3.3 - OVERTIME
(a)
outside the ordinary hours of work prescribed for any day in Clause 3.1 – Hours, hereof, or
(b)
outside the ordinary hours of work prescribed for any week by Clause 3.1 – Hours, hereof but which time would
not be outside the ordinary hours for any day; shall stand alone and be paid for at the rate of time and a half for
the first two hours and double time thereafter in addition to the ordinary weekly wage. Provided that all time
worked after midday Saturday and on Sundays shall be paid for at the rate of double time and provided further
that the extra rates prescribed in Clause 4.2.6 - Extra Rates shall not be regarded as part of the ordinary rate for
calculating overtime.
3.3.2
A employee required for work on a day other than his ordinary working day or recalled to work after leaving his
employer's business premises shall be paid for a minimum of four hours' work at the appropriate rate.
3.3.3
Notwithstanding anything contained in this award –
(a)
Requirement to work reasonable overtime.
(i)
An employer may require an employee to work reasonable overtime at overtime rates.
(ii)
An employee may refuse to work overtime in circumstances where the working of such overtime
would result in the employee working hours which are unreasonable having regard to:
(aa)
3.3.4
(a)
any risk to employee health and safety;
(bb)
the employee's personal circumstances including any family responsibilities;
(cc)
the needs of the workplace or enterprise;
(dd)
the notice (if any) given by the employer of the overtime and by the employee of their
intention to refuse it; and
(ee)
any other relevant matter.
When overtime work is necessary it shall, wherever reasonably practicable, be so arranged that employees have
at least ten consecutive hours off duty between the work of successive days.
87 W.A.I.G.
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
3057
(b)
A employee (other than a casual employee) who works so much overtime between the termination of his
ordinary work on one day and the commencement of his ordinary work on the next day that he has not at least
ten consecutive hours off duty between those times shall, subject to this Clause 3.3.4 be released after
completion of such overtime until he has had ten consecutive hours off duty without loss of pay for ordinary
working time occurring during such absence.
(c)
If, on the instructions of his employer, such a employee resumes or continues work without having had such ten
consecutive hours off duty, he shall be paid at double rates until he is released from duty for such period and he
shall then be entitled to be absent until he has had ten consecutive hours off duty without loss of pay for
ordinary working time occurring during such absence.
3.4 - PART TIME EMPLOYEES
3.4.1
3.4.2
The employer and employee may agree, in writing, to a temporary variation to an employee's ordinary working hours
such that:
(a)
time worked up to 8 hours on any day is not to be regarded as overtime but an extension of the agreed hours for
that day and should be paid at the normal rate of pay;
(b)
additional days worked, up to a total of five days per week, are regarded as an extension of the agreed hours and
should be paid at the normal rate of pay; and
(c)
additional hours worked for which overtime is not paid shall be considered as part of the employee's ordinary
working hours.
Nothing in this Clause prevents the employer and employee from agreeing, in writing, to a permanent variation to the part
time employee's ordinary working hours as established under this Clause.
4 - WAGES
4.1 - MINIMUM ADULT AWARD WAGE
4.1.1
No adult employee shall be paid less than the Minimum Adult Award Wage unless otherwise provided by this clause.
4.1.2
The Minimum Adult Award Wage for full time adult employees is $528.40 per week payable on and from the
commencement of the first pay period on or after 1 July 2007.
4.1.3
The Minimum Adult Award Wage of $528.40 per week is deemed to include all arbitrated safety net adjustments from
State Wage Case decisions.
4.1.4
Unless otherwise provided in this clause adults employed as casuals, part time employees or piece employees, or
employees who are remunerated wholly on the basis of payment by result shall not be paid less than pro rata the
Minimum Adult Award Wage according to the hours worked.
4.1.5
Juniors shall be paid no less than the wage determined by applying the percentage prescribed in the junior rates provision
in this award to the Minimum Adult Award Wage of $528.40 per week.
4.1.6
The Minimum Adult Award Wage shall not apply to apprentices, employees engaged on traineeships or Jobskill
placements or employed under the Commonwealth Government Supported Wage System or to other categories of
employees who by prescription are paid less than the minimum award rate.
4.1.7
Liberty to apply is reserved in relation to any special categories of employees not included here or otherwise in relation to
the application of the Minimum Adult Award Wage.
4.1.8
Subject to this clause the Minimum Adult Award Wage shall –
4.1.9
(a)
apply to all work in ordinary hours.
(b)
apply to the calculation of overtime and all other penalty rates, superannuation, payments during any period of
paid leave and for all purposes of this award.
Minimum Adult Award Wage
The Wages in this award include the minimum weekly wage for adult employees payable under the 20054 State Wage
Case Decision. Any increase arising from the insertion of the minimum adult award wage will be offset against any
equivalent amount in Wages received by employees whose wages and conditions of employment are regulated by this
award which are above the wage rates prescribed in the award. Such above award payments include wages payable
pursuant to enterprise agreements, consent awards or award variations to give effect to enterprise agreements and over
award arrangements. Absorption which is contrary to the terms of an agreement is not required.
Increases under previous State Wage Case Principles or under the current Statement of Principles, excepting those
resulting from enterprise agreements, are not to be used to offset the minimum adult award wage.
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WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
87 W.A.I.G.
Adult Apprentices
(a)
Notwithstanding the provisions of this clause, an apprentice, 21 years of age or over, shall not be paid less than
$448.65 per week on and from the commencement of the first pay period on or after 1 July 2007 and $466.65
per week on and from the commencement of the first pay period on or after 1 September 2007.
(b)
The rate paid in Clause 4.1.10(a) is payable on superannuation and during any period of paid leave prescribed
by this award.
(c)
Where in this award an additional rate is expressed as a percentage, fraction or multiple of the ordinary rate of
pay, it shall be calculated upon the rate prescribed in this award for the actual year of apprenticeship.
(d)
Nothing in this clause shall operate to reduce the rate of pay fixed by this award for an adult apprentice in force
immediately prior to 5th June 2003.
4.2 - WAGES
4.2.1
The minimum weekly rate of wage payable to employees covered by this award shall be as per the provisions comprising:
(a)
Part A – Wages Adjusted by Arbitrated Safety Net Adjustments; or
(b)
Part B – Expired Industrial Agreement Wages;
whichever is the greater.
4.2.2
The wage rates to apply for the purpose of the no-disadvantage test under the Industrial Relations Act 1979 shall be as per
the provisions comprising:
(a)
Part A – Wages Adjusted by Arbitrated Safety Net Adjustments; or
(b)
Part B – Expired Industrial Agreement Wages;
whichever is the greater.
4.2.3
Part A – Wages Adjusted by Arbitrated Safety Net Adjustments
(a)
Adult employees:
An adult employee shall be paid the following total weekly wage which is comprised of the components for
base rate and supplementary payment. All components of the total weekly wage are payable for all purposes of
this award.
Group 1
Total Weekly
Wage
$
581.60
Base Rate
Supplementary Payment
$
324.50
Safety Net
Adjustment
$
203.00
$
46.30
Special
Payment
$
7.80
600.90
327.80
203.00
46.80
23.30
Motor driver's assistant
Loader
Driver of mechanical
horse with or without
trailer
Group 2
Driver rigid vehicle to
4.5 tonnes GVM (Gross
Vehicle Mass) or GCM
(Gross Combination
Mass)
Employee riding a
motorcycle in the course
of employment
Driver of tow motor
87 W.A.I.G.
Group 3
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
Total Weekly
Wage
$
604.70
Base Rate
3059
Supplementary Payment
$
334.60
Safety Net
Adjustment
$
203.00
$
47.80
Special
Payment
$
19.30
616.10
344.60
203.00
49.20
19.30
625.80
351.30
205.00
50.20
19.30
655.00
358.90
205.00
51.20
39.90
Driver rigid vehicle 4.5
to 13.9 tonnes GVM or
GCM
Driver of fork lift up to
and including 4500 kg
lifting capacity
Driver of tractor without
power operated
attachments
Group 4
Driver rigid vehicle over
13.9 tonnes GVM or
GCM
Straddle carrier driver
Driver of fork lift over
4500 kg and up to 9000
kg lifting capacity
Group 5
Driver articulated
vehicle up to 22.4 tonnes
GCM
Driver rigid vehicle and
heavy trailer up to 22.4
tonnes GCM
Driver rigid vehicle 4
axles over 13.9 tonnes
GVM
Driver of fork lift over
9000 kg lifting capacity
Group 6
Driver low loader up to
43 tonnes GCM
Driver articulated
vehicle over 22.4 tonnes
GCM
Driver rigid vehicle and
heavy trailer over 22.4
tonnes
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WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
Total Weekly
Wage
$
666.60
Group 7
Base Rate
Safety Net
Adjustment
$
203.00
$
364.70
87 W.A.I.G.
Supplementary Payment
$
52.10
Special
Payment
$
46.80
Driver low loader over
43 tonnes GCM (for
each additional complete
tonne over 43 an extra
81 cents as part of the
weekly wage rate of all
purposes shall be
payable)
(b)
Service Increments: Adult employees shall be paid service increments for all purposes of the award as follows:
after one year of service
after two years of service
(c)
(d)
$4.97 per week
$9.78 per week
Leading Hands: A leading hand appointed as such by the employer and placed in charge of
(i)
not less than three and not more than 10 other employees, shall be paid $25.30 per week extra.
(ii)
more than 10 and not more than 20 other employees, shall be paid $38.00 per week extra.
(iii)
more than 20 other employees, shall be paid $48.25 per week extra.
Junior Employees
(i)
Rates of pay (per cent of the total wage payable to an adult employee for the class of work performed)
Under 19 years of age
Under 20 years of age
20 years of age
(ii)
(e)
%
70
80
100
No junior under 17 years of age shall be permitted to have sole charge of a motor vehicle.
Self-loading Equipment:
An employee who, in the course of his/her employment, drives a vehicle equipped with self loading equipment
which requires the possession of a certificate of competency shall be paid an extra $9.86 per week.
4.2.4
Part B – Expired Industrial Agreement Wages
Notwithstanding the wage rates prescribed in Clause 4.2.3(a) the following rates being the rates paid from the 1st January
2005 as contained in the Transport Employees (Government) Department of Culture & Arts Agreement 2004:
Weekly wage:
1 Jan 2004
$28.60/wk
A
Group 1
$546.90
Motor driver's assistant
Loader
Driver of mechanical horse with or without trailer
Group 2
Driver rigid vehicle to 4.5 tonnes GVM (gross vehicle mass) or GCM (gross
combination mass)
Employee riding a motorcycle in the course of employment
Driver of tow motor
$572.40
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WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
3061
Weekly wage:
1 Jan 2004
$28.60/wk
A
$577.40
Group 3
Driver rigid vehicle 4.5 to 13.9 tonnes GVM or GCM
Driver of fork lift up to and including 4500kg lifting capacity
Driver of tractor without power operated attachments
$592.30
Group 4
Driver rigid vehicle over 13.9 GVM or GCM
Straddle carrier driver
Driver of fork lift over 4500kg and up to 9000kg lifting capacity
$602.40
Group 5
Driver articulated vehicle up to 22.4 tonnes GCM
Driver rigid vehicle and heavy trailer up to 22.4 GCM
Driver rigid vehicle 4 axles over 13.9 tonnes GVM
Driver of fork lift over 9000kg lifting capacity
$640.80
Group 6
Driver low loader up to 43 tonnes GCM
Driver articulated vehicle over 22.4 tonnes GCM
Driver rigid vehicle and heavy trailer over 22.4 tonnes
$658.70
Group 7
Driver low loader over 43 tonnes GCM (for each additional complete tonne
over 43 an extra 81 cents as part of the weekly wage rate of all purposes
shall be payable)
4.2.5
4.2.6
Special Payment and Safety Net Adjustment
(a)
The special payment contained in the table of Clause 4.2.3 of this clause shall form part of the total wage and is
included in the Total Weekly Wage.
(b)
The rates of pay in this award include arbitrated safety net adjustments available since December 1993, under
the Arbitrated Safety Net Adjustment Principle.
(c)
These arbitrated safety net adjustments may be offset against any equivalent amount in the rate of pay received
by employees since 1 November 1991 above the rate prescribed in the award, except where such absorption is
contrary to the terms of an industrial agreement.
(d)
Increases in rates of pay otherwise made under the State Wage Case Principles, excepting those resulting from
enterprise agreements, are not to be used to offset arbitrated safety net adjustments.
Extra Rates
(a)
All persons carting and coming into personal contact with tarred road metal, hot bitumen, tarred blocks or
spreading tar or hot bitumen shall be paid $1.85 per week extra, provided this shall not apply to any packaged
goods from which the material does not leak or to any employee who is not required to handle any of the
materials named.
(b)
Offensive materials - employees carting any of the following offensive materials shall be paid $1.50 per week
extra - bone dust, bones, blood manure, dead animals' offal including that which is carted from hotels and
restaurants or other places in kerosene tins, green skins, raw hides, and sheep skins when fly-blown or maggoty,
sausage skin casings (except when packed in non-leaky containers for consumption), spent oxide, hair and
fleshings, soda ash, muriate of potash, sheep's trotters (known as "pie"), stable, cow or pig manure, meat meal,
liver meal, blood meal, T.N.T. and any other material which is offensive material. Any disputes in relations to
this clause will be subject to Clause 8 – Dispute Settlement Procedure Clause.
(c)
Dirty materials - employees carting any of the following dirty materials shall be paid 26 cents per hour extra
when loaded or unloaded by the driver (except by tipping) - coal, coke, briquettes, plumage, graphite, ferro or
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WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
87 W.A.I.G.
iron manganese, lime, "comaidai" lime, tallite, limil, plaster, plaster of paris, red oxide, zinc oxide,
superphosphate (in secondhand and/or farmer's own bags), dicalcic phosphate, yellow ochre, red ochre,
charcoal, empty flour bags, supercel in jute bags, stone dust refuse and/or garbage from ships in port, street
sweepings, when carted as a full load, and any material or a particular load thereof which may be dirty. Any
material may deleted from this definition as a result of the parties invoking Clause 8. – Dispute Settlement
Procedure. This allowance shall not apply to any packaged goods from which the material does not leak or seep
or to any employee who is not required to handle any of the materials named.
(d)
Drivers who handle money during any week or portion of a week as part of their duties and account for it shall
be paid in addition to the rate of wage prescribed by Clause 4.2 - Wages as follows:
For any amount handled up to $20
4.2.7
96¢
For any amount handled over $20 but not
exceeding $200
$1.85
For any amount handled over $200 but not
exceeding $600
$3.35
For any amount handled over $600 but not
exceeding $1000
$4.71
For any amount handled over $1000
$6.78
(i)
The term "money" used herein shall be deemed to include cheques.
(ii)
Employees carting carbon black, except when packed in sealed metal containers, shall be paid $1.25
per day or part thereof.
(iii)
Employees carting secondhand furniture, except to or from a dealer, auction mart or repairer, shall be
paid $12.50 per week extra.
(iv)
Employees carting livestock (horses, cattle, sheep, pigs or goats) shall be paid $12.15 per week extra.
(v)
A driver who is required to act as salesman of goods in his/her vehicle shall be paid $1.85 per week
extra.
(vi)
Where two or more of the foregoing rates (other than those in subclauses (iv) and (vii) of this clause)
have application, only the highest of such rates shall be payable.
(vii)
An employee required to work in a van or a chamber with a temperature of less than 0°C shall receive
an additional 50 cents per hour or part thereof for all time so worked.
Payment of Wages
(a)
Wages shall be paid fortnightly. Overtime and penalty rates, where applicable, shall be paid at least monthly.
(b)
Accompanying each payment of wages there shall be a pay advice slip to be retained by the employee. On this
slip the employer shall clearly detail the gross wages, where practical its composition, the net wages payable
and show details of each deduction.
(c)
Overtime shall be calculated and based on the aggregate wage as provided in the wages clause of the relevant
award before any deduction is made for board and/or lodging.
(d)
On termination of employment the employer shall pay to the employee all monies payable to that employee
before the employee leaves the place of employment or the same shall be forwarded to the employee by post in
the following week.
(e)
Wages shall be paid by direct funds transfer to the credit of an account nominated by the employee at such
bank, building society or credit union approved by the employer.
(f)
Provided that where such form of payment is impractical or where some exceptional circumstances exist and by
agreement between the employer and the union, payment by cheque may be made.
(g)
An employee who performs shift or weekend work irregularly may be paid shift or weekend penalties during
the pay period in which the work is performed.
(h)
Subject to the provisions of this clause, no deduction shall be made from an employee's wages unless the
employee has authorised such deduction in writing.
(i)
By agreement between the employer and the majority of employees at each yard, depot or garage, wages may
be paid by direct electronic funds transfer into an employee's bank (or other recognised financial institution)
account.
4.3 - SUPPORTED WAGE SYSTEM
4.3.1
Employees eligible for a supported wage
(a)
This Clause defines the conditions that will apply to employees who, because of the effects of a disability, are
eligible for a supported wage under the terms of the award. In the context of this Clause, the following
definitions will apply:
87 W.A.I.G.
4.3.2
4.3.3
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
3063
(b)
"Supported Wage System" means the Commonwealth Government system to promote employment for people
who cannot work at full award wages because of a disability, as documented in "Supported Wage System:
Guidelines and Assessment Process".
(c)
"Accredited assessor" means a person accredited by the management unit established by the Commonwealth
Government under the Supported Wage System to perform assessment of an individual's productive capacity
within the Supported Wage System.
(d)
"Disability Support Pension" means the Commonwealth pension scheme to provide income security for persons
with a disability as provided under the Social Security Act 1991, as amended from time to time, or any
successor to that scheme.
(e)
"Assessment instrument" means the form provided for under the Supported Wage System that records the
assessment of the productive capacity of the person to be employed under the Supported Wage System.
Eligibility criteria
(a)
Employees covered by this Clause will be those who are unable to perform the range of duties to the
competence level required within the class of work for which the employee is engaged under the award, because
of the effects of a disability on their productive capacity and who meet the impairment criteria for receipt of a
Disability Support Pension.
(b)
This Clause does not apply to any existing employee who has a claim against the employer, which is subject to
the provisions of employees' compensation legislation, or any provision of the award relating to the
rehabilitation of employees who are injured in the course of their current employment.
(c)
This Clause also does not apply to employers in respect of their facility, programme, undertaking, service or the
like which receives funding under the Disability Services Act 1986 and fulfils the dual role of service provider
and sheltered employer to people with disabilities who are in receipt of or eligible for a Disability Support
Pension, except with respect to an organisation which has received recognition under s10 or s12A of the Act, or
if a part only has received recognition, that part.
Supported wage rates
Employees to whom this Clause applies shall be paid the applicable percentage of the minimum rate of pay prescribed by
the award for the class of work for which the person is performing according to the following schedule:
Assessed capacity (per Clause 4.3.4)
% of applicable award rate
10%*
10%
20%
20%
30%
30%
40%
40%
50%
50%
60%
60%
70%
70%
80%
80%
90%
90%
(Provided that the minimum amount payable shall be not less than $61 per week).
*Where an employee's assessed capacity is 10%, they shall receive a high degree of assistance and support.
4.3.4
Assessment of capacity
(a)
4.3.5
For the purpose of establishing the percentage of the award rate to be paid to the employees, the productive
capacity of the employee will be assessed in accordance with the Supported Wage System and documented in
an assessment instrument by either:
(i)
the employer and the union, in consultation with the employee, or if desired by any of these; or
(ii)
the employer and an accredited assessor from a panel agreed by the parties to the award and the
employee.
Lodgement of assessment instruments
(a)
All assessment instruments under the conditions of this Clause, including the appropriate percentage of the
award wage rate to be paid to the employee, shall be lodged by the employer with the Registrar of the WAIRC.
(b)
All assessment instruments shall be agreed and signed by the parties to the assessment, provided that where the
union is not a party to the assessment, it shall be referred by the Registrar to the union by certified mail and
shall take effect unless an objection is notified to the Registrar within 10 working days.
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4.3.6
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
87 W.A.I.G.
Review of assessment
The assessment of the applicable percentage should be subject to annual review or earlier on the basis of a reasonable
request for such a review. The process of review shall be in accordance with the procedures for assessing capacity under
the Supported Wage System.
4.3.7
Other terms and conditions of employment
Where an assessment has been made, the applicable percentage shall apply to the wage rate only. Employees covered by
the provisions of this Clause will be entitled to the same terms and conditions of employment as all other employees
covered by the award paid on a pro rata basis.
4.3.8
Workplace adjustment
An employer wishing to employ a person under the provisions of this Clause shall take reasonable steps to make changes
in the workplace to enhance the employees' capacity to do the job. Changes may involve re-design of job duties, working
time arrangements and work organisation in consultation with other employees in the area.
4.3.9
Trial period
(a)
In order for an adequate assessment of the employee's capacity to be made, an employer may employ a person
under the provisions of this Clause for a trial period not exceeding 12 weeks, except that in some cases
additional work adjustment time (not exceeding 4 weeks) may be needed.
(b)
During the trial period, the assessment of capacity shall be undertaken and the proposed wage rate for a
continuing employment relationship shall be determined.
(c)
The minimum amount payable to the employee during the trial period shall be not less than $61 per week.
(d)
Work trials should include induction or training as appropriate to the job being trialled.
(e)
Where the employer and employee wish to establish a continuing employment relationship following the
completion of the trial period, a further contract of employment shall be entered into based on the outcome of
assessment under Clause 4.3.4.
4.4 - FARES & TRAVELLING TIME
Where an employee is sent from one place to another and cannot reasonably return to their home each night, they shall be
transported at the expense of the employer and they shall receive reasonable out of pocket expenses for meals and bed.
4.5 - FARES OUTSIDE THE METROPOLITAN AREA
4.5.1
The fares of an employee proceeding for the first time from their place of engagement to work outside the metropolitan
area shall be paid by the employer who may deduct the amount thereof from such employee's first or later wages.
Provided that the amount so deducted shall be refunded to the employee if they continue to work for the employer for at
least two months or if the work ceases sooner, for so long as the work continues.
4.5.2
If the employee continues to work for an employer according to the requirements as stipulated in Clause 4.5.1, of this
clause, the employer shall, on termination of the employee's engagement by the employer, except in the case of gross
misconduct by the employee, pay the fare of the employee back from the place of work to the place of engagement if the
employee so desires.
5 - ALLOWANCES AND FACILITIES
5.1 - JUNIOR WORKERS
5.1.1
Juniors may be employed in the proportion of one junior to every five adults employed.
(a)
Provided that, where less than five adults are employed, one junior may be employed.
(b)
Provided further, that junior driver assistants may be employed in the proportion of one junior to every three or
fraction of the first three adult drivers
5.1.2
When ascertaining the number of junior drivers and junior driver assistants to be allowed at the one time, the same adult
drivers shall not be used twice in the calculations.
5.1.3
Junior employees shall furnish the employer with a certificate showing the following particulars:(a)
Name in full
(b)
Age and date of birth
5.1.4
The certificate shall be signed by the employee.
5.1.5
No employer shall have any claim upon the employer for additional wages, in the event of his age being wrongly stated
on this certificate.
5.2.1
An employee required to work overtime for more than 1½ hours without being notified on the previous day or earlier that
he/she will be so required to work, shall be supplied with any meal required by the employer or paid $11.70 for a meal.
5.2 - MEALS
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5.2.2
If the amount of overtime required to be worked necessitates a second or subsequent meal, the employer shall, unless he
has notified the employee concerned on the previous day or earlier, pay an amount of $11.70 for each second or
subsequent meal.
5.2.3
If a employee in consequence of receiving such notice has provided himself with a meal or meals and is not required to
work overtime or is required to work less overtime than notified, he shall be paid the amount above prescribed in respect
of the meals not then required.
5.2.4
All employees shall have break of one hour for a meal on all the days in the week between 12 noon and 2.00pm.
5.2.5
The rates for meals shall be adjusted in accordance with the rates as contained in Schedule I, Part II of the Government
Officers Salaries and Allowances Award as varied from time to time.
5.3 - HANDLING HEAVY ARTICLES
Where an employee is called upon to handle, without proper mechanical appliances, any one article, in such a manner as to require
him to exert a lift of over 21 kilos an extra employee shall be provided.
5.4 - DISTANT WORK AND CHANGE OF DEPOT
5.4.1
Where an employer transfers an employee, after he/she comes to work, from one stable, garage, yard or place situated
more than two kilometres distant from the stable, garage, yard or place at which he/she usually works, fares to and from
such altered stable, garage, yard or place shall be allowed by the employer. If he/she is transferred temporarily to work at
a stable, garage, yard or place which requires him/her to travel two kilometres or more from his/her home beyond the
distance he/she usually travels, the excess fares to and from and excess time shall be paid for by the employer.
5.4.2
Except as provided for in Clause 5.4.3, an employee engaged on work from which he/she is unable to return to his/her
home at night shall be supplied with reasonable food and accommodation or shall be paid for such personal expenses as
he/she reasonably incurs but shall be paid at least $14.37 per day in addition to payments set out in Clause 5.2 - Meals of
this award.
5.4.3
An employee engaged on work which requires him/her to sleep in or about his/her truck whilst in the course of travelling
from one point to another, or in the absence of suitable accommodation is obliged to live in a tent or hut shall in addition
to the application of clause 5.4.2 in respect of food, be paid an allowance in lieu of accommodation of $15.87 per night.
5.4.4
Notwithstanding any other provisions contained in this clause and in lieu of any such provisions the following conditions
shall apply to a employee who is engaged or selected or advised by an employer to proceed to work at such distance that
he cannot return to his home each night and where such work is located north of the 26th parallel of south latitude or in
any other area to which air transport is the only practicable means of travel:
(a)
An employee may return to his home or to Perth or to any other place at a weekend to be mutually agreed upon
between the employee and his employer:
(i)
After four continuous months of service with his employer; and in addition to the weekend the
employee shall be entitled to two days leave on ordinary pay subject to the provisions of Clause
5.4.4(b), and
(ii)
After each further period of four months continuous service with his employer; and in addition to the
weekend, the employee shall be entitled to two days leave, one of which days shall be on ordinary pay
subject to the provisions of Clause 5.4.4(b).
(b)
Where a employee returns home or to Perth or any other place in accordance with the provisions of this
subclause and returns to the job and commences work at the time arranged with his employer, on the first
working day for that employee immediately following the period of leave referred to in Clause 5.4.4(a), that
employee shall be paid at the completion of the first pay period commencing on or after the day upon which the
employee returns to work from the leave taken pursuant to Clause 5.4.4(a) hereof the ordinary pay for that
period of leave and the actual cost of air fares incurred in travelling home or to Perth or to any other place and
to the job and which in no case shall exceed the cost of an economy air fare from the job to Perth and return.
(c)
The entitlement to leave and travelling accruing to a employee pursuant to Clause 5.4.4(a) hereof may be
availed of as soon as reasonably practicable after it becomes due and if it is not availed of within one month
after it so becomes due the entitlement shall lapse.
5.4.5
Any time in respect of which a employee is absent from work except time for which he/she is entitled to claim payment
pursuant to Clause 6.2. - Sick Leave or time spent on holidays pursuant to Clause 6.4. – Public Holidays and Clause 6.1. Annual Leave shall not count for determining his rights to travel and leave under the provisions of Clause 5.4.4 of this
clause.
5.4.6
For the purposes of this clause, "work" means all work performed under this award in connection with the transport
industry.
5.4.7
Any dispute arising out of Clause 5.4.6 shall be dealt with in accordance with Clause 8 – Dispute Resolution Procedure.
5.5.1
Where an employee is required and authorised to use his own motor vehicle in the course of his duties he shall be paid an
allowance not less than that provided for in the table set out hereunder. Notwithstanding anything contained in this
5.5 - MOTOR VEHICLE ALLOWANCE
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Clause the employer and the employee may make any other arrangement as to car allowance not less favourable to the
employee.
5.5.2
Where an employee in the course of a journey travels through two or more of the separate areas, payment at the rates
prescribed herein shall be made at the appropriate rate applicable to each of the separate areas traversed.
5.5.3
Rates of Hire for Use of Employee's Own Vehicle on Employer's Business
Area Details
MOTOR CAR
Rate (cents) per kilometre
Engine Displacement (in cubic centimetres)
Over 1600cc
1600cc
Over 2600cc
to 2600cc
and under
Metropolitan Area
69.0
58.9
48.9
South West Land Division
71.5
61.1
51.0
North of 23.5o South Latitude
78.7
67.3
56.4
Rest of the State
73.7
62.9
52.4
MOTOR CYCLE
Distance Travelled on Official
Business
Rate (cents) per kilometre
Rate per kilometre
23.9
5.5.4
"Metropolitan Area" means that area within a radius of fifty kilometres from the Perth Railway Station.
5.5.5
"South West Land Division" means the South West Land Division as defined by Section 6, Schedule 1, Land
Administration Act 1997 excluding the area contained within the Metropolitan Area.
5.5.6
The allowances prescribed in this clause shall be automatically adjusted by the same amount and from the same date as
any movement in the same allowances prescribed in Schedule H, Part 2 and 3 of the Government Officers Salaries,
Allowances & Conditions Award.
5.6 - HIGHER DUTIES
A employee who is called upon to perform two or more grades of work for more than two hours on any day, shall be paid for the
day at the grade for which the highest rate of wage is prescribed. Where the work for which the highest rate is prescribed does not
exceed two hours on any day, the employee shall be paid the highest rate for the actual time so worked.
5.7 - DISTRICT ALLOWANCES
5.7.1
For the purposes of this clause the following terms shall have the following meaning:
(a)
(b)
"dependant" in relation to an employee means:
(i)
a spouse; or
(ii)
where there is no spouse, a child or any other relative resident within the State who rely on the
employee for their main support; who does not receive a district or location allowance of any kind.
"partial dependant" in relation to an employee means:
(i)
a spouse; or
(ii)
where there is no spouse, a child or any other relative resident within the State who rely on the
employee for their main support;
who receives a district or location allowance of any kind less than that applicable to an employee without
dependants under any award, agreement or other provision regulating the employment of the partial dependant.
(c)
"spouse" means an employee's spouse including de facto partner.
5.7.2
For the purposes of this clause, the boundaries of the various districts shall be as described hereunder and as delineated on
the plan Schedule A –District Allowance of this award.
5.7.3
For the purposes of this clause, a district shall mean:
(a)
The area within a line commencing on the coast; thence east along lat. 28 to a point north of Tallering Peak,
thence due south to Tallering Peak; thence southeast to Mt Gibson and Burracoppin; thence to a point southeast
at the junction of lat. 32 and long. 119; thence south along long. 119 to coast.
(b)
That area within a line commencing on the south coast at long. 119 then east along the coast to long. 123; then
north along long. 123 to a point on lat. 30; thence west along lat. 30 to the boundary of No 1 District.
(c)
The area within a line commencing on the coast at lat. 26; then along lat. 26 to long. 123; thence south along
long. 123 to the boundary of No 2 District.
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(d)
The area within a line commencing on the coast at lat. 24; thence east to the South Australian Border; thence
south to the coast; thence along the coast to long. 123 thence north to the intersection of lat. 26; thence west
along lat. 26 to the coast.
(e)
That area of the State situated between the lat. 24 and a line running east from Carnot Bay to the Northern
Territory.
(f)
That area of the State north of a line running east from Carnot Bay to the Northern Territory Border.
5.7.4
An employee shall be paid a district allowance at the standard rate prescribed in Column II of Schedule A of this award,
for the district in which the employee's headquarters is located. Provided that where the employee's headquarters is
situated in a town or place specified in Column III of Schedule A, the employee shall be paid a district allowance at the
rate appropriate to that town or place as prescribed in Column IV of Schedule A.
5.7.5
An employee who has a dependant shall be paid double the district allowance prescribed by Clause 5.7.2 for the district,
town or place in which the employee's headquarters is located.
5.7.6
Where an employee has a partial dependant the total district allowance payable to the employee shall be the district
allowance prescribed by Clause 5.7.2 plus an allowance equivalent to the difference between the rate of district or
location allowance the partial dependant receives and the rate of district or location allowance the partial dependant would
receive if he or she was employed in a full time capacity under the award, Agreement or other provision regulating the
employment of the partial dependant.
5.7.7
When an employee is on approved annual recreational leave, the employee shall for the period of such leave, be paid the
district allowance to which he or she would ordinarily be entitled.
