Citation : UNITED VOICE WA v DIRECTOR GENERAL, DEPARTMENT OF EDUCATION [2013] WAIRC 53 File No : FBA 4 of 2012 2 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 94 W.A.I.G. Catchwords: Industrial Agreement - Interpretation - Alleged contravention of s 83 of the Industrial Relations Act 1979 (WA) - Proper construction of the Industrial Agreement - Special meaning given by the parties to an express term - Implied Terms - Surrounding circumstances known to both parties when the agreement was made - Whether there was a breach of the Industrial Agreement - Whether relevant to consider whether appellant was obliged to follow government policy announced by members of the Executive or comply with statutory direction to comply with the Industrial Agreement Legislation: Industrial Relations Act 1979 (WA), s 83, s 90 Public Sector Management Act 1994 (WA), s 8(2), s 29(1), s 30(d), s 32(1) School Education Act 1999 (WA), s 231 Result: Appeal dismissed Category: A Representation: Counsel: Appellant : Mr D J Matthews Respondent : Mr S A Millman Solicitors: Appellant : State Solicitor for Western Australia Respondent : Slater & Gordon Lawyers Case(s) referred to in judgment(s): Albert House Ltd (in vol liq) v Brisbane City Council [1968] HCA 46; (1968) 118 CLR 144 Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; (1973) 129 CLR 99 BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266 Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 City of Wanneroo v Holmes (1989) 30 IR 362 Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24; (1982) 149 CLR 337 George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 Hodgson v Morella Pastoral Co Pty Ltd (1975) 13 SASR 51 Homestake Australia Ltd v Metana Minerals NL (1991) 11 WAR 435 Kucks v CSR Ltd (1996) 66 IR 182 McCourt v Cranston [2012] WASCA 60 Moneywood Pty Ltd v Salamon Nominees Pty Ltd [2001] HCA 2; (2001) 202 CLR 351 Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451 Roxborough v Rothmans of Pall Mall Australia Ltd [2001] HCA 68; (2001) 208 CLR 516 RW Cameron & Co v L Slutzkin Pty Ltd [1923] HCA 20; (1923) 32 CLR 81 Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd [1979] HCA 51; (1979) 144 CLR 596 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 United Voice WA v Director General, Department of Education [2012] WAIRC 446; (2012) 92 WAIG 1592 United Voice WA v Director General, Department of Education [2013] WAIRC 53 Vince Coles Pty Ltd v Skischufabrik Dynafit (Unreported, NSWCA, 28 October 1985) Western Export Services Inc v Jireh International Pty Ltd [2011] HCA 45; (2011) 86 ALJR 1 White v Australian and New Zealand Theatres Ltd [1943] HCA 6; (1943) 67 CLR 266 94 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 3 1 PULLIN J: This is an appeal by the appellant (Director General) from a decision of the Full Bench of the Western Australian Industrial Relations Commission, which upheld an appeal by the respondent (Union) against a decision of an industrial magistrate. Background 2 The Director General is the CEO of the Department of Education (Department). On 4 August 2010, the Western Australian Industrial Relations Commission registered an industrial agreement known as the Education Assistants' (Government) General Agreement 2010 (Agreement), which was entered into by the Director General and the Union. It contained provisions relating to conditions of employment of employees who were education assistants as defined in the Agreement. Clause 10 of the Agreement read: 10.1 The employer consistent with its policy, Staff Induction, will ensure all new employees and redeployees attend induction sessions within three months of commencement of employment. 10.2 The Department of Education and Training will develop a specific induction package for Education Assistants. 10.3 Each district office is responsible for conducting inductions which are to be held twice each term during term time for new employees. The Employer will notify the Union if there are no new employees requiring induction and the required second induction in the term will not be necessary. 10.4 The Union will be given at least 14 days notice of the time and place of the inductions and the names of those attending. The Union is entitled to at least thirty minutes to address new employees without Employer representatives being present. The Union will meet the costs associated with its attendance at such sessions. 10.5 Every effort will be made to induct new employees in remote locations. Inductions may be part of professional development days or other days dedicated to staff training or development. Where car travel is greater than two hours, consideration may be given to an on-line induction to be available for new employees. 3 The Agreement was enforceable under s 83 of the Industrial Relations Act 1979 (WA) (IR Act), and on 18 August 2011, the Union filed an originating claim in the Industrial Magistrates Court alleging that the Director General had contravened the Agreement. The Union claimed a penalty pursuant to s 83(4)(a)(ii) of the IR Act. 4 Particulars of the claim allege various contraventions, but relevantly allege a breach of cl 10.3 of the Agreement by 'failing to provide induction sessions to new employees and redeployees within three months of commencement … [and] by removing the responsibility for conducting inductions from the district offices and reallocating the responsibility to the line manager or principal of individual schools'. 5 The Director General denied any breach of cl 10.3 of the Agreement, but admitted other contraventions. The allegations came on for hearing before an industrial magistrate. The hearing before the industrial magistrate 6 As to the alleged contravention of cl 10.3 of the Agreement, the industrial magistrate said in his reasons in United Voice WA v Director General, Department of Education [2012] WAIRC 446; (2012) 92 WAIG 1592 that, 'as a result of a government initiative which restructured the Education Department, district offices were abolished on 7 September 2010' [25], and that 'eight regional offices and seven local education offices … replaced the 14 district offices' [22]. The industrial magistrate referred to evidence of Ms Collins, who was a Regional Executive Director for a region, that 'the role of Regional Executive Directors and that performed [by] regional offices is significantly different to that of the now defunct district offices'. The industrial magistrate accepted that 'regional offices are not structured to provide hands-on support. It is not their role to conduct inductions. That responsibility is devolved to schools in line with the policy underlying the restructure' [26]. 7 The industrial magistrate held that the obligation to induct education assistants 'is and has always been, the responsibility of the Director General of the Department of Education'; that 'upon district offices being abolished, the immediate responsibility for conducting inductions reverted to the Director General [and] [s]he resumed that immediate responsibility when it became impossible for inductions to be done by district offices'; and that 'in line with the policy underlying the restructure, she delegated that responsibility to schools' [28]. 8 The industrial magistrate found that the Director General could not be in breach of cl 10.3 of the Agreement because district offices had been abolished and 'there was no agreement that district offices would exist for the life of the 2010 agreement'; that cl 10.3 was incapable of enforcement; that the clause was no more than a 'mechanical provision relating to delegation of responsibility to district offices'; and that 'upon the abolishment of district offices that mechanism became redundant' [33]. 9 The industrial magistrate said that, in any event, even if it could be said that there had been a breach of cl 10.3 of the Agreement, the common law defence of impossibility enabled exculpation of the Director General because the impossibility of complying with cl 10.3 arose from the implementation of government policy which the Director General was 'statutorily obliged' to follow [34]. The allegation that there was a contravention of cl 10.3 of the Agreement was therefore dismissed. 10 Contraventions not relevant to this appeal were admitted. The Union appealed against the part of the decision dismissing the complaint of contravention of s 83 of the IR Act based on the alleged breach of cl 10.3 of the Agreement. 4 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 94 W.A.I.G. The appeal before the Full Bench 11 The Full Bench upheld the appeal by a majority (Smith AP and Beech CC) with Kenner C dissenting: see United Voice WA v Director General, Department of Education [2013] WAIRC 53. The majority referred to the 'abolition' [54] of district offices by the 'executive of the Western Australian Government' [5], and counsel for the Director General on this appeal referred to the abolition as a result of action by the 'government'. 12 To show how this occurred, counsel for the Director General referred this court to a document which had been tendered as an exhibit in the Industrial Magistrates Court. It consisted of an announcement signed by the Premier of Western Australia, the Hon Colin Barnett MLA and the Minister for Education (at that time), Dr Elizabeth Constable MLA, dated September 2010. The announcement read: School support services currently operating from district education offices will move to schools, giving principals and staff a greater say in how these services are delivered and used. The professionalism of school staff will ensure the services available to schools are used to maximise support, opportunities and benefits to students and staff. 