5.7.8
When an employee is on long service leave or other approved leave with pay (other than annual recreational leave), the
employee shall only be paid district allowance for the period of such leave if the employee, dependant/s or partial
dependant/s remain in the district in which the employee's headquarters are situated.
5.7.9
When an employee leaves their or her district on duty, payment of any district allowance to which the employee would
ordinarily be entitled shall cease after the expiration of two weeks unless the employee's dependant/s or partial
dependant/s remain in the district or as otherwise approved by the employer.
5.7.10
Except as provided in Clause 5.7.9 of this clause, a district allowance shall be paid to any employee ordinarily entitled
thereto in addition to reimbursement of any travelling, transfer or relieving expenses or camping allowance.
5.7.11
When an employee is provided with free board and lodging by the employer the allowance shall be reduced to two-thirds
of the allowance the employee would ordinarily be entitled to under this clause.
5.7.12
An employee who is employed on a part-time basis shall be entitled to district allowance on a pro-rata basis. The
allowance shall be determined by calculating the hours worked by the employee as a proportion of the full-time hours
prescribed by this award. That proportion of the appropriate allowance shall be payable to the employee.
5.7.13
The rates expressed in Schedule A of this award shall be adjusted administratively every twelve (12) months, effective
from the first pay period to commence on or after the first day of July in each year, in accordance with the official
Consumer Price Index (CPI) for Perth, as published for the preceding 12 months at the end of the March quarter by the
Australian Bureau of Statistics.
5.7.14
The rates agreed, in accordance with the above formula, by the parties shall then be lodged with the Registrar of the
Western Australian Industrial Relations Commission.
5.8 - TRAINEESHIPS
5.8.1
5.8.2
Definitions
(a)
"Part time trainee" means a trainee who is employed for a minimum of 20 hours per week (except in the case of
school based traineeships), and has regular and stable hours of work each week, to allow training to occur.
Wages and entitlements accrue on a pro-rata basis.
(b)
"Traineeship" means a full time or part time structured employment based training arrangement approved by the
Western Australian Department of Education and Training where the trainee gains work experience and has the
opportunity to learn new skills in a work environment. On successful completion of the traineeship the trainee
obtains a nationally recognised qualification.
(c)
"Traineeship Training Contract" means the agreement between the employer and the trainee that provides
details of the traineeship and obligations of the employer and trainee and is registered with the Western
Australian Department of Education and Training.
(d)
"Training Plan" means the plan that outlines what training and assessment will be conducted off-the-job and
what will be conducted on-the-job and how the Registered Training Organisation will assist in ensuring the
integrity of both aspects of the training and assessment process.
Traineeships
(a)
Trainees are to be additional to the normal workforce of the employer so that trainees shall not replace paid
employees or volunteers or reduce the hours worked by existing employees.
(b)
Training conditions
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(c)
The arrangements between the employer and the trainee in relation to training are as specified in the Traineeship
Training Agreement, as administered by the Department of Education and Training.
(d)
Employment conditions
(e)
(i)
the initial period of employment for trainees is the nominal training period endorsed at the time the
particular traineeship is established;
(ii)
completion of the traineeship scheme will not guarantee the trainee future employment in the public
sector, but the employer will cooperate to assist the trainee to be placed in suitable employment,
should a position arise;
(iii)
trainees are permitted to be absent from work without loss of continuity of employment to attend off
the job training in accordance with the training plan. However, except for absences provided for
under the relevant award/s, failure to attend for work or training without an acceptable cause will
result in loss of pay for the period of the absence; and
(iv)
trainees will receive a mix of supervised work experience, structured training on the job and off the
job, and the opportunity to practice new skills in a work environment; and
(v)
overtime and shift work shall not be worked by trainees except to enable the requirements of the
training to be effected. When overtime and shift work are worked the relevant allowances and
penalties of the relevant award, based on the training wage stated in Clause (e) will apply. No trainee
shall work overtime or shift work on their own.
Wages
The wages applicable to trainees shall be as prescribed in the National Training Wage Award 2000 for
employees up to and including 20 years of age. Adult trainees will be paid the rate prescribed under the
Minimum Conditions of Employment Act 1993 for the minimum weekly rate of pay for employees 21 or more
years of age.
5.9 - SALARY PACKAGING
5.9.1
An employee may, by agreement with the employer, enter into a salary packaging arrangement in accordance with this
clause and Australian Taxation Office requirements.
5.9.2
Salary packaging is an arrangement whereby the entitlements and benefits under the relevant award/s contributing toward
the Total Employment Cost (TEC) – as defined in Clause 5.9.3 of an employee, can be reduced by and substituted with
another or other benefits.
5.9.3
The TEC for salary packaging purposes is calculated by adding the following entitlements and benefits:
(a)
the base wage;
(b)
other cash allowances;
(c)
non-cash benefits;
(d)
any Fringe Benefit Tax liabilities currently paid; and
(e)
any variable components.
5.9.4
Where an employee enters into a salary packaging arrangement the employee will be required to enter into a separate
written agreement with the employer setting out the terms and conditions of the salary packaging arrangement.
5.9.5
Notwithstanding any salary packaging arrangement, the wage rate as specified in the relevant award is the basis for
calculating wage related entitlements specified in the relevant award/s.
5.9.6
Compulsory Employer Superannuation Guarantee contributions are to be calculated in accordance with applicable federal
and state legislation. Compulsory employer contributions made to superannuation schemes established under the State
Superannuation Act 2000 and the Parliamentary Superannuation Act 1970 are calculated on the gross (pre-packaged)
wage amount regardless of whether an employee participates in a salary packaging arrangement with their employer.
5.9.7
A salary packaging arrangement cannot increase the costs to the employer of employing an individual.
5.9.8
A salary packaging arrangement is to provide that the amount of any taxes, penalties or other costs for which the
employer or employee is or may become liable for and are related to the salary packaging arrangement, shall be borne in
full by the employee.
5.9.9
In the event of any increase in taxes, penalties or costs relating to a salary packaging arrangement, the employee may vary
or cancel that salary packaging arrangement.
5.10.1
The employer recognises the rights of the union to organise and represent its members. Union representatives in the
agency have a legitimate role and function in assisting the union in the tasks of recruitment, organising, communication
and representing members' interests in the workplace and agency.
5.10.2
The employer recognises that, under the union's rules, union representatives are delegates representing members within a
specific worksite.
5.10 - UNION FACILITIES FOR UNION REPRESENTATIVES
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5.10.3
The employer will recognise union representatives in the agency and will allow them to carry out their role and functions.
5.10.4
The union will advise the employer in writing of the names of the union representatives in the agency.
5.10.5
The employer shall recognise the authorisation of each union representative in the agency and shall provide them with the
following:
5.10.6
(a)
Paid time off from normal duties to perform their functions as a union representative such as organising,
recruiting, individual grievance handling, collective bargaining, involvement in the electorate delegates
committee and to attend union business in accordance with Clause 6.9 - Leave to Attend Union Business of the
award;
(b)
Access to facilities required for the purpose of carrying out their duties. Facilities may include but not be
limited to, the use of filing cabinets, meeting rooms, telephones, fax, email, internet, photocopiers and
stationery. Such access to facilities shall not unreasonably affect the operation of the organisation and shall be
in accordance with normal agency protocols;
(c)
A noticeboard for the display of union materials including broadcast email facilities;
(d)
Paid access to periods of leave for the purpose of attending union training courses in accordance with Clause 6.8
– Trade Union Training Leave of the award. Country representatives will be provided with appropriate travel
time;
(e)
Notification of the commencement of new employees, and as part of their induction, time to discuss the benefits
of union membership with them;
(f)
Access to awards, agreements, policies and procedures;
(g)
Access to information on matters affecting employees in accordance with Clause 7 – Consultation in the
agreement; and
(h)
The names of any Equal Employment Opportunity and Occupational Health, Safety and Welfare
representatives.
The employer recognises that it is paramount that union representatives in the workplace are not threatened or
disadvantaged in any way as a result of their role as a union representative
6. - LEAVE
6.1 - ANNUAL LEAVE
6.1.1
Except as hereinafter provided a period of four consecutive weeks' leave shall be allowed to an employee, by his
employer after each period of 12 months continuous service with such employer. Such entitlement shall accrue pro rata
on a weekly basis.
6.1.2
The employee shall be paid for any period of annual leave prescribed by the clause at the ordinary rate of wage the
employee has received for the greatest proportion of the calendar month prior to taking the leave and in the case of
rostered employees, that rate of wage shall include the weekend penalties the employee would have received had the
employee not proceeded on annual leave.
6.1.3
An employee may, with the approval of the employer, be allowed to take the annual leave prescribed by this clause before
the completion of 12 months' continuous service as prescribed by Clause 6.1.1.
6.1.4
Provided that when an employee has proceeded on leave prior to the completion of the 12 months' continuous service the
loading prescribed in Clause 6.1.8 shall be paid on a pro rata basis.
6.1.5
Subject as hereinafter provided:
6.1.6
(a)
If an employee lawfully terminates his service, or his employment is terminated by the employer through no
fault of the employee, the employee shall be paid 2.92 hours in respect of each completed week of continuous
service.
(b)
If the services of an employee terminates and the employee has taken a period of leave in accordance with
Clause 6.1.3, and if the period of leave so taken exceeds that which would become due pursuant to Clause
6.1.5(a) of this subclause, the employee shall be liable to repay an amount received by the employee for the
period of leave taken in accordance with Clause 6.1.3 and the amount which would have accrued in accordance
with Clause 6.1.5(a). The employer may deduct this amount from moneys due to the employee by reason of the
other provisions of this award at the time of termination.
(c)
In addition to any payment to which employees may be entitled under Clause 6.1.5, an employee whose
employment terminates and who has not been allowed the leave prescribed under this award, shall be given
payment as prescribed in clauses 6.1.2 and 6.1.8, in lieu of that leave unless they have been justifiably dismissed
for misconduct whereby the employee is not entitled to be paid for any untaken leave that relates to a year of
service that was completed after the misconduct occurred.
The annual leave prescribed in Clause 6.1.1 may, with the consent of the employee and the employer, be taken in two
portions provided that no portion shall be less than one week.
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6.1.7
When computing the annual leave due under this clause, no deduction shall be made from such leave in respect of the
period an employee is on annual leave, long service leave, observing a public holiday prescribed by this award, absent
through sickness with or without pay except for that portion of an absence that exceeds three months, or absent on
workers' compensation, except for that portion of an absence that exceeds six months in any year.
6.1.8
Annual Leave Loading:
(a)
An employee shall be paid a loading of 17.5 per cent calculated on the rate as prescribed in Clause 6.1.2.
(b)
The loading prescribed in this subclause shall not apply to proportionate leave on termination.
(c)
The loading prescribed in this subclause shall be payable on retirement, provided the employee is over 55 years
of age.
6.1.9
The provisions of this clause shall not apply to casual employees.
6.1.10
An employee may request and with the consent of the employer, take short term Annual Leave.
6.1.11
Employees continue to accrue annual leave while on paid leave for the following purposes:
(a)
annual leave;
(b)
long service leave;
(c)
observing a public holiday prescribed by this award;
(d)
sick leave;
(e)
carer's' leave;
(f)
bereavement leave;
(g)
parental leave; and
(h)
employees' compensation, except for that portion of an absence that exceeds six months in any year.
6.1.12
Employees continue to accrue annual leave while on unpaid sick leave except for that portion of an absence that exceeds
three months.
6.1.13
Employees do not accrue annual leave when absent on approved periods of leave without pay that exceed 14 consecutive
calendar days.
6.2 - SICK LEAVE
6.2.1
6.2.2
6.2.3
For the purposes of this Clause, "continuous service" shall not include any period:
(a)
exceeding 14 calendar days in one continuous period during which an employee is absent on leave without pay.
In the case of leave without pay that exceeds 14 calendar days, the entire period of such leave without pay is
excised in full;
(b)
which exceeds six months in one continuous period during which an employee is absent on employees'
compensation. Only that portion of such continuous absence that exceeds six months shall not count as
"continuous service"; or
(c)
which exceeds three months in one continuous period during which an employee is absent on sick leave without
pay. Only the portion of such continuous absence that exceeds three months shall not count as "continuous
service".
Entitlement
(a)
The employer shall credit fulltime employees with 76 hours of sick leave credits for each 12 month period of
continuous service.
(b)
This sick leave entitlement accrues pro rata on a weekly basis.
(c)
On the completion of each year, unused sick leave credits will accumulate.
(d)
An employee employed on a fixed term contract shall receive the same entitlement as a permanent employee.
(e)
A part time employee shall be entitled to the same sick leave credits as a full time employee, but on a pro rata
basis according to the number of hours worked each fortnight. Payment for sick leave shall only be made for
those hours that would normally have been worked had the employee not been on sick leave.
(f)
Sick leave may be taken on an hourly basis or part thereof.
(g)
Payment may be adjusted at the end of each accruing year, or at the time the employee leaves the service of the
employer in the event of the employee being entitled by service subsequent to the sickness in that year to a
greater allowance than that made at the time the sickness occurred.
Evidence
(a)
An application for sick leave exceeding two consecutive working days shall be supported by evidence that
would satisfy a reasonable person of the entitlement.
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(b)
The number of sick days which may be granted without production of evidence that would satisfy a reasonable
person required by Clause 6.2.3(a) shall not exceed, in aggregate, five working days in any one accruing year.
(c)
An employee shall, as soon as reasonably practicable, notify the employer of their inability to attend for work,
the nature of their illness or injury and the estimated duration of the absence.
(d)
Other than in extraordinary circumstances, the notification required by Clause 6.2.3(c) shall be given to the
employer within 24 hours of the commencement of the absence.
(e)
Other than as provided for in this Clause, an employee is unable to access sick leave while on any period of
annual or long service leave.
(f)
Where an employee is ill during a period of annual leave and produces at the time, or as soon as practicable
thereafter, medical evidence to the satisfaction of the employer that, as a result of the illness, the employee was
confined to their place of residence or a hospital for a period of at least seven consecutive calendar days, the
employer shall grant sick leave for the period during which the employee was so confined and reinstate annual
leave equivalent to the period of confinement.
6.2.4
Payment for replaced annual leave shall be at the wage rate applicable at the time the leave is subsequently taken
provided that, where the annual leave loading prescribed in Clause 6.1 - Annual Leave has been paid to the employee
with respect to the replaced annual leave, it shall be deemed to have been paid.
6.2.5
Where an employee is ill during a period of long service leave and produces at the time, or as soon as practicable
thereafter, medical evidence to the satisfaction of the employer that, as a result of the illness, the employee was confined
to their place of residence or a hospital for a period of at least 14 consecutive calendar days, the employer may grant sick
leave for the period during which the employee was so confined and reinstate long service leave equivalent to the period
of confinement.
6.2.6
In exceptional circumstances, the employer may approve the conversion of an employee's sick leave credits to half pay to
cover an absence on sick leave due to illness.
6.2.7
An employee is unable to access sick leave while on any period of leave without pay.
6.2.8
The provisions of this Clause with respect to payment do not apply to employees whose injury or illness is the result of
the employee's own misconduct.
6.2.9
'Workers' compensation
6.2.10
(a)
Where an employee suffers a disability within the meaning of section 5 of the 'Workers' Compensation and
Injury Management Act 1981 (WA) which necessitates that employee being absent from duty, sick leave with
pay shall be granted to the extent of sick leave credits.
(b)
In accordance with section 80(2) of the 'Workers' Compensation and Injury Management Act 1981 (WA),
where the claim for employees' compensation is decided in favour of the employee, sick leave credits are to be
reinstated and the period of absence granted as sick leave without pay.
Portability
Where:
(a)
an employee was, immediately prior to being employed by the employer, employed in the service of the public
service of Western Australia or any other state body of Western Australia; and
(b)
the period of employment between the date when the employee ceased previous employment and the date of
commencing employment with the employer does not exceed one week or any other period approved by the
employer;
(c)
the employer will credit the employee additional sick leave credits equivalent to those held at the date the
employee ceased previous employment.
(d)
Unused sick leave will not be cashed out or paid out when an employee ceases their employment.
6.2.11
The provisions of Clause 6.2 do not apply to casual employees.
6.3.1
An employee other than a casual employee is entitled to use up to ten (10) days of his or her sick leave entitlement in any
given year as paid carer's leave to provide care or support to a member of the employee's family or household who
requires care or support because of:
6.3 - CARER'S LEAVE
6.3.2
(a)
an illness or injury to the member; or
(b)
an unexpected emergency affecting the member.
An employee, including a casual employee, is entitled to unpaid carer's leave of up to two (2) days for each occasion (a
"permissible Occasion") on which a member of the employee's family or household requires care or support because of:
(a)
an illness or injury to the member; or
(b)
an unexpected emergency affecting the member.
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6.3.3
An employee is only entitled to take unpaid carer's leave if the employee cannot take paid carer's leave.
6.3.4
For the purposes of 6.3.1 and 6.3.2 a "member of the employee's family or household" means any of the following
persons:
(a)
the employee's spouse or de facto partner;
(b)
a child, step-child or grandchild of the employee (including an adult child, step-child or grandchild);
(c)
a parent, step-parent or grandparent of the employee;
(d)
a sibling of the employee;
(e)
any other person who, at or immediately before the relevant time for assessing the employee's eligibility to take
leave, lived with the employee as a member of the employee's household.
6.3.5
The employee is required to provide to the employer evidence that would satisfy a reasonable person of the entitlements
to leave under this clause.
6.4.1
The following days or the days observed in lieu shall, subject to the provisions of this Clause, be allowed as holidays
without deduction of pay:
6.4 - PUBLIC HOLIDAYS
New Year's Day, Australia Day, Good Friday, Easter Monday, Anzac Day, Labour Day, Foundation Day, Sovereign's
Birthday, Christmas Day and Boxing Day.
6.4.2
Provided that another day may be taken as a holiday by arrangement between the parties in lieu of any of the days named
in this Clause.
6.4.3
When any of the days mentioned in Clause 6.4.1 fall on a Saturday or a Sunday, the holiday shall be observed on the next
succeeding Monday and, when Boxing Day falls on a Sunday or a Monday, the holiday shall be observed on the next
succeeding Tuesday. In each case, the substituted day shall be a holiday without deduction of pay and the day for which it
is substituted shall not be a holiday.
6.4.4
Whenever any of the days referred to in Clause 6.4.1 falls on an employee's ordinary working day and the employee is not
required to work on such day, they shall be paid for the ordinary hours they would have worked on such day had it not
been a holiday.
6.4.5
A shift employee who is regularly rostered to work Sundays and/or public holidays, or a Security Officer who is not
required to work on a holiday which falls on their rostered day off, shall be allowed a day's leave with pay to be added to
their annual leave or taken at some other time if the employee so agrees. 'Regularly rostered' means the employee is
rostered to work on at least eleven Sundays and/or public holidays in a period of 12 months' continuous service.
6.4.6
Any employee required to work on a holiday shall be paid for the time worked at the rate of double time and one half.
Provided that in lieu of this entitlement, and subject to agreement between the employer and the employee, work
performed on a public holiday may be paid for at the rate of time and one half and, in addition, the employee shall be
allowed a day's leave with pay to be added to their annual leave or taken at some other time if the employee so agrees.
6.4.7
When an employee is off duty owing to leave without pay, any holiday falling during such absence shall not be treated as
a paid holiday. Where the employee is on duty or available on the whole of the working day immediately preceding a
holiday, or resumes duty or is available on the whole of the working day immediately following a holiday, as prescribed
in this clause, the employee shall be entitled to a paid holiday on all such holidays.
6.4.8
The provisions of this Clause shall not apply to:
6.4.9
(a)
casual employees; or
(b)
employees who do not ordinarily work on the day on which a public holiday falls.
Where:
(a)
a day is proclaimed as a public holiday or as a public half-holiday under section 7 of the Public and Bank
Holidays Act 1972; and
(b)
that proclamation does not apply throughout the State or to the metropolitan area of the State;
that day shall be a public holiday or, as the case may be, a public half-holiday, for the purposes of this award within the
district or locality specified in the proclamation.
6.5 - LONG SERVICE LEAVE
Subject to the provisions of this Clause, the long service leave provisions set out in Volume 66 of the Western Australian Industrial
Gazette at pages 319 to 321 inclusive apply to employees covered by this award.
6.6 - BEREAVEMENT LEAVE
6.6.1
Employees, including casuals, shall on the death of:
(a)
the employee's spouse or de facto partner;
(b)
a child, step-child or grandchild of the employee (including an adult child, step-child or grandchild);
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(c)
a parent, step-parent or grandparent of the employee;
(d)
a sibling of the employee;
(e)
any other person who, at or immediately before the relevant time for assessing the employee's eligibility to take
leave, lived with the employee as a member of the employee's household.
''
be eligible for up to two (2) days paid bereavement leave, provided that at the request of an employee the employer may
exercise a discretion to grant two (2) days paid bereavement leave to an employee in respect of some other person with
whom the employee has a special relationship.
6.6.2
The two (2) days need not be consecutive.
6.6.3
Bereavement leave is not to be taken during any other period of leave.
6.6.4
An employee shall not be entitled to claim payment for bereavement leave on a day when that employee is not ordinarily
rostered to work.
6.6.5
Payment of such leave may be subject to an employee providing evidence, if so requested by the employer, of the death or
relationship to the deceased that would satisfy a reasonable person.
6.6.6
Employees requiring more than two (2) days bereavement leave in order to travel overseas or interstate in the event of the
death overseas or interstate of a member of an employee's immediate family may, upon providing adequate proof, in
addition to any bereavement leave to which the employee is eligible, have immediate access to annual leave and/or
accrued long service leave and/or leave without pay, provided all accrued leave is exhausted.
6.7.1
Definitions
6.7 - PARENTAL LEAVE
(a)
"Employee" does not include a casual employee who is not an eligible casual employee;
(b)
"Eligible casual employee" means a casual employee who:
(a) (c)
6.7.2
(i)
has been engaged by a particular employer on a regular basis for a sequence of periods of employment
during a period of at least (12 months); and
(ii)
but for an expected birth of a child to the employee or the employee's spouse or de facto partner or an
expected placement of a child with the employee with a view to adoption of the child by the
employee, would have a reasonable expectation of continuing engagement by the employer on a
regular and systematic basis.
Without limiting the above, a casual employee is also an eligible casual employee if:
(i)
the employee was engaged by a particular employer on a regular and systematic basis for a
sequence of periods during a period, "the first period of employment" of less than twelve
(12) months;
(ii)
at the end of the first period of employment, the employee ceased, on the employer's
initiative, to be so engaged by the employer;
(iii)
the employer later again engaged the employee on a regular and systematic basis for a
further sequence of periods during a period "the second period of employment", that started
not more than three (3) months after the end of the first period of employment;
(iv)
the combined length of the first period
employment is at least (12) months; and
(v)
the employee, but for an expected birth of a child to the employee or the employee's spouse
or de facto partner or an expected placement of a child with the employee with a view to the
adoption of the child by the employee, would have a reasonable expectation of continuing
engagement by the employer on a regular and systematic basis.
of employment and the second period of
Entitlement to parental and partner leave
(a)
An employee is entitled to a period of up to 52 weeks unpaid parental leave in respect of the:
(i)
birth of a child to the employee or the employee's partner; or
(ii)
adoption of a child who is not the child or the stepchild of the employee or the employee's partner; is
under the age of five (5); and has not lived continuously with the employee for six (6) months or
longer.
(b)
An employee identified as the primary care giver of a child and who has completed twelve months continuous
service in the Western Australian public sector shall be entitled to seven (7) weeks paid parental leave. Paid
parental leave will form part of the 52-week entitlement provided in clause 6.7.2.(a)
(c)
The entitlement of seven (7) weeks paid parental leave provided for in Clause 6.7.4 (b) is increased to eight (8)
weeks from 1 January 2006.
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(d)
A pregnant employee can commence the period of paid parental leave any time up to six (6) weeks before the
expected date of birth and no later than four (4) weeks after the birth. Any other primary care giver can
commence the period of paid parental leave from the birth date or, for the purposes of adoption, from the
placement of the child but no later than four (4) weeks after the birth or placement of the child.
(e)
Paid parental leave for primary care purposes for any one birth or adoption shall not exceed seven (7) weeks
from 1 January 2005 or eight (8) weeks from 1 January 2006.
(f)
The paid and unpaid parental leave entitlement up to a maximum of 52 weeks may be shared between partners
assuming the role of primary care giver.
(g)
Parental leave may not be taken concurrently by an employee and their partner except under special
circumstances and with the approval of the employer.
(h)
Where less than the standard parental leave is taken, the unused portion of the period of paid or unpaid leave
cannot be preserved in any way.
(i)
An employee may elect to receive pay in advance for the period of paid parental leave at the time the parental
leave commences, or may elect to be paid the entitlement on a fortnightly basis over the period of the paid
parental leave.
(j)
An employee is eligible, without resuming duty, for subsequent periods of parental leave in accordance with the
provisions of this clause.
Partner leave
An employee who is not a primary care giver shall be entitled to a period of unpaid partner leave of up to one (1) week at the time
of the birth of a child/children to their partner. In the case of adoption of a child this period shall be increased to up to three (3)
weeks unpaid leave.
6.7.4
6.7.5
6.7.6
6.7.7
Birth of a child
(a)
An employee shall provide the employer with a medical certificate from a registered medical practitioner
naming the employee, or the employee's partner, confirming the pregnancy and the estimated date of birth.
(b)
If the pregnancy results in other than a live child or the child dies in the seven (7) weeks immediately after the
birth, the entitlement to paid parental leave remains intact.
(c)
The number of weeks referred to in Clause 6.7.4(b) is increased to eight (8) weeks from 1 January 2006.
Adoption of a child
(a)
An employee seeking to adopt a child shall be entitled to two (2) days unpaid leave to attend interviews or
examinations required for the adoption procedure. Employees working or residing outside the Perth
metropolitan area are entitled to an additional day's unpaid leave. The employee may take any paid leave
entitlement in lieu of this leave.
(b)
If an application for parental leave has been granted for the adoption of a child, which does not eventuate, then
the period of paid or unpaid parental leave is terminated. Employees may take any other paid leave entitlement
in lieu of the terminated parental leave or return to work.
Other leave entitlements
(a)
An employee proceeding on unpaid parental leave may elect to substitute any part of that leave with accrued
annual leave or long service leave for the whole or part of the period of unpaid parental leave.
(b)
Subject to all other leave entitlements being exhausted, an employee shall be entitled to apply for leave without
pay following parental leave to extend their leave by up to two (2) years. The employer's approval is required
for such an extension.
(c)
Any period of leave without pay must be applied for and approved in advance and will be granted on a year-byyear basis. Where both partners work for the employer, the total combined period of leave without pay
following parental leave will not exceed two (2) years.
(d)
An employee on parental leave is not entitled to paid absences other than as specified in Clauses 6.7.6 (a) and
(e)
(e)
Should the birth or adoption result in other than the arrival of a living child, the employee shall be entitled to
such period of paid personal leave or unpaid leave for a period certified as necessary by a registered medical
practitioner. Such paid personal leave cannot be taken concurrently with paid parental leave.
(f)
Where a pregnant employee not on parental leave suffers illness related to the pregnancy or is required to
undergo a pregnancy related medical procedure the employee may take any paid personal leave to which the
employee is entitled or unpaid leave for a period as certified necessary by a registered medical practitioner.
Notice and variation
(a)
The employee shall give not less than four (4) weeks notice in writing to the employer of the date the employee
proposes to commence paid or unpaid parental leave stating the period of leave to be taken.
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(b)
An employee seeking to adopt a child shall not be in breach of Clause 6.7.7(a) by failing to give the required
period of notice if such failure is due to the requirement of the adoption agency to accept earlier or later
placement of a child, or other compelling circumstances.
(c)
An employee proceeding on parental leave may elect to take a shorter period of parental leave and may, at any
time during that period, elect to reduce or extend the period stated in the original application, provided four (4)
weeks written notice is provided.
Transfer to a safe job
Where illness or risks arising out of pregnancy or hazards connected with the work assigned to the pregnant employee make it
inadvisable for the employee to continue in her present duties, the duties shall be modified or the employee may be transferred to a
safe position at the same classification level until the commencement of parental leave.
6.7.9
6.7.10
6.7.11
Replacement employee
(a)
Prior to engaging a replacement employee, the employer shall inform the person of the temporary nature of the
employment and the entitlements relating to the return to work of the employee on parental leave.
(b)
A replacement employee may be employed part time. Subject to this Clause, Clauses 6.9.11(g), (h), (i), (j) and
(n) and Clauses 6.7.12(d) and (e) of this clause apply to the part time employment of a replacement employee.
(c)
Nothing in this Clause shall be construed as requiring an employer to engage a replacement employee.
Return to work
(a)
An employee shall confirm the intention to return to work by notice in writing to the employer not less than four
(4) weeks prior to the expiration of parental leave.
(b)
Where an employer has made a definite decision to introduce major changes that are likely to have a significant
effect on the employee's position, the employer shall notify the employee while they are on parental leave.
(c)
An employee on return to work from parental leave will be entitled to the same position or a position equivalent
in pay, conditions and status and commensurate with the employee's skill and abilities as the substantive
position held immediately prior to proceeding on parental leave. Where the employee was transferred to a safe
job, the employee is entitled to return to the position occupied immediately prior to transfer.
Part time work
(a)
A pregnant employee may work part time in one or more periods while she is pregnant where part time
employment is, because of the pregnancy, necessary or desirable.
(b)
An employee may return on a part time or job-share basis to the substantive position occupied prior to the
commencement of leave or to a different position at the same classification level. The employee may work part
time in one or more periods.
(c)
Subject to the employer's approval, an employee who has returned on a part time basis may revert to full time
work at the same classification level within two (2) years of the recommencement of work.
(d)
Commencement on part-time work under this Clause, and return from part-time to full-time work under this
Clause, shall not break the continuity of service or employment.
(e)
Subject to the provisions of this Clause and to the matters agreed in accordance with Clause 6.7.11(i), part time
employment shall be accordance with the provisions of this award, which shall apply on a pro rata basis.
(f)
An employee working part time under this Clause shall be entitled to leave accrued in respect of a period of full
time employment, in such periods and manner as specified in the annual leave provisions of the relevant award.
(g)
A full time employee shall be paid for and take any annual leave accrued in respect of a period of part time
employment under this Clause, in such periods and manner as specified in the relevant award, as if the
employee were working part time in the class of work the employee was performing as a part time employee
immediately before resuming full time work.
(h)
Provided that, by agreement between the employer and employee, the period over which the leave is taken may
be shortened to the extent necessary for the employee to receive pay at the employee's current full time rate.
(i)
An employee working part time under this Clause shall have sick leave entitlements which have accrued under
the relevant award (including any entitlement accrued in respect of previous full time employment) converted
into hours. When this entitlement is used, whether as a part time employee or as a full time employee, it shall be
debited for the ordinary hours that the employee would have worked during the period of absence.
(j)
Before commencing a period of part time employment under this Clause, the employee and the employer shall
agree upon:
(i)
the hours to be worked; the days upon which they will be worked and commencing times for the
work;
(ii)
the classification applying to the work to be performed; and
(iii)
the period of part time employment.
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(k)
The terms of the agreement made under Clause 6.7.11(b) may be varied by consent.
(l)
The terms of the agreement made under Clause 6.7.11(b) shall be reduced to writing and retained by the
employer. A copy of the agreement and any variation to it shall be provided to the employee by the employer.
The terms of this agreement shall apply to the part time employment.
(m)
An employer may request, but not require, an employee working part time under this Clause to work outside of
or in excess of the employee's ordinary hours of duty provided for in the relevant award.
(n)
The work to be performed part time need not be the work performed by the employee in their former position
but shall be work performed under this award.
(o)
An employee may work part time under this Clause notwithstanding any other provision of this or any other
relevant award which limits or restricts the circumstances in which part time employment may be worked or the
terms upon which it may be worked, including provisions:
(i)
limiting the number of employees who may work part time;
(ii)
establishing quotas as to the ratio of part time to full time employees;
(iii)
prescribing to a minimum or maximum number of hours a part time employee may work; or
(iv)
requiring consultation with, consent of, or monitoring by a union; and
(v)
such provisions do not apply to part time work under this Clause.
Effect of parental leave and part time employment on the contract of employment
(a)
An employee employed for a fixed term contract shall have the same entitlement to parental leave, however, the
period of leave granted shall not extend beyond the term of that contract.
(b)
Paid parental leave will count as qualifying service for all purposes under the relevant award. Absence on
unpaid parental leave shall not break the continuity of service of employees but shall not be taken into account
in calculating the period of service for any purpose under the relevant award.
(c)
An employee on parental leave may terminate employment at any time during the period of leave by written
notice in accordance with the relevant award.
(d)
An employer shall not terminate the employment of an employee on the grounds of the employee's application
for parental leave, absence on parental leave, or because the employee has exercised or proposes to exercise any
part time employment rights and/or benefits as provided for in Clause 6.7.11 but otherwise the rights of the
employer in respect of termination of employment are not affected.
(e)
Any termination entitlements payable to an employee whose employment is terminated while working part time
under Clause 6.7.11, or while working full time after transferring from part time work under Clause 6.7.11, shall
be calculated by reference to the full time rate of pay at the time of termination and by regarding all service as a
full time employee as qualifying for a termination entitlement based on the period of full time employment and
all service as a part time employee on a pro rata basis.
6.8 - TRADE UNION TRAINING LEAVE
6.8.1
Subject to the employer's convenience and the provisions of this clause:
(a)
The employer shall grant paid leave of absence to officers who are nominated by the Association to attend short
courses relevant to the public sector or the role of union workplace representative, conducted by the Transport
Workers' Union of Australia, Industrial Union of Workers, Western Australian Branch.
(b)
The employer shall grant paid leave of absence to attend similar courses or seminars as from time to time
approved by agreement between the employer and the Association.
6.8.2
An officer shall be granted up to a maximum of five (5) days paid leave per calendar year for trade union training or
similar courses or seminars as approved. However, leave of absence in excess of five (5) days and up to ten (10) days
may be granted in any one calendar year provided that the total leave being granted in that year and in the subsequent year
does not exceed ten (10) days.
6.8.3
Leave of absence will be granted at the ordinary rate of pay and shall not include shift allowances, penalty rates or
overtime.
6.8.4
Where a Public Holiday or rostered day off falls during the duration of a course, a day off in lieu of that day will not be
granted.
6.8.5
Subject to Clauses 6.8.3 & 6.8.4, shift employees attending a course shall be deemed to have worked the shifts they would
have worked had leave not been taken to attend the course.
6.8.6
Part-time officers shall receive the same entitlement as full time officers, but payment shall only be made for those hours
that would normally have been worked but for the leave.
6.8.7
Any application by an officer shall be submitted to the employer for approval at least four weeks before the
commencement of the course unless the employer agrees otherwise.
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6.8.8
All applications for leave shall be accompanied by a statement from the union indicating that the officer has been
nominated for the course. The application shall provide details as to the subject, commencement date, length of course,
venue and the authority, which is conducting the course.
6.8.9
A qualifying period of twelve months service shall be served before an officer is eligible to attend courses or seminars of
more than a half-day duration. The employer may, where special circumstances exist, approve an application to attend a
course or seminar where an officer has less than twelve months service.
6.8.10
The employer shall not be liable for any expenses associated with an officer's attendance at trade union training courses.
6.8.11
Leave of absence granted under this clause shall include any necessary travelling time in normal working hours
immediately before or after the course.
6.9 - LEAVE TO ATTEND UNION BUSINESS
6.9.1
6.9.2
The employer shall grant paid leave during ordinary working hours to an employee:
(a)
who is required to give evidence before any industrial tribunal;
(b)
who as union-nominated representative of the employees is required to attend negotiations and/or conferences
between the Union and employer;
(c)
when prior agreement between the Union and employer has been reached for the employee to attend official
union meetings preliminary to negotiations or industrial hearings;
(d)
who as a union-nominated representative of the employees is required to attend joint union/management
consultative committees or working parties.
The granting of leave pursuant to Clause 6.9.1 shall only be approved:
(a)
where an application for leave has been submitted by an employee a reasonable time in advance;
(b)
for the minimum period necessary to enable the union business to be conducted or evidence to be given;
(c)
for those employees whose attendance is essential;
(d)
when the operation of the organisation is not being unduly affected and the convenience of the employer
impaired.
6.9.3
Leave of absence will be granted at the ordinary rate of pay.
6.9.4
The employer shall not be liable for any expenses associated with an employee attending to union business.
6.9.5
Leave of absence granted under this clause shall include any necessary travelling time in normal working hours.
6.9.6
Nothing in this clause shall diminish the existing arrangements relating to the granting of paid leave for union business.
6.9.7
An employee shall not be entitled to paid leave to attend union business other than as prescribed by this clause.
6.9.8
The provisions of this clause shall not apply to special arrangements made between the parties which provide for unpaid
leave for employees to conduct union business.
6.9.9
The provisions of this clause shall not apply when an employee is absent from work without the approval of the employer.
6.10.1
Cultural/ceremonial leave shall be available to all employees.
6.10.2
Such leave shall include leave to meet the employee's customs, traditional law and to participate in cultural and
ceremonial activities.
6.10.3
Employees are entitled to time off without loss of pay for cultural/ceremonial purposes, subject to agreement between the
employer and employee and sufficient leave credits being available.
6.10.4
The employer will assess each application for ceremonial/cultural leave on its merits and give consideration to the
personal circumstances of the employee seeking the leave.
6.10 - CULTURAL/CEREMONIAL LEAVE
6.10.5
The employer may request reasonable evidence of the legitimate need for the employee to be allowed time off.
6.10.6
Cultural/ceremonial leave may be taken as whole or part days off. Each day, or part thereof, shall be deducted from:
6.10.7
(a)
the employee's annual leave entitlements (where applicable); or
(b)
accrued days off or time in lieu.
Time off without pay may be granted by arrangement between the employer and the employee for cultural/ceremonial
purposes.
6.11 - PURCHASED LEAVE – 48/52 WAGES ARRANGEMENT
6.11.1
The employer and an employee may agree to enter into an arrangement whereby the employee can purchase up to four (4)
weeks additional leave.
6.11.2
The employer will assess each application for 48/52 wage arrangement on its merits and give consideration to the
personal circumstances of the employee seeking the arrangement.
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6.11.3
Access to this entitlement will be subject to the employee having satisfied the employer's accrued leave management
policy.
6.11.4
The employee can agree to take a reduced wage spread over the 52 weeks of the year and receive the following amounts
of additional purchased leave:
Number of weeks wages spread over 52 weeks
Number of weeks purchased leave
48 weeks
4 weeks
49 weeks
3 weeks
50 weeks
2 weeks
51 weeks
1 week
6.11.5
The purchased leave will not be able to be accrued. The employee is to be entitled to pay in lieu of the additional leave
not taken. In the event that the employee is unable to take such purchased leave, their wage will be adjusted on the last
pay period in January to take account of the fact that time worked during the year was not included in the wage.
6.11.6
Where an employee who is in receipt of a higher duties allowance provided for in the relevant award proceeds on any
period of additional purchased leave, the employee shall not be entitled to receive payment of the allowance for any
period of purchased leave.
6.11.7
In the event that a part time employee's ordinary working hours are varied during the year, the wage paid for such leave
taken will be adjusted on the last pay in January to take into account any variations to the employee's ordinary working
hours during the previous year.
6.12.1
With the written agreement of the employer, an employee may elect to receive, over a four-year period, 80% of the wage
they would otherwise be entitled to receive in accordance with the relevant award.
6.12.2
The employer will assess each application for deferred salary on its merits and give consideration to the personal
circumstances of the employee seeking the leave.
6.12.3
On completion of the fourth year, an employee will be entitled to 12 months leave and will receive an amount equal to
80% of the wage they were otherwise entitled to in the fourth year of deferment.
6.12.4
Where an employee completes four (4) years of deferred wage service and is not required to attend duty in the following
year, the period of non-attendance shall not constitute a break in service and shall count as service on a pro-rata basis for
all purposes.
6.12.5
An employee may withdraw from this arrangement prior to completing a four-year period by written notice. An
employee will receive a lump sum payment of wages forgone to that time but will not be entitled to equivalent absence
from duty.
6.12.6
The employer will ensure that superannuation arrangements and taxation effects are fully explained to the employee by
the relevant authority. The employer will put any necessary arrangements into place.
6.13.1
Conditions for granting time off
6.12 - DEFERRED WAGES ARRANGEMENT
6.13 - STUDY LEAVE
(a)
An employee may be granted time off with pay for part-time study purposes at the discretion of the employer.
(b)
Part-time employees are entitled to study leave on the same basis as full time employees. Employees working
shift work or on fixed term contracts also have the same access to study leave as all other employees.
(c)
Time off with pay may be granted up to a maximum of five hours per week, including travelling time, where
subjects of approved courses are conducted during normal working hours. The equivalent applies if studying by
correspondence.
(d)
Employees who are obliged to attend educational institutions for compulsory block sessions may be granted
time off with pay, including travelling time, up to the maximum annual amount allowed to an employee in
Clause 6.13.1(c).
(e)
Employees shall be granted sufficient time off with pay to travel to and sit for the examinations of any approved
course of study or for the mature age entrance examination for tertiary admission conducted by the Tertiary
Institution Service Centre.
(f)
In every case the approval of time off to attend lectures and tutorials will be subject to:
(i)
the employer's convenience;
(ii)
the course being undertaken on a part-time basis;
(iii)
employees undertaking an acceptable formal study load in their own time;
(iv)
employees making satisfactory progress with their studies; and
(v)
the course being relevant to the employee's career in the public sector and being of value to the state.
87 W.A.I.G.
(g)
6.13.2
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
3079
A service agreement or bond will not be required.
Payment of fees and other costs
(a)
(b)
Cadets and trainees
(i)
Employers are to meet the payment of higher education administrative charges for cadets and trainees
who, as a condition of their employment, are required to undertake studies at a post secondary
institution. Employees who, of their own volition, attend such institutions to gain higher qualifications
will be responsible for the payment of fees.
(ii)
This assistance does not include the cost of textbooks or Guild and Society fees.
(iii)
An employee who is required to repeat a full academic year of the course will be responsible for
payment of the higher education fees for that particular year.
All employees
Notwithstanding Clause 6.13.2(a), the employer has the discretion to reimburse an employee for the full or part
of any reasonable costs of enrolment fees, Higher Education Contribution Surcharge, compulsory textbooks,
compulsory computer software, and other necessary study materials. Half of the value of the agreed costs shall
be reimbursed immediately following production of written evidence of successful completion of the subject for
which reimbursement has been claimed. The employer and employee may agree to alternative reimbursement
arrangements.
6.13.3
6.13.4
Approved courses
(a)
First degree or Associate Diploma courses at a post secondary institution.
(b)
Diploma courses and two year full time certificate courses at Technical and Further Education (TAFE).
(c)
Secondary courses leading to the Tertiary Entrance Examination (see Clause 6.13.4(i)) or courses preparing
students for the mature age entrance conducted by the Tertiary Institutions Service Centre.
(d)
Courses recognised by the National Authority for the Accreditation of Translators and Interpreters (NAATI) in
a language relevant to the needs of the public sector.
(e)
Except as outlined in Clause 6.13.3(g), employees are not eligible for study assistance if they already possess
one of the qualifications specified in Clause 6.13.3(a) and (b) of this clause.
(f)
An employee who has completed a Diploma through TAFE is eligible for study assistance to undertake a degree
course at any of the tertiary institutions in Clause 6.13.5. An employee who has completed a two year full-time
Certificate through TAFE is eligible for study assistance to undertake a Diploma course specified in Clause
6.13.3(b) of this clause, or a degree or Associate Diploma course specified in Clause 6.13.3(a) of this clause.
(g)
Assistance towards additional qualifications including second or higher degrees may be granted in special cases
in a specialist area of benefit to the public sector as well as the employee.
For the purposes of this clause:
(a)
In determining the employer's convenience, employers should give due emphasis to the employee's career
aspirations.
(b)
An acceptable part-time study load should be regarded as not less than five hours per week of formal tuition or
the equivalent if studying by correspondence with at least half of the total formal study commitment being
undertaken in the employee's own time, except in special cases such as where the employee is in the final year
of study and requires less time to complete the course, or the employee is undertaking the recommended parttime year or stage and this does not entail five hours formal study.
(c)
The relevance of a course should be determined from a public sector rather than an employer perspective. For
instance, an employee may be undertaking a course of study which is of no special relevance to the employee's
work or employer but which may well be particularly significant in some other section of the public sector.
(d)
A first degree or Associate Diploma course does not include the continuation of a degree or Associate Diploma
towards a higher postgraduate qualification.
(e)
In cases where employees are studying subjects that require fortnightly classes, the weekly study load should be
calculated by averaging over two weeks the total fortnightly commitment.
(f)
Travelling time returning home after lectures or tutorials is to be calculated as the excess time taken to travel
home from such classes, compared with the time usually taken to travel home from the employee's normal place
of work.
(g)
An employee shall not be granted more than five hours time off with pay per week except in exceptional
circumstances where the employer may decide otherwise.
(h)
Time off with pay for those who have failed a unit or units may be considered for one repeat year only.
3080
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
(i)
6.13.5
6.13.6
87 W.A.I.G.
Study leave for attendance at courses leading to the Tertiary Entrance Examination will generally only be
granted if the employee has already unsuccessfully attempted to enter tertiary studies through the mature age
entrance examination conducted by the Tertiary Institutions Service Centre. However, this condition will not
apply if a pass in certain subjects is a prerequisite for entry into an intended course of non-tertiary study or
training that meets the requirements specified in this clause.
Subject to the provisions of Clause 6.13.8, the employer may grant an employee full time study leave with pay to
undertake:
(a)
post graduate degree studies at Australian or overseas tertiary education institutions; or
(b)
study tours involving observations and/or investigations; or
(c)
a combination of postgraduate studies and study tours.
Applications for full time study leave with pay are to be considered on their merits and may be granted provided that the
following conditions are met:
(a)
The course or a similar course is not available locally. Where the course of study is available locally,
applications are to be considered in accordance with the provisions of clauses 6.13.1 to 6.13.5 of this clause and
the Leave Without Pay provisions of this award.
(b)
It must be a highly specialised course with direct relevance to the employee's profession.
(c)
It must be highly relevant to the employer's corporate strategies and goals.
(d)
The expertise or specialisation offered by the course of study should not already be available through other
employees employed within the organisation.
(e)
If the applicant was previously granted study leave, studies must have been successfully completed at that time.
Where an employee is still under a bond, this does not preclude approval being granted to take further study
leave if all the necessary criteria are met.
6.13.7
A fixed term contract employee may not be granted study leave with pay for any period beyond that employee's approved
period of engagement.
6.13.8
Full time study leave with pay may be approved for more than 12 months subject to a yearly review of satisfactory
performance.
6.13.9
Where an outside award is granted and the studies to be undertaken are considered highly desirable by an employer,
financial assistance to the extent of the difference between the employee's normal wage and the value of the award may
be considered. Where no outside award is granted and where a request meets all the necessary criteria, then part or full
payment of wages may be approved at the discretion of the employer.
6.13.10 The employer supports recipients of coveted awards and fellowships by providing study leave with pay. Recipients
normally receive as part of the award or fellowship; return airfares, payment of fees, allowance for books,
accommodation or a contribution towards accommodation.
6.13.11 Where recipients are in receipt of a living allowance, this amount should be deducted from the employee's wages for that
period.
6.13.12 Where the employer approves full time study leave with pay, the actual wage contribution forms part of the employer's
approved average staffing level funding allocation. Employers should bear this in mind if considering temporary relief.
6.13.13 Where study leave with pay is approved and the employer also supports the payment of transit costs and/or an
accommodation allowance, the employer will gain approval for the transit and accommodation costs as required.
6.13.14 Where employees travelling overseas at their own expense wish to participate in a study tour or convention whilst on tour,
study leave with pay may be approved by the employer together with some local transit and accommodation expenses
providing it meets the requirements of Clause 6.13.8. Each case is to be considered on its merits.
6.13.15 The period of full time study leave with pay is accepted as qualifying service for leave entitlements and other privileges
and conditions of service prescribed for employees under this award.
6.14 - LEAVE WITHOUT PAY
6.14.1
Subject to the provisions of Clause 6.14.2 of this clause, the employer may grant an employee leave without pay for any
period and is responsible for that employee on their return.
6.14.2
Every application for leave without pay will be considered on its merits and may be granted provided that the following
conditions are met:
6.14.3
(a)
The work of the employer is not inconvenienced; and
(b)
All other leave credits of the employee are exhausted.
An employee on a fixed term appointment may not be granted leave without pay for any period beyond that employee's
approved period of engagement.
87 W.A.I.G.
6.14.4
3081
Leave without pay for full time study
(a)
6.14.5
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
The employer may grant an employee leave without pay to undertake full time study, subject to a yearly review
of satisfactory performance.
(b)
Leave without pay for this purpose shall not count as qualifying service for leave purposes.
(c)
Leave without pay for Australian Institute of Sport scholarships
(d)
Subject to the provisions of Clause 6.14.2 of this clause, the employer may grant an employee who has been
awarded a sporting scholarship by the Australian Institute of Sport, leave without pay.
Any period that exceeds two weeks during which an officer is on leave of absence without pay shall not, for any purpose,
be regarded as part of the period of service of that officer.
6.15 - BLOOD/PLASMA DONORS LEAVE
6.15.1
Subject to operational requirements, employees shall be entitled to absent themselves from the workplace in order to
donate blood or plasma in accordance with the following general conditions:
(a)
prior arrangements with the supervisor has been made and at least two (2) days' notice has been provided; or
(b)
the employee is called upon by the Red Cross Blood Centre.
6.15.2
The notification period shall be waived or reduced where the line manager is satisfied that operations would not be unduly
affected by an employee's absence.
6.15.3
Employees shall be required to provide proof of attendance at the Red Cross Blood Centre upon return to work.
6.15.4
Employees shall be entitled to two (2) hours of paid leave per donation for the purpose of donating blood or plasma to the
Red Cross Blood Centre.
6.16 - EMERGENCY SERVICES LEAVE
6.16.1
Subject to operational requirements, paid leave of absence shall be granted by the employer to an employee who is an
active volunteer member of State Emergency Service, St John Ambulance Brigade, Volunteer Fire and Rescue Service,
Bush Fire Brigades, Volunteer Marine Rescue Services Groups or FESA Units, in order to allow for attendances at
emergencies as declared by the recognised authority.
6.16.2
The employer shall be advised as soon as possible by an employee, the emergency service, or other person as to the
absence and, where possible, the expected duration of leave.
6.16.3
The employee must complete a leave of absence form immediately upon return to work.
6.16.4
The application form must be accompanied by a certificate from the emergency organisation certifying that the employee
was required for the specified period.
6.16.5
An employee who, during the course of an emergency, volunteers their services to an emergency organisation, shall
comply with Clauses 6.16.2 to 6.16.4.
6.17 - DEFENCE FORCE RESERVES LEAVE
6.17.1
The employer must grant leave of absence for the purpose of defence service to an employee who is a volunteer member
of the Defence Force Reserves or the Cadet Force. Defence service means service, including training, in a part of the
Reserves or Cadet Force.
6.17.2
Leave of absence may be paid or unpaid in accordance with the provisions of this clause.
6.17.3
Application for leave of absence for defence service shall, in all cases, be accompanied by evidence of the necessity for
attendance. At the expiration of the leave of absence granted, the employee shall provide a certificate of attendance to the
employer.
6.17.4
Paid leave
(a)
An employee who is a volunteer member of the Defence Force Reserves or the Cadet Force is entitled to paid
leave of absence for defence service, subject to the conditions set out hereunder.
(b)
Part-time employees shall receive the same paid leave entitlement as full-time employees, but payment shall
only be made for those hours that would normally have been worked but for the leave.
(c)
On written application, an employee shall be paid wages in advance when proceeding on such leave.
(d)
Casual employees are not entitled to paid leave for the purpose of defence service.
(e)
An employee is entitled to paid leave for a period not exceeding 105 hours on full pay in any period of twelve
months commencing on 1 July in each year.
(f)
An employee is entitled to a further period of leave not exceeding 16 calendar days in any period of twelve
months commencing on July 1. Pay for this leave shall be at the rate of the difference between the normal
remuneration of the employee and the Defence Force payments to which the employee is entitled if such
payments do not exceed normal wages. In calculating the pay differential, pay for Saturdays, Sundays, Public
Holidays and rostered days off is to be excluded, and no account is to be taken of the value of any board or
lodging provided for the employee.
3082
6.17.5
6.17.6
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
87 W.A.I.G.
Unpaid leave
(a)
Any leave for the purpose of defence service that exceeds the paid entitlement prescribed in Clause 6.17.4 of
this clause shall be unpaid.
(b)
Casual employees are entitled to unpaid leave for the purpose of defence service.
Use of other leave
(a)
An employee may elect to use annual or long service leave credits for some or all of their absence on defence
service, in which case they will be treated in all respects as if on normal paid leave.
(b)
An employer cannot compel an employee to use annual leave or long service leave for the purpose of defence
service.
7. - CONSULTATION & INTRODUCTION OF CHANGE
7.1 - INTRODUCTION OF CHANGE
7.1.1
Where an employer has made a definite decision to introduce major changes in production, programme, organisation,
structure or technology that are likely to have a significant effect on employees, the employer shall notify the employees
who may be affected by the proposed changes and the union.
7.1.2
"A significant effect" includes termination of employment, major changes in the composition, operation or size of the
employer's workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities
or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations
and restructuring of jobs.
7.1.3
The employer shall discuss with the employees affected and the union, among other things, the introduction of the
changes referred to in Clause 7.1.1, the effects the changes are likely to have on employees, measures to avert or
minimise the adverse a significant effect and shall give prompt consideration to matters raised by the employees and/or
the union in relation to the changes. Where an employee is to be made redundant, the matters to be discussed also include
the likely effects of the redundancy.
7.1.4
The discussion shall commence as soon as reasonably practicable after a decision has been made by the employer to make
the changes referred to in Clause 7.1.1.
7.1.5
For the purposes of such discussion, the employer shall provide to the employees concerned and the union, all relevant
information about the changes including the nature of the changes proposed; the expected effects of the changes on
employees and any other matters likely to affect employees provided that any employer shall not be required to disclose
information which may seriously harm the employer's business undertaking or the employer's interest in the carrying on,
or disposition, of the business undertaking.
7.2.1
The parties recognise the need for effective communication to improve the business/operational performance and working
environment in organisations. The parties acknowledge that decisions will continue to be made by the employer, who is
responsible and accountable to Government for the effective and efficient operation of the organisation.
7.2.2
The parties agree that:
7.2 - CONSULTATION
(a)
Where the employer proposes to make changes likely to affect existing practices, working conditions or
employment prospects of the employees, the union and employees affected shall be notified by the employer as
early as possible.
(b)
For the purposes of such discussion, the employer shall provide to the union and employees concerned relevant
information about the changes, including the nature of the changes on the employees provided that the employer
shall not be required to disclose information which may seriously harm the employer's business undertaking or
the employer's interest in the carrying on, or disposition, of the business undertaking.
(c)
In the context of such discussion the union and employees are able to contribute to the decision making process.
8. - DISPUTE RESOLUTION PROCEDURE
8.1
Any questions, disputes or difficulties arising under the award or in the course of the employment of employees covered
by the award shall be dealt with in accordance with this Clause.
8.2
The employee/s and the manager with whom the dispute has arisen shall discuss the matter and attempt to find a
satisfactory solution within three working days.
8.3
If the dispute cannot be resolved at this level, the matter shall be referred to and be discussed with the relevant manager's
superior and an attempt made to find a satisfactory solution within a further three working days.
8.4
If the dispute is still not resolved, it may be referred by the employee/s or union representative to the employer or their
nominee.
8.5
Where the dispute cannot be resolved within five working days of the union representative's referral of the dispute to the
employer or their nominee, either party may refer the matter to the Commission.
8.6
The period for resolving a dispute may be extended by agreement between the parties.
87 W.A.I.G.
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
3083
8.7
At all stages of the procedure, the employee may be accompanied by a union representative.
8.8
Notwithstanding the above, the union may raise matters directly with representatives of the employer. In each case, the
union and the employer shall endeavour to reach agreement. If no agreement is reached, either party may refer the dispute
to the Commission for conciliation and/or arbitration.
9. - NAMED PARTIES
Employer Parties
Minister for Agriculture and Food
Minister for Police
Minister for Culture and the Arts
Union Parties
Transport Workers' Union of Australia, Industrial Union of Workers, Western Australian Branch.
10. - OTHER LAWS AFFECTING EMPLOYMENT
10.1
Industrial Relations Act 1979 (WA)
10.2
Minimum Conditions of Employment Act 1993 (WA)
10.3
Workplace Relations Act 1996 (Cth)
www.wairc.wa.gov.au
www.slp.wa.gov.au
www.airc.gov.au or http://www.airc.gov.au/procedures/wra/wra.html
10.4
Superannuation Guarantee (Administration) Act 1992 (Cth)
http://www.austlii.edu.au/au/legis/cth/consol_act/sga1992430/
10.5
Occupational Safety and Health Act 1984 (WA)
www.safetyline.wa.gov.au
10.6
'Workers' Compensation and Injury Management Act 1981 (WA)
10.7
Equal Opportunity Act 1984 (WA)
10.8
Public Sector Management Act 1994 (WA)
www.slp.wa.gov.au
www.eeo.wa.gov.au
www.slp.wa.gov.au
11. - WHERE TO GO FOR FURTHER INFORMATION
11.1
Transport Workers' Union of Australia.
Telephone : (08) 9328 7477
Facsimile : (08) 9227 8320
Email : [email protected]
11.2
Western Australian Industrial Relations Commission
Telephone : 9420 4444
Toll Free : 1800 624 263
Facsimile : 9420 4500
Email : [email protected]
Internet : www.wairc.wa.gov.au
SCHEDULE A - DISTRICT ALLOWANCE
1.
Officers without dependants (see Clause 5.7.4).
2.
For the purpose of this clause, the boundaries of the various districts shall as described hereunder and as delineated on the
plan at Schedule B.
District:
(a)
The area within a line commencing on coast; thence east along latitude 28 to a point north of Tallering Peak;
thence due south to Tallering Peak; thence southeast to Mt Gibson and Burracoppin; thence to a point southeast
at the junction of latitude 32 and longitude 119; thence south along longitude 119 to coast.
3084
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
87 W.A.I.G.
(b)
That area within a line commencing on the south coast at longitude 119 then east along the coast to longitude
123; then north along longitude 123 to a point on latitude 30; thence west along latitude 30 to the boundary of
No. 1 District.
(c)
The area within a line commencing on coast at latitude 26; thence along latitude 26 to longitude 123; thence
south along longitude 123 to the boundary of No. 2 District.
(d)
The area within a line commencing on the coast at latitude 24; thence east to the South Australian border;
thence south to the coast; thence along the coast to longitude 123; thence north to the intersection of latitude 26;
thence west along latitude 26 to the coast.
(e)
That area of the State situated between the latitude 24 and a line running east from Carnot Bay to the Northern
Territory border.
(f)
That area of the State north of a line running east from Carnot Bay to the Northern Territory border.
3.
An employee shall be paid a district allowance at the standard rate prescribed in Column II of subclause (6) of this
Schedule, for the district in which the employee's headquarters is located. Provided that where the employee's
headquarters is situated in a town or place specified in Column III of subclause (6) of this Schedule, the employee shall be
paid a district allowance at the rate appropriate to that town or place as prescribed in Column IV of subclause (6) of this
Schedule.
4.
An employee who has a dependant shall be paid double the district allowance prescribed by subclause (3) of this Schedule
for, the district, town or place in which the employee's headquarters is located.
5.
Where an employee has a partial dependant the total district allowance payable to the employee shall be the district
allowance prescribed by subclause (3) of this Schedule plus an allowance equivalent to the difference between the rate of
district or location allowance the partial dependant receives and the rate of district or location allowance the partial
dependant would receive if he or she was employed in a full time capacity under the award, Agreement or other
provisions regulating the employment of the partial dependant.
6.
The weekly rate of District Allowance payable to employees pursuant to subclause (3) of this Schedule shall be as
follows:
Column I
District No.
6
5
4
26.1
3
16.5
2
2
11.7
1
Nil
Note:
7.
Column II
Standard Rate
$ per week
63.4
51.85
Column III
Exceptions to Standard Rate
Town or Place
Nil
Fitzroy Crossing
Halls Creek
Turner River Camp
Nullagine
Liveringa (Camballin)
Marble Bar
Wittenoom
Karratha
Port Hedland
Warburton Mission
Carnarvon
Meekatharra
Mount Magnet
Wiluna
Laverton
Leonora
Cue
Kalgoorlie
Boulder
Ravensthorpe
Norseman
Salmon Gums
Marvel Loch
Esperance
Nil
Column IV
Rate
$ per week.
Nil
69.75
64.95
61.15
56.75
70.35
24.55
26.1
3.9
15.6
Nil
In accordance with sub clause (4) of this clause employees with dependants shall be entitled to double the rate
of district allowance.
When an employee is on approved annual recreation leave, the employee shall for the period of such leave, be paid the
district allowance to which the employee would ordinarily be entitled.
87 W.A.I.G.
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
3085
8.
When am employee is on long service leave or other approved leave with pay (other than annual recreational leave), the
employee shall only be paid district allowance for the period of such leave if the employee, dependants or partial
dependants remain in the district in which the employee's headquarters is situated.
9.
When an employee leave his or her district on duty, payment of any district allowance to which the employee would
ordinarily be entitled shall cease after the expiration of two weeks unless the employee's dependant/s or partial
dependant/s remain in the district or as otherwise approved by the employer.
10.
Except as provided in subclause (9) of this Schedule, a district allowance shall be paid to any employee ordinarily entitled
thereto in addition to reimbursement of any travelling transfer or relieving expenses or camping allowance.
11.
Where an employee whose headquarters is located in a district in respect of which no allowance is prescribed in subclause
(6) of this Schedule, is required to travel or temporarily reside for any period in excess of one month in any district or
districts in respect of which such allowance is so payable, the employee shall be paid for the whole of such period a
district allowance at the appropriate rate pursuant to subclauses (3), (4), or (5) of this Schedule, for the district in which
the employee spends the greater period of time.
12.
When an employee is provided with free board and lodging by the employer or a Public Authority the allowance shall be
reduced to two-thirds of the allowance the employee would ordinarily be entitled to under this Schedule.
13.
An employee who is employed on a part-time basis shall be entitled to district allowance on a pro-rata basis. The
allowance shall be determined by calculating the hours worked by the employee as a proportion of the full-time hours
prescribed by the award under which the employee is employed. That proportion of the appropriate district allowance
shall be payable to the employee.
14.
An employee who immediately prior to the 1st day of July, 1988 was in receipt of district allowance at a rate which was
greater than the amount to which the employee is entitled under this Schedule shall have the difference reduce in
accordance with the following:
15.
(16)
(a)
As from the first pay period commencing on or after July 1, 1988 the difference shall be reduced by thirty-three
and one third (33 1/3%) per cent; and
(b)
As from the first pay period commencing on or after January 1, 1989 the difference remaining between the
amount being paid pursuant to (i) above and that to which the employee is otherwise entitled under this clause
shall be reduced by fifty (50%) per cent; and
(c)
As from the first pay period commencing on or after July 1, 1989 payment shall be in accordance with the
employee's entitlement under this clause.
Adjustment of Rates:
(a)
The rates shown in subclause (6) of this clause shall be adjusted administratively every 12 months, effective
from the first pay period commencing on or after the first day of July each year, in accordance with the official
Consumer Price Index (CPI) for Perth, as published for the preceding 12 months at the end of the March quarter
by the Australian Bureau of Statistics.
(b)
The rates so agreed by the parties, in accordance with the foregoing formula, shall then be lodged with the
Western Australian Industrial Relations Commission for registration.
District Allowance Boundaries Map immediately after the Location Allowance clause.
SCHEDULE B - DISTRICT ALLOWANCE MAP
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
124º00'E
87 W.A.I.G.
128º00'E
126º00'E
120º00'E
118º00'E
116º00'E
114º00'E
112º00'E
12º00'S
122º00'E
3086
12º00'S
TIMOR
SEA
WESTERN AUSTRALIA
DISTRICT ALLOWANCE BOUNDARIES
0
14º00'S
100
200
300
400
500km
14º00'S
Joseph Bonaparte Gulf
Descriptions:
18º00'S
I N D I A N
6
WYNDHAM
KUNUNURRA
16º00'S
Carnot Bay
DERBY
BROOME
O C E A N
Liveringa
(Camballin)
Turner River
Camp (PD)
FITZROY
CROSSING
HALLS CREEK
18º00'S
TERRI TORY
16º00'S
Area 1 - the area within a line commencing on the coast
travelling due east along lat: 28° to Tallering Peak, then south
east to Mt Gibson and Burracoppin, then to a point south east
at the junction of lat: 32° and long: 119°, then south along
long: 119° to the coast.
Area 2 – the area within a line commencing on the south coast
along long: 119°, then east along the coast to long: 123°, then
north along long: 123° to a point on lat: 30°, then west along
lat: 30° to the boundary of No.1 district.
Area 3 - the area within a line commencing on the west coast
at lat: 26°, travelling east to long: 123°, then south along long:
123° to the boundary of No.2 district.
Area 4 - the area within a line commencing on the west coast
at lat: 24°, then east to the WA border, then south to the coast,
then west to long: 123°, then north to the intersection of lat:
26°, then west along lat: 26° to the coast.
Area 5 - the area of the state situated between lat: 24° and a
line running east from Carnot Bay to the WA border.
Area 6 – the area of the state north of a line running east from
Carnot Bay to the WA border.
Sandfire
Roadhouse
PORT
HEDLAND
20º00'S
20º00'S
Pardoo
Roadhouse
WICKHAM
ROEBOURNE
DAMPIER
KARRATHA
5
MARBLE BAR
ONSLOW
PANNAWONICA
Telfer
Mining
Centre
NULLAGINE
EXMOUTH
Wittenoom
22º00'S
22º00'S
PARABURDOO
CORAL BAY
NORT HERN
TOM
PRICE
NEWMAN
23º26'30"
Tropic of Capricorn
23º26'30"
Tropic of Capricorn
Minilya
Roadhouse
24º00'S
24º00'S
Kumarina
Roahouse
GASCOYNE
JUNCTION
CARNARVON
Monkey
Mia
DENHAM
Giles Meteorological
Station
Wooramel
Roadhouse
26º00'S
MEEKATHARRA
WILUNA
Murchison
Settlement
Tjukayirla
Roadhouse
4
AUST RALI A
Billabong
Roadhouse
26º00'S
Warburton
Aboriginal
Community
CUE
LEINSTER
MT MAGNET
Tallering Peak R
28º00'S
YALGOO
NORTHAMPTON
MULLEWA
GERALDTON
MINGENEW
MORAWA
DONGARA
SANDSTONE
3
28º00'S
LAVERTON
LEONORA
Paynes Find
R
Mt Gibson
MENZIES
ENEABBA
WUBIN
MOORA
KOORDA
WONGAN
HILLS
LANCELIN
BENCUBBIN
MUKINBUDIN
TOODYAY
32º00'S
PINGELLY
WILLIAMS
BUNBURY
34º00'S
2
COLLIE
1
NARROGIN LAKE
GRACE
MANJIMUP
AUGUSTA
PEMBERTON
EUCLA
NORSEMAN
Balladonia
Roadhouse
32º00'S
G R E AT
SALMON GUMS
NEWDEGATE
AUSTRALIAN
BIGHT
LAKE KING
WAGIN
RAVENSTHORPE
ESPERANCE
GNOWANGERUP
JERRAMUNGUP
34º00'S
CRANBROOK
MT BARKER
WALPOLE
ALBANY
STREETSMART®
O C E A N
124º00'E
120º00'E
118º00'E
116º00'E
114º00'E
112º00'E
122º00'E
S O U T H E R N
36º00'S
30º00'S
KAMBALDA
(WEST)
MARVEL LOCH
CORRIGIN
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BOYUP
BROOK
NANNUP
BURRACOPPIN
NORTHAM
PERTH
MANDURAH
COOLGARDIE
128º00'E
O C E A N
KALGOORLIE
BOULDER
SOUTHERN
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MERREDIN
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SOU TH
DALWALLINU
JURIEN BAY
126º00'E
30º00'S
Produced by the Product and Service Delivery
Branch, DLI.
© Copyright 2005 Department of Land Information.
Internet Licence No.44-2005
87 W.A.I.G.
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
3087
AWARDS/AGREEMENTS AND ORDERS—Application for variation of—
No variation resulting—
2007 WAIRC 01257
WAIVER OF REDUNDANCY PAYMENT
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
PARTIES
ROBERT DUVAL FOODS PTY LTD
APPLICANT
-vLIQUOR, HOSPITALITY AND MISCELLANEOUS UNION, WESTERN AUSTRALIAN
BRANCH
RESPONDENT
CORAM
COMMISSIONER J L HARRISON
DATE
MONDAY, 26 NOVEMBER 2007
FILE NO/S
APPL 57 OF 2006
CITATION NO.
2007 WAIRC 01257
Result
Discontinued
Order
WHEREAS this is an application pursuant to the Industrial Relations Act 1979 to vary the severance pay entitlements in subclause
(5)(d) of Clause 46. – Termination, Introduction of Change and Redundancy of the Restaurant, Tearoom and Catering Workers'
Award, 1979 (No R 48 of 1978) (“the Award”) as provided by Clause 46(5)(j) of the Award, in relation to an employee Ms Zully
Meneses; and
WHEREAS the respondent union lodged a separate application in relation to Ms Meneses (application C59 of 2006) and the matter
was progressed via this application and subsequently the parties reached a settlement of the matter; and
WHEREAS the Commission contacted the applicant on a number of occasions seeking its intentions in relation this application;
and
WHEREAS on 19 October 2007 the Commission wrote to the applicant requesting it contact the Commission by no later than
2 November 2007 as to the applicant’s intentions in relation to the matter; and
FURTHER the applicant was advised that if no contact was made by this date the matter would be listed for a show cause hearing
as to why the matter should not be dismissed, however, no advice was received; and
WHEREAS the matter was listed for a show cause hearing on 4 December 2007 and the applicant was advised that failure to attend
would lead to the application being dismissed; and
WHEREAS on 20 November 2007 the applicant contacted the Commission by e-mail to advise the reasons for the delay in
responding to the Commission’s letter dated 19 October 2007 and also to advise that the matter was to be discontinued; and
WHEREAS on 21 November 2007 the applicant filed a Notice of Discontinuance in respect of the application; and
WHEREAS on 26 November 2007 the respondent consented to the matter being discontinued and the show cause hearing was
vacated;
NOW THEREFORE, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby
orders:
THAT this application be, and is hereby discontinued.
[L.S.]
(Sgd.) J L HARRISON,
Commissioner.
3088
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
87 W.A.I.G.
CANCELLATION OF—Awards/Agreements/Respondents—
2007 WAIRC 01287
S.47 CANCELLATION OF THE ASBESTOS JOINTINGS INDUSTRY AWARD 1967
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
PARTIES
(COMMISSION'S OWN MOTION)
APPLICANT
-v(NOT APPLICABLE)
RESPONDENT
CORAM
COMMISSIONER S J KENNER
DATE
FRIDAY, 7 DECEMBER 2007
FILE NO/S
APPL 118 OF 2007
CITATION NO.
2007 WAIRC 01287
Result
Award Cancelled
Representation
Mr T Daly on behalf of the Australian Workers’ Union, West Australian Branch, Industrial Union of
Workers
Order
HAVING heard Mr T Daly on behalf of the Australian Workers’ Union, West Australian Branch, Industrial Union of Workers, the
Commission, pursuant to the powers conferred on it under the Industrial Relations Act, 1979, hereby orders –
THAT the Asbestos Jointings Industry Award 1967 (No. 7 of 1967) be and is hereby cancelled.
(Sgd.) S J KENNER,
Commissioner.
[L.S.]
2007 WAIRC 01289
S.47 CANCELLATION OF THE B.P. REFINERY (KWINANA) CONSTRUCTION, MINING AND ENERGY
WORKERS UNION AWARD1980 A 2 OF 1981
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
PARTIES
(COMMISSION'S OWN MOTION)
APPLICANT
-v(NOT APPLICABLE)
RESPONDENT
CORAM
COMMISSIONER S J KENNER
DATE
FRIDAY, 7 DECEMBER 2007
FILE NO/S
APPL 121 OF 2007
CITATION NO.
2007 WAIRC 01289
Result
Award Cancelled
Representation
No appearances
Order
THERE BEING no appearances, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act, 1979,
hereby orders –
[L.S.]
THAT the B.P. Refinery (Kwinana) Construction, Mining and Energy Workers Union Award 1980 A 2 of 1981 be and is
hereby cancelled.
(Sgd.) S J KENNER,
Commissioner.
87 W.A.I.G.
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
3089
2007 WAIRC 01290
S.47 CANCELLATION OF THE NORTH RANKIN CONSTRUCTION AWARD A 42 OF 1981
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
PARTIES
(COMMISSION'S OWN MOTION)
APPLICANT
-v(NOT APPLICABLE)
RESPONDENT
CORAM
COMMISSIONER S J KENNER
DATE
FRIDAY, 7 DECEMBER 2007
FILE NO/S
APPL 119 OF 2007
CITATION NO.
2007 WAIRC 01290
Result
Award Cancelled
Representation
Mr A Talbert of counsel on behalf of the Australian Manufacturing Workers’ Union
Mr T Daly on behalf of the Australian Workers’ Union, West Australian Branch, Industrial Union of
Workers
Mr M Borlase on behalf of Clough Ltd
Order
HAVING heard Mr A Talbert of counsel on behalf of the Australian Manufacturing Workers’ Union, Mr T Daly on behalf of the
Australian Workers’ Union, West Australian Branch, Industrial Union of Workers, and Mr M Borlase on behalf of Clough Ltd, the
Commission, pursuant to the powers conferred on it under the Industrial Relations Act, 1979, hereby orders –
THAT the North Rankin Construction Award (No. A 42 of 1981) be and is hereby cancelled.
(Sgd.) S J KENNER,
Commissioner.
[L.S.]
INDUSTRIAL MAGISTRATE—Claims before—
2007 WAIRC 01254
WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT
PARTIES
JIM VICTOR POOLEY;
ALAN JOSEPH GORDON;
JAMES MICHAEL NEVIN
CLAIMANT
-vCOMMISSIONER OF POLICE
RESPONDENT
CORAM
INDUSTRIAL MAGISTRATE P HOGAN
HEARD
WEDNESDAY, 31 OCTOBER 2007, THURSDAY, 22 NOVEMBER 2007
DELIVERED
THURSDAY, 22 NOVEMBER 2007
CLAIM NO.
M 47 OF 2007, M 48 OF 2007, M 52 OF 2007
CITATION NO.
2007 WAIRC 01254
3090
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
87 W.A.I.G.
CatchWords
Industrial Agreement; Alleged breach of Industrial Agreement; Failure to pay salary and allowances
retrospectively; "Employee"; Whether Industrial Agreement applied to past employees.
Legislation
Industrial Relations Act 1979
Western Australian Police Service Enterprise Agreement for Police Act Employeees No. PSAAG 45 of
2003
Western Australia Police Industrial Agreement 2006
Cases Cited
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] 149 CLR 337
Cases referred to
in decision
Corlett Bros Pty Ltd v Transport Workers Union 55 WAIG 644
Department of Community Services & Os v Civil Service Association 74 WAIG 1709
Director General of the Ministry for Culture and the Arts v Civil Service Association & Os 80 WAIG
453
Paul Andrew Bennett and Craig Bradley Dix t/a Finesse Painting and Property Maintenance v
Murray Ross Higgins 85 WAIG 1456
Jodi Ann Hoffman v Western Australian Aboriginal Media Association (Aboriginal Corporation) 80
WAIG 5182.
Result
Claim dismissed
Representation
Claimant
Mr P Momber (of counsel) appeared for claimants
Respondent
Mr R Bathurst (of counsel) appeared for the respondent
REASONS FOR DECISION
Introduction
1
These proceedings are brought pursuant to Part III of the Act and in particular sections 83 and 83A. Section 83 relevantly
provides for enforcement of an industrial agreement and section 83A for payment of monies underpaid to an employee. This
Court’s jurisdiction is limited to that conferred by sections 81A and 81AA of the Act. This Court is confined to determining
the application of an award or industrial agreement and, if applicable, whether there has been relevant compliance.
2
Each of the claimants are retired police officers. Mr Pooley retired 31 July 2006, Mr Gordon retired 26 July 2006 and Mr
Nevin retired 24 August 2006. Each was appointed to be a member of the Western Australia Police Force (“WAPOL”) by the
respondent. Pursuant to Schedule 3 to the Industrial Relations Act 1979 (“the Act”), each claimant became an employee of
the respondent from 4 December 2000. In the period 1 July 2006 until retirement each of the claimants had been paid their
salary and allowances as provided by the Western Australian Police Service Enterprise Agreement for Police Act Employees
No PSAAG 45 of 2003 (“ the 2003 Industrial Agreement”).
3
On 18 December 2006 the Western Australia Police Industrial Agreement 2006 (“the 2006 Industrial Agreement”) was
registered by the Western Australian Industrial Relations Commission (“the Commission”) to replace the 2003 Industrial
Agreement. There is no dispute that “employee” carries the same definition in each of those Agreements. There is no dispute
that the 2006 Industrial Agreement is an Industrial Agreement as provided for by section 41 of the Act.
4
Clause 4 of the 2006 Industrial Agreement relevantly provides:
(1) This Agreement shall operate from the date of its registration to 30 June 2009.
(2) (a) Despite subclause (1), above, the Employer will pay employees the increased salary and allowances
(other than the covert allowance) provided for in this Agreement as from 1 July 2006.
(b) Payment of shift allowance under clause 16 for shifts worked on or after 1 July 2006 but before the
registration of this Agreement will be based on the shift definitions set out in the Western
Australian Police Service Enterprise Agreement for Police Act Employees 2003. (For example,
an employee who works an afternoon shift (as that term is defined in the Western Australian
Police Service Enterprise Agreement for Police Act Employees 2003) after 1 July 2006 but before
the registration of this Agreement will be entitled to payment for that shift at the afternoon rate
specified in this Agreement. This is the case irrespective of whether, under this Agreement, the
shift worked would have been classified as an afternoon shift or an evening shift.)
5
It is clear that the 2003 Industrial Agreement continued to apply until 18 December 2006 but that “employees” under the 2006
Industrial Agreement were entitled to retrospectivity from 1 July 2006 as per the provisions of clause 4(2). There is no dispute
that employees who remained in employment, as at 18 December 2006, were paid retrospectively any increases in salary and
allowances from 1 July 2006. The claimants were not. There is no dispute that “employees” covered by the 2006 Industrial
Agreement are entitled to relevant retrospective payments from 1 July 2006 to 18 December 2006. The respondent’s case is
87 W.A.I.G.
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
3091
that the claimants have no entitlement under the 2006 Industrial Agreement as it was registered after their respective
resignations. The primary issue for resolution raised by the defence is whether each of the claimants are “employees” as
defined in the 2006 Industrial Agreement.
6
In submitting that the claimants are covered by the 2006 Industrial Agreement, counsel for the claimants essentially relies on
the following:
(i) the reference in clause 1(4) of the 2006 Industrial Agreement to 5,311 employees being a figure that
included each of the claimants; and
(ii) the decision of the Western Australian Industrial Appeal Court in Corlett Bros Pty Ltd v Transport
Workers Union 55 WAIG 644 (Corlett).
Clause 1(4)
7
In submitting that the claimants are employees for the purposes of the 2006 Industrial Agreement, counsel for the claimants
points to clause 1(4) of the 2006 Industrial Agreement. This clause provides:
As at 1 July 2006, the number of employees subject to this Agreement totalled 5311.
8
Counsel submits there is no inconsistency, ambiguity or vagary in terms of the 2006 Industrial Agreement; that it is clear in
clause 1(4) that the employees entitled to the retrospectivity provided for in clause 4(2) are the 5,311 officers employed as at 1
July 2006.
9
The respondent called Ms Renae Lavell who was, at the relevant time, Acting Manager of Employee Relations at the
Workplace Relations Branch of WAPOL. Effectively, Ms Lavell’s evidence was that the figure of 5,311 was provided to meet
the requirements of section 41A(1)(c) of the Act. Ms Lavell received the figure from the Management Information Officer.
Ms Lavell’s unchallenged evidence was that the figure included all sworn officers, not all of whom are in fact covered by the
2006 Industrial Agreement (i.e. the Commissioner, Deputy Commissioners and Assistant Commissioners).
10 The draft in which it seems the figure first appeared was provided to the parties involved in negotiations on 7 July 2006.
Exhibit 3 (Police Officer Profiles – July 2006 to December 2006) demonstrates that the figure of 5,311 was the total number of
members employed as at the end of June 2006. There is no dispute that each of the claimants were sworn officers as at the end
of June 2006 and hence were included in that headcount (along with certain officers not in fact “subject to (the) Agreement”.
11 Ms Lavell gave evidence that: the figure was not changed in the final agreement as she only had four days to produce the final
draft; she knew that only an estimate was required under the Act and; “I did not have time to get an up to date figure”.
12 Ms Lavell referred to the fact that in the draft presented by the WA Police Union to WAPOL in April 2006 (Exhibit 1), the
union had changed the date in clause 1(4) to the expected date of registration (i.e. 1 July 2006) and left blank the number of
employees subject to the Agreement. The union had written “(insert current figure)”.
13 Ms Lavell’s evidence was led, over objection from counsel for the claimants, on the basis that there was ambiguity attached to
the inclusion of a figure in clause 1(4) representing, as at 1 July 2006, the number of employees subject to this Agreement
under the heading referring to “Estimated Numbers of Employees Bound upon Registration of Agreement” (emphasis added).
Given such wording, it is not clear whether the figure was an estimate, as referred to in the heading, or otherwise.
14 In fact, the 2006 Industrial Agreement provides a commencement date (clause 4(1)) and a date from which retrospectivity of
certain payments applies (clause 4(2)). Clearly the retrospectivity applies to “employees”. “Employee” is defined in clause 6
of the 2006 Industrial Agreement as meaning:
. . .any person appointed under the provisions of the Police Act 1892 as a Member of the Western
Australia Police Force or as an Aboriginal Police Liaison Officer.
15 In determining whether that definition encompasses any person who was employed as at 1 July 2006 but ceased such
employment prior to 18 December 2006 one needs to examine the 2006 Industrial Agreement in its entirety. The heading of
clause 1 includes reference to “Estimated Numbers of Employees Bound upon Registration of Agreement”. Clause 1(4)
purports to provide a figure representing the number of “employees” as at 1 July 2006.
16 The evidence presented through Ms Lavell clarifies that the figure 5,311 was the headcount as at the end of June 2006. It also
clarifies that that figure was not included for the purpose of bringing within the 2006 Industrial Agreement all persons
employed as at the end of June 2006 (indeed some of those included in the headcount could not be subject to the Agreement
e.g. the Commissioner) but simply as an estimate. Such evidence does require that the Court discount the submission by
counsel for the claimants that because the claimants were included in that headcount the 2006 Industrial Agreement therefore
extended to them.
17 Read with the retrospectivity provisions (i.e. clause 4(2)), clause 1(4) simply confirms that as at 1 July 2006 there were
approximately 5,311 employees who would be subject to the 2006 Industrial Agreement.
18 There is nothing in the 2006 Industrial Agreement to indicate that the definition of “employee” extends to those who were
employed as at 1 July 2006 but ceased their employment prior to 18 December 2006. If it were intended that the 2006
Industrial Agreement should be operative from the date of its registration (as per clause 4(1)) but should extend to persons who
had been previously members of WAPOL then one would expect clause 5(1) and the definition of “employee” to expressly so
provide. Commonsense dictates that clause 5(1) (referred to later in these reasons) and the definition section be read in terms
of applying to members as at 18 December 2006.
3092
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
87 W.A.I.G.
Corlett’s Case
19 Counsel for the claimants relies on the decision of the Western Australian Industrial Appeal Court in Corlett (supra). In that
case the worker was employed from June 1974 until 30 August 1974. On 4 October 1974 the award relating to her
employment was amended; the effect of which was to increase the award rates of pay. The effect of the amendment was
ordered to take place from the first pay period commencing on or after 22 July 1974. The worker sought back pay in relation
to the difference between the amount she was paid and the increase applicable pursuant to the award for the pay days falling
within the period 22 July to 30 August. Counsel for the employer unsuccessfully submitted that the retrospective amendment
only applied to workers who were still employed at the date the order was made.
20 At the time section 92(2)(aa) of the Industrial Arbitration Act 1912-1973 empowered the Commission to give such
retrospective effect to the whole or any part of an award as the Commission may consider equitable. Section 85 of that Act
provided that “an award while it is in force is binding (a) on all workers employed in the calling or callings mentioned therein
in the industry to which the award relates; and (b) on all employers employing those workers”. The learned magistrate
concluded that those sections operate “on a contract of employment which was quite ‘alive’ at the time the retrospective
operation is expressed to take effect, despite any interim termination of a contract before the formal pronouncement of
retrospectivity. The contract of service existed and the retrospective provisions attached an award to it”. That decision was
appealed. Each of the members of the Industrial Appeal Court dismissed the appeal. Wickham J observed at page 645:
The submission that there was no relationship of employer and worker at the date when the award was in
force simply denies its provision that it shall take effect as from the first pay period commencing on or after
22nd July 1974. There was a relevant contract of employment existing at that moment and (the worker) was
entitled to be paid in accordance with the terms of that contract and in accordance with the award made
applicable to it by the retrospective order. Because of that retrospective order the award took effect and
therefore was in force at the relevant date. It was in the terms of s. 85 binding on the appellant who was then
an employer employing (the worker).
21 Counsel for the respondent submits that there is a fundamental difference between awards and industrial agreements with
respect to retrospectivity and therefore that Corlett has no applicability in this case.
22 In relation to awards the Commission has the power to give retrospective effect to the whole or any part of the award – section
39(3).
23 An agreement between parties can only become an Industrial Agreement upon registration by the Commission. Once the
parties have reached an agreement (which may include a provision for retrospectivity of certain payments) and made
application for registration, the Commission must register the agreement and may only require variation of it to clarify the true
intention of the parties – section 41.
24 Counsel for the respondent submits that the Commission itself has no power to order that an Industrial Agreement apply
retrospectively. This is of course correct. Counsel for the respondent has referred to certain observations made by the Western
Australian Industrial Appeal Court in Department of Community Services & Os v Civil Service Association 74 WAIG 1709
where it was stated per Franklyn J at page 1712:
There is nothing in the Act which authorises or permits the Commission to order that an agreement registered
as an industrial agreement have effect from a date earlier than the date of registration. By definition (see s7)
an agreement only becomes an “industrial agreement” when registered as such. The Act gives effect only to
the provisions of an “industrial agreement”. To order that on registration it have effect from a date prior to its
registration is to purport to give effect to it as an industrial agreement over a period of time when it was not in
fact such. That in my opinion, is clearly contrary to the provisions of ss7 and 41. In my opinion, the industrial
agreement took effect as such only from the date of its registration.
25 and also in Director General of the Ministry for Culture and the Arts v Civil Service Association & Os 80 WAIG 453 where at
paragraph [38] on page 456 it was said per Anderson J:
In this connection, of course, a distinction may be made between what the parties have agreed to and what the
Commission may order. To say that the Commission has no power to order that an industrial agreement should
commence from a date earlier than the date on which the agreement came into existence is not to say that an
industrial agreement may not have any retroactivity. It might well be possible for parties to agree that certain
entitlements are to begin from some earlier date. That agreement will not have effect until it is registered and
then only from the date of registration and in that sense it does not commence to operate until registered; but,
arguably, once it becomes effective, the parties are bound by its terms, including those terms which impose
obligations and confer rights of a retrospective nature. I would not wish to be taken as deciding this point, but
raise it only to say that it is not the issue in the case under consideration.
26 The submissions of counsel for the respondent elicited a submission from counsel for the claimants that this Court has no
jurisdiction to consider the validity of any action taken by the Commission. This submission is of course correct (see Paul
Andrew Bennett and Craig Bradley Dix t/a Finesse Painting and Property Maintenance v Murray Ross Higgins 85 WAIG
1456 at 1458 and Jodi Ann Hoffmann v Western Australian Aboriginal Media Association (Aboriginal Corporation) 80
87 W.A.I.G.
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
3093
WAIG 5182). However, I do not understand counsel for the respondent’s submission as an invitation to this Court to examine
the validity of the Commission’s decision to register the 2006 Industrial Agreement. It seems to me that the confined point to
be made with respect to the applicability of Corlett is that there is a distinction between the terms of the amendment to the
award as made by the Commission in October 1974 and the terms of the 2006 Industrial Agreement registered by the relevant
parties on 18 December 2006. In Corlett the worker was covered by Award No 35 of 1963. That award was amended in effect
from 22 July 1974. The amendment itself had been given “true retrospective operation (such that) the wage rates during (the)
period (from 22 July 1974) were the rates set out in the amending order” (Burt CJ at page 645). The wording of the amending
order was that the amendment “shall take effect in respect of the (relevant) rates . . . as from . . . 22 July 1974”. The terms of
the 2006 Industrial Agreement provide that the operative date of the Agreement is its date of registration. Retrospectivity is as
provided for in clause 4(2), i.e. payment to “employees”. “Employee” is of course defined in the Agreement as previously
discussed. In Corlett the award that actually applied to the worker when she was working was amended retrospectively. Here
the Agreement that actually applied (the 2003 Industrial Agreement) was not amended but was replaced by a renegotiated
Agreement which made specific provision as to its date of operation and retrospective payment of salary and allowances.
27 The 2006 Industrial Agreement stipulates in clause 5. “Area and Scope”:
(1) This Agreement shall extend to and bind to all Members of the Western Australia Police Force and
Aboriginal Police Liaison Officers appointed under the provisions of the Police Act 1892, except those whose
salaries are recommended or determined pursuant to the Salaries Allowances Act 1975 and the employer.
28 As with the definition of “employee”, commonsense dictates that the members and officers referred to be those appointed as at
the date of registration, rather than all members and officers appointed since the commencement of the Police Act 1892. Such
an interpretation is reinforced by section 41(4) of the Act, which provides:
(4)
An industrial agreement extends to and binds —
(a)
all employees who are employed —
(i)
in any calling mentioned in the industrial agreement in the industry or industries
to which the industrial agreement applies; and
(ii)
by an employer who is —
(I)
a party to the industrial agreement; or
(II)
a member of an organisation of employers that is a party to the industrial
agreement or that is a member of an association of employers that
is a party to the industrial agreement;
and
(b)
all employers referred to in paragraph (a)(ii),
and no other employee or employer, and its scope shall be expressly so limited in the
industrial agreement.
Conclusion
29 The claimants have sought to establish that the retrospectivity provision in clause 4(2) of the 2006 Industrial Agreement
extended to them. In doing so, particular reliance was placed on the terms of the Agreement itself (in particular clauses 1(4)
and 4(2)) and the Corlett decision.
30 The respondent defended each of the claims on the basis that the 2006 Industrial Agreement was registered after the
resignation of each of the claimants. In doing so, reliance was placed on the provisions of section 41 of the Act and the terms
of the Agreement itself (in particular clause 4 and the definition of “employee” in clause 6).
31 I am not persuaded by the submissions made on behalf of the claimants. The inclusion of the figure of 5,311 in clause 1(4)
was clearly an estimate and cannot found a conclusion that clause 4(2) extends to all officers actually employed as 1 July 2006.
The Corlett decision, which relates to the application of retrospective amendments to an award, is of no particular assistance in
interpreting the provisions of the 2006 Industrial Agreement.
32 The retrospectivity provided for by clause 4(2) of the Agreement clearly extends only to those caught by the definition of
“employee” as at the date of registration of the 2006 Industrial Agreement. The provisions of the Agreement itself, read
together with section 41 of the Act, (along with notions of commonsense) indicate that there can be no provision in the
Agreement for members and officers who had ceased their employment prior to 18 December 2006.
33 In each case, the claim will be dismissed.
PM Hogan
Industrial Magistrate
3094
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
87 W.A.I.G.
UNFAIR DISMISSAL/CONTRACTUAL ENTITLEMENTS—
2007 WAIRC 01278
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
PARTIES
MATT ACTON
APPLICANT
-vFONE CARE PTY LTD T/AS NOKIA CARE
RESPONDENT
CORAM
COMMISSIONER P E SCOTT
DATE
THURSDAY, 6 DECEMBER 2007
FILE NO/S
B 138 OF 2007
CITATION NO.
2007 WAIRC 01278
Result
Application Dismissed
Order
WHEREAS this is an application pursuant to s 29(1)(b)(ii) of the Industrial Relations Act 1979; and
WHEREAS on Monday, the 22nd day of October 2007 the Commission convened a conference for the purpose of conciliating
between the parties; and
WHEREAS on Wednesday, the 5th day of December 2007, the Applicant advised the Commission that he wished to discontinue the
application;
NOW THEREFORE, the Commission, pursuant to the powers conferred under the Industrial Relations Act 1979, hereby orders:
THAT this application be, and is hereby dismissed.
(Sgd.) P.E. SCOTT,
[L.S.]
Commissioner.
2007 WAIRC 01246
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
PARTIES
BOWEN CRISP
APPLICANT
-vSOUTH WEST CREATIVE STONE
RESPONDENT
CORAM
COMMISSIONER S M MAYMAN
DATE
MONDAY, 19 NOVEMBER 2007
FILE NO/S
U 149 OF 2007
CITATION NO.
2007 WAIRC 01246
Result
Application discontinued
Representation
Applicant
No appearance
Respondent
No appearance
Order
WHEREAS this is an application pursuant to Section 29(1)(b)(i) of the Industrial Relations Act 1979;
AND WHEREAS on 30 October 2007 the applicant filed a Notice of Discontinuance in respect of the application;
87 W.A.I.G.
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
3095
NOW THEREFORE, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby
orders:
THAT this application be, and is hereby discontinued.
(Sgd.) S M MAYMAN,
Commissioner.
[L.S.]
2007 WAIRC 01249
PARTIES
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
PETRA CZARNIAK
APPLICANT
-vMURDOCH UNIVERSITY
RESPONDENT
CORAM
HEARD
DELIVERED
FILE NO.
CITATION NO.
COMMISSIONER S M MAYMAN
FRIDAY, 2 NOVEMBER 2007
TUESDAY, 20 NOVEMBER 2007
U 125 OF 2007
2007 WAIRC 01249
CatchWords
Industrial law – termination of employment – harsh, oppressive and unfair dismissal – application
referred outside of 28 day time limit – relevant principles to be applied – referral out of time
dismissed – Industrial Relations Act 1979 (WA)
Result
Order issued dismissing application
Representation
Applicant
Mr M Czarniak
Respondent
Ms C Pugsley (as agent)
1
2
3
Reasons for Decision
On 25 July 2007 Ms Czarniak (“the applicant”) referred an application to the Western Australian Industrial Relations
Commission (“the Commission”) pursuant to s 29(1)(b)(i) of the Western Australian Industrial Relations Act 1979 (“the Act”)
claiming that she had been harshly, oppressively and unfairly dismissed on 30 May 2007 by Murdoch University (“the
respondent”).
The respondent denied the applicant had been harshly, oppressively or unfairly dismissed. In its notice of answer and counter
proposal the respondent raised two jurisdictional issues:
i.
The Commission had no jurisdiction to hear the application as the respondent did not terminate the applicant’s
employment; and
ii
The respondent is a constitutional corporation, therefore ss 4, 5 and 6 of the Workplace Relations Act (Cth) and
s 109 of the Australian Constitution operate to exclude the Act.
The matter was listed for hearing to allow the parties to put submissions and lead evidence as to whether it would be unfair not
to accept the application out of time and whether the respondent was a constitutional corporation as claimed pursuant to the
Workplace Relations Act 1996.
Referral outside of the 28 day time period
4 The application was lodged on 25 July 2007 some 28 days outside of the required timeframe provided for under the Act. The
parties were invited to put submissions and lead evidence as to whether it would be unfair not to accept the application out of
time.
5 The applicant submitted that the principle reasons for delay in lodging the s 29(1)(b)(i) application were medical. The
applicant testified the period immediately following her resignation had continued to be traumatic due to the stressful period
she had been subjected to by the respondent during her employment. The applicant testified that pharmacy bills were returned
by the respondent to the applicant and it was this that became:
“The straw that broke the camel’s back”
(Transcript page 4)
The applicant submitted that it would be unfair for the application not to proceed as it would give her no opportunity to
conclude the matters that were of such concern in her life, pharmacy bills would not be paid and her own property currently
being held by the respondent would not be returned.
3096
6
7
8
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
87 W.A.I.G.
In cross examination the applicant confirmed that she had been lecturing at the School of Nursing at Curtin University and
Notre Dame University since her resignation. The applicant testified she had lodged a worker’s compensation claim in March
2007 and on 18 May 2007 the claim had been rejected. The applicant testified she currently had an application with
WorkCover and that application had been lodged following her resignation from the respondent on 24 May 2007. The
applicant testified that the outstanding pharmacy bills were from GIO, the insurance representative for the respondent.
The respondent submitted that the applicant’s case to have the matter referred outside of the 28 day time period was without
merit and focused particularly on the applicant’s testimony with regard to her reasons for lodging the claim, those being the
receipt of pharmacy bills. The respondent submitted these bills were unrelated to any action on the part of the respondent,
simply administrative advice from the insurance office in relation to a workers compensation claim.
With respect to prejudice the respondent submitted that there was little prejudice caused to the respondent by acceptance of the
claim outside of the 28 day time period. The respondent urged the Commission to focus on the issues of merit and the lack of
action by the applicant in contesting the matters claimed to be in dispute and dismiss the application.
Conclusions
9 In considering whether it would be unfair or not to accept this application outside of the 28 time period the Commission has
taken into account the relevant principles outlined in the Industrial Appeals Court decision in Malik v Paul Albert, Director
General, Department of Education of Western Australia (2004) 84 WAIG 683 at 686.
10 The Commission turns to the length of delay in relation to the issue. The Commission observes and indeed finds that even
accepting that the termination of employment, whether it was a dismissal or otherwise, took place on or about 30 May 2007
and the application is still some 28 days out of time. The Commission finds that delay to be a considerable period in excess of
what is provided for under the statute.
11 Secondly, when considering the applicant’s testimony that following the rejection of a worker’s compensation claim it seems
receipt of pharmacy bills from the respondent’s insurer forced a reconsideration of the applicant’s position. The Commission
finds it was not until this point that the applicant determined she ought to pursue a s 29(1)(b)(i) claim.
12 Turning to the merits, the applicant says she was constructively dismissed. The applicant has testified that her own position as
pharmacy lecturer with the respondent was made intolerable by the conduct, it would appear of an individual in the pharmacy
section and that behaviour provided her with no other option but to resign. On the applicant’s evidence and having regard to
the cross examination by the respondent the Commission accepts that the applicant was extremely upset. The actions
described by the applicant in testimony are situations to which the Commission has considerable sympathy and in that case
there may be elements that could be submitted in unfair dismissal proceedings. The Commission finds however that such a
case on the information before it is not strong.
13 I find that prejudice is not an issue with respect to the respondent or the applicant in these proceedings.
14 The Commission finds the applicant took no action to contest the unfair dismissal claim until such time as pharmacy bills were
received from the respondent’s insurer, a matter unrelated to a dismissal by the respondent. The Commission is not satisfied
that steps were taken in the first 28 day period to contest the claim.
15 The Commission finds that special circumstances do not exist and I am not positively satisfied that the prescribed period
should be extended. The Commission advised the parties at the conclusion of the hearing that it was not persuaded to accept
the referral out of time. On the basis of the Commission’s decision in this matter there was no need to proceed to hear the
jurisdictional submissions in relation to whether or not the respondent is a constitutional corporation.
16 The parties were advised of my decision at the conclusion of the hearing and informed my reasons would issue later. These are
those reasons. The application for extension of time will not be granted and a minute of order dismissing the application will
now issue.
2007 WAIRC 01291
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
PARTIES
PETRA CZARNIAK
APPLICANT
-vMURDOCH UNIVERSITY
RESPONDENT
CORAM
COMMISSIONER S M MAYMAN
DATE
MONDAY, 10 DECEMBER 2007
FILE NO/S
U 125 OF 2007
CITATION NO.
2007 WAIRC 01291
87 W.A.I.G.
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
Result
3097
Application dismissed
Representation
Applicant
Mr M Czarniak
Respondent
Ms C Pugsley (as agent)
Order
HAVING heard Mr M Czarniak on behalf of the applicant and Ms C Pugsley (as agent) on behalf of the respondent, the
Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979 hereby orders –
THAT the application made under ss 29(1)(b)(i) and 29(1)(b)(ii) be, and is hereby dismissed.
(Sgd.) S M MAYMAN,
Commissioner.
[L.S.]
2007 WAIRC 01275
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
PARTIES
ELIZABETH ELMS
APPLICANT
-vKBR ENERGY & CHEMICALS
RESPONDENT
CORAM
COMMISSIONER S WOOD
DATE
MONDAY, 3 DECEMBER 2007
FILE NO
B 119 OF 2007
CITATION NO.
2007 WAIRC 01275
Result
Application discontinued
Representation
Applicant
Ms E Elms
Respondent
Mr D Fletcher of Counsel
Order
WHEREAS this is an application pursuant to section 29(1)(b)(ii) of the Industrial Relations Act 1979; and
WHEREAS a conciliation conference was convened on 30 August 2007 at the conclusion of which the matter was adjourned; and
WHEREAS the applicant advised the Commission on 3 September 2007 that she wanted to discontinue the application; and
WHEREAS the parties have waived their rights to speak to the Minutes of Proposed Order pursuant to s.35(4) of the Industrial
Relations Act 1979;
NOW THEREFORE, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby
orders THAT the application be and is hereby discontinued.
[L.S.]
(Sgd.) S WOOD,
Commissioner.
3098
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
87 W.A.I.G.
2007 WAIRC 01280
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
PARTIES
SHAYNE GARBELLINI
APPLICANT
-vCOLORADO GROUP LTD
RESPONDENT
CORAM
SENIOR COMMISSIONER J H SMITH
DATE
THURSDAY, 6 DECEMBER 2007
FILE NO/S
U 130 OF 2007
CITATION NO.
2007 WAIRC 01280
Result
Dismissed
Order
WHEREAS this is an application pursuant to section 29(1)(b)(i) of the Industrial Relations Act 1979 filed in the Commission on
2 August 2007;
AND WHEREAS on 29 August 2007, the Commission wrote to the Applicant requesting that he provide reasons in writing within
28 days why the Commission may have jurisdiction to hear and determine his claim;
AND WHEREAS on 6 September 2007, the Applicant contacted these chambers at which time he was given a further 28 days from
that date to seek further advice and provide reasons in writing;
AND WHEREAS on 19 October 2007, the Applicant had not submitted his reasons nor had he contacted these chambers in respect
of this matter, the Commission wrote to the Applicant requesting that if he did not file a Notice of withdrawal or discontinuance
within 14 days, Senior Commissioner Smith would dismiss his application;
AND WHEREAS on 9 November 2007, the Applicant had not responded to the letter dated 19 October 2007 nor had he filed a
Notice of withdrawal or discontinuance in respect of this matter;
NOW THEREFORE, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act, hereby orders:—
THAT the application be and is hereby dismissed.
(Sgd.) J H SMITH,
Senior Commissioner.
[L.S.]
2007 WAIRC 01139
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
PARTIES
PAULINE JOHNSTONE
APPLICANT
-vMS MINA BODNARAS CARE OF AT HOME FURNITURE
RESPONDENT
CORAM
COMMISSIONER S J KENNER
HEARD
MONDAY, 10 SEPTEMBER 2007
DELIVERED
MONDAY, 10 SEPTEMBER 2007
FILE NO.
U 139 OF 2007
CITATION NO.
2007 WAIRC 01139
87 W.A.I.G.
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
3099
CatchWords
Industrial law - Termination of employment – Harsh, oppressive and unfair dismissal – Acceptance of
referral out of time – Application referred outside of 28 day time limit – Relevant principles to be
applied – Commission satisfied applying principles that discretion should be exercised – Acceptance
referral out of time granted – Industrial Relations Act 1979 (WA) s 29(1)(b)(i), s 29(2), s 29(3)
Result
Application accepted out of time. Order issued
Representation
Applicant
Mrs P Johnstone
Respondent
Ms M Bodnaras
Reasons for Decision
(Ex Tempore)
1.
This application is brought by Mrs Pauline Johnstone (“the applicant”) against Ms Mina Bodnaras c/- At Home Furniture (“the
respondent”). The application alleges that on or about 12 July 2007 that the applicant’s employment as a part-time sales
assistant was terminated in circumstances which would constitute as being harsh and oppressive and unfair. The
applicant seeks reinstatement by the order of this Commission.
2.
The application was first referred to the Commission on 13 August 2007 and furthermore was stamped with the stamp of the
Registrar as being lodged in the Office of the Registry on 15 August 2007. It is the case therefore that given that there is
a 28 day time limit for any claim such as this that the application is some four days out of that time limit. The
Commission has the statutory power under s 29(3) of the Industrial Relations Act 1979 (“the Act”) to extend a time for a
referral of such a claim in circumstances where it would be unfair not to do so. That is a discretionary decision to be
exercised by the Commission in accordance with the principles established by the Industrial Appeal Court in the decision
of Malik v Department of Education (2004) 84 WAIG 683.
3.
The respondent, by notice of answer, opposes the extension of time and raises a number of issues in its defence. First and
foremost it says that the applicant’s employer was in fact a corporate entity known as Zu Hause Furniture Pty Ltd as
trustee for the Gerhold Family Trust trading as At Home Furniture, Rockingham. It therefore says that because of this,
the applicant’s claim is beyond the Commission’s jurisdiction because the respondent is a constitutional corporation for
the purposes of the Workplace Relations Act 1996 (Cth). Furthermore, in any event, the respondent says that the
applicant was fairly dismissed because it is asserted that over a course of time the applicant was not performing to the
standard required and also failed to comply with the respondent’s purchasing policy, particularly the discount policy for
the purchase of goods on behalf of friends, family and staff.
4.
As to the first point, regrettably the respondent is not in a position to adduce evidence as to the proper identity of the employer
and its corporate status. That is whether it is a constitutional corporation. In light of that, the Commission is not in a
position to make any findings of fact in that regard. Secondly, in relation to the matters of merit, the allegations raised by
the respondent are challenged, save for the fact that it is accepted from the Bar table by the applicant that at least on one
occasion she was given some admonition to improve but says there was no requirement for her, at any stage, to be put on
notice that her employment was at risk if she did not do so.
5.
In the current circumstances and in the absence of any evidence, the Commission cannot make findings as to the critically
important question as to whether the applicant was employed by a constitutional corporation and therefore the
Commission cannot make any findings as to whether that would mean that the applicant’s claim had no prospect of
success as being beyond the Commission’s jurisdiction. In light of that and in light of the other issues being challenged
and the relatively short period of time by which the application is out of time, what the Commission proposes to do is to
grant an extension of time within which the application can be brought.
2007 WAIRC 01093
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
PARTIES
PAULINE JOHNSTONE
APPLICANT
-vMS MINA BODNARAS C/- AT HOME FURNITURE
RESPONDENT
CORAM
COMMISSIONER S J KENNER
DATE
WEDNESDAY, 12 SEPTEMBER 2007
FILE NO/S
U 139 OF 2007
CITATION NO.
2007 WAIRC 01093
3100
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
Result
87 W.A.I.G.
Order Issued
Representation
Applicant
In Person
Respondent
Ms M Bodnaras
Order
HAVING heard Ms P Johnstone on her own behalf and Ms M Bodnaras on behalf of the respondent the Commission, pursuant to
the powers conferred on it under the Industrial Relations Act, 1979 hereby orders –
THAT the referral of the herein application be and is hereby accepted out of time.
(Sgd.) S J KENNER,
Commissioner.
[L.S.]
2007 WAIRC 01234
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
PARTIES
PAULINE JOHNSTONE
APPLICANT
-vZU HAUSE PTY LTD AS TRUSTEE FOR THE GERHOLD FAMILY TRUST T/A AT HOME
FURNITURE, ROCKINGHAM
RESPONDENT
CORAM
COMMISSIONER S J KENNER
HEARD
MONDAY, 10 SEPTEMBER 2007, THURSDAY, 11 OCTOBER 2007
DELIVERED
THURSDAY, 11 OCTOBER 2007
FILE NO.
U 139 OF 2007
CITATION NO.
2007 WAIRC 01234
CatchWords
Industrial law – Termination of employment – Harsh, oppressive and unfair dismissal – Whether
Commission has jurisdiction – Principles applied – Commission satisfied respondent is a
constitutional corporation – Claim beyond Commission’s jurisdiction – Application dismissed –
Industrial Relations Act 1979 (WA) s 29(1)(b)(i), Commonwealth Constitution s 51(xx)
Result
Dismissed for want of jurisdiction
Representation
Applicant
In Person
Respondent
Mr H. Gerhold
Reasons for Decision
1.
2.
Ex tempore
The application by Mrs Johnstone (the applicant) alleges that on or about 12 July, 2007 her employment was terminated
in circumstances which were harsh, oppressive or unfair. The application came before me on an earlier occasion on
10 September, 2007 for purposes of consideration whether the application should be accepted out of time. On that
occasion the Commission accepted the application out of time with reasons for decision and an order published on 10 and
12 September, 2007 respectively. I refer to Johnstone v Bodnaras c/- At Home Furniture 2007 WAIRC 01139, an
unreported decision. The Commission at paragraph three of those reasons observed that the respondent in these
proceedings contends that the application is beyond the Commission’s jurisdiction on that basis that the proper identity of
the applicant’s employer is a corporation described as Zu Hause Furniture Pty Ltd as the trustee for the Gerhold Family
Trust trading as At Home Furniture Rockingham. The issues arising in that respect, of course, if that proposition is
correct, is whether the applicant’s employer was a constitutional corporation for the purposes of s 51(xx) of the
Commonwealth Constitution and s 16 of the Workplace Relations Act 1996 (Cth). If that contention is made good then
the application is beyond the Commission’s jurisdiction and it must be dismissed.
The Commission listed the present matter to be heard today on the preliminary issue of jurisdiction. Given the respondent
has raised the issue of jurisdiction, whilst it is for the applicant to make good her claim overall, it is most convenient for
the respondent to proceed to put its case first which it has done so. The respondent has led evidence through its sole
87 W.A.I.G.
3.
4.
5.
6.
7.
8.
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
3101
director of Zu Hause Furniture Pty Ltd, Mr Gerhold. Mr Gerhold testified that the applicant’s employer at all material
times was Zu Hause Furniture Pty Ltd as the trustee for the Gerhold Family Trust trading as At Home Furniture
Rockingham. The respondent also says that the Gerhold Family Trust is a trading trust and that Zu Hause Furniture Pty
Ltd as trustee owns and conducts the business and employs all staff including the applicant at the material times of her
employment.
Mr Gerhold tendered in evidence a number of documents in support of the respondent’s contentions, they included firstly
a tax file declaration showing that Zu Hause Furniture Pty Ltd was the applicant’s payer for the purposes of payroll.
Secondly a payroll advice and a PAYG Certificate for the year ended 30 June, 2007 were tendered. The latter referring to
Zu Hause Furniture Pty Ltd as the payer. Thirdly various documents including extracts from the Gerhold Family Trust, a
copy of the certificate of incorporation of Zu Hause Furniture Pty Ltd and other documents such as ABN numbers in
relation to the conduct of the business and finally a cheque book held by Zu Hause Furniture Pty Ltd, evidencing the
payment of business expenses.
Mr Gerhold also testified as to the activities of Zu Hause Furniture Pty Ltd as trustee for the family trust. That evidence
was to the effect that the company as trustee for the trust owns and operates the respondent’s business. It receives all
income and pays all expenses, some details of which Mr Gerhold gave in evidence before the Commission. The
respondent in evidence did not dispute that the applicant’s claim that she was employed as a sales assistant and
accordance with the notice of answer filed by the respondent that the applicant was engaged in a range of duties such as
selling furniture, computing duties such as sales and ordering, unpacking and displaying furniture and liaising with
customers. The applicant was employed in the Rockingham showroom and worked from on or about 3 January 2007 to
12 July, 2007 on a part time basis. Mr Gerhold agreed that on average, the applicant’s earnings were approximately $520
gross per week.
The applicant’s employment came to an end in circumstances which are controversial as the notice of application and the
notice of answer clearly show however, those circumstances do not need to be examined on this occasion as these
proceedings are solely concerned whether the Commission has jurisdiction to hear the applicant’s claim. The applicant,
Mrs Johnstone, did not give evidence in the matter and has not essentially now disputed the position as put by the
respondent in its evidence. But she submitted to the Commission that she always understood at all material times that it
was not the corporate entity or the trust that was her employer but the employer she named in the notice of application,
given that it was Ms Bodnaras’s role to employ her and at all material times was her direct supervisor. The applicant
however did make an application during the course of the proceedings to amend the notice of application in light of the
evidence of Mr Gerhold to correct the name of the employer to cite Zu Hause Furniture Pty Ltd as trustee for the Gerhold
Family Trust trading as At Home Furniture Rockingham to be the properly identified employer. The Commission by
order has amended and corrected the notice of application for reasons which I am about to give.
I am satisfied on the evidence and I find that the applicant’s employer is the entity as asserted by the respondent. In this
case at all material times the applicant understood the employer to be Ms Bodnaras as she described from the bar table,
her supervisor and as I understood the matter was responsible for paying the applicant’s wages and was the person most
directly concerned with the applicant’s employment. The applicant has said as I have already observed that she had no
idea that Zu Hause Furniture Pty Ltd as trustee for the trust stood behind the respondent’s business. In this case I was
satisfied that the applicant genuinely mistook the proper identity of her employer and at all material times she intended to
commence these proceedings against her employer. The Commission has the power under s 27(1)(l) and (m) of the Act to
correct and amend proceedings including cases where corrections have the effect of substituting one entity for another. I
refer to the decision of the Full Bench in Rai v Dogrin Pty Ltd 2000 80 WAIG 1375. In this case the Commission is
satisfied the discretion should have been probably exercised in the applicant’s favour and the Commission therefore so
ordered.
In relation to the trading or financial corporation point, if the respondent is a trading or financial corporation then on the
basis of the Commission’s decision in Sewell and Glen Brown CTI Logistics 2006 86 WAIG 3278, the application will be
beyond jurisdiction and it must be dismissed. The Commission as presently constituted dealt with a similar application to
the instant matter in the case of Joe Visser v Eral Pty Ltd as trustee for the Prestige Products Unit Trust trading as
Complete Angler and Camping World Rockingham 2007 WAIRC 01148. The judgment of mine was handed down on
Thursday 4 October 2007 and the reference is 2007 WAIRC 01148. A copy of this decision was provided to both parties
before these proceedings commenced. In that matter the Commission as presently constituted dealt with the relevant law
as to what is a constitutional corporation or a trading or financial corporation for the purposes of s 51(xx) of the
Commonwealth Constitution and s 16 of the Workplace Relations Act 1996 (Cth) and those observations appear at pars
13 to 14 of those reasons for decision which the parties, as I have said, already have.
I do not repeat what I have said on that occasion and I adopt and I apply it for present purposes. On the evidence in this
matter I am well satisfied that the respondent as it is now named in the notice of application is a trading corporation. The
conduct of the business is all of the respondent does on the evidence and the business is a substantial commercial
enterprise. It buys and sells goods in the form of furniture for a profit which according to Mr Gerhold is the object of the
business. For all of those reasons and for the reasons that I expressed in the Visser matter in the circumstances of this
case the only order that the Commission can make is that the application be dismissed for want of jurisdiction.
3102
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
87 W.A.I.G.
2007 WAIRC 01236
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
PARTIES
PAULINE JOHNSTONE
APPLICANT
-vZU HAUSE PTY LTD AS TRUSTEE FOR THE GERHOLD FAMILY TRUST T/A AT HOME
FURNITURE, ROCKINGHAM
RESPONDENT
CORAM
COMMISSIONER S J KENNER
DATE
THURSDAY, 11 OCTOBER 2007
FILE NO/S
U 139 OF 2007
CITATION NO.
2007 WAIRC 01236
Result
Order issued
Representation
Applicant
In person
Respondent
Mr H. Gerhold
Order
HAVING heard Ms P Johnstone on her own behalf and Mr H Gerhold on behalf of the respondent the Commission, pursuant to the
powers conferred on it under the Industrial Relations Act, 1979 hereby orders –
THAT the application be and is hereby dismissed for want of jurisdiction.
(Sgd.) S J KENNER,
Commissioner.
[L.S.]
2007 WAIRC 01244
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
PARTIES
LLOYD MERCER
APPLICANT
-vHAL JOHN WALTON T/A NITRO SPRAYING SERVICES
RESPONDENT
CORAM
COMMISSIONER S M MAYMAN
HEARD
THURSDAY, 1 NOVEMBER 2007
DELIVERED
MONDAY, 19 NOVEMBER 2007
FILE NO.
B 87 OF 2007
CITATION NO.
2007 WAIRC 01244
CatchWords
Contractual benefits claim – contract of employment – application upheld – Industrial Relations Act
1979 (WA) s 29(1)(b)(ii)
Result
Application for contractual entitlements allowed
Representation
Applicant
Mr T Solomon (as agent)
Respondent
No appearance
87 W.A.I.G.
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
3103
Reasons for Decision
1
This is an application by Mr Lloyd Mercer (“the applicant”) pursuant to s 29(1)(b)(ii) of the Industrial Relations Act 1979
(“the Act”) seeking benefits due to him under his contract of employment with Hal John Walton t/a Nitro Spraying Services
(“the respondent”).
2
The application was filed by the applicant on 15 May 2007 and on 15 August 2007 an amended application seeking leave to
alter the claim as originally sought was filed in the Commission. The applicant was employed by the respondent from
February 2007 until Thursday 15 March 2007 and claims outstanding wages are owed totalling 50 hours at $25.00 per hour, a
total of $1,250.00 (gross).
3
At no stage was a Form 3 Notice of Answer and Counter Proposal filed despite a number of requests from the Western
Australian Industrial Relations Commission (“the Commission”) to the respondent. The respondent failed to attend the
conciliation conference and the matter was listed for hearing on 1 November 2007. The respondent was sent a Notice of
Hearing. Telephone contact was made on the day of the hearing. My associate Ms Allison spoke to the respondent who
advised the Commission he would not be attending the hearing. No request was received from the respondent to adjourn the
hearing. The Commission was satisfied that at the time of listing the matter substantial efforts had been made to ensure the
Notice of Hearing had been forwarded to the respondent.
4
I am satisfied that the respondent knew this matter was on and chose not to attend. It was therefore appropriate that I proceed
to deal with this matter in the absence of the respondent having regard to the powers granted to me under s 27(1)(d) of the Act.
I so determine.
The Claim
5
The applicant claims outstanding contractual entitlements are owed for the period of employment February 2007 until
Thursday 15 March 2007 with the respondent. The applicant claims there is $1,250.00 (gross) owed in outstanding wages for
the period 12 March 2007 to 15 March 2007 (50 hours of work) comprising the final 4 days of employment with the
respondent. The applicant claims that on 12 March 2007 he worked 10.5 hours, on 13 March 2007 he worked 14 hours, on
14 March 2007 he worked 16.5 hours and on 15 March 2007 he worked 9 hours. A total of 50 hours in all.
Applicant’s Evidence
6
The applicant claimed that he was employed as a truck driver with the respondent involved in the general cartage of gravel,
sand and nitrate.
7
The applicant testified that the job with the respondent was first advertised in the paper and the applicant contacted the
respondent by phone and agreed to meet with him. The applicant testified he had met with the respondent at the BP Truck
Stop in Kewdale. At that meeting the applicant testified that the respondent had considered his past employment and a verbal
agreement was reached that $25.00 per hour would be paid. The applicant testified that he commenced employment the day
after the interview. The applicant said:
“I mean, to me he sounded like quite a good bloke (indistinct) didn’t have any qualms in anyway.”
(Transcript page 9)
8
Agent for the applicant submitted that there was an oral contract of employment and that at the time the applicant commenced
employment he had filled out a tax declaration form. On the basis of the evidence presented the applicant was an “employee”.
Agent for the applicant claimed that the respondent was an individual or sole trader and based on information supplied by the
Registrar of the Australian Business Register. It was submitted by the applicant that jurisdiction for the Commission to hear
and determine the claim existed.
9
The applicant testified that he had worked for the respondent for a period of approximately one month. In each week he
worked 5 days, a total of more than 50 hours per week except for public holidays. The applicant testified that the respondent
paid him a rate of $25.00 per hour. The applicant testified there had been no requirement on the part of the respondent to fill in
timesheets. On the particular week in question the applicant testified that on Monday 12 March 2007 he worked a total of 10.5
hours, on Tuesday 13 March 2007 he worked a total of 14 hours on Wednesday he worked a total of 16.5 hours and finally on
Thursday 15 March 2007 he worked a total of 9 hours.
10 The applicant testified that most of the driving required of him by the respondent was in the metro area though there had been
some country work to Waroona. Over the course of his employment payment by the respondent had been irregular. The
applicant testified that after the first week he was paid and in week three he received payment for week two and week three and
for the final week of employment there had been no payment at all by the respondent. The applicant testified the method of
payment by the respondent was by electronic funds transfer into the applicant’s personal bank account. On each occasion
where the respondent made payments the applicant testified that tax had been deducted from his wages.
11 The applicant testified that he had made a number of attempts to procure the outstanding wages from the respondent by way of
phone calls. The applicant informed the Commission that the respondent had indicated payment would be forthcoming
however that had never occurred. The applicant testified that he had been down to the respondent’s property at Mackie’s
Creek in attempt to procure the wages, however no-one responded to the door bell. When asked about the visits he had made
to the respondent’s home the applicant said:
“I’ve tried in the evening, I’ve tried in the morning, I’ve tried in the afternoon.
Has Mr Walton admitted that he owes you the money ?--- He has.
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87 W.A.I.G.
And has he – has he said to you when he’s going to pay it ?--- No.
…
Has Mr Walton given you a reason why he hasn’t paid you ?--- He has not”.
(Transcript page 7)
12 The applicant testified that he resigned his employment due to the cramped conditions in the truck he was required to drive. It
was the applicant’s testimony that he couldn’t continue with the pain and he informed the respondent he was leaving for that
reason and gave a week’s notice and left. The applicant testified that during the course of his employment with the respondent
he had produced his own timesheets and had given a copy of the document to the respondent.
Conclusions
13 The Commission has listened carefully to the verbal evidence of the applicant and considered the written evidence and
submissions. It is the Commission’s view that the applicant’s evidence has been given clearly and to the best of his
recollection.
14 The Commission finds that the applicant was employed as a driver with the respondent and commenced in February 2007 for a
period of four weeks concluding on 15 March 2007. The Commission finds that the applicant was employed under a common
law contract of employment reached verbally following an initial meeting at the truck stop at BP Kewdale. It was here that the
applicant was offered the job and the offer was accepted.
15 The Commission finds that for the week commencing Monday 12 March 2007 to Thursday 15 March 2007 the applicant
worked 50 hours and the Commission finds that no wages were received from the respondent for that period of employment. It
is the Commission’s finding that the applicant is owed wages for the 50 hours worked during that week.
16 In proceedings such as these the onus is on the applicant to prove the claim, in this case that one week’s wages are benefits the
applicant is entitled to receive under his contract of employment. It is for the Commission to determine the terms of the
contract of employment and to ascertain whether the claim constitutes a benefit denied under such a contract, having regard to
the obligations of the Commission to act according to equity, good conscience and the substantial evidence of the case. These
principals are reflected in Belo Fisheries v Froggett (1983) 63 WAIG 2394; Perth Finishing College v Watts (1989) 69 WAIG
2307 and Waroona Contracting v Usher (1984) 64 WAIG 1500. It is the Commission’s view that the applicant has made out
his claim that he has been expressly denied benefits due to him under his contract of employment with the respondent,
specifically for wages in the week beginning 12 March 2007. On the basis of equity, good conscience and the substantial
merits of the case I consider that the applicant’s claim ought be granted.
17 In summary the Commission determines that the respondent owes the applicant $1,250.00 (gross) in unpaid wages. A minute
of proposed Order will now issue reflecting these reasons and I propose the respondent pay the applicant that amount within
fourteen days of the order issuing.
2007 WAIRC 01261
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
PARTIES
LLOYD MERCER
APPLICANT
-vHAL JOHN WALTON T/A NITRO SPRAYING SERVICES
RESPONDENT
CORAM
COMMISSIONER S M MAYMAN
DATE
TUESDAY, 27 NOVEMBER 2007
FILE NO
B 87 OF 2007
CITATION NO.
2007 WAIRC 01261
Result
Order issued
Representation
Applicant
Mr T Solomon (as agent)
Respondent
No appearance
Order
HAVING heard Mr T Solomon (as agent) on behalf of the applicant, the Commission, pursuant to the powers conferred on it
under the Industrial Relations Act, 1979 ("the Act") hereby –
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WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
3105
(1)
DECLARES that the applicant's claims for denied contractual benefits are industrial matters for the purposes of the
Act.
(2)
DECLARES that the applicant has been denied contractual benefits by the respondent by way of wage payments of
$1250.00.
(3)
ORDERS that the respondent pay to the applicant the total sum of $1250.00 as denied contractual benefits less any
amount payable to the Commissioner of Taxation pursuant to the Income Tax Assessment Act 1936 and make such
payment within 14 days of the date of issuance of this order.
(Sgd.) S M MAYMAN,
Commissioner.
[L.S.]
2007 WAIRC 01264
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
PARTIES
JANE MOODIE
APPLICANT
-vJIM MCGINTY [IN HIS INCORPORATED CAPACITY AS THE WA COUNTRY HEALTH
SERVICE]
RESPONDENT
CORAM
COMMISSIONER P E SCOTT
DATE
WEDNESDAY, 28 NOVEMBER 2007
FILE NO/S
U 154 OF 2007
CITATION NO.
2007 WAIRC 01264
Result
Application Dismissed
Order
WHEREAS this is an application pursuant to Section 29(1)(b)(i) of the Industrial Relations Act 1979; and
WHEREAS on Monday the 26th day of November 2007 the Commission convened a conference for the purpose of conciliating
between the parties; and
WHEREAS at the conference the Applicant sought an adjournment and undertook to advise of her intentions within two weeks; and
WHEREAS subsequent to the conference on Monday the 26th day of November 2007 the Applicant filed a Notice of
Discontinuance in respect of the application;
NOW THEREFORE, the Commission, pursuant to the powers conferred under the Industrial Relations Act 1979, hereby orders:
THAT this application be, and is hereby dismissed.
(Sgd.) P.E. SCOTT,
[L.S.]
Commissioner.
2007 WAIRC 01243
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
PARTIES
JO-ANNE J MURRAY
APPLICANT
-vTHERMOELECTRIC APPLICATIONS PTY LTD
RESPONDENT
CORAM
COMMISSIONER S WOOD
HEARD
TUESDAY, 31 JULY 2007, WEDNESDAY, 15 AUGUST 2007, MONDAY, 20 AUGUST 2007
DELIVERED
FRIDAY, 16 NOVEMBER 2007
FILE NO.
B 90 OF 2007
CITATION NO.
2007 WAIRC 01243
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WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
87 W.A.I.G.
CatchWords
Contractual benefits claim - Promise to pay subject to funds - Jurisdiction – Trading corporation Industrial Relations Act 1979, s26(1)(a), s29(1)(b)(ii) - Workplace Relations Act 1996, s5(1),
s6(1)(a), s16(1)(a)– Workplace Relations Regulations 2006 (Cth) reg 1.2(2) of div 2 of pt 1 of ch2.
Result
Dismissed for want of jurisdiction
Representation
Applicant
Ms J Murray on her own behalf
Respondent
Mr P Clarke
Reasons for Decision
1
This is an application made pursuant to s 29(1)(b)(ii) of the Industrial Relations Act 1979 (“the Act”). The applicant, Ms JoAnne Murray, claims the following:
Wages for February 18/01/2007 – 17/02/2007
$2850 Gross Minus already paid Gross $504
Wages for March 19/02/2007 – 18/03/2007 - $2850
Leave Accrual 84.95 hours x $28.50 = $2,421.00 Gross
$7,617 Superannuation.
Ms Murray sought to amend her claim at hearing to include an additional two weeks payment (ie $1,425 gross) for the last two
weeks of March 2006. The application was amended.
2
The applicant named Mr Iain Hepburn, Managing Director, Thermoelectric Applications Pty Ltd as the respondent. It is clear
from the evidence of both parties that the real name of the employer is Thermoelectric Applications Pty Ltd and hence the
respondent’s name has been changed by the Commission.
3
The applicant gave evidence that she is owed wages for the period 18 January to 31 March 2006. Ms Murray gave her
evidence by tendering a series of emails which she says go to establish the amount she is owed, that the respondent recognised
the debt, and that the respondent made various representations the monies would be paid.
4
In particular she quoted Exhibit A9 being an email which displays an exchange with another employee, Mr Montag Davis,
about whether it was reasonable for Ms Murray to expect to be paid. Ms Murray quoted the words of Mr Davis as follows:
“I believe the assurance was that we would get paid when the money arrived, we were continually…continuously assured
that money was coming in a few days. But, with the understand that if it never eventuated then we have been fairly
warned. In the event that the company closed down to lack of funds it was indicated that we would eventually get the
money because money was expected from the tax rebate in July” (Transcript p.10).
5
In response to the respondent’s Notice of Answer and Counterproposal, Ms Murray says that initially the respondent had
funding for only 12 months. However, the company has since that time continued to trade, to rent premises, pay staff, work on
the project and tried to secure further funds. She says:
“We were always promised funds were coming. Worse case scenario we were told that the tax rebate would cover our
back pays. At the stage where the tax rebate came through Mr Hepburn rang me to tell me that TEA had been um,
slapped or presented with some legal action and that he was I think his words were he was earmarking or book tagging
the funds for that legal action so we weren’t to get any money. Post that period again we were promised at different
stages that if funding came through we would get paid.” (Transcript p.12)
6
Ms Murray says her final day of work for the respondent was 31 March 2006. After that she did some voluntary work for
about three weeks to, “help out the boys”. She tendered her resignation dated 1 March 2006 but continued to work past that
date. This was an arrangement with Mr Hepburn so she could access her disability support, as she had not been paid for one
and a half months. She says that the deduction in her application of $504 was an error. She did though receive a payment of
$500 net which was her last payment. She tendered a copy of her annual leave statement [Exhibit A15] which displayed the
monies owed for her accrued leave.
7
Under cross-examination Ms Murray stated:
“At a later date we were told worse case scenario we would be paid out of the R&D rebate which was my 100 per cent
understanding, it was then I got the call from Iain saying that they had been slapped with a legal issue and we weren’t
getting any money. (Transcript p.20).
8
Ms Murray agreed that the pays were monthly, on a two week in arrears, two weeks in advance basis. She agreed then that she
had been paid for the whole of January 2006.
9
Mr Montag Davis gave evidence for the applicant. His evidence is that he was employed as an engineer for the respondent
from January 2005 to March 2006. The respondent paid him in full for his work in January, a $1,000 payment in February and
no further money. He did not believe the $1,000 payment to be a bonus payment. He stopped working for the respondent as
there was no further funding for the project on which he worked. He is a shareholder of the respondent company.
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WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
3107
10 He was told in January 2006 that a company, Water Master, would fund an extension of his project for three months. Towards
the end of February 2006 it became increasingly clear that the funding would not eventuate. The respondent company at that
stage was potentially about to close down. The respondent was to receive a taxation rebate and this money was to be used to
secure lost wages. The company needed to remain in existence until the time the rebate was due. The employees were to be
paid at the time of winding up of the company.
11 Mr Davis says he was not aware that the applicant had not been paid wages until he discovered there was a dispute over the
applicant’s pay. At that time Mr Davis asked Mr Hepburn about the issue. Mr Davis says that Mr Hepburn;
“indicated that he was under the impression we had all agreed that in January he had made it clear to us that no funds
were coming in and he responded that given that he had made it clear to us that we weren’t going to be guaranteed to be
paid that you’d shouldn’t be asking for funds.” (Transcript p.23).
12 Mr Davis is not aware of the financial affairs of the respondent, but he was told by Mr Hepburn that some of the taxation
rebate was spent on legal fees. Mr Clarke told him recently that some of this money was spent on running the company.
13 Under cross-examination Mr Davis says that he understood the initial funding for the company would last only 12 months. He
was advised that the respondent intended to raise other funding to make the company sustainable. This funding did not
eventuate. In January 2006 Mr Davis and other employees were told by Mr Hepburn that they would be paid for January from
the funds conserved through the 12 month project, but any further payments for work done could not be guaranteed. Mr Davis
then had the following exchange:
“So was it ever stated by Iain that those funds would be used sort of absolutely and only for the purpose of paying out
wages?---No. I think there was many things that those funds could have been used for. It was indicated and this is my
recollection was in the context of us closing the company and no longer having any future. But then at least there was a
bit of money that would be distributed to the shareholders which was great.” (Transcript p.24).
14 In response to questions from the Commission Mr Davis gave the following evidence:
“What was your understanding as to what was going to happen with your payments in those two months?---My
understanding was that if funds came in to the company then every effort would be made to pay those, obviously
depending on what sort of funds came in but that there was no guarantee that very shortly the company might stop
operations. So those funds might never be paid.
And you said depending on which funds, what did you mean?---Oh, ah, sorry I was just depending on the quantity of
funds so I was well aware that the company might close and there might not be funds to pay us because there were other
creditors who would take precedence or whatever.” (Transcript p.24).
15 Mr Clarke for the respondent gave evidence that he is a director of the company and was previously the research and
development manager from January 2005 to March 2006. He says that the company is operating currently and is not in
liquidation or administration. He says the respondent is a proprietary limited company with several directors. It is a private
company registered in Western Australia. He says, “its potential business is to develop technology for making water. So it is a
research and development company at this stage.” He says the company has made no sales or profit at present. The question
asked of Mr Clarke as to profit was transcribed wrongly at page 27 of the transcript. Mr Clarke was asked, “I take it from that
answer that there’s been no profit or income for the company.” He replied, “That’s correct.”
16
Mr Clarke’s evidence is that Mr Hepburn told staff in January 2005 that the project would be for 12 months and funds were
available only for that period. In January 2006 Mr Hepburn told staff that they would be paid for January 2006 from the funds
conserved from the 12 months project; past that time further payment could not be guaranteed. Mr Hepburn made it clear that
there was a possibility of being paid for work carried out past January 2006, but that this depended on receipt of funding from
an overseas source. The continued existence of the respondent was in question at that time and he does not recall the issue of
the taxation rebate being raised during January to March 2006. The respondent needed to still be in existence in September
2006 to be able to claim the taxation rebate.
17 Under cross-examination Mr Clarke admitted that on several occasions he had discussions with the applicant about her being
paid for the period of work. This was at a time when he thought the respondent would receive funding from overseas. That
funding never eventuated. Employees were given an undertaking that they would be paid once the respondent secured further
funding. The additional funding they were anticipating would have been sufficient for everyone to be paid for the work they
had performed in the February to March 2006 period. The company kept operating to get a good commercial outcome and to
try pay employees for that period. The respondent also had to defend itself in litigation. He agrees that the litigation
commenced after March 2006. One employee, Mr Weymouth, the Research and Development Manager, has been brought
back to keep the company going and to try to obtain new investment.
18 Mr Weymouth gave evidence that when the company commenced in January 2005, he knew the project was for 12 months, as
that was the extent of the funding provided by Water Master. Mr Hepburn told employees in January 2006 that after that time,
“work would be appreciated but wages couldn’t be guaranteed”. He worked in February and March 2006 and expected to be
paid for that time when further funding was sourced from Water Master.
19 Mr Hepburn gave evidence that he has been a director of the respondent company since its commencement on 15 December
2005. He is currently managing the company on an unpaid basis. The respondent did receive an advance payment of
$100,000 in the middle of 2005, but this deal fell through and the payment was returned. The respondent received a taxation
rebate in September 2006 and this money was used to finance the defence of some litigation, to keep the offices open and to
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87 W.A.I.G.
employ one employee so that the company could keep going and attract overseas funding. The rebate has been spent and the
company is being financed currently by loan funds from Mr Hepburn.
20 Mr Hepburn says:
“That when the company commenced operations on the 4th January, 2005 it was made very, very clear that we had a 12
month time period and a $1 million dollar budget to achieve the objective which was the development of a water
(indistinct) machine. All the engineers were privy to the budget, they were privy to negotiations of the $1 million and they
were very…it was made very clear that the company’s existence and after that amount and period of time could not be
guaranteed. The money in fact lasted 12 months and there was a little bit left because we reduced some expenses in
various places so the company ended up at Christmas 2005 able to pay one more month in spite of the fact that there was
clearly no more money coming from overseas so I told the employees prior to the January payroll that this was a month
we didn’t really expect and in hindsight I guess I should have made it in lieu of vacation accruals but I didn’t. We paid
January but we clearly advised the employees that this was the last month, the last payroll the company could make.”
(Transcript p.32).
21 Under cross-examination Mr Hepburn agreed that all the employees of the company, except the applicant and Mr Greville, are
shareholders of the company. Mr Hepburn says that he accepted Ms Murray’s resignation when she offered it. He says that
her resignation was at the end of February. He says that she was paid up to the end of January and had some money from a
person named Gordon in February. He says the money in February, “wasn’t part of the scheduled part of a scheduled payroll
so in that respect it was a bonus unexpected payment, call it what you want”. He did instruct Ms Murray to put the money
through the payroll for taxation purposes.
22 Mr Hepburn says that all of the emails suggesting payment to Ms Murray were in the context of the overseas deal (the Chen
deal) for further funds. This deal never eventuated.
23 In closing Mr Clarke submitted that all the conditions upon which Ms Murray could expect to be paid have not been achieved.
He says her superannuation for the January period was paid.
24 Ms Murray says that she was not under the impression that she was working for free. She submitted that she thought she
would be paid when funding was obtained or worse case scenario when the taxation rebate came in.
25 There were a series of emails tendered in evidence. On 18 July 2006 Mr Hepburn wrote to several employees about the Chen
deal. He advised that they had received $100,000 in funds and that the deal was, “nine toes over the line”. He then went on to
say, “The liquidation process will provide full salaries for all (including Jo) for Feb and March and a $10K tax free redundancy
payment. There may also be a small cash distribution but that depends on how well I can negotiate the final terms.” [Exhibit
A1]. An email in similar terms as to employee payments was sent by Mr Hepburn on 15 July 2006 [Exhibit A3]. On 23 June
2006 Mr Hepburn sent an email stating, “As previously confirmed, should we conclude this deal with WM, TEA will pay out
all salaries to 31st March as well as vacation accruals and redundancy payments.” [Exhibit A4].
26 On 27 September 2006 Mr Hepburn advised by email that the Chen deal had fallen through [Exhibit A7]. Ms Murray queried
Mr Collins, who it would appear was responsible for the accounts, as to how this development affected her in respect of
“pay/leave”. Mr Collins in an email of 28 September 2006 wrote, “It probably does not affect you. Your right to back pay still
exists and should be paid now. The right to a redundancy payment would be affected along with everyone else. No money
equals no discretionary funds for redundancy however as there are funds the back-pay should be paid.” [Exhibit A7]
27 On 27 October 2006 Mr Hepburn sent an email [Exhibit A11] in which he said:
“It appears that Jo is going to sue the company unless she is paid some money. The relevant facts of the matter are:
1.
She resigned effective 1st March.”
28 Mr Davis replied to this email as follows:
“I guess if some money has arrived, it is quite reasonable to expect to be paid for the work done from January to March.
Especially for Jo who is not even a shareholder. I actually didn’t realize that she hadn’t been paid.” [Exhibit A9]
29 Mr Banney replied to Mr Hepburn’s email on 1 November 2006 and stated, “To my recollection, Monty’s description of the
situation (in January) is accurate.” [Exhibit A11]
30 Exhibit A15 displays a cumulative annual leave balance for Ms Murray of 84.95 hours as at March 2006. She calculates that at
an hourly rate of $28.50 she is owed a total of $2421.00 gross in unpaid annual leave entitlement.
31 Exhibit R1 is Ms Murray’s letter of resignation which is dated 1 March 2006 and in which she says that she is giving one
week’s notice.
32 The respondent tendered unchallenged a statement on behalf of Mr Garth Richardson, a Director at Water Master [Exhibit R3].
In that statement Mr Richardson says:
“In early January 2006, prior to the issue of the company’s January payroll, the managing director of Thermoelectric
Applications Pty Ltd (Mr Iain Hepburn), advised all employees that wages for January would be paid but this would be
the last month the company could guarantee wages could be paid. After January, the company was not able to pay any
wages, due to the cessation of funding from the company’s principal shareholder (Water Master Ltd) in the prior month,
December 2005.
87 W.A.I.G.
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
3109
Mr Hepburn made it very clear that if employees elected to continue to work it was with the full knowledge that the
company was most likely unable to pay wages after 31st January 2005 and the prospect of being able to pay wages in the
future would depend on the company being able to secure new funding.”
33 The respondent tendered unchallenged a statement was tendered on behalf of Mr Brett Manners, an ex-employee of the
respondent [Exhibit R4]. In that statement Mr Manners says:
“In early January 2006, prior to the issue of the company’s January payroll, the managing director of Thermoelectric
Applications Pty Ltd (Mr Iain Hepburn), advised all employees that wages for January would be paid but this would be
the last month of wages. After January, the company was not able to pay any wages, due to the cessation of funding from
the company’s principal shareholder (Water Master Ltd) in the prior month, December 2005.
Mr Hepburn made it very clear that if employees elected to continue to work it was with the full knowledge that the
company could not guarantee the payment of wages after the 31st January 2005.”
34 The Commission raised with the parties at hearing the question of whether, due to the amendments to the Federal Workplace
Relations Act 1996, which became operative on 27 March 2006, the Commission had jurisdiction to determine this matter.
The issue of jurisdiction had not been raised by either party prior to or at hearing. The Commission, having ascertained certain
information from the respondent, was obliged to raise the issue with the parties (see The Liquor, Hospitality and Miscellaneous
Union, Western Australian Branch v The Roman Catholic Bishop of Bunbury Chancery Office and Others 87 WAIG 1147 at
[14] [15]).
35 The parties were given the opportunity to lodge additional submissions following the hearing on the question of jurisdiction
and were provided with several decisions of the Commission which may have been of assistance. The respondent submitted
that by virtue of s16(1) of the Federal Act the Commission does not have jurisdiction. The respondent stated that,
“Thermoelectric Applications Pty Ltd is a small research and development company created on or about December 2005.”
The respondent then referred to an attachment A to the letter as being proof of their status as a constitutional corporation. No
such attachment was attached. The respondent referred therein to ACN as being 112 217 124. The respondent then went on to
address what they referred to as “particulars of the case”. I take no account of this part of the submission. It was made clear,
in my view, at the hearing that the additional submissions were to deal with the issue of jurisdiction only. If there is any doubt
about that, then that matter was made plain to both parties in the letter sent to them post hearing which invited submissions.
Both parties had a full opportunity at hearing to address the merits of the claim. The respondent then submitted that the claim
did not fall within the exemption to the Federal provisions provided by regulation 1.2(2) as the “act” or “omission” occurred
after the Federal legislation became operative. The “act” or “omission” in the respondent’s view occurred at the time when the
respondent had obtained some additional funds, ie when, “the potential to pay the unguaranteed wages was available but not
acted on”. This timing would have been approximately September 2006.
36 The applicant submitted that:
“As my claim (with the exception of three days) was in the period before Work Choices were introduced, that being 27th
March 2006, my claim is up to and including 30th March 2006. As my wages were paid in the middle of the month on
17th of each month (I was paid for two week past and two weeks in advance). I understand that all but three days (27th –
30th March 2006) fall in to the period before the reform commenced. This includes my annual leave as these contractual
benefits crystallised before March 30 2006 in fact on 17th March 2006.”
37 The applicant further submitted that:
“2.
Regulation 1.2 of Division 2 of Part 1 of Chapter 2 of the Workplace Relations Regulations 2006 (Cth) (Reg 1.2
of the WR Regs) operates to preserve my claim by deeming that section 16 of the WR Act not apply to exclude
the operation of the Industrial Relations Act 1989 (WA) (IR Act) in relation to my claim.
3.
The reasoning of Senior Commissioner Smith in John Ralph Forster v Australia Imperial Financial Services
Pty Ltd 2007 WAIRC 00450 (in particular at paragraphs 24 and 25) supports my submission. My claim is made
pursuant to the rights and obligations set out in my written contract of employment with the Respondent which
was entered into on 2 January 2005 (Contract).”
38 It would seem straightforward in my view that the intention of the respondent was to pay the wages and leave entitlements of
its employees once sufficient funds were arranged. Mr Clarke confirmed this in his evidence (Transcript p.29). Indeed the
respondent was intent also on paying a redundancy payment which no party to these proceedings has argued was part of the
contract, and which the applicant does not claim. I do not doubt that employees were informed originally that the project was
for 12 months and that the respondent had 12 months of funding. I do not doubt either, given the weight of evidence, that
employees were told that they would be paid for January 2006 and that after that there was uncertainty as to payment, and that
their work efforts would be appreciated. It is clear from the email trail and the evidence of Mr Clarke and Mr Davis that
during that same period of work (i.e. February/March 2006), and following on from there, the clear intention of the employer
was to pay the employees for their work contingent upon funds being obtained. There is an argument which the applicant
advances, namely that she was in a different position to all but one other employee. She was not a shareholder and she says
that she was under the impression that she would be paid in any event. This argument receives some support through the
emails from Mr Collins and Mr Davis, where sympathy is expressed for her position. However, I consider the true position to
be that Ms Murray undertook the work on the basis that she would be paid once funds were arranged. That was the nature of
the promise.
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87 W.A.I.G.
39 It is clear also from the evidence that the Chen deal did not come to fruition. The applicant did not really challenge this
evidence nor challenge the evidence that the advance of $100,000 had to be returned. Since that time, however, the company
has received funds to allow them to continue in operation through the taxation rebate and through loan funds. The respondent
is still employing a staff member on an improved remuneration basis. The respondent has chosen to direct these funds to other
purposes. It is not for the Commission to make any comment on these actions of the respondent other than to say that it is not
disputed that Ms Murray performed the work and that at that time at least funds were available which could have been paid to
Ms Murray for this work. The respondent maintains that there was no guarantee of payment past January 2006; in that sense
the employment was voluntary. However, the emails show a clear intention to pay for the work, conditional on obtaining
funds. The real dispute therefore is when and if Ms Murray might get paid for the work. That question is answered by when
funds were available. I must say that the approach of the Commission to contractual benefits is simpler than this. It is simply
a question of what were the terms of the contract, whether the work was performed and hence whether payment is due. Both
parties have really concentrated their evidence not so much on these issues but instead on when payment is due. I accept that
the respondent argues that post January 2006 Ms Murray was not assured of payment; but the argument as to whether payment
was due (ie had been earned) can not really be in question given the intent of the respondent towards all employee entitlements
as expressed in a series of emails by Mr Hepburn. The answer to when payment was due is, of course, shortly after the work
was completed, but in any event once the company had the capacity to pay. This surely occurred once the taxation rebate
arrived, if not sooner.
40 The amount of payment claimed is for the period of February and March 2006. Ms Murray says that her monthly payment was
$2,850 gross per month. This would make a total for wages of $5,700 gross. She states in her application that $504 which she
was paid should be deducted. This would leave a total of $5,196 gross. She claims also a figure of $2,421 gross for unpaid
annual leave. Ms Murray calculates this as being 84.95 hours at the rate of $28.50 per hour. In addition, Ms Murray mentions
in her application that her superannuation was not paid. I am not concerned here with the superannuation. That is a matter for
the Australian Taxation Office and it would seem that the relevant calculation is additional 9% of any outstanding monies, in
accordance with the superannuation guarantee. I find that Ms Murray is owed the sums of $5,196 gross for unpaid wages and
$2,421 gross for unpaid accrued annual leave, less any taxation payable to the Commissioner of Taxation.
41 There is an issue as to when Ms Murray finished employment. She tendered a letter of resignation dated 1 March 2006 and
provided one week of notice. However, she says that she worked until 31 March 2006 (Transcript p.12) and that she came in
after that date to assist, but on an unpaid basis. Her evidence is the resignation was an arrangement whereby she would then be
able to receive the disability pension, as she had not received wages for sometime. I am confident from her evidence, which I
accept, that she did work out the month of March. The other point of some contention is the payment in February 2006 of
$504 gross which was described in evidence as a bonus payment. I consider that this sum was an attempt to provide some
monies to employees for wages and hence this amount has to be deducted from the monthly gross.
42 I turn then to the question of jurisdiction which involves several, separate issues. The first issue relates to the coverage of the
Federal Act and whether, due to this coverage, the Commission’s jurisdiction is ousted. The second issue concerns whether
certain claims for denied contractual benefits may still be possible due to the exemption in the Federal regulation 1.2(2). The
third question is whether the respondent is a trading corporation and hence whether the Federal provisions apply in any event.
As to the first two issues since the time the submissions were lodged by the parties, I have had the opportunity to consider
these issues in full in another matter. As to coverage, in Christopher Monaghan v Monadelphous Engineering Associates 87
WAIG 2628 delivered on 7 September 2007, I agreed with the reasoning of Smith SC in Gwenda May Smith v Albany
Esplanade Pty Ltd t/a The Esplanade Hotel 87 WAIG 509. She stated:
“122.
The validity of s 16(1) was recently considered by the High Court in New South Wales v The Commonwealth
(2006) 156 IR 1. One of the issues raised by the State of Western Australia in that matter was that s 16(1) was
invalid because it sought to exclude the operation of State laws on matters in relation to which the
Commonwealth had not attempted to legislate. One example of matters Western Australia identified as a matter
that the WR Act does not regulate is the enforcement of contractual entitlements. At [367] of the judgment of
Gleeson CJ, Gummow, Hayne, Haydon and Crennan JJ, their Honours set out the argument as follows:
"Western Australia also contended that in numerous respects s 16 attempts to invalidate State laws
despite having failed to enact any corresponding federal law. Western Australia said, for example,
that s 16(1)(d) provides that the new Act is intended to apply to the exclusion of a State or Territory
law providing for the variation or setting aside of rights and obligations arising under a contract of, or
arrangement for, employment that a court or tribunal finds to be unfair. The only provisions in the
new Act dealing with unfair contracts are ss 832-834, and they only deal with contracts binding on
independent contractors, not employees. Hence s 16(1)(d) applies to the exclusion of Pt 9 of Ch 2 of
the Industrial Relations Act 1996 (NSW), dealing with unfair contracts of employment. The State law
is excluded, but no federal law applies. Western Australia contended that there were various other
examples of this. One was said to relate to s 16(1)(e) which, read with s 16(3)(c), indicates an
intention to apply the new Act to the exclusion of State laws dealing with the exercise of rights by a
representative of any trade union to enter premises for any purpose other than occupational health and
safety; yet the new Act only deals with the exercise of rights of entry pursuant to Divs 4, 5 and 6 of Pt
15 by officials of organisations registered under the new Act for certain purposes. Attention was
drawn to the fact that 'trade union' is defined in s 4(1) to include organisations of employees whether
or not registered under the new Act. Another example related to State Acts of the kind referred to in
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WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
3111
par (b) of the definition of State or Territory industrial law in s 4(1), so far as they deal with matters
for purposes other than one of the 'main purposes' specified in that part of the definition. Western
Australia submitted that those State Acts are excluded by s 16(1)(a) without any substantive
regulation of the subject in the new Act itself. Other examples, developed in considerable detail,
related to the making of regulations under s 16(4) in relation to discrimination legislation, matters
listed in s 16(3), redundancy provisions, and the enforcement of contractual entitlements."
123.
The majority of the High Court then went on to consider the arguments put on behalf of the Commonwealth at
[369] where they stated:
"The Commonwealth's arguments. The Commonwealth specifically declined to contend that if a
Commonwealth law simply sought to exclude State law in a field and made no provision whatever on
the same subject-matter it was within power. The Commonwealth contended rather that it was open to
the Commonwealth Parliament to indicate the relevant field it intended to cover to the exclusion of
State law, that s 109 would then operate even though the Commonwealth had not made its own
detailed provisions about every matter within that field which State law dealt with, and that it sufficed
for the Commonwealth to have some provisions dealing with aspects of the field, leaving others
unregulated. The Commonwealth submitted that the relevant field was to be identified, not by
reference to the areas regulated by State law, but by reference to the terms of the Commonwealth law.
It was concluded above that the Commonwealth has power to regulate the relationships between
employees and employers as defined in ss 5(1) and 6(1) by reliance on the heads of power referred to
in paras (a), (e) and (f) of the definition of 'employer' in s 6(1). The Commonwealth submitted that it
was open to the Parliament to identify the rights and obligations arising out of those relationships of
employees and employers as a field, and to indicate an intention to cover that field (or, as here, part of
it, because of the limitations to s 16(1) and the operation of s 16(2) and (3)). On the construction of s
16(1) accepted above, (at [353]-[359]) the Commonwealth chose to exclude State law only in respect
of the relations of employees and employers as defined in ss 5(1) and 6(1)."
124.
The majority then held at [370] that the Commonwealth submissions were to be preferred and that the
Commonwealth was not precluded from defining a field of relationships between s 5(1) employees and s 6(1)
employers, and only occupying parts of that field. The effect of the decision of the High Court is that it
determined that s 16(1) was a valid law of the Commonwealth.
125.
The Court, however, did not expressly make any findings about what aspects of the field created by s 16 were
occupied and whether there were any parts of the relationship between an employee and an employer who is a
constitutional corporation that were left unregulated. It is clear that s 16(2) expressly provides for parts of the
employment relationship that are unregulated but the question arises whether there is any part of the field within
s 16(1) itself and in particular s 16(1)(a) that restricts the field of employment relationships between employers
and employees to that which is not regulated by the provisions of the WR Act. The rules that govern statutory
interpretation may provide some assistance in resolving this question. One well established principle of
statutory construction is that all words in a statute must be given meaning and effect (see DC Pearce and
RS Geddes, Statutory Interpretation in Australia (6th ed) at [2.22] and the cases cited therein). The opening
words of s 16(1) of the WR Act are "This Act is intended to apply to the exclusion of all the following laws …"
By the use of the words "This Act" it could be argued that the provisions of the following laws which include
the provisions of the IR Act that are excluded are those restricted to the subject matters found in the provisions
of the WR Act which are outside s 16 itself as s 16(1) of WR Act does not say "The provisions of the following
laws of a State … are excluded." The difficulty with that argument is that s 16(1)(d) of the WR Act squarely
raises a statutory area of an employment relationship that exists in New South Wales in respect of the setting
aside of unfair contracts which is otherwise unregulated by the WR Act. If it is the case that the ousted subject
matter is to be construed as outside s 16(1) generally, s 16(1)(d) of the WR Act would have no scope for
operation.
126.
For these reasons it is my opinion that s 16(1)(a) of the WR Act excludes the jurisdiction of the Commission to
deal with claims for contractual benefits as the provisions of the IR Act have been rendered inoperative in
respect of persons employed by constitutional corporations by the operation of s16(1).”
43 I reiterated my agreement with this view in Norm Phillips v Belminco Pty Ltd (unreported 2007 WAIRC 01188) delivered on
23 October 2007. I have heard and read nothing since which persuades me to a different view.
44 In Gary Phillips v TR7 Pty Ltd 86 WAIG 2646, I considered the issue of whether, by virtue of the Federal regulation 1.2(2), the
merits of certain contractual benefits claim may still be heard by the Commission where the respondent is a constitutional
corporation. I stated, in part, as follows:
“23.
Regulation 1.2(2) requires that the act or omission must have occurred prior to the commencement of Work
Choices, i.e. 27 March 2006. The act or omission is the non-payment of the benefit which, if payable, the
applicant identifies correctly as being due by 31 December 2005 or no later than the date of termination. I
assume this date to be 16 March 2006, but make no finding at this point. Therefore, this aspect of the
Regulation is satisfied. Whilst the application was lodged on 11 April 2006, after the commencement of Work
Choices, the act or omission predates the commencement.
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24.
87 W.A.I.G.
The Regulation requires also that Work Choices does not apply to a law of a State, “to the extent to which it
relates to compliance with an obligation” under that law or another law of the State. The obligation is the
obligation to pay the benefit arising from the contract of employment. The parties agree on this. The
jurisdiction exercised by the Commission is pursuant to s.23(1) (see HotCopper v SAAB (op cit); Matthews v
Cool or Cosy Pty Ltd 84 WAIG 199). The applicant has a right to seek a remedy under s.29(1)(b)(ii). There is
no aspect of the Act, as far as this application is concerned, which causes an obligation to pay. Both parties
agree on this point.”
The decision went on to deal with other submissions of the parties as to Regulation 1.2(2). I concluded that, “I therefore do not
consider that this application, on the submission of the parties, is covered by Regulation 1.2(2)”.
45 Following my decision Smith SC considered my reasoning and expressed a different view in Albany Esplanade (op cit) and in
John Ralph Forster v Australia Imperial Financial Services Pty Ltd 87 WAIG 2485. I do not go to the detail of her reasoning,
however, she found that an “obligation” did arise under the Act, and hence jurisdiction applied to certain contractual benefit
claims where one party was a constitutional corporation.
46 In the Monaghan decision, I considered again whether regulation 1.2(2) might grant an exemption for certain contractual
benefit claims. In light of the decisions of Smith SC and the parties’ submissions, I stated:
“20.
It is clear that different arguments were put by the parties before Smith SC and before myself in the above
applications. However, to put it more simply for the parties to this application, I considered that, in a denied
contractual benefit claim, the obligation to pay was due to the contract. I did not interpret the words of the
Federal Regulations, namely, “to the extent to which it relates to compliance with an obligation” under the State
Act to extend to such a claim. My interpretation placed particular emphasis on the word ‘obligation’, and there
being no obligation to pay arising from the State Act. This is not to ignore the requirement that the words of the
Regulation be interpreted as a whole and in the context of the Act. However, I did not consider the words
‘relates to’ and ‘compliance with’ could enable a link to be made to the provisions of the State Act which may
be accessed in resolution of a denied contractual benefits claim.
21.
Smith SC, for the reasons expressed, interpreted the words of the Regulations more broadly and beneficially. I
have had the opportunity since my earlier judgment to assess again the words of this Regulation, and I have had
the benefit of having read and considered carefully the decisions of Smith SC. However, I respectfully consider
the more narrow interpretation of the Regulation, which I applied in my earlier judgment, to be correct. Whilst
it is correct to give broad scope to the words “relates to”, the words “compliance with an obligation” under the
State Act, in my view, cannot be read to include any application, which then gives rise to the Commission being
obliged to act. This would speak against the otherwise strict approach of Federal Act to negate the powers of
the Commission. There is a temporal component given to the Federal Regulation, namely, “an act or omission
which occurred prior to the reform commencement”. This limits the extent of the Regulation and could be seen
as providing for the natural completion of any claims such that it meets the “common law presumption that
legislation is not to be construed as taking away existing rights, unless the contrary intention is shown with
reasonable certainty (Maxwell v Murphy (1956) 96 CLR 261 at 267)” (see Wheeler J in BHP Billiton Iron Ore
Pty Ltd v Construction, Forestry, Mining & Energy Union of Workers & Anor 86 WAIG 1206 at paragraph 7).
This might be said to be apt given the heading of the Regulation, namely, “Rights and Obligations – General”,
but if Federal Regulation 1.2.2 can be said to be a coverall provision then there would be no need to have made
provision for other matters within Federal Regulation 1.2.”
47 Hence I determined again in Monaghan that I did not have jurisdiction to deal with the claim for denied contractual benefit by
virtue of the exemption in the Federal regulation 1.2(2). Albeit this judgment issued after the parties’ submissions in this
matter, I have heard nothing from either party which persuades me to a different view.
48 There is then the question of whether the respondent is a constitutional corporation and hence whether the Federal Act is
relevant to this application at all. The respondent submitted that they are covered by the federal provisions as they are a
registered, proprietary limited company, and are a small research and development company. I have little by way of evidence
on this issue. It would seem that the respondent has made no profit or income, and that it derives its funds from money
invested in it. Whilst not stated I imply from the evidence that the purpose of the activities of the respondent are commercial,
in that they are developing a product or products that may be saleable in whatever form. The product is said by the respondent
to be a water technology. Apart from these points it is difficult to make any further findings about the respondent company or
its activities. There is no information about the constitution of the respondent. There is no information as to whether there has
been any selling of product, or licensing of intellectual product for use by others. Albeit I doubt that the company has reached
this stage.
49 In Aboriginal Legal Service of Western Australia Incorporated v Mark James Lawrence 87 WAIG 856 the Full Bench
concluded that, “in our opinion the best general description of trading is an exchange for value or the provision of goods and
services for value”. Having reviewed the case law on “trading” they earlier made the following observations:
“286.
A summary of points about “trading” emerging from the authorities, together with our observations about them
is as follows:(a)
The word is of wide import (Murphy J in Adamson at 239; Deane J in Ku-ring-gai at 648-649; The Full
Federal Court in Bevanere at 330).
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3113
(b)
Although “buying and selling” may be the clearest example of trading, it is not restricted to this (Stephen J
in St George County Council at 569-570; Barwick CJ in Adamson at 209; Mason J in Fontana Films at 203;
Toohey J in Hughes principle 7 at 20 (FCR), 672 (ALR); Carr J in Quickenden at [101]; Deane J in Ku-ringgai at 649; Dixon J in Bank of NSW at 381). The appellant’s counsel’s submissions, tended to focus on
clauses of the contract that referred to “purchase” and “sale”. We did not however take his submissions to
be to the effect that it was for only this reason that the entering into and performance under the contract was
trading. Nor on the authorities, would so restrictive an approach be required.
(c)
Although the desire to earn profit may ordinarily be part or an element of trading, trading does not always
require the attainment of profit (Barwick CJ in St George County Council at 539; Stephen J in St George
County Council at 569; O’Callaghan SDP in Pellow at [28]; Deane J in Ku-ring-gai at 649). For example, a
person who sells his or her shares at a loss, is nevertheless engaging in trading.
(d)
In our opinion, with respect, the most apt general description of trading is that succinctly stated in
principle 7 at 20 (FCR), 672 (ALR) by Toohey J in Hughes: the activity of providing, for reward, goods or
services. This does not mean we regard this as an all encompassing definition. To so describe what Toohey
J has said would ignore point (a) above. The description of Toohey J is supported by Bowen CJ in KuRing-gai at 625, as cited with approval by the Full Federal Court in Bevanere at 330. It is also consistent
with the Macquarie Dictionary, 4th edition, 2005 definition of trading as “exchange for reward”. The word
“reward” in this context means “something given or received in return or recompense …”. (Macquarie
Dictionary, 4th edition, 2005). In the present context an appropriate synonym would be “for value”.
Therefore broadly speaking in our opinion trading generally involves an exchange, or the provision of goods
or services, for value. Both the provider and the receiver of the goods or services will, when this occurs, be
trading. Barter, referred to earlier, could therefore be trading. There is an exchange of goods where the
“value” is represented by the receipt of the goods from the other.
(e)
Some of the authorities refer to “commerciality”. (Barwick CJ in Adamson at 209; Bowen CJ in Ku-ringgai at 625 and the Full Federal Court in Bevanere at 330). Carr J in Quickenden at [101] referred to the
earning of “revenue” and O’Callaghan SDP in Pellow at [28] to the earning of “income”. We have
considered whether commerciality is a separate requirement for trading to occur. In our opinion it is not.
This stems from a consideration of what was precisely said in the High Court and Federal Court authorities
just cited, the relevant passages of which were earlier quoted. (We have deliberately excluded Pellow from
this because of our respectful opinion about the weaknesses in the analysis). Also, in our opinion, if there is
an exchange of goods or services for value this is in itself trading without the necessity of considering if
there is an independent element of commerciality about the transaction. For example, a private purchase
and sale of a car advertised in a newspaper is trading even though it is essentially a domestic arrangement.
There is an exchange of personal property for value. The requirement of an exchange for value of itself
supplies any requirement for commerciality in the arrangement for it to constitute trading.
(f)
Wilcox J in Australian Red Cross and O’Callaghan SDP in Pellow suggest that the gratuitous provision of a
public welfare service, where the money to engage in the service is supplied by government funding, is not
trading. In our opinion, and with respect, so broad a proposition is not supported by the decisions of the
High Court or the other authorities cited above which discuss the meaning of “trade” or “trading”. In a
situation where there is in effect, a tripartite arrangement involving the government it is necessary to look at
the basis on which the money is received to provide services to ascertain if any or all of this constitutes
trading. This approach is not inconsistent with the authorities, which establish the relevant principles.
There is no reason in principle why a tripartite arrangement may not constitute trading. The fact that
government funds are used for a public welfare service, does not necessarily have the effect that the means
by which the funds were received, or the arrangement overall, is not trading. The correct approach in our
opinion is to carefully consider, on a fact specific basis, the means by which the government funds are
provided to a corporation, to see if it is trading. Accordingly, the provision of funds by government to a
corporation may or may not constitute trading. Furthermore, as we will explain more fully later, even if it is
trading this does not necessarily mean the corporation is a trading corporation. In our view, to determine if
it is, a holistic appraisal must be made of the activities of the corporation. This will allow a conclusion to be
made about whether the trading component of its activities are sufficient to lead to characterisation as a
trading corporation.”
50 I have had some difficulty in making an assessment as to whether the respondent can be said to be a trading company. There is
only limited evidence upon which to make a judgement. The National Names Index of the Australian Securities and
Investments Commission shows that Thermoelectric Applications Pty Ltd is a proprietary company, limited by shares, which
was registered on 15 December 2004 and is still registered. I know from the evidence that the purpose of the company was
research and development into a water related product or technology. I know that whilst the respondent has attracted
investment funds, and is in the process of seeking further investment funds, the respondent has derived no income or profit to
date from their work. I consider that it is open for me to conclude that it is most likely that the research is directed toward
some commercial purpose and that the investment which they had and which the respondent was trying to secure was directed
at sustaining research to develop a commercial product. My comment is necessarily cautious as I do not have direct evidence
of this from either party. I have two unrepresented parties before me. I raised the jurisdictional question with the parties, and I
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87 W.A.I.G.
have not sought to direct their submissions. I take these factors into consideration in making my judgement. However, it
would seem that the current activities of the respondent have an aspect of ‘commerciality’ to them. They would seem to be
directed towards a return or profit, albeit not attained at this stage.
51 Barwick CJ in R v Federal Court of Australia; ex parte WA national Football League 143 CLR 190 @ 209 (Adamson) stated:
“Trade for constitutional purposes cannot be confined to dealing in goods or commodities. Its full parameters may be
difficult of definition. But the commercial nature of an activity is an element in deciding whether the action is in trade or
trading.”
Barwick CJ then went on to distinguish the organisation of a sport on a professional as opposed to an amateur basis. The
relevance I draw from this reasoning in the present matter is that the dominant activity of the respondent is research and
development (described very generally as that is the evidence). Such activity, if it were conducted in an environment where
the purpose was simply the addition of knowledge, then no commercial purpose might be attached. However, that is not the
case here. The respondent’s activities seemingly have a character of “commerciality” to them.
52 Another key difficulty in assessment is that the respondent is not engaged currently in any activity that could be described as
“buying and selling” or “an exchange for value or the provision of goods and services for value”. They could be said to be
engaged in the provision of research services, except that there is no current value or payment for those services. There is
simply an investment towards a potential gain. The ‘value’ to be extracted later if all goes well. Therefore, in the absence of
current ‘trading’ activities, let alone predominant trading activities, can a corporation be said to be a trading corporation if the
trade is only in the future and in prospect?
53 Stephen J in R v Trade Practices Tribunal; ex parte St George County Council (1974) 130 CLR 533 @ 568 said that:
“When s. 5 of the Restrictive Trade Practices Act speaks of “trading corporations” the use of the participle “trading”
necessarily involves reference to function, either to the activities which a corporation is intended to undertake or to those
which it in fact does undertake.”
In this way the absence, at present, of the respondent company’s involvement in an activity which could be said to be “an
exchange for value or the provision of goods and services for value” does not exclude them from being a trading corporation.
Seemingly, if the company survives and succeeds then their intent would be to “trade” at a later date.
54 The notion of ‘intended’ activities as opposed to ‘current’ activities would appear to go to the purpose for which the
corporation was established or their predominant reason for being. Barwick CJ in Adamson and in St George County Council
stressed that the current activities of the entity were the best guide. He stated, “The only sure guide to the nature of the
company is a purview of its current activities, a judgment as to its nature being made after an overview of all those activities”.
He then went on to state, “Its activities rather than the purpose of its incorporation will designate its relevant character. But so
to say assumes that such trading activities are within its corporate powers, actual or imputed”. In both cases the circumstances
were that whilst the current activities of the entities might be seen to be ‘trading’ in nature; the purpose of their incorporations
were not so. In this matter there is a corporation, it simply has not traded yet. The reasoning of Barwick CJ was recently
referred to with approval by the Full Bench of the Industrial Court of New South Wales in Hardeman v Children’s Medical
Research Institute [2007] NSWIRComm 189 delivered on 24 September 2007. The Full Bench stipulated several, ‘Relevant
Principles’, for a trading corporation; the first being that, “the only sure guide to the nature of a company is a purview of its
current activities”.
55 In Adamson, Stephen J on this issue described the difference between Barwick CJ and himself as follows:
“Barwick CJ denied, that “a corporation which to any extent engages in trade is a trading corporation”; its “predominant
and characteristic activity” must be trading, whether in goods or services, before it is a trading corporation. In my
judgment I regarded functions, both intended and actually undertaken, as of prime importance: the County Council’s sole
intended and implemented function was to trade in electricity, the Club’s sole intended and implemented function is that
of a sporting club fostering football.”
56 The answer as to whether future activities as opposed to only current activities may be relevant is addressed by the majority of
the High Court in Fencott v Muller (1983) 152 CLR 570 @ 601-602:
“It follows that Oakland has not engaged in trading activities. Nor has it engaged in any financial activity, for it has not
hitherto engaged in any financial transactions. And so the question arises whether a corporation with objects and powers
appropriate for a trading or financial corporation can bear that character before it engages in any trading or financial
activity. That question did not arise for consideration in Adamson’s Case. The majority judgments in that case which
held that the established activities of the football league concluded its character as a trading corporation did not suggest
that trading activities are the sole criterion of character. Absent those activities, the character of a corporation must be
found in other indicia. While its constitution will never be completely irrelevant, it is in a case such as the present where
a corporation has not begun, or has barely begun, to carry on business that its constitution, including its objects, assumes
particular significance as a guide (see State Superannuation Board (Vict.) v. Trade Practices Commission (90)).
Oakland’s memorandum and articles of association reveal that the objects for which it was established include engaging
in financial activities and carrying on a large variety of businesses, though it lay dormant – “on the shelf” – after its
incorporation. In the circumstances of the present case, there is no better guide to its character than its constitution and its
constitution establishes its character as a trading or financial corporation. It is immaterial whether it is a trading
corporation or a financial corporation or which of those characters its future activities may give it.”
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WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
3115
57 As stated, I do not have the constitution of the respondent and I have implied a purpose, from the evidence of the respondent,
for their activities. The purpose being to attract investment to develop a water technology to commercialise the product in
some way. However, I conclude that the respondent is a trading corporation and hence is an employer as defined in s6(1)(a) of
the Federal Act. For the whole of the reasons above as to jurisdiction I find that I do not have jurisdiction to make an order as
to the merits of this matter. An order will issue that the matter be dismissed for want of jurisdiction. Of course, if I am wrong
on any one of the three aspects of jurisdiction as they relate to the Federal Act, then the Commission would have jurisdiction.
If that were the case, and I do not find so, then the order that should be made in that instance is an order that the respondent pay
the applicant the sum of $5,196 gross for unpaid wages and $2,421 for unpaid accrued annual leave; the amounts to be less any
taxation payable to the Commissioner for Taxation. It has taken longer than expected to come to this decision, and that period
has been interrupted by a planned holiday. I hope this delay has not caused either party any undue strain.
2007 WAIRC 01242
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
PARTIES
JO-ANNE J MURRAY
APPLICANT
-vTHERMOELECTRIC APPLICATIONS PTY LTD
RESPONDENT
CORAM
COMMISSIONER S WOOD
DATE
FRIDAY, 16 NOVEMBER 2007
FILE NO
B 90 OF 2007
CITATION NO.
2007 WAIRC 01242
Result
Dismissed for want of jurisdiction
Representation
Applicant
Ms J Murray on her own behalf
Respondent
Mr P Clarke
Order
HAVING heard Ms J Murray on her own behalf and Mr P Clarke on behalf of the respondent, the Commission, pursuant to the
powers conferred on it under the Industrial Relations Act, 1979, hereby orders:
THAT the application be and is hereby dismissed for want of jurisdiction.
(Sgd.) S WOOD,
Commissioner.
[L.S.]
2007 WAIRC 01245
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
PARTIES
DARREN BRETT PILLAGE
APPLICANT
-vCOOGEE CHEMICALS PTY LTD
RESPONDENT
CORAM
COMMISSIONER S M MAYMAN
HEARD
MONDAY, 12 NOVEMBER 2007
DELIVERED
MONDAY, 19 NOVEMBER 2007
FILE NO.
U 127 OF 2007
CITATION NO.
2007 WAIRC 01245
3116
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
CatchWords
87 W.A.I.G.
Termination of employment - harsh, oppressive and unfair dismissal claim - whether Commission has
jurisdiction to hear and determine the applicant's claim - trading activities of the respondent
considered - Commission not satisfied the respondent is a constitutional corporation - Industrial
Relations Act 1979 (WA) s 29(1)(b)(i); Workplace Relations Act 1996 (Cth) s 4, s 6, s 16 and s 16(1);
Australian Constitution (Cth) s 51(xx) and s 109
Result
Application dismissed for want of jurisdiction
Representation
Applicant
Mr D B Pillage
Respondent
Mr T J Carmady (of counsel)
Reasons for Decision
1
Darren Brett Pillage (“the applicant”) filed an application in the Western Australian Industrial Relations Commission (“the
Commission”) on 27 July 2007, pursuant to s 29(1)(b)(i) Industrial Relations Act of 1979 (“the State Act”) claiming he had
been unfairly dismissed on 2 July 2007 by Coogee Chemicals Pty Ltd (“the respondent”). The applicant had been employed
by the respondent since March 1994 and at the time he was terminated was classified as a leading hand.
2
The respondent opposed the applicant’s claim and submitted that the applicant was made redundant due to a downturn in
business. The respondent submitted the claim could not be determined by the Commission as the respondent is a constitutional
corporation as defined in s 4 of the Workplace Relations Act 1996 (Cth) (“WRA”) a corporation to which s 51(xx) of the
Australian Constitution applies.
3
Where it is found that a corporation is trading corporation by virtue of ss 4, 6 and 16 of WRA then the jurisdiction of the
Commission to continue to deal with an applicant’s s 29(1)(b)(i) claim is excluded by the operation of s 16(1) of WRA and
s 109 of the Australian Constitution.
Respondent’s Evidence and Submissions
4
It was submitted by the respondent that the question of whether a corporation is a trading corporation is a question of fact. The
respondent referred to the decision of Wood C in Dawn Sewell v Glen Brown – CTI Logistics (2006) 86 WAIG 3278 and
Jackson v Chemeq Limited (2006) 86 WAIG 3283.
5
Mr Napier, a director of the respondent was called to give evidence and identified documentation, in particular the
respondent’s Certificate of Corporation of Proprietary Company an ASIC extract of the history of the respondent, Amended
Articles of Association, and the Annual Report for the year ended 30 June 2007 containing profit and loss statements. Mr
Napier testified he was also responsible for administrative and financial matters. Mr Napier testified that at the time of the
applicant’s termination the respondent employed 172 employees.
6
Counsel for the respondent submitted the respondent is a trading company that exists to make a profit for its shareholders and
engages in commercial activity. The respondent is a substantial organisation with assets amounting to $76 million, profits of
$29 million and a turnover of $120 million in the 2007 financial year. The Annual Report of the respondent for the year ended
30 June 2007 identifies the principal activities of the respondent to be chemical manufacture and trading, operation of tank
terminal facilities and transport.
Applicant’s Submissions
7
The applicant submitted the jurisdiction for the claim to be heard and determined by the Commission existed on the basis of
the number of employees of the respondent. This submission was later amended to reflect legal advice received by the
applicant that in the event there was no jurisdiction for the Commission to hear and determine the claim then application ought
be made to the Australian Industrial Relations Commission together with a claim to hear the matter out of time. The applicant
did not contest any of the respondent’s submissions or evidence.
Commission’s Findings and Conclusion
8
In considering the question of whether the Commission has the jurisdiction to hear and determine the claim I have had regard
for the Full Bench decision in Aboriginal Legal Service of Western Australia Incorporated and Mark James Lawrence (2007)
87 WAIG 856. His Honour the President in consideration as to whether an organisation is a trading organisation said:
“It is appropriate to summarise the following which is relevant to this appeal:
(a)
Whether the Appellant is a trading corporation involves questions of fact, to be determined upon the
evidence before the Commission.
(b)
The primary focus is on what the appellant does. This determines what its activities are.
(c)
The Appellant is a trading corporation if it substantially engages in trading activities. This necessitates
a close analysis of what the Appellant does, and whether this in whole or part constitutes trading. If
all of its activities are trading, it is a trading corporation. If a portion of its activities are trading then it
is necessary to consider whether that portion is a substantial or significant portion of its overall
activities. If so it is a trading corporation.”
87 W.A.I.G.
9
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
3117
Having regard for the evidence and submissions of the respondent the Commission finds that the respondent “substantially
engages in trading activity”. The portion of trading/commercial activities the respondent engages in can be considered to be a
significant part of its overall activities. In making this finding the Commission has had regard to the function and the elements
of profit-making clearly present in the respondent’s activities together with the commercial activities of the respondent.
10 The Commission finds that the respondent is a constitutional corporation as defined in s 4 of the WRA, a constitutional
corporation to which s 51(xx) of the Australian Constitution applies.
11 Accordingly as the parties were advised at the conclusion of the hearing I have found that the Commission does not have
jurisdiction to hear and determine the s 29(1)(b)(i) claim and an order will follow dismissing the claim for want of jurisdiction.
2007 WAIRC 01262
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
PARTIES
DARREN BRETT PILLAGE
APPLICANT
-vCOOGEE CHEMICALS PTY LTD
RESPONDENT
CORAM
COMMISSIONER S M MAYMAN
DATE
TUESDAY, 27 NOVEMBER 2007
FILE NO
U 127 OF 2007
CITATION NO.
2007 WAIRC 01262
Result
Order issued dismissing application
Representation
Applicant
Mr D B Pillage
Respondent
Mr T J Carmady (of counsel)
Order
HAVING heard Mr D B Pillage on his own behalf and Mr T J Carmady (of counsel) on behalf of the respondent, the Commission,
pursuant to the powers conferred on it under the Industrial Relations Act, 1979, I hereby order:
THAT the s 29(1)(b)(i) application be dismissed for want of jurisdiction.
(Sgd.) S M MAYMAN,
Commissioner.
[L.S.]
2007 WAIRC 01267
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
PARTIES
EMMA STRICKLAND
APPLICANT
-vDR LARAINE BRINDLE
HELENA VALLEY MEDICAL CENTRE
RESPONDENT
CORAM
COMMISSIONER J L HARRISON
DATE
WEDNESDAY, 28 NOVEMBER 2007
FILE NO/S
U 146 OF 2007
CITATION NO.
2007 WAIRC 01267
3118
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
Result
87 W.A.I.G.
Discontinued
Representation
Applicant
Ms E Strickland
Respondent
Mr K Trainer
Order
WHEREAS this is an application pursuant to s29(1)(b)(i) of the Industrial Relations Act 1979; and
WHEREAS on 9 October 2007 the Commission convened a conference for the purpose of conciliating between the parties; and
WHEREAS at the conclusion of that conference the parties reached an agreement in principle in respect of the application; and
WHEREAS on 21 November 2007 the applicant filed a Notice of Discontinuance in respect of the application; and
WHEREAS on 28 November 2007 the respondent consented to the matter being discontinued;
NOW THEREFORE, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby
orders:
THAT this application be, and is hereby discontinued.
(Sgd.) J L HARRISON,
Commissioner.
[L.S.]
2007 WAIRC 01251
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
PARTIES
MARIA WHITE
APPLICANT
-vMDM NOMINEES AUSTRALIA PTY LTD
RESPONDENT
CORAM
COMMISSIONER S WOOD
HEARD
MONDAY, 5 NOVEMBER 2007
DELIVERED
WEDNESDAY, 21 NOVEMBER 2007
FILE NO.
B 133 OF 2007
CITATION NO.
2007 WAIRC 01251
CatchWords
Contractual benefits claim - Jurisdiction – Trading corporation - Industrial Relations Act 1979,
s29(1)(b)(ii) – Federal Workplace Relations Act 1996 – s5, s6 and s16(1)(a)
Result
Application dismissed for want of prosecution
Representation
Applicant
Mrs M White on her own behalf
Respondent
Mr D Hall
Reasons for Decision
1
This is an application made pursuant to s 29(1)(b)(ii) of the Industrial Relations Act 1979 (“the Act”) and lodged in the
Commission on 8 August 2007. The applicant, Mrs M White, claims the following:
Uniform allowance $500
2
The application came on for conference on 12 October 2007 and no settlement was reached. The applicant asked that the
application be heard. The question of jurisdiction was raised with the parties by the Commission. The parties were requested
to make any submissions in writing on this issue by 5 November 2007. The respondent lodged a submission and stated, “We
do not seek to discontinue the application, although do concur that the Federal WorkChoices legislation have the appropriate
jurisdiction.” The applicant advised the Commission’s Associate by telephone on 7 November 2007 that she had done some
research and the respondent may be a trading company. The applicant advised also that she was not going to make a
submission on jurisdiction as it was not worth it for the money she was claiming.
87 W.A.I.G.
3
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
3119
The respondent is a proprietary limited, registered company and trades as Champagne Travel Mandurah. The business is
involved in organising and selling travel packages, and this is its main activity. I find that the respondent is a trading
corporation and hence covered by the provisions of the Federal Workplace Relations Act 1996. For the reasons expressed
recently in Jo-anne J Murray v Thermoelectric Applications Pty Ltd (unreported 2007 WAIRC 01243) delivered on 16
November 2007, as to the coverage of the Federal Act and the effect of the Federal Regulations, I find that I do not have
jurisdiction to determine this claim. I would therefore order that the application be dismissed for want of jurisdiction.
2007 WAIRC 01252
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
PARTIES
MARIA WHITE
APPLICANT
-vMDM NOMINEES AUSTRALIA PTY LTD
RESPONDENT
CORAM
COMMISSIONER S WOOD
DATE
WEDNESDAY, 21 NOVEMBER 2007
FILE NO
B 133 OF 2007
CITATION NO.
2007 WAIRC 01252
Result
Application dismissed for want of prosecution
Representation
Applicant
Mrs M White on her own behalf
Respondent
Mr D Hall
Order
HAVING heard Mrs M White on her own behalf and Mr D Hall on behalf of the respondent, the Commission, pursuant to the
powers conferred on it under the Industrial Relations Act, 1979, hereby orders:
THAT the application be and is hereby dismissed for want of prosecution.
(Sgd.) S WOOD,
Commissioner.
[L.S.]
2007 WAIRC 01276
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
PARTIES
CLAIRE YELDON
APPLICANT
-vKELLOGG BROWN AND ROOT
RESPONDENT
CORAM
COMMISSIONER S WOOD
DATE
MONDAY, 3 DECEMBER 2007
FILE NO
B 123 OF 2007
CITATION NO.
2007 WAIRC 01276
Result
Application discontinued
Representation
Applicant
Ms C Yeldon
Respondent
Mr D Fletcher of Counsel
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WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
87 W.A.I.G.
Order
WHEREAS this is an application pursuant to section 29(1)(b)(ii) of the Industrial Relations Act 1979; and
WHEREAS a conciliation conference was convened on 30 August 2007 at the conclusion of which the matter was adjourned; and
WHEREAS the applicant advised the Commission on 3 September 2007 that she wanted to discontinue the application; and
WHEREAS the parties have waived their rights to speak to the Minutes of Proposed Order pursuant to s.35(4) of the Industrial
Relations Act 1979;
NOW THEREFORE, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby
orders THAT the application be and is hereby discontinued.
(Sgd.) S WOOD,
Commissioner.
[L.S.]
CONFERENCES—Matters Referred—
2007 WAIRC 01271
DISPUTE REGARDING SUSPENSION WITHOUT PAY OF A UNION MEMBER
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
PARTIES
HEALTH SERVICES UNION OF WESTERN AUSTRALIA (UNION OF WORKERS)
APPLICANT
-vDIRECTOR GENERAL OF HEALTH IN RIGHT OF THE MINISTER FOR HEALTH AS THE
METROPOLITAN HEALTH SERVICE, THE SOUTH WEST HEALTH BOARD AND THE WA
COUNTRY HEALTH SERVICE
RESPONDENT
CORAM
PUBLIC SERVICE ARBITRATOR
HEARD
THURSDAY, 28 JUNE 2007
DELIVERED
FRIDAY, 30 NOVEMBER 2007
FILE NO.
PSACR 28 OF 2006
CITATION NO.
2007 WAIRC 01271
CatchWords
Public Service Arbitrator - Appeal against respondent's decision to suspend applicant's member
without pay - Disciplinary investigation complete but for applicant's member's response Investigation deferred pending criminal charges at applicant's request - Whether suspension should be
without pay - Applicant's member held senior position - Allegations of a serious nature - Opportunity
to respond to decision to suspend without pay would not have altered the outcome - Suspension
without pay justified - Industrial Relations Act 1979 (WA) ss 6, 26(1)(a) and (c), 44 and 80 Interpretation Act 1984 (WA) s 52(1)(a) - Public Sector Management Act 1994 (WA) - Minimum
Conditions of Employment Act 1993 (WA) - Hospital and Health Services Act 1927 (WA)
Result
Matter dismissed
COMMISSIONER P E SCOTT
Representation
Applicant
Mr T Borgeest (of counsel)
Respondent
Mr R Andretich (of counsel)
Reasons for Decision
1
The Memorandum of Matters Referred for Hearing and Determination under s 44 of the Industrial Relations Act 1979 (WA)
(“the IR Act”) is as follows:
“1.
The Applicant says that:
87 W.A.I.G.
2.
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
(a)
The Applicant is an organisation registered under the provisions of the Industrial Relations Act 1979
(WA).
(b)
Mr Moodie is a member of the Applicant and an employee of the Respondent.
(c)
Mr Moodie is the subject of an internal disciplinary investigation. He was stood down from his
duties, on full pay, with effect on or about 7 July 2006.
(d)
In late October 2006, the respondent was informed that the Corruption and Crime Commission
(“CCC”) had expressed its intention to charge Mr Moodie with a criminal offence/s in connection
with matters under the internal disciplinary investigation.
(e)
On or about 20 October 2006, the respondent suspended Mr Moodie’s salary. He has received no
salary since this time.
(f)
On or about 15 January 2007, the respondent wrote to Mr Moodie’s solicitors notifying that the
employer required the packaged motor vehicle be returned to the employer within 30 days. Mr
Moodie returned the motor vehicle in accordance with the employer’s demand.
The applicant seeks orders and declaration as follows:
(a)
A declaration that the 20 October 2006 decision by the respondent to suspend payment of Mr
Moodie’s remuneration is void and of no effect.
(b)
Orders that the Respondent:
(c)
3.
2
3121
(i)
resume Mr Moodie’s salary with immediate effect;
(ii)
reimburse Mr Moodie the amount that he would have received had his salary not been
suspended, within 10 working days;
(iii)
return the packaged motor vehicle to Mr Moodie;
(iv)
reimburse Mr Moodie the cash value of the private use of the packaged motor vehicle for the
period over which the vehicle was required to be returned; and
(v)
restore and pay any other elements of Mr Moodie’s remuneration which was “suspended” in
accordance with the contract of employment.
A direction that the parties confer as to the calculation of reimbursements provided for under the
abovementioned orders, with liberty to apply if agreement cannot be reached.
The Respondent rejects the Applicant’s claims and says that:
(a)
On 19 October 2006, Mr Moodie’s solicitors advised that the CCC had charged Mr Moodie in
connection with the internal disciplinary investigation and requested that the disciplinary matter be
deferred pending the outcome of the criminal proceedings.
(b)
The respondent agreed to defer the investigation on 23 October 2006, despite it being complete but for
Mr Moodie’s response.
(c)
It was reasonable for the respondent to suspend Mr Moodie, pursuant to s 52(1)(a) of the
Interpretation Act 1984 (WA), without pay.
(d)
Mr Moodie’s remuneration included a motor vehicle to which he was not entitled during the
abovementioned period of suspension.
4.
The Respondent denies that the Applicant is entitled to the relief sought or any relief at all and opposes the
orders sought as:
(a)
there was a clear statutory basis upon which the respondent acted;
(b)
it would be unreasonable and not in the public interest for Mr Moodie’s suspension to be set aside;
and
(c)
there is no right of remuneration where services have not been rendered and the circumstances are not
such that this principle should not be observed.”
At the commencement of the hearing. The parties submitted a Statement of Agreed Facts (exhibit 1). This Statement is
reproduced below except that references to attached documents have been deleted:
“1.
The Applicant is an organisation under the provisions of the Industrial Relations Act 1979.
2.
The Minister for Health is incorporated as the board of all the Hospitals comprised in the South West Health
Board under s 7 of the Hospital and Health Services Act 1927 (WA), and has delegated all his powers and duties
as such to the Director General of Health.
3.
On 11 December 2003 Michael Moodie executed a Contract of employment with the then Director General of the
Department of Health. The contract was executed on behalf of the Director General by his delegate.
3122
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
87 W.A.I.G.
4.
On 28 November 2005 Moodie and the Director General executed a document which varied the terms of the 11
December 2003 Contract. The variation effectively transferred Moodie from the position of CEO SWAHS to a
position entitled Executive Director, Technology.
5.
By letter to Mr Moodie dated 7 July 2006, the Director General raised allegations of matters that, he said, “could,
if proven, constitute serious breaches of discipline and gross misconduct by you”. Five issues were identified.
Mr Moodie was directed to remain away from the workplace, to return certain Department property, and to not
communicate with employees of the Department or of any Health Service. The Director General stated that “you
will remain on full pay during this absence until otherwise determined by me”.
6.
Moodie’s solicitors (Tottle Partners) responded to the allegations by letter on 11 July 2006. Among other things,
particulars of the allegations were requested.
7.
The Director General responded to the letter of 11 July 2006 and other associated correspondence by letter on 31
July 2006. The letter reiterated that Mr Moodie was directed to “remain at home during this formal investigation
during which Mr Moodie would continue to be paid”. The Director General notified Tottle Partners that an
independent investigation would be undertaken. Attached to the letter were certain particulars of the allegations,
in response to requests made by Tottle Partners.
8.
On 6 October 2006 the Director General wrote to Mr Moodie informing him of the outcome of the formal
investigation, and his conclusions or determinations in relation to the investigation’s “findings”. In relation to
three of the four allegations, the Director General advised that no further action would be taken. In relation to the
first allegation, the Director General agreed with the investigator that a serious breach of discipline had been
committed. The Director General advised that he was now turning to consider what action should be taken in that
regard, and invited Mr Moodie to provide further information, within 5 working days, if he wished to. The letter
included a copy of the investigation report, and stated that the report had been included so as to assist Mr Moodie
in his consideration of the that (sic) matter.
9.
On 19 October 2006 Tottle Partners informed the Director General that they had received advice from officers of
the Corruption and Crime Commission that the CCC intended to charge Moodie in connection with the matters
which were the subject matter of the first allegation. Among other things, the letter expressed the view that it
would be clearly inappropriate for the Department to make any determination as to whether Moodie’s conduct,
being the same conduct that is the subject of the criminal charges, amounted to “a serious breach of discipline”.
Against that background, Tottle Partners suggested that further consideration of whether Moodie’s conduct
amounts to “a serious breach of discipline” be deferred until the outcome of the criminal charges is known.
10.
By letter to Mr Moodie’s solicitors on 20 October 2006, the Director General acknowledged receipt of the 19
October 2006 letter. The Director General stated that, in light of the advice concerning the CCC’s intentions,
Moodie was to be “suspended from duty from the Department of Health”, and that the suspension is to be
“without pay”. This was to take effect from close of business that day, 20 October 2006. The letter also
foreshadowed a further response to the 19 October 2006 letter, after legal advice was obtained, in connection with
other matters there raised.
11.
As foreshadowed in the 20 October 2006 letter, Moodie’s remuneration payments ceased with effect from 20
October 2006.
12.
On 23 October 2006, at conciliation proceedings in the WAIRC, the representative of the Director General
informed the representative of the HSU that the disciplinary proceedings would be suspended until the criminal
charges were determined.
13.
Moodie has been charged with certain criminal offences as foreshadowed in the letter referred to above and dated
19 October 2006. Moodie has entered a plea of ‘not guilty’ to those charges, and the matter has not yet been
determined by the court exercising criminal jurisdiction.
14.
On or about 11 January 2007 the applicant wrote to the respondent concerning the investigation and concerning
the respondent’s decision to stand Moodie down from duty without pay.
15.
On or about 15 January 2007, the Director General wrote to Moodie’s solicitors notifying Moodie that the
employer required that the packaged motor vehicle be returned to the employer within 30 days.
16.
Moodie returned the motor vehicle in accordance with the employer’s demand, within the period required.
17.
On or about 21 January 2007 the respondent wrote to the applicant in response to some of the matters raised in the
applicant’s letter of 11 January 2007.”
The Applicant’s Case
3
The applicant’s argument is that the respondent has denied Mr Moodie procedural fairness in making a decision to suspend his
pay without giving him an opportunity to be heard. The applicant says that there is also a question of whether the law allows a
suspension of remuneration in the circumstances where there is no particular provision within his contract of employment and
no statutory power. The applicant says that any power to suspend Mr Moodie’s remuneration could only arise by implication
from the statutory power of suspension granted to the employer by s 52 of the Interpretation Act 1984 (WA).
4
The applicant further says that there is no implied common law power to suspend (Hanley v Pease & Partners Ltd [1915] 1
KB 698)
87 W.A.I.G.
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
3123
5
The applicant also says that the “no work no pay” principle in Csomore v Public Service Board of NSW (1987) 10 NSWLR
587 and Gapes v Commercial Bank of Australia Ltd (1979) 41 FLR 27 at 33 has no application in this case. Those cases relate
to circumstances where the employees refused to perform the full range of work assigned to them and were directed to refrain
from performing any work at all. In this case, the respondent waived the requirement for Mr Moodie to perform any of his
duties and was not in response to any refusal by Mr Moodie to perform any part of his duties.
6
If that power to suspend without pay exists, the applicant says it must be applied in accordance with the common law duty of
fairness (Dixon v Commonwealth of Australia (1981) 61 ALR 173 at 178-9). The applicant says that in the decision in Stead v
SGIO (1986) 161 CLR 141 at 145 the statement that “not every departure from the rules of natural justice at a trial will entitle
the aggrieved party to a new trial”, refers to extreme or exceptional circumstances in which it would be plainly “futile” to grant
a remedy. A “futile circumstance” would be one where “a party was denied the opportunity of making submissions on a
question of law, when, in the opinion of the appellant court, the question of law must clearly be answered unfavourably to the
aggrieved party.” (p 145)
7
The applicant says that the employer cannot say that the only matters which Mr Moodie might have advanced, had he been
given an opportunity to be heard, were matters of law rather than fact and that such matters must have been without
foundation.
8
The applicant also says that the failure to afford procedural fairness means that the decision is void and the lost remuneration is
payable.
9
As to the merits of the case, the applicant says that the employer’s conduct amounts to a breach of its common law duty of
fairness and that “[t]he applicable legal principle is that a decision to suspend remuneration, without affording the legal right to
be heard is void and ineffective” (par 37.3 Applicant’s Submissions). The applicant also says that it has always been open to
the respondent to reverse its decision, provide Mr Moodie with an opportunity to be heard and consider his response in making
the decision afresh.
10 The applicant notes in particular that Mr Moodie is entitled to be treated as innocent until proven guilty and that whether he is
ultimately found guilty or not is irrelevant when considering the respondent’s decision to suspend.
11 The applicant seeks the following declarations and orders:
“(1)
It is declared that the Director-General’s decision to suspend Michael Moodie’s remuneration, with the effect
from 20 October 2006, is void and of no effect.
(2)
It is ordered that the Director-General immediately resume provision of all payments and other elements of the
remuneration package to which Michael Moodie is entitled under his contract of employment.
(3)
It is ordered that the Director-General provide to Moodie, forthwith, such amounts of backpay and the cash
equivalent of non-financial elements of Moodie’s remuneration package as have been withheld from Moodie in
the period between 20 October 2006 and the date of this order.
(4)
The parties have liberty to apply in connection with order (3) hereof, in the event of any disagreement as to the
calculation of amounts payable thereunder.”
The Respondent’s Case
12 The respondent says that it has the power to suspend without pay which goes hand in hand with the power to suspend, provided
for in s 52(1) of the Interpretation Act 1984 (WA). It also says that the effect of suspension in accordance with the statutory
power is suspension without pay.
13 As to the merits of the decision to suspend, the respondent relies upon the relationship between Mr Moodie and itself as being
a fiduciary one (Concut Pty Ltd v Worrell (2000) 176 ALR 693 at 698). It refers to acts of dishonesty or similar conduct being
destructive of the mutual trust necessary in the employment relationship.
14 The respondent says that it formed the suspicion that Mr Moodie had acted dishonestly and arranged for an investigation of the
allegations. The investigation was complete except for Mr Moodie’s response. Mr Moodie’s solicitors requested, as a result of
his being charged with concurrent criminal charges, that it defer final determination of the disciplinary matter. The respondent
says in the circumstances of the suspension of the disciplinary matter it was unreasonable that the respondent should not
finalise the disciplinary proceedings yet continue to pay Mr Moodie. It has no control over when the criminal matters will be
heard and in the circumstances of Mr Moodie’s position within the structure of its organisation and the charges against him it is
inappropriate that his services be utilised and that it is untenable that he return to work. It is not in the public interest for the
order to be made that Mr Moodie be paid during periods when no service is rendered.
15 Alternatively the respondent says that if there is no power to suspend it relies on the decision of the Full Bench in Director
General Department of Justice v Civil Service Association of Western Australia Inc (2003) 83 WAIG 908 where his Honour,
the President said:
“Whether the suspension was unlawful or not, however, on the authority of Csomore and Another v Public Service
Board of NSW (op cit) and “Law of Employment” 5th Edition, (op cit), Ms Bowles was not entitled to be paid a
salary, since she has not rendered any service for the relevant periods.” (at par 53)
The respondent also relies on Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435, that where no services are
rendered there is no entitlement to wages.
3124
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
87 W.A.I.G.
16 The respondent refers to the evidence of acts of dishonesty by Mr Moodie and the instituting of criminal proceedings by the
Corruption and Crime Commission. It says that it is untenable for Mr Moodie to remain at work in a senior position and it is
not in the public interest that the respondent be required to pay him for those periods where he has been excluded from the
workplace. This is particularly so in circumstances where the respondent is unable to bring the disciplinary proceedings to an
end for reasons outside of its control.
17 Finally, the respondent says that if Mr Moodie should have been given an opportunity to be heard, it would have made no
difference to the respondent’s decision to suspend and therefore no remedy should be provided (Stead v SGIO (op cit)).
Issues and Conclusions
18 There are a number of issues associated with the resolution of this matter. They are:
1.
Is there a power to suspend?
2.
Is the suspension without pay?
3.
Is the suspension void due to a failure to provide an opportunity to be heard?
Is there a Power to Suspend?
19 The issue of whether the respondent has the power to suspend Mr Moodie’s employment is a matter for the contract of
employment, statute, or common law.
20 The “Contract of Employment between the Minister for Health and Michael Harris Moodie” of 19 August 2002 says that it:
“will apply in conjunction with, and is subject to, the relevant provisions of the Public Sector Management Act 1994
(WA), the Minimum Conditions of Employment Act 1993 (WA) and the Hospital and Health Services Act 1927 (WA).”
21 As of 1 January 2006, the contract was varied in that Mr Moodie was to undertake a new role however the remainder of the
terms of the contract were maintained. This contract contained no reference to suspension, either with or without pay.
22 Neither of the parties referred to the Public Sector Management Act 1994 (WA) (“PSM Act”) s 82 – Suspension Without Pay,
as providing the statutory basis for the suspension.
23 The Interpretation Act 1984 (WA), s 52 – “Power to appoint includes power to remove, suspend, appoint acting officer, etc.
provides:
“(1)
Where a written law confers or imposes a duty upon a person to make an appointment to an office or position,
including an acting appointment, the person having such power or duty shall also have the power –
(a)
to remove or suspend a person so appointed to an office or position, and to reappoint or reinstate, any
person appointed in exercise of such power or duty;”
Therefore, the respondent’s power to appoint Mr Moodie brought with it the statutory power to suspend him.
24 The question remains as to whether the power to suspend was a power to suspend without pay. According to G J McCarry in
“Aspects of Public Sector Employment Law” the effect of suspension is that it has an impact on the right to wages. McCarry
says:
“The effect of a suspension, and especially its impact on the right to wages, will depend on the terms of the statute under
which the suspension is effected, although prima facie it involves loss of wages. [Browne v Commr for Railways (1935)
36 SR (NSW) 21] As mentioned earlier there is no common law right to suspend implied in the contract of employment.
Where a right to suspend does exist and is exercised “the whole contract is suspended, the obligations on both sides are
suspended…The contract is suspended with regard to its performance by both sides, not only by one.” [Wallwork v
Fielding [1922] 2 KB 66 at 72 per Lord Stundale MR] “If the employed is suspended from his functions as an employed
person, it seems…that the effect of that is to suspend the relation of employer and employed for the time being; to excuse
the servant or the employed person from performing his part of the contract, and at the same time to relieve the employer
from performing his part of the contract.” [ibid at 74 – 75 per Warrington L J] This is not to say that, subject to statute,
salary will not later be payable if the officer is subsequently found innocent or if he appeals successfully against dismissal
or conviction. [Commr for Railways (NSW) v Cavanough (1935) 53 CLR 220; Grady v Commr for Railways (NSW)
(1935) 53 CLR 229] Nowadays it is not uncommon for statutes authorising suspension of public sector workers to
provide also that salary will not be payable during such suspension, save, perhaps in certain specified circumstances or if
appropriate authority so directs. Where an officer is suspended with salary and by statute is deemed to be on leave of
absence with salary, it has been said that her or his obligations as an officer will continue to be binding. [Munnings v
Smith, unreported, Federal Court of Australia] Thus the person may be obliged to obey a lawful order to report for a
medical examination. However it is clear that not all obligations (for example, to work) continue during suspension.
… As suspension does not terminate the contract, rights to benefits dependent on its continuation may continue to accrue.
But as suspension does seem to put service at an end for the period of the suspension, benefits which depend on
continuity of service may not continue to accrue during suspension.”
25 Csomore v Public Service Board of NSW (op cit) and Gapes v Commercialh Bank of Australia Ltd (op cit) are cases where the
employees refused to perform the full range of duties and were therefore directed to refrain from performing at all. Those
circumstances are distinguished from this case where the respondent firstly directed Mr Moodie to remain away from the
workplace, thereby not requiring him to perform any of his duties but continuing to pay him, and then suspended him without
pay until the disciplinary process, put on hold at his request, could be finalised.
87 W.A.I.G.
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
3125
26 According to the authorities suspension is not merely of the obligation on one hand to provide work and on the other to
perform work, it is the suspension of the contractual rights and obligations, including the right to payment. However, where
criminal charges and/or the allegations of breach of discipline are subsequently not sustained, subject to the statute, the
employee would be entitled to be reimbursed the contractual benefits lost on account of the suspension. On 7 July 2006, the
respondent sent Mr Moodie home and relieved him of the obligation to perform work. All the other contractual rights and
obligations continued. However, when the respondent wrote to Mr Moodie on 20 October 2006, informing him of the decision
to suspend him without pay, the rights and obligations under the contract were placed in abeyance.
27 Therefore, the respondent was under no obligation to pay salary to Mr Moodie from 20 October 2006. The obligation was
suspended.
28 The question then arises, was the respondent in breach of the requirement to afford Mr Moodie natural justice or standards of
fairness in the manner in which it reached its decision to suspend him without pay?
29 It is noted that the respondent’s decision is not a decision of the court however the principles of natural justice still apply. In
Dixon v Commonwealth of Australia (op cit) the High Court held that although there is to be a right to be heard prior to any
decision to suspend no formal hearing is required.
30 In Stead v SGIO (op cit), the High Court referred to the general principles applicable and expressed by the English Court of
Appeal in Jones v National Coal Board [1957] 2 QB 55 at 67 that:
“[t]here is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case
properly before the judge ... No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor
can we affirm it.”
31 Also in Stead v SGIO (op cit) their Honours noted that:
“Would further information possibly have made any difference? That qualification is that an appellate court will not
order a new trial if it would inevitably result in the making of the same order as that made by the primary judge in the first
trial. An order for a new trial in such a case would be a futility.
For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial.
By way of illustration, if all that happened at the trial was that a party was denied the opportunity of making submissions
on a question of law, when, in the opinion of the appellate court, the question of law would clearly be answered
unfavourably to the aggrieved party, it would be futile to order a new trial.
Where, however, the denial of natural justice affects the entitlement of the party to make submissions on an issue of fact,
especially when the issue is whether the evidence of a particular witness would be accepted, it is more difficult for a court
of appeal to conclude that compliance with the requirements of natural justice could have made no difference.”
32 Was the respondent obliged to provide Mr Moodie with the opportunity to be heard regarding its intention to suspend him
without pay prior to suspension? Under normal circumstances, an employer is obliged to provide procedural fairness to an
employee prior to making any decision which will have an adverse effect upon the employee. However, where it would be
futile to do so, in that it would not alter the decision, then there is no such requirement (Stead v SGIO (op cit)).
33 There is no dispute about the facts surrounding the suspension. The respondent undertook an investigation into allegations of
breaches of discipline by Mr Moodie. The investigation was completed. The respondent provided Mr Moodie with an
opportunity to respond to the investigator’s report. Until this time, Mr Moodie had been relieved of the obligation to perform
work but his salary was maintained. Prior to Mr Moodie responding to the investigator’s report, Mr Moodie was charged with
criminal offences. He sought not to respond until such time as the criminal charges were resolved. As is usual in such cases
where the employee may jeopardise his or her position before a criminal trial by making any statements to the employer the
respondent agreed to the disciplinary process being held in abeyance pending the outcome of the criminal proceedings. In this
case, that meant that the employer, at Mr Moodie’s request, did not require him to respond to the investigation report at that
time and it therefore could not conclude the disciplinary process. Therefore, there is little by way of the facts which
Mr Moodie could have put to the respondent. Accordingly, it would have made no difference to the respondent in its decision
to suspend without pay for Mr Moodie to have been given an opportunity to be heard it would have been futile.
34 As to the merits of the suspension without pay, it should be noted that the role of the Public Service Arbitrator as the
constituent authority of the Commission, according to s 6 of the IR Act and s 26(1)(a) and (c) in particular, is the resolution of
disputes according to equity, good conscience and the substantial merits of the case. It is not an administrative tribunal whose
role is to examine the application of proper process and declare void those decisions which fall short of the appropriate
standard. It is to provide practical and equitable resolutions. In this case, that requires consideration of whether the
respondent’s decision to suspend without pay was fair and equitable even if a proper process was not applied.
35 The respondent made submissions as to the criminal charges. If those submissions were intended, in some way, to suggest that
the probability of Mr Moodie having committed the alleged breaches of discipline or being guilty of the charges is high, and
that this constitutes good reason for not providing him with an opportunity to be heard prior to the decision to suspend being
made, then this is not a relevant consideration. The issue of the suspension without pay does not relate to Mr Moodie’s guilt or
innocence. However, if the submission was that the nature and seriousness of the allegations is a consideration, then this is so.
This factor goes to the appropriateness of continuing to have Mr Moodie undertaking work for the respondent during the time
following his being charged with criminal offences, prior to their resolution.
36 In the circumstances of the nature and seriousness of the allegations, and the seniority of the position held by Mr Moodie and
the nature of that position it was indeed inappropriate for the respondent to provide him with work.
3126
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
87 W.A.I.G.
37 Also, given the lengthy period which was likely to pass before the criminal charges could be resolved, it would be
unreasonable and contrary to the public interest for the respondent to be required to continue to pay Mr Moodie while he was
providing no work. This period of delay was beyond the control of the respondent and the respondent was unable to conclude
its investigation through no fault of its own. This is as a consequence of agreeing to Mr Moodie’s request. It is of no benefit
to the respondent to have such a delay, although it is to Mr Moodie’s benefit.
38 Therefore in the circumstances of:
(a)
the nature and seriousness of the charges;
(b)
the seniority and nature of the position held by Mr Moodie;
(c)
the inappropriateness of the respondent providing him with work;
(d)
the lengthy delay before a trial; and
(e)
placing the disciplinary proceedings in abeyance at Mr Moodie’s request,
the merits of the situation favour the suspension without pay.
39 Taking account of the all the circumstances, I conclude that:
(a)
the respondent had a statutory power to suspend Mr Moodie in his employment;
(b)
the suspension in those circumstances is without pay;
(c)
it would have been futile to have provided Mr Moodie with an opportunity to be heard in respect of the suspension
prior to the decision having been made; and
(d)
alternatively, in the circumstances, there was no unfairness in the suspension without pay.
40 Accordingly the matter will be dismissed.
2007 WAIRC 01272
DISPUTE REGARDING SUSPENSION WITHOUT PAY OF A UNION MEMBER
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
PARTIES
HEALTH SERVICES UNION OF WESTERN AUSTRALIA (UNION OF WORKERS)
APPLICANT
-vDIRECTOR GENERAL OF HEALTH IN RIGHT OF THE MINISTER FOR HEALTH AS THE
METROPOLITAN HEALTH SERVICE, THE SOUTH WEST HEALTH BOARD AND THE WA
COUNTRY HEALTH SERVICE
RESPONDENT
CORAM
PUBLIC SERVICE ARBITRATOR
COMMISSIONER P E SCOTT
DATE
FRIDAY, 30 NOVEMBER 2007
FILE NO
PSACR 28 OF 2006
CITATION NO.
2007 WAIRC 01272
Result
Matter dismissed
Order
HAVING heard Mr T Borgeest (of counsel) on behalf of the applicant and Mr R Andretich (of counsel) on behalf of the respondent,
the Public Service Arbitrator, pursuant to the powers conferred under the Industrial Relations Act 1979, hereby orders:
THAT this matter be, and is hereby dismissed.
[L.S.]
(Sgd.) P E SCOTT,
Commissioner,
Public Service Arbitrator.
87 W.A.I.G.
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
3127
CONFERENCES—Notation of—
Parties
Health Services
Union of Western
Australia (Union of
Workers)
The Civil Service
Association of
Western Australia
Incorporated
The Civil Service
Association of
Western Australia
Incorporated
The Western
Australian Police
Union of Workers
Commissioner
Conference
Number
PSACR
28/2006
Dates
Matter
Result
28/06/2007
Dispute regarding
alleged allegations
made against a
union member
Concluded
PSAC
34/2007
3/10/2007
Dispute re FixedTerm Contract
employment
Concluded
Scott C
PSAC
22/2007
13/08/2007
20/08/2007
Discontinued
Scott C
PSAC
37/2007
9/10/2007
Dispute re delays in
investigating alleged
bullying in the
workplace
Dispute re payment
of allowances.
Director General of
Health in right of
the Minister for
Health as the
Metropolitan Health
Service, the South
West Health Board
and the WA
Country Heal
Director General,
Department of
Health
Scott C
Scott C
The Commssioner,
Department of
Corrective Services
The Commissioner
of Police
Discontinued
PROCEDURAL DIRECTIONS AND ORDERS—
2007 WAIRC 01268
REGARDING THE DECISION TO DISCIPLINE AND REPRIMAND
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
PARTIES
PETER HANS WEYGERS
APPLICANT
-vTHE DEPARTMENT OF EDUCATION AND TRAINING
RESPONDENT
CORAM
COMMISSIONER P E SCOTT
DATE
THURSDAY, 29 NOVEMBER 2007
FILE NO/S
APPL 118 OF 2006
CITATION NO.
2007 WAIRC 01268
Result
Appeal Grounds Amended
Order
HAVING heard Mr I Viner QC (of counsel) on behalf of the applicant and Mr R Andretich (of counsel) on behalf of the
respondent, and by consent, the Commission, pursuant to the powers conferred under the Industrial Relations Act 1979, hereby
orders:
[L.S.]
THAT the appeal grounds be amended in accordance with the Notice of Application attached to the applicant’s letter
dated the 9th day of October 2007.
(Sgd.) P.E. SCOTT,
Commissioner.
3128
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
87 W.A.I.G.
2007 WAIRC 01281
S.47 CANCELLATION OF THE JENNY CRAIG EMPLOYEES AWARD, 1995
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
PARTIES
(COMMISSION'S OWN MOTION)
CORAM
SENIOR COMMISSIONER J H SMITH
COMMISSIONER S WOOD
COMMISSIONER J L HARRISON
DATE
THURSDAY, 6 DECEMBER 2007
FILE NO/S
APPL 50 OF 2007
CITATION NO.
2007 WAIRC 01281
Result
Directions issued
Representation
Mr J Nicholas of counsel on behalf of the Liquor, Hospitality and Miscellaneous Union
Intervener
Mr D Ellis of counsel on behalf of the Trades and Labor Council of Western Australia
Mr D Jones as agent on behalf of Jenny Craig Weight Loss Centres Pty Ltd (Respondent employer)
Order
HAVING HEARD the parties to the award and the Intervener on Wednesday, 5 December 2007, by consent:
NOW THEREFORE, the Commission in Court Session hereby orders:—
THAT the hearing of this matter be adjourned until Tuesday, 5 February 2008 and Wednesday, 6 February 2008.
(Sgd.) J H SMITH,
Commission In Court Session.
[L.S.]
2007 WAIRC 01282
S.47 CANCELLATION OF THE CLERKS' (R.A.C CONTROL ROOM OFFICERS) AWARD OF 1988
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
PARTIES
(COMMISSION'S OWN MOTION)
CORAM
SENIOR COMMISSIONER J H SMITH
COMMISSIONER S WOOD
COMMISSIONER J L HARRISON
DATE
THURSDAY, 6 DECEMBER 2007
FILE NO/S
APPL 51 OF 2007
CITATION NO.
2007 WAIRC 01282
Result
Directions issued
Representation
Mr M Davies on behalf of the Australian Services Union, West Australian Clerical and Services
Branch
Mr D Jones as agent on behalf of the Royal Automobile Club of Western Australia Incorporated
(Respondent employer)
Order
HAVING HEARD the parties to the award and the Intervener on Wednesday, 5 December 2007, by consent:
NOW THEREFORE, the Commission in Court Session hereby orders that:—
1.
The hearing of this matter be adjourned until Tuesday, 5 February 2008 and Wednesday, 6 February 2008;
2.
If the Respondent employer intends to rely upon any further written submissions, it is to file and serve those
submissions by Friday, 18 January 2008; and
87 W.A.I.G.
3.
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
3129
The Australian Services Union, West Australian Clerical and Services Branch is to file and serve any reply by
Friday, 25 January 2008.
(Sgd.) J H SMITH,
Commission In Court Session.
[L.S.]
2007 WAIRC 01283
S.47 CANCELLATION OF THE RAC ROAD, MECHANICAL AND FLEET SERVICES AWARD 1999
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
PARTIES
(COMMISSION'S OWN MOTION)
CORAM
SENIOR COMMISSIONER J H SMITH
COMMISSIONER S WOOD
COMMISSIONER J L HARRISON
DATE
THURSDAY, 6 DECEMBER 2007
FILE NO/S
APPL 52 OF 2007
CITATION NO.
2007 WAIRC 01283
Result
Directions issued
Representation
Ms K Findlay-Grove of counsel on behalf of The Automotive, Food, Metals, Engineering, Printing
and Kindred Industries Union of Workers - Western Australian Branch
Mr D Jones as agent on behalf of the Royal Automobile Club of Western Australia Incorporated
(Respondent employer)
Intervener
Mr D Ellis of counsel on behalf of the Trades and Labor Council of Western Australia
Order
HAVING HEARD the parties to the award and the Intervener on Wednesday, 5 December 2007, by consent:
NOW THEREFORE, the Commission in Court Session hereby orders that:—
1.
The hearing of this matter be adjourned until Tuesday, 5 February 2008 and Wednesday, 6 February 2008;
2.
If the Respondent employer intends to rely upon any further written submissions, it is to file and serve those
submissions by Friday, 18 January 2008; and
3.
The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers - Western
Australian Branch is to file and serve any reply by Friday, 25 January 2008.
(Sgd.) J H SMITH,
Commission In Court Session.
[L.S.]
2007 WAIRC 01284
DISPUTE RE ATTENDANCE TO CODE BLACK INCIDENTS BY UNION MEMBERS
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
PARTIES
MINISTER FOR HEALTH
APPLICANT
-vLIQUOR, HOSPITALITY AND MISCELLANEOUS UNION, WESTERN AUSTRALIAN
BRANCH
RESPONDENT
CORAM
COMMISSIONER P E SCOTT
DATE
FRIDAY, 7 DECEMBER 2007
FILE NO.
C 20 OF 2007
CITATION NO.
2007 WAIRC 01284
3130
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
Result
87 W.A.I.G.
Recommendation Issued
Recommendation
WHEREAS this is an application pursuant to s 44 of the Industrial Relations Act 1979; and
WHEREAS on Thursday the 6th day of December 2007, the Commission convened a conference for the purpose of conciliating
between the parties; and
WHEREAS at the conclusion of the conference the Commission issued recommendations to assist in the resolution of the dispute
between the parties,
NOW THEREFORE the Commission, pursuant to the powers conferred under the Industrial Relations Act 1979, hereby
recommends:
1.
In respect of legal indemnity:
a.
THAT the Respondent put to the Applicant, by close of business Friday 7 December 2007, the questions it
wants answered relating to indemnity of the Health Service Assistants (“HSAs”) at Sir Charles Gairdner
Hospital when participating in Code Black situations; and
b.
THAT the Applicant provide answers to the questions put to it by the Respondent, by close of business
Thursday 20 December 2007.
2.
In respect of the work bans imposed or to be imposed by the Respondent on HSAs not attending Code Black incidents at Sir
Charles Gairdner Hospital on the basis of point 1 above, and given that individual employees retain the right to not
participate in any particular Code Black situation where the employee has good reason to believe his or her safety is at risk,
that the Code Black bans be lifted.
(Sgd.) P.E. SCOTT,
[L.S.]
Commissioner.
INDUSTRIAL AGREEMENTS—Notation of—
Agreement
Name/Number
Advocare
Enterprise
Agreement 2007
AG 60/2007
Date of
Registration
15/11/2007
Hale School NonTeaching Staff
(Enterprise
Bargaining)
Agreement 2007
AG 64/2007
Perth College
(Enterprise
Bargaining)
Agreement 2006
AG 63/2007
UnionsWA
Enterprise
Agreement 2007
AG 62/2007
19/11/2007
13/11/2007
6/12/2007
Parties
Australian Municipal,
Administrative,
Clerical and Services
Union of Employees,
W.A. Clerical and
Administrative
Branch
The Independent
Education Union of
Western Australia,
Union of Employees,
Hale School and
Others
The Independent
Education Union of
Western Australia,
Union of Employees
and Perth College
Australian Municipal,
Administrative,
Clerical and Services
Union of Employees,
W.A. Clerical and
Administrative
Branch
Commissioner
Result
Advocare
Incorporated
Commissioner S
M Mayman
Agreement
registered
(Not applicable)
Commissioner S
Wood
Agreement
registered
(Not applicable)
Commissioner S
Wood
Agreement
registered
Trades and Labor
Council of Western
Australia
Commissioner S
M Mayman
Agreement
registered
87 W.A.I.G.
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
3131
NOTICES—Appointments—
2007 WAIRC 01258
NOTICE OF APPOINTMENT
Pursuant to the powers conferred by sections 93 and 95 of the Industrial Relations Act 1979, I hereby assign the duties of a Deputy
Registrar to:
Susane Sabrina Hutchinson
From and including 19 November 2007.
John Spurling
REGISTRAR
19 November 2007
RECLASSIFICATION APPEALS—Notation of—
File Number
Appellant
Respondent
Commissioner
PSA 9/2007
Terri Scurria
Legal Aid, W.A.
Scott C
PSA 15/2007
Nawdally
Roussety
Legal Aid WA
Scott C
Finalisation
Date
4/12/2007
Decision
Reclassification
Appeal
Withdrawn By
Leave
Appeal
Dismissed
28/11/2007
NOTICES—Union Matters—
2007 WAIRC 01295
NOTICE
FBM 9 of 2007
Notice is given of an application by “The Civil Service Association of Western Australia Incorporated to the Full Bench of the
Western Australian Industrial Relations Commission for the alteration to Rule 6 – Membership, sub rule 6(a)(1).
Existing Rule 6(a)(1)
6 - MEMBERSHIP
(a)
Membership shall be confined to any person who is:
(1)
employed as an officer under and within the meaning of the Public Service Act, 1978-80; or
Proposed Rule 6(a)(1)
The proposed alterations are indicated in bold print and underlined.
“6 - MEMBERSHIP
(a)
Membership shall be confined to any person who is:
(1) employed as an officer under and within the meaning of the Public Sector Management Act 1994 (WA); or”
The matter has been listed before the Full Bench at 10.30am on 25 January 2008 in the President’s Court (Floor 17). A copy of the
Rules of the organisation and the proposed rule alterations may be inspected on the 16th Floor, 111 St Georges Terrace, Perth.
Any organisation/association registered under the Industrial Relations Act 1979, or any person who satisfies the Full Bench that
he/she has a sufficient interest or desires to object to the application may do so by filing a notice of objection (Form 13) in
accordance with the Industrial Relations Commission Regulations 2005.
S BASTIAN
DEPUTY REGISTRAR
10 DECEMBER 2007
3132
WESTERN AUSTRALIAN INDUSTRIAL GAZETTE
87 W.A.I.G.
OCCUPATIONAL SAFETY AND HEALTH ACT—Matters Dealt With—
2007 WAIRC 01297
IN THE WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
SITTING AS
THE OCCUPATIONAL SAFETY AND HEALTH TRIBUNAL
PARTIES
JOEL WILSON;
COREY FLAVELL
APPLICANTS
-vCBI CONSTRUCTORS PTY LTD;
CBI CONSTRUCTORS PTY LTD
RESPONDENT
CORAM
COMMISSIONER S M MAYMAN
DATE
MONDAY, 10 DECEMBER 2007
FILE NO/S
OSHT 4 OF 2007, OSHT 5 OF 2007
CITATION NO.
2007 WAIRC 01297
Result
Application for joinder granted
Representation
Applicants
No appearance
Respondent
No appearance
Order
WHEREAS these matters were referred to the Tribunal pursuant to s 28(2) of the Occupational Safety and Health Act 1984;
AND WHEREAS the applicants in these matters sought in writing to have the referrals joined;
AND WHEREAS the respondent consented to the joining of the referrals;
AND WHEREAS the Tribunal formed the view that the referrals ought be joined;
NOW THEREFORE, I the undersigned, pursuant to the powers conferred on the Tribunal under s 27 of the Industrial Relations Act
1979 hereby order:
THAT referral OSHT 4 of 2007 and referral OSHT 5 of 2007 be joined.
[L.S.]
(Sgd.) S M MAYMAN,
Commissioner.