13 Elsewhere in the announcement, it was said that the 'Government' was going to create 75 'school networks' in 'eight education regions across the State', and that 'up to 75 school networks, eight regional education offices and seven local education offices will replace the 14 existing district education offices'. The statement also revealed that the regional and local education offices would be located where there were currently district offices and that 'a significant proportion of current district staff will relocate to schools or networks'. It was submitted that the implementation of this new government policy meant that it was no longer possible for the Director General to comply with cl 10.3 of the Agreement and that, in consequence, there could be no breach of cl 10.3. 14 The majority of the Full Bench held that, on the basis that the district offices were abolished, it was no longer possible to conduct inductions at district offices, but that the words 'district office' in cl 10 could be read to include not only the district offices that were in existence at the time the Agreement was made, but also 'education offices located in districts' [69]. They further held that '[r]egional structural bodies that came into existence after the district education offices were abolished, that could be resourced in a way that were capable of being responsible for inductions and at the same time complied with the requirements of the education networks and regions policy, are education offices located in districts' [69]. 15 Kenner C, in dissent, held that the district office referred to in cl 10.3 was 'that specific part of the [D]epartment's organisational structure in existence at the time of making of the Agreement, and which was abolished following the announcement of the change in government policy in September 2010' [98]. 16 As a result of the majority decision, the part of the decision the subject of the appeal was quashed and the matter was remitted to the Industrial Magistrates Court for further hearing and determination according to law. This meant that the industrial magistrate would have to consider the issue of whether there had been a contravention or contraventions of the Agreement based on the Full Bench's interpretation of cl 10.3. The appeal to this court 17 The Director General appealed on the ground that: The Full Bench erred in the interpretation of clause 10.3 … by interpreting the term 'district office' to mean 'education offices located in districts' and not to mean the entity within the Department of Education abolished in September 2010. Disposition 18 The Agreement has to be construed to determine what the intention of the parties was at the time the Agreement was entered into. This has to be determined by ascertaining what a reasonable person would have understood the words of the Agreement to mean taking into account the text, the surrounding circumstances known to the parties and the purpose and object of the transaction: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 [40]; Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451 [22]. 19 Surrounding circumstances may only be taken into account if the ordinary meaning of the words used by the parties is ambiguous or susceptible of more than one meaning: Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337, 352; McCourt v Cranston [2012] WASCA 60 [23]. 20 The phrase 'district office' is ambiguous if considered alone, but it would be wrong to concentrate only on that phrase. The phrase has to be construed in the context of the Agreement read as a whole: Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; (1973) 129 CLR 99, 109. Even then, however, the phrase is ambiguous. 21 There is no doubt that when the Agreement was entered into there existed buildings known as district offices or district education offices which were staffed by employees of the Department who had the qualifications to conduct induction sessions as contemplated by the Agreement. Both parties knew of the existence of these offices and the fact that staff with qualifications to conduct inductions were located at these offices. 22 Allowing for the fact that industrial agreements are not always framed with that careful attention to form and draftsmanship which one expects to find in an Act of Parliament (see George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498, 503), it is clear by reading the whole of cl 10 that the parties intended that the Director General would be obliged to ensure that all new employees and redeployees would attend induction sessions (cl 10.1) and that the Department, of which the Director General was CEO, would develop an induction 'package' for education assistants 94 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 5 (cl 10.2). Clause 10.3 of the Agreement should be interpreted as providing that the induction package developed by departmental officers would be presented to new employees and redeployees at places then described as district offices by employees of the Department who were qualified to carry out the induction. A building cannot be 'responsible' for inductions. Neither party contended otherwise on this appeal. Thus 'district offices' meant the places which at the time the Agreement was entered into, were called district offices or district education offices and which were staffed by persons with the qualifications to carry out inductions. The Director General was obliged to ensure that such persons would carry out the inductions at those places. 23 The fact that the Premier and the Minister for Education made an announcement about future policy and the fact that the Director General was inclined to implement that policy bedevilled the proceedings both before the industrial magistrate and the Full Bench. The announcement by the Premier and the Minister occurred after the Agreement was entered into. It could have no bearing on the proper construction of the Agreement which has to be determined by reference to what was intended by the parties when they entered into the Agreement. 24 Further, the announcement by the Premier and the Minister had nothing to do with the issue of contravention. As the Agreement involved a promise by the Director General to carry out inductions at district offices using employees of the Department qualified to carry out the inductions then, as will be seen below, the adoption of a different policy by the Executive might explain why there was a breach of the Agreement, but the reasons why the Director General did not comply with the Agreement were irrelevant. 25 As to the first issue, which related to the interpretation of cl 10.3, the majority erred when it said that the construction of the words 'district office' in cl 10: can be read to include not only the district education offices by that name that were in existence at the time the 2010 agreement was made, but to include education offices located in districts. Regional structural bodies that came into existence after the district education offices were abolished, that could be resourced in a way that [they] were capable of being responsible for inductions and at the same time complied with the requirements of the education networks and regions policy, are education offices located in districts [69]. 26 That reveals error because the majority takes into account events subsequent to the Agreement, ie, the abolition of district offices and the creation of regional offices, and then construes the Agreement by reference to those events. The ground of appeal should be upheld. No miscarriage 27 It does not follow that the order of the Full Bench should be set aside. Section 90(3a) of the IR Act provides that if any ground of appeal is made out but the court is satisfied that no injustice has been suffered by the appellant, the court shall confirm the decision the subject of appeal unless it considers there is good reason not to do so. 28 No injustice will be suffered if the Full Bench decision is not reversed and there is no good reason why that should not be the result of this appeal for the following reasons. 29 Section 30(d) of the Public Sector Management Act 1994 (WA) (PSM Act) states that in performing functions of a chief executive officer of a department, the chief executive officer shall 'comply with any binding … industrial agreement under the Industrial Relations Act 1979'. There was no dispute that the Director General was the chief executive officer of the Department. 30 The chief executive officer of a department is appointed under s 45 of the PSM Act. Section 29(1) of the PSM Act states that the function of a CEO relating to his or her department or organisation is, inter alia, to manage that department or organisation. Further under that Act, the Director General is not only the CEO of the department but the 'employing authority' (see section 5(1) of the PSM Act). The 'employing authority' under s 36(1) of the PSM Act has the power to determine organisational structures and arrangements and to create, transfer or abolish offices. 31 It is true that under s 32 of the PSM Act the CEO must comply with any 'lawful directions or instructions' given to him or her from time to time by a 'responsible authority' (defined in s 3 of the PSM Act to be the Minister in the absence of a board, committee or other body administering the department or organisation) and that under s 231 of the School Education Act 1999 (WA) (SE Act), the Minister may give directions to the CEO in writing in relation to functions under the SE Act. However, counsel for the Director General conceded that there was no evidence of ministerial directions under either s 32 of the PSM Act or s 231 of the SE Act. In any event, the Minister could not have given a direction to ignore the statutory requirement to comply with industrial agreements. 32 The provisions set out above make it clear that it is the Director General who is the person with the authority to organise the Department, devise organisational structures and to create, transfer or abolish offices. It was therefore the Director General who could do any of those things and while it may well be, as counsel for the Director General said, that the Director General would normally follow government policy, government policy cannot override the instruction in s 30(d) of the PSM Act to comply with industrial agreements. 33 It was therefore no answer to a complaint about contravention to say that the 'government' had adopted a policy which made it impossible to comply with cl 10.3 of the Agreement. Clause 10.3 of the Agreement was a promise by the Director General to ensure that inductions were conducted twice yearly at district offices by properly qualified staff. There was a statutory obligation to comply with that promise and the Director General's functions authorised her to organise staff so that suitably qualified staff could continue to conduct inductions at district offices. The change of name of the buildings from district office to regional office or local office was of no consequence. The Director General contravened the Agreement if she failed to comply with the promise in cl 10.3. 6 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 94 W.A.I.G. 34 For those reasons, there will be no miscarriage of justice if the orders of the Full Bench remain in force and the matter returns to the industrial magistrate. It may be that in the light of these reasons that the parties agree that there has been a contravention because of a failure to comply with cl 10.3 of the Agreement. However, if that is not agreed then the Full Bench order that the case now been determined 'according to law' will leave it to the industrial magistrate to determine the issue of contravention and if contravention is found, to determine the appropriate penalty for contravention. 35 The original application for contravention sought an order that there be future compliance with the Agreement. That is now no longer a matter which would come under consideration because the Agreement has come to an end and been replaced with a different agreement. 36 The appeal should be dismissed. 37 BUSS J: This is an appeal by the Director General, Department of Education (Director General), pursuant to s 90 of the Industrial Relations Act 1979 (WA) (IR Act), from a decision of the Full Bench of the Western Australian Industrial Relations Commission. 38 The respondent to this appeal, United Voice WA (United Voice), appealed to the Full Bench from a decision of the Western Australian Industrial Magistrates Court constituted by Magistrate Cicchini. 39 The decision in question was the magistrate's finding that the Director General had not contravened or failed to comply with a provision of an 'industrial agreement' (as defined in s 7(1) of the IR Act), namely cl 10.3 of the Education Assistants' (Government) General Agreement 2010 (the 2010 Agreement). 40 The Full Bench, by a majority (Smith AP & Beech CC; Kenner C dissenting), allowed United Voice's appeal. 41 The majority of the Full Bench held, relevantly, that the magistrate had made material errors of law in construing cl 10.3 of the 2010 Agreement. They quashed the magistrate's decision and remitted the matter to the Industrial Magistrates Court for further hearing and determination according to law. The background facts and circumstances including the reasons of the magistrate and the Full Bench 42 The background facts and circumstances, including the reasons of the magistrate and the Full Bench, are summarised in the reasons of Pullin J, with whom Le Miere J has expressed his agreement. 43 I will not repeat the background facts and circumstances, except to the extent necessary to explain my reasons. The parties to the 2010 Agreement 44 The parties to the 2010 Agreement are the Director General and United Voice. 45 The Director General is the chief executive officer of the Department of Education (Department). 46 United Voice is an organisation of employees registered under div 4 of pt II of the IR Act. The functions and ancillary powers and duties of the Director General 47 By s 29(1) of the Public Sector Management Act 1994 (WA) (PSM Act), subject to the Act and to any other written law relating to his or her department, the functions of a chief executive officer are to manage that department, and in particular, relevantly: (d) to ensure the appropriate deployment and redeployment of resources within that department … ; (e) to ensure the proper organisation of that department … , including the devising of organisational structures and arrangements; (f) to ensure the appropriate division of responsibilities between, and the assignment of functions to, the employees employed in that department … ; (g) to manage and direct employees employed in that department … and, without limiting the generality of this paragraph, to be responsible for the recruitment, selection, appointment and deployment of those employees. 48 Section 30(d) of the PSM Act provides that, in performing the functions of a chief executive officer of a department, that chief executive officer shall comply with, relevantly, any industrial agreement under the IR Act. 49 By s 32(1) of the PSM Act, in performing his or her functions, a chief executive officer shall, subject to: (a) s 8(2); (b) any public sector standard or code of ethics; and (c) any other written law relating to his or her department, comply with any lawful directions or instructions given to him or her from time to time by the 'responsible authority' of his or her department. 50 The term 'responsible authority', in relation to a department, is defined in s 3(1) of the PSM Act to mean, relevantly, the Minister of the Crown responsible for the department. 51 Section 8(2) of the PSM Act provides: In matters relating to - (a) the selection, appointment, transfer, secondment, classification, remuneration, redeployment, redundancy or termination of employment of an individual employee; or (b) the classification of a particular office, post or position, 94 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 7 in its department or organisation, an employing authority [which is defined in s 5 to include a chief executive officer] is not subject to any direction given, whether under any written law or otherwise, by the Minister of the Crown responsible for the department or organisation, but shall, subject to this Act, act independently. 52 By s 231 of the School Education Act 1999 (WA), the Minister may give directions in writing of a general nature to the chief executive officer of the Department with respect to the performance of the chief executive officer's functions under the Act, but the Minister cannot give a direction in relation to a particular person. 53 In the present case, there was no evidence that the Minister had given the Director General a relevant direction or instruction under s 32(1) of the PSM Act or s 231 of the School Education Act. The registration of the 2010 Agreement and s 83 of the IR Act 54 On 11 January 2010, the 2010 Agreement was filed in the Western Australian Industrial Relations Commission. 55 On 4 August 2010, the Commission registered the 2010 Agreement under the IR Act as an industrial agreement. 56 The 2010 Agreement includes provisions relating to persons employed within the Department as 'Education Assistants', as defined in cl 3.1 of the agreement. 57 Section 83(1) read with s 83(2) of the IR Act provides, relevantly, that where a person contravenes or fails to comply with a provision of an industrial agreement, any organisation or association named as a party to the industrial agreement may apply to an industrial magistrates court for the enforcement of the provision. 58 By s 83(4), on the hearing of an application under s 83(1), the industrial magistrates court may, by order, if the contravention or failure to comply is proved, issue a caution or impose such penalty as the court thinks just, but not exceeding $2,000 in the case of, relevantly, an employer. Clause 10 of the 2010 Agreement 59 Clause 10 of the 2010 Agreement provides: 10.1 The employer [that is, the Director General] consistent with its policy, Staff Induction, will ensure all new employees and redeployees attend induction sessions within three months of commencement of employment. 10.2 The Department of Education and Training will develop a specific induction package for Education Assistants. 10.3 Each district office is responsible for conducting inductions which are to be held twice each term during term time for new employees. The Employer will notify the Union if there are no new employees requiring induction and the required second induction in the term will not be necessary. 10.4 The Union will be given at least 14 days notice of the time and place of the inductions and the names of those attending. The Union is entitled to at least thirty minutes to address new employees without Employer representatives being present. The Union will meet the costs associated with its attendance at such sessions. 10.5 Every effort will be made to induct new employees in remote locations. Inductions may be part of professional development days or other days dedicated to staff training or development. Where car travel is greater than two hours, consideration may be given to an on-line induction to be available for new employees. The relevant issue in the Magistrates Court 60 United Voice alleged before the magistrate that the Director General had contravened or failed to comply with, amongst other provisions, cl 10.3 of the 2010 Agreement. 61 United Voice's particulars asserted that the Director General had contravened cl 10.3 by 'failing to provide induction sessions to new employees and redeployees within three months of commencement' and by 'removing the responsibility for conducting inductions from the district offices and reallocating the responsibility to the line manager or principal of individual schools'. 62 United Voice claimed a penalty for the contravention pursuant to s 83(4) of the IR Act. Facts not in dispute between the parties or established by evidence in the Magistrates Court 63 A number of facts were not in dispute between the parties or were established by evidence in the Magistrates Court. 64 At all material times before September 2010, there was an entity within the Department's internal organisational structure formally called a 'district education office', but more commonly referred to as a 'district office'. 65 At all material times before September 2010, the Department's internal organisational structure included, relevantly, a central head office, 14 district offices and individual schools. 66 Each district office was located within a specific geographic area of the State and had particular functions in relation to the schools located within its area. Each district office had buildings and facilities, and employees of the Department were located and carried out their work in those buildings and used those facilities. 8 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 94 W.A.I.G. 67 At all material times before September 2010, the inductions referred to in cl 10 of the 2010 Agreement were held at district offices twice each term. In each district office new education assistants, who had been appointed to schools within the geographic area serviced by that district office, were inducted. The inductions at each district office were conducted by employees of the Department whose ordinary place of work was at the buildings of that office. 68 Clause 10.3 conferred an important benefit on United Voice in that it enabled representatives of United Voice to address the new education assistants at a central location, rather than at the individual schools where the new education assistants worked, on the desirability and advantages of their becoming members of United Voice. See cl 10.3 read with cl 10.4. 69 In September 2010 the Executive Government of Western Australia announced the abolition of district offices. The Government created eight 'education regions'. Each region related to a specified geographic area within the State and had a 'regional education office'. In addition to the regional education offices, the Government announced the creation of seven 'local education offices'. The Government decided that, as from September 2010, there would be a regional education office or a local education office located in the buildings in which each district office had previously been located. 70 Although, as from September 2010, regional education offices or local education offices have occupied the buildings previously occupied by the district offices, the new offices have roles and resources different from the district offices. Other facts not in dispute 71 Before this court, other facts were not in dispute, as follows: (a) At all material times before September 2010, three Department employees at each district office were responsible for conducting inductions at that district office. (b) At all material times before September 2010, there were usually about 20 to 25 new education assistants at each induction. (c) Clause 10 of the 2010 Agreement replicated in substance a clause in the Education Assistants' (Government) General Agreement 2007 between the Director General and United Voice. The arrangements in 2010 in relation to inducting new education assistants at district offices, and the nature and function of district offices, also existed in 2007, 2008 and 2009. (d) The duration of an induction was to be measured in hours, not days. (e) Since September 2010, the employees of the Department, who had previously been responsible for inducting new education assistants at district offices, were redeployed to the central head office or individual schools or elsewhere within the Department's internal organisational structure, pursuant to the reorganisation announced by the Government in September 2010. (f) Since September 2010, new education assistants have been inducted at individual schools. (g) At all material times, the Director General had the power to instruct Department employees to conduct inductions for new education assistants at the buildings previously occupied by the district offices. The reasoning and conclusion of the magistrate 72 The reasoning and conclusion of the magistrate were, relevantly, as follows: Clause 10.3 does not require the continued existence of district offices. Once those offices were abolished, it rendered the first part of the first sentence in Clause 10.3 otiose. It was impossible for district offices to have responsibility for inductions when they did not exist. The [Director General] cannot be, and is not, in breach of Clause 10.3 because district offices have been abolished. There was no agreement that district offices would exist for the life of the 2010 Agreement. Clause 10.3 is incapable of enforcement. It is no more than a mechanical provision relating to delegation of responsibility to district offices. Upon the abolishment [sic] of district offices that mechanism became redundant. In any event, even if it could be said that there has been a breach of Clause 10.3, the common law defence of impossibility enables exculpation of the [Director General]. It suffices to say that the impossibility of complying with Clause 10.3 arose from the implementation of government policy which the [Director General] was statutorily obliged [to] follow. The alleged breach of Clause 10.3 of the 2010 Agreement, as asserted in paragraph 3.6(b) of the Statement of Claim is not made out [33] - [35]. The reasoning and conclusion of the majority of the Full Bench 73 The reasoning and conclusion of the majority of the Full Bench were, relevantly, as follows: When the express right to organise is considered, together with the requirement that subject to new employees and redeployees being recruited inductions are to be held twice a term, it can be presumed that the intention of the parties when the 2010 agreement was made was that inductions would be arranged on a district by district basis. There is no dispute about this conclusion, as it was commonly understood by the parties that the district education offices would be responsible for and did in fact make arrangements for inductions to be conducted on a regional basis. We use the word 'regional' in the sense of geographical areas in which public schools are located. Within each designated geographical area each school was provided with services from a district education office. 94 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 9 The duties, rights and obligations created in cl 10 must be considered together in a way that each is intended to give effect to goals in a harmonious way, together with the following matters, which lead to a conclusion that the words 'district office' in cl 10.3 can be read to include regional and local offices. These matters are: (a) the statutory obligation on both parties to comply with the express terms of the 2010 agreement; (b) the obligation on the [Director General] to comply with policies made by the executive of the state which is expressly recognised by the parties in cl 50.1; and (c) the fact that change in the organisation of the delivery of education services is expressly recognised in cl 42 and cl 49. When all these matters are considered the construction of the words of 'district office' in cl 10 can be read to include not only the district education offices by that name that were in existence at the time the 2010 agreement was made, but to include education offices located in districts. Regional structural bodies that came into existence after the district education offices were abolished, that could be resourced in a way that were capable of being responsible for inductions and at the same time complied with the requirements of the education networks and regions policy, are education offices located in districts. … In our opinion, the learned Industrial Magistrate erred in finding that it is the responsibility of the [Director General] to induct education assistants. The [Director General] is obliged by the 2010 agreement to ensure that each district office is responsible for conducting inductions for education assistants. We also do not agree that upon the abolition of district education offices the immediate responsibility for conducting inductions reverted to the [Director General]. In our opinion, upon the abolition of district education offices, the [Director General] was required (if possible) to put in place arrangements so that education offices in regions could be responsible for inductions in accordance with cl 10.3. The evidence shows this was possible [67] - [69], [75]. The reasoning and conclusion of the minority of the Full Bench 74 The reasoning and conclusion of Kenner C, who dissented, were, relevantly, as follows: In my view, based on the language used in cl 10.3, construed consistently with the tenor of cl 10 and the rest of the Agreement as a whole, it is reasonably plain that the district office referred to in cl 10.3 was that specific part of the Department's organisational structure in existence at the time of the making of the Agreement, and which was abolished following the announcement of the change in government policy in September 2010. The fact of the existence of some 14 district offices, for some years, as a part of the Department's organisational structure seemed well accepted and known to the parties … It also seemed beyond contention that for many years, the district offices had been responsible for the conduct of inductions of Education Assistants. … It is not the case in my view, even allowing for the most generous approach to the construction of cl 10.3, that the subclause can be read reasonably as substituting for 'district office' the words or words to the effect 'regional subdivisions of the Education Department, located in the organisational structure between the central department office and schools'. To so hold leads to an impermissible redrafting of the subclause, not supported by the plain text or context of cl 10.3 within the Agreement as a whole. … The defence of impossibility applies in this case. It is difficult to see how the Director General can be held culpable for action she was required to take to implement Government policy. It was the implementation of this policy that led to the abolition of the district offices … It was impossible for the district offices to be responsible for inductions at the material time, because such known and recognised entities no longer existed after the policy was put into effect [98], [100], [119]. The appellate jurisdiction of this court 75 Section 90(1)(b) of the IR Act provides, relevantly, that an appeal lies to this court from any decision of the Full Bench on the ground that the decision is erroneous in law in that there has been an error in the construction or interpretation of any industrial agreement in the course of making the decision appealed against. 76 By s 90(3a) of the IR Act, if any ground of an appeal is made out but this court is satisfied that no injustice has been suffered by the appellant or a person who is a member of or represented by the appellant, this court must confirm the decision the subject of appeal unless it considers that there is good reason not to do so. The ground of appeal before this court 77 The sole ground of appeal relied on by the Director General before this court reads: The Full Bench erred in the interpretation of cl 10.3 … by interpreting the term 'district office' to mean 'education offices located in districts' and not to mean the entity within the Department … abolished in September 2010. 10 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 94 W.A.I.G. 78 The ground of appeal, as developed at the hearing, raises for determination the proper construction of cl 10 (in particular, cl 10.3) of the 2010 Agreement. The Director General's submissions 79 The Director General asserted that the entity referred to in cl 10.3 as a 'district office' was abolished by the Executive Government in September 2010. 80 The Director General maintained that after September 2010, through no fault of her own, she could no longer ensure that 'each district office was responsible for conducting inductions' within cl 10.3 and, in consequence, she did not contravene that provision by her failure to ensure that district offices were responsible for conducting inductions of new education assistants. The proper approach to the construction of an industrial agreement 81 The construction of an industrial agreement involves ascertaining what a reasonable person would have understood the parties to the agreement to mean. The language of the agreement should be understood in the light of its industrial context and purpose. See Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 [2] (Gleeson CJ & McHugh J). 82 In Kucks v CSR Ltd (1996) 66 IR 182, Madgwick J observed: It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand (184). (emphasis added) See also City of Wanneroo v Holmes (1989) 30 IR 362, 378 - 379 (French J); Amcor [96] (Kirby J), [129] - [130] (Callinan J). 83 The words of a clause in a written agreement are to be given the most appropriate meaning which they can legitimately bear. A court must have regard to all of the provisions of the agreement with a view to achieving harmony among them. See Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; (1973) 129 CLR 99, 109 - 110 (Gibbs J). These propositions are applicable to instruments generally, subject to any particular rules of construction which have been developed in relation to a particular kind of provision or instrument. 84 In the present case, it was not suggested by either of the parties that, in construing the express terms of the 2010 Agreement, consideration should be given to the surrounding circumstances, known to the parties, when the agreement was made. It is therefore unnecessary to analyse the emphatic observations of Gummow, Heydon and Bell JJ in Western Export Services Inc v Jireh International Pty Ltd [2011] HCA 45; (2011) 86 ALJR 1 [2] - [5]. The admissibility of evidence to show that a particular word or phrase bears a special trade or locality meaning 85 It is well-established that where a word in a written agreement has a special trade or locality meaning among a particular class of people, evidence is admissible to establish that the parties intended the word to have that meaning. 86 In Hodgson v Morella Pastoral Co Pty Ltd (1975) 13 SASR 51, Bray CJ said: Normally, of course, all the words in a written contract are to be construed according to their natural and ordinary sense, but evidence is admissible to show that any particular word or phrase bears a peculiar meaning in a particular locality or according to the practice of a particular trade or business, and when that is done then prima facie the word or phrase bears that peculiar meaning (53). 87 In Vince Coles Pty Ltd v Skischufabrik Dynafit (Unreported, NSWCA, 28 October 1985), McHugh JA (Hope JA agreeing) expounded on this principle as follows: When evidence is admitted to prove that words in an agreement have a special trade or locality meaning, it is because their use in an agreement made in that locality, or with reference to a matter in that trade, raises a presumption that the parties have contracted in accordance with that special meaning: Smith v Wilson (1832) 3 B & Ad 728 at 732; Lewis v Marshall (1844) 7 M & G 729 at 744; Kirchner v Venus (1859) 12 Moo PC 361 at 399; Myers v Sarl (1860) 3 El & E1 306 at 319; Appleby v Pursell [1973] 2 NSWLR 879 at 889. The presumption arises from the parties' knowledge, or the notoriety, of that meaning in the locality or trade; Smith v Wilson at 733; Myers v Sarl at 315-16. The presumption is one of fact, not of law, and may be rebutted: Clayton v Gregson (1836) 5 A & E 302. The terms of the agreement may show that the parties did not intend to contract in accordance with the special meaning: Humfrey v Dale (1858) 7 E & B 266 at 274; Myers v Sarl at 320-21. Proof that one or both parties were ignorant of the special meaning of the words in the trade or locality will rebut the presumption: Kirchner v Venus; Sutton v Tatham (1839) 10 Ad & E 27. Moreover, unless the meaning is both certain and notorious, no presumption arises (5). See also Homestake Australia Ltd v Metana Minerals NL (1991) 11 WAR 435, 447 (Ipp J). 94 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 11 The admissibility of evidence to identify the subject matter of a written agreement 88 The subject matter of a written agreement may be identified by extrinsic evidence if the description of the subject matter in the agreement is uncertain or ambiguous. See RW Cameron & Co v L Slutzkin Pty Ltd [1923] HCA 20; (1923) 32 CLR 81, 90 - 93 (Isaacs J); White v Australian and New Zealand Theatres Ltd [1943] HCA 6; (1943) 67 CLR 266, 270 - 271 (Latham CJ). The admissibility of evidence of the surrounding circumstances, known to the parties, when a written agreement was made, where a term is sought to be implied in fact to give business efficacy to the agreement 89 In BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266, a majority of the Privy Council specified the conditions necessary to ground the implication in fact of a contractual term: Their Lordships do not think it necessary to review exhaustively the authorities on the implication of a term in a contract which the parties have not thought fit to express. In their view, for a term to be implied, the following conditions (which may overlap) must be satisfied: (1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) it must be so obvious that 'it goes without saying'; (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract (282- 283). See also Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd [1979] HCA 51; (1979) 144 CLR 596, 605 - 606 (Mason J, Barwick CJ, Gibbs, Stephen & Aickin JJ agreeing); Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24; (1982) 149 CLR 337, 347, 351 - 352 (Mason J, Stephen & Wilson JJ agreeing), 404 (Brennan J). 90 Where a term is sought to be implied in fact to give business efficacy to a written agreement, the term will not be implied unless the conditions stipulated in BP Refinery, and approved in Secured Income and Codelfa, are satisfied. These conditions will often overlap. 91 A court, in deciding whether the conditions for the implication in fact of a term are satisfied, may take into account the form of the agreement, its express terms and the surrounding circumstances, known to the parties, when the agreement was made. Surrounding circumstances are to be distinguished from any antecedent negotiations and the actual intentions, aspirations or expectations of the parties. 92 In Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410, McHugh and Gummow JJ said: [A]s indicated above, terms implied by the application of what one might call the business efficacy test are terms unique to the particular contract in question, depending upon the form of the contract, the express terms and the surrounding circumstances (448). (emphasis added) See also Albert House Ltd (in vol liq) v Brisbane City Council [1968] HCA 46; (1968) 118 CLR 144, 148 - 149 (Kitto J); Roxborough v Rothmans of Pall Mall Australia Ltd [2001] HCA 68; (2001) 208 CLR 516 [55] (Gummow J); Moneywood Pty Ltd v Salamon Nominees Pty Ltd [2001] HCA 2; (2001) 202 CLR 351 [80] (Gummow J). 93 In Secured Income, Mason J distinguished between evidence of surrounding circumstances, on the one hand, and the antecedent oral negotiations and expectations of the parties, on the other, as follows: In truth the evidence is not evidence of surrounding circumstances; it is evidence of the antecedent oral negotiations and expectations of the parties and as such it cannot be used for the purpose of construing the words of a written contract intended by the parties to comprehensively record the terms of the agreement which they have made. As Lord Wilberforce said in Prenn v Simmonds ([1971] 1 WLR 1381, at p 1385; [1971] 3 All ER 237, at p 240): … evidence of negotiations, or of the parties’ intentions … ought not to be received, and evidence should be restricted to evidence of the factual background known to the parties at or before the date of the contact, including evidence of the ‘genesis’ and objectively the ‘aim’ of the transaction. As to the circumstances, and the object of the parties, there is no controversy in the present case. The agreement itself, on its face, almost supplies enough, without the necessity to supplement it by outside evidence. The comment by his Lordship in the last paragraph which I have quoted has equal application to the present case where the provisions of the contract itself so amply demonstrate that the purpose of the parties was to provide against the possibility that the respondent's investment return on the purchase price was less than the figure stipulated (606). See also Codelfa (351 - 352). 94 In Codelfa, Mason J did not, on my understanding of his Honour's reasons, state that the surrounding circumstances, known to the parties, when the agreement was made, may not be taken into account in deciding whether the conditions for the implication in fact of a term are satisfied. See, in particular, his Honour's reasons at 352 - 354. 95 It is significant that a term will not be implied in fact if it is inconsistent with any express term of the agreement. The relevance of surrounding circumstances, where a term is sought to be implied in fact, does not undermine the 'true rule' enunciated by Mason J in Codelfa as to the admission of evidence of surrounding circumstances as an aid in the interpretation of 'the language' of a contract (352). 12 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 94 W.A.I.G. 96 The strictures of Gummow, Heydon and Bell JJ in Western Export Services about resort to surrounding circumstances were made in the context of the construction of an express term of a written agreement. Their Honours' remarks were not directed to the implication in fact of a term. The merits of the Director General's ground of appeal 97 The Director General and United Voice were agreed, before the magistrate, the Full Bench and this court, that the term 'district office', in cl 10 of the 2010 Agreement, did not bear its natural and ordinary meaning. Evidence adduced at the hearing in the Industrial Magistrates Court established that, as at the date of making the 2010 Agreement, 'district office' had a special meaning, within the Department's internal organisational structure, that was certain and notorious among a particular class of people, including the Director General and organisations (registered under div 4 of pt 2 of the IR Act) of employees working at the Department. The only reasonable construction of the term 'district office', in cl 10 of the 2010 Agreement, is that the parties were referring to the entities within the Department's internal organisational structure, as at the date of making the agreement, that were formally called 'district education offices', but more commonly referred to as 'district offices'. 98 As I have mentioned, at all material times before September 2010: (a) each district office was located within a specific geographic area of the State and had particular functions in relation to the schools located within its area; and (b) each district office had buildings and facilities, and employees of the Department were located and carried out their work in those buildings and used those facilities. 99 Clause 10.3 must be construed in the context of cl 10 and the other provisions of the 2010 Agreement as a whole (in particular, cl 10.1 and cl 10.2) and the special meaning given by the parties to the term 'district office'. 100 On this approach, it is readily apparent that cl 10.3, properly construed, embodies a promise by the Director General that: (a) the Department, through its employees at each district office, will arrange for inductions of new education assistants to be held twice each term at the district office, unless there are no new education assistants requiring induction; and (b) the inductions will be conducted by suitably qualified employees of the Department. 101 The critical question, for the purposes of this appeal, is: what was the presumed intention (if any) of the parties, as at the date of making the 2010 Agreement, in relation to arranging and conducting inductions, if district offices were to be abolished during the subsistence of the agreement? 102 More specifically, was it an implied term of the 2010 Agreement that, if district offices were abolished during the subsistence of the agreement, the subject matter of the Director General's promise would be as follows: (a) the Department, through its employees, will arrange for inductions of new education assistants to be held twice each term at the buildings previously occupied by each district office, unless there are no new education assistants requiring induction; and (b) the inductions will be conducted by suitably qualified employees of the Department? 103 In my opinion, the conditions for the implication of this term are satisfied. 104 First, the term is fair and reasonable as regards the Director General and United Voice. The surrounding circumstances, known to the parties when the agreement was made, establish that limited resources were required to conduct inductions at the buildings occupied by district offices; in particular, only three Department employees at each district office were responsible for conducting inductions at that district office and there were usually only about 20 to 25 new education assistants at each induction. Further, those surrounding circumstances establish that, at all material times, the Director General had power to instruct suitably qualified employees of the Department to conduct inductions at the buildings occupied by the district offices. Clause 10.3 stipulated that inductions were to be held only twice each term. The parties were agreed that the duration of an induction was to be measured in hours, not days. The suggested implied term does not operate to the material prejudice or disadvantage of the Director General. It preserves the Director General's promise without exposing her to unreasonable financial expense or administrative inconvenience. It also preserves for United Voice the substance of the benefit of the Director General's promise. 105 Secondly, the term is necessary to make cl 10 operate effectively. Otherwise, the Director General's promise could easily be avoided, to the detriment of United Voice, by an internal reorganisation of the Department which altered the name and function of the entities that occupied the buildings in question when the agreement was made. The implication of the term is essential to give effect to the reasonable expectations of the parties, objectively determined, as at the date of making the agreement. 106 Thirdly, it is obvious, after taking into account the express terms of the agreement as a whole and the surrounding circumstances known to the parties when the agreement was made, that a term should be implied to deal with the relevant contingency and it is also obvious, after taking into account those matters, that the provision to be implied should be in the terms I have formulated. 107 Fourthly, there is no doubt that the term can be articulated with clarity and precision. 108 Fifthly, the term is not inconsistent with any of the express terms of the agreement or with its general tenor. Also, it is not apparent that the parties were cognisant of the point and either deliberately rejected the term or deliberately failed to deal with the relevant contingency. 94 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 13 109 The Government's announcement, in September 2010, of the abolition of district offices, did not absolve the Director General from compliance with the implied term or immunise her from the consequences of her contravention or failure to comply with it. It was not, at any time, 'impossible' for the Director General to comply with the implied term. The Director General's promise was not discharged under the contractual doctrine of frustration. The Director General was obliged under the law of contract and s 30(d) of the PSM Act to comply with the provisions of the 2010 Agreement including the implied term. 110 The construction of cl 10.3 adopted by the majority of the Full Bench was erroneous. It was not open to the majority to conclude that, on the express terms of cl 10, the term 'district office' included the '[r]egional structural bodies that came into existence after the district education offices were abolished' [69]. 111 The ground of appeal has been made out. No miscarriage of justice 112 As I have mentioned, by s 90(3a) of the IR Act, if any ground of an appeal is made out but this court is satisfied that no injustice has been suffered by the appellant or a person who is a member of or represented by the appellant, this court must confirm the decision the subject of appeal unless it considers that there is good reason not to do so. 113 In the present case, despite the error of construction made by the majority of the Full Bench, the decision of the majority to allow the appeal was correct. The magistrate made material errors of law in construing cl 10.3. It was appropriate for the majority of the Full Bench to quash the magistrate's decision and remit the matter to the Industrial Magistrates Court for further hearing and determination according to law. 114 However, the determination according to law in the Industrial Magistrates Court must now be in accordance with the reasons of this court and not in accordance with the reasons of the majority of the Full Bench. 115 I am satisfied that, even though the ground of appeal has been made out, no injustice has been suffered by the Director General. No relevant injustice was suggested at the hearing before this court. No good reason exists for not confirming the orders made by the majority of the Full Bench. Conclusion 116 I would dismiss the appeal. 117 LE MIERE J: I agree that the appeal should be dismissed for the reasons given by Pullin J. 2013 WAIRC 01075 APPEAL AGAINST THE DECISION OF THE FULL BENCH IN FBA 4 OF 2012 WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT PARTIES THE DIRECTOR GENERAL, DEPARTMENT OF EDUCATION APPELLANT -v- UNITED VOICE WA RESPONDENT CORAM THE HONOURABLE JUSTICE PULLIN THE HONOURABLE JUSTICE BUSS THE HONOURABLE JUSTICE LE MIERE DATE WEDNESDAY, 18 DECEMBER 2013 FILE NO/S IAC 2 OF 2013 CITATION NO. 2013 WAIRC 01075 Result Appeal dismissed Representation Appellant Mr D J Matthews (Counsel) Respondent Mr S A Millman (Counsel) Order It is hereby Ordered that: 1. The appeal be dismissed. (Sgd.) S BASTIAN, [L.S.] Clerk of Court. 14 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 94 W.A.I.G. PRESIDENT—Unions—Matters dealt with under Section 66— 2013 WAIRC 01065 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES ANTHONY JOHN SNOW APPLICANT -and- UNION OF AUSTRALIAN COLLEGE ACADEMICS, WESTERN AUSTRALIAN BRANCH, INDUSTRIAL UNION OF WORKERS RESPONDENT CORAM THE HONOURABLE J H SMITH, ACTING PRESIDENT DATE MONDAY, 16 DECEMBER 2013 FILE NO/S PRES 5 OF 2013 CITATION NO. 2013 WAIRC 01065 Result Orders made Appearances Applicant Mr A J Snow Respondent No appearance Order This matter having come on for hearing before me on 6 December 2013, and having heard Mr A J Snow on behalf of the applicant, and there being no appearance by or on behalf of the respondent, the Acting President, pursuant to the powers conferred under the Industrial Relations Act 1979 (WA) (the Act), hereby orders, until further order — 1. An interim union executive of the respondent (the union) is established constituted as follows: (a) President Dr Geoffrey Lummis (ECU) (b) Vice President Ms Sian Flynne (Curtin) (c) Vice President A/Prof Ute Mueller (ECU) (d) Secretary Mr Anthony Snow (Curtin) (e) Council Delegates Dr Geoffrey Lummis (ECU) A/Prof Ute Mueller (ECU) Ms Susan Main (ECU) Ms Cathy Moore (ECU) A/Prof Graeme Lock (ECU) Mr Anthony Snow (Curtin) Dr Scott Fitzgerald (Curtin) Ms Cathy Bardon (Curtin) A/Prof Bobbie Oliver (Curtin) Ms Beryl Bettell (Curtin) Ms Sian Flynne (Curtin) Mr Jonathan Hallett (Curtin) 2. The interim union executive shall exercise all the powers, functions and duties of the union executive and union council under the rules, and without derogating from the powers conferred, the interim union executive shall: (a) Seek amendment to the rules of the union by giving notice in accordance with order 3 of this order. (b) Conduct a plebiscite of the whole membership of the union for the purpose stated in r 57. 94 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 15 (c) Do all such things as shall be necessary to seek deregistration of the union in accordance with the Act and the Industrial Relations Commission Regulations 2005 (WA). 3. Rule 55(2) is not required to be observed. In place of the procedure prescribed in r 55(2), the following shall apply: No amendment, addition to, variation, repeal or substitution of the rules shall be made unless a notice of the proposed alteration and the reasons therefore, is sent by email to the work place email address of every member. 4. Rule 56(1) is not required to be observed. In place of the procedure prescribed in r 56(1), the following shall apply: Every notice required by the rules to be given by the union secretary shall be sent by email to the person to whom it is required to be sent. The email address shall be that at the person's place of employment. Any person whose email address at their place of employment is not known to the union but does have a personal email address known to the union shall be sent such notice to their personal email address. 5. Rule 56(2) is not required to be observed. 6. Rule 25(2)(c) is not required to be observed. 7. There be liberty to apply to vary this order. (Sgd.) J H SMITH, [L.S.] Acting President. AWARDS/AGREEMENTS AND ORDERS—Variation of— 2013 WAIRC 01081 CLEANERS AND CARETAKERS (GOVERNMENT) AWARD 1975 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES UNITED VOICE WA APPLICANT -v- THE HON MINISTER FOR EDUCATION AND TRAINING AND OTHERS RESPONDENTS CORAM COMMISSIONER J L HARRISON DATE FRIDAY, 20 DECEMBER 2013 FILE NO/S APPL 50 OF 2013 CITATION NO. 2013 WAIRC 01081 Result Award varied Representation Applicant Ms A Hamlin and Mr S Dane Respondents Ms A McCracken and Mr R Heaperman (as agents) Order HAVING heard Ms A Hamlin and Mr S Dane on behalf of the applicant and Ms A McCracken and Mr R Heaperman as agents on behalf of the respondents, the Commission, pursuant to the powers conferred under the Industrial Relations Act 1979, hereby orders: THAT the Cleaners and Caretakers (Government) Award 1975 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 18 December 2013. (Sgd.) J L HARRISON, [L.S.] Commissioner. SCHEDULE 1. Clause 3.2. - Overtime: Delete subclause 3.2.3(a) of this clause and insert the following in lieu thereof: 3.2.3 (a) Any employee who, without being notified the previous day, is required to continue working for more than one hour after the usual ceasing time shall be provided with a meal by the employer or be paid $12.30 in lieu of the meal. 16 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 94 W.A.I.G. 2. Clause 5.1. – Special Rates and Provisions: Delete this clause and insert the following in lieu thereof: 5.1.1 (a) All employees called upon to clean closets connected with septic tanks or sewerage shall receive an allowance of 81 cents per closet per week. (b) For the purposes of 5.1 – Special Rates and Provisions, one metre of urinal shall count as one closet and three urinal stalls shall count as one closet. 5.1.2 Employees called upon outside the ordinary working hours to wash towels shall be paid $5.05 per dozen for ordinary towels, and $3.70 per dozen for dusters, hand towels and tea towels. 5.1.3 All materials and appliances required in connection with the performance of the employee's duties shall be supplied by the employer. 5.1.4 (a) An employee shall not be required to work from the top of a ladder more than 3.5 metres long which rests on the ground or floor level unless provided with an assistant. (b) (i) When window cleaning is done from a ladder and any portion of a window to be cleaned is more than seven metres from the nearest horizontal plane, the employee shall be paid an allowance of 15 cents per window. (ii) The allowance prescribed in 5.1.4(b)(i) shall not be paid where adequate safety equipment such as fall-arrest and restraint systems is supplied. Where such equipment is supplied, it must be used by the employee. 5.1.5 Employees who are required to work their ordinary hours each day in two shifts and where the break between the two shifts is not less than three hours, shall be paid an allowance of $4.70 per day. 5.1.6 An employee who is required to open and close classrooms, halls and other school facilities for any activities authorised by the Principal, shall be paid an allowance according to the following scale: Per Day $ (a) Evenings - Monday to Friday Up to 40 rooms per week 8.00 41 rooms to 100 per week 12.10 Over 100 rooms per week 15.95 (b) Saturday and Sunday 15.20 (c) An additional allowance of $4.70 shall be paid to a caretaker on each occasion they are required to open or close a school facility after 11.00 pm, Monday to Friday, or for any opening or closing required on a Saturday or Sunday after the initial opening and closing. Provided that on a Saturday or Sunday the additional allowance shall not be paid if the duty is performed less than one hour after the initial or any subsequent opening or closing. 5.1.7 (a) Where practicable, suitable dressing accommodation shall be provided by the employer. Cleaning materials, tools and appliances shall not be kept in such rooms. (b) All employees shall be provided with the facilities for boiling water. (c) Employees shall be permitted to eat their meals in a convenient and clean place protected from the weather and employees shall remove all litter and foodstuffs after use. (d) In the event of a dispute concerning the provisions of 5.1, the matter shall be resolved in accordance with the dispute resolution procedure of this award. 5.1.8 (a) Any wood chopping duties carried out by the employee shall be by agreement between the employer and the employee. (b) Any employee performing wood chopping duties shall be paid an allowance of $17.95 per tonne to a maximum of: (i) 100% of the weight of bushwood supplied or 50% of the weight of mill-ends supplied for enclosed fireplaces such as Wonderheats. (ii) 50% of the weight of bushwood supplied or 20% of the weight of mill-ends supplied for open fireplaces. 5.1.9 (a) An estate attendant (Homeswest) who, in their privately owned vehicle, commutes from estate to estate and is required to carry sundry cleaning and/or gardening implements and/or supplies shall be paid $9.00 per week for all purposes of this award. (b) The amount and type of equipment to be carried as prescribed in 5.1.9(a) will be agreed between the union and employer. 5.1.10 The rates expressed in 5.1 shall be adjusted by a percentage derived from the ASNA amount divided by the key minimum classification rate of a cleaner – level 1, year 1. 94 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 17 3. Clause 5.4. – First Aid: Delete subclause 5.4.2(b) of this clause and insert the following in lieu thereof: (b) Employees so appointed shall be paid the following rates in addition to their prescribed wage: 10 employees or less In excess of 10 employees $1.65 per day $2.75 per day 2013 WAIRC 01082 CULTURAL CENTRE AWARD 1987 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES UNITED VOICE WA APPLICANT -v- THE LIBRARY BOARD OF WESTERN AUSTRALIA AND OTHERS RESPONDENTS CORAM COMMISSIONER J L HARRISON DATE FRIDAY, 20 DECEMBER 2013 FILE NO/S APPL 51 OF 2013 CITATION NO. 2013 WAIRC 01082 Result Award varied Representation Applicant Ms A Hamlin and Mr S Dane Respondents Ms A McCracken and Mr R Heaperman (as agents) Order HAVING heard Ms A Hamlin and Mr S Dane on behalf of the applicant and Ms A McCracken and Mr R Heaperman as agents on behalf of the respondents, the Commission, pursuant to the powers conferred under the Industrial Relations Act 1979, hereby orders: THAT the Cultural Centre Award 1987 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 18 December 2013. (Sgd.) J L HARRISON, [L.S.] Commissioner. SCHEDULE 1. Clause 8. - Overtime: Delete subclause (9)(a) of this clause and insert the following in lieu thereof: (9) (a) An employee required to work continuous overtime for more than one hour shall be supplied with a meal by the employer or be paid $12.30 for a meal and if, owing to the amount of overtime worked, a second or subsequent meal is required the employee shall be supplied with each meal by the employer or be paid $7.20 for each meal so required. 2. Clause 15. – Special Rates and Provisions: Delete this clause and insert the following in lieu thereof: (1) The employer shall, where practicable, make suitable provisions for employees to change their clothing on the employer's premises. (2) Uniforms and/or clean overalls shall be supplied by the employer free of charge, where the employer requires such to be worn. Such items shall always remain the property of the employer. (3) (a) All employees called upon to clean closets connected to septic tanks or sewers shall be paid an allowance of 80 cents per closet per week. (b) For the purpose of this subclause one metre of urinal or three urinal stalls shall count as one closet. (4) An employee shall not be required to work from the top of a ladder more than 3.5 metres long which rests on the ground or floor level, unless he/she has an assistant. (5) An allowance of $2.95 per day or part thereof shall be paid to an employee required to use an airlift in the course of their duties. (6) An allowance of $11.40 per day shall be paid in addition to the ordinary rate to an attendant required to operate audio visual equipment. 18 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 94 W.A.I.G. (7) (a) Except as provided for in paragraph (b) of this subclause an allowance of $6.20 per day shall be paid to an employee required to carry keys and be responsible for securing the premises at the close of business. (b) Where it is agreed between the employer and the Union in writing then an alternative arrangement may exist in respect of this subclause. (8) (a) An employee who is required to work away from his/her usual place of work shall be paid for any fares in excess of those normally incurred in travelling from his/her home to his/her usual place of work and return, except where an allowance is paid in accordance with Clause 17. - Fares and Travelling Allowances of the Miscellaneous Government Conditions and Allowances Award No. A4 of 1992. (b) Travelling time in excess of that normally incurred in travelling from his/her home to his/her usual place of work and return shall be paid at the rate of ordinary time. (c) An employee who commences or completes a shift at or between the hours of 11.00pm and 5.00am, shall in addition to the ordinary rate of pay for that shift be paid an allowance of $14.00 per shift. 3. Clause 16. – Wages: Delete subclause (2) of this clause and insert the following in lieu thereof: (2) Leading Hands: In addition to the appropriate total wage prescribed in this clause, a leading hand shall be paid: $ (a) if placed in charge of not less than one and more than five other employees 27.80 (b) if placed in charge of more than six and not more than ten other employees 42.60 (c) if placed in charge of more than 11 other employees 54.70 2013 WAIRC 01080 GARDENERS (GOVERNMENT) 1986 AWARD NO. 16 OF 1983 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES UNITED VOICE WA APPLICANT -v- THE HON. MINISTER FOR EDUCATION AND OTHERS RESPONDENTS CORAM COMMISSIONER J L HARRISON DATE FRIDAY, 20 DECEMBER 2013 FILE NO/S APPL 49 OF 2013 CITATION NO. 2013 WAIRC 01080 Result Award varied Representation Applicant Ms A Hamlin and Mr S Dane Respondents Ms A McCracken and Mr R Heaperman (as agents) Order HAVING heard Ms A Hamlin and Mr S Dane on behalf of the applicant and Ms A McCracken and Mr R Heaperman as agents on behalf of the respondents, the Commission, pursuant to the powers conferred under the Industrial Relations Act 1979, hereby orders: THAT the Gardeners (Government) 1986 Award No 16 of 1983 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 18 December 2013. (Sgd.) J L HARRISON, [L.S.] Commissioner. SCHEDULE 1. Clause 12. - Overtime: Delete subclause (2) of this clause and insert the following in lieu thereof: (2) When an employee without being notified on the previous day or earlier is required to continue working after his usual knock off time for more than two hours, the employee shall be provided with a meal or be paid $12.30 in lieu thereof. 2. Clause 16. – First Aid – Kits and Attendants: Delete subclause (2) of this clause and insert the following in lieu thereof: (2) The employer shall, wherever practicable and where there are two or more employees, appoint an employee holding current first aid qualifications from St John Ambulance or similar body to carry out first aid duty at all works or depots where employees are employed. Such employees so appointed in addition to first aid duties, shall be responsible under 94 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 19 the general supervision of the supervisor or foreperson for maintaining the contents of the first aid kit, conveying it to the place of work and keeping it in a readily accessible place for immediate use. Employees so appointed shall be paid the following rates in addition to their prescribed rate per day: Qualified Attendant $ Per Day 10 employees or less 1.65 In excess of 10 employees 2.65 3. Clause 25. – Wages: A. Delete subclause (3) of this clause and insert the following in lieu thereof: (3) A Senior Gardener/Ground Attendant who is required to maintain turf wickets, bowling greens or tennis courts shall be paid in addition to the rates prescribed an amount of $7.60 per week. Occasional off-season attention shall not qualify an employee for payment under this subclause. B. Delete subclause (5) of this clause and insert the following in lieu thereof: (5) Leading Hands Leading Hands and Senior Gardener/Ground Attendants if placed in charge of: (a) five and not more than ten other employees shall be paid $26.70 per week extra; (b) more than ten but not more than 20 other employees shall be paid $39.10 per week extra; (c) more than 20 other employees shall be paid $51.90 per week extra. C. Delete subclause (10)(a) of this clause and insert the following in lieu thereof: (a) Employees of the Zoological Gardens Board covered by this award who are required to clean public toilets shall be paid 82 cents per closet, per week. 2013 WAIRC 01077 HOSPITAL WORKERS (GOVERNMENT) AWARD NO. 21 OF 1966 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES UNITED VOICE WA APPLICANT -v- THE MINISTER FOR HEALTH IN HIS INCORPORATED CAPACITY UNDER S.7 OF THE HOSPITALS AND HEALTH SERVICES ACT 1927 (WA) AS THE HOSPITALS FORMERLY COMPRISED IN THE METROPOLITAN HEALTH SERVICES BOARD, THE PEEL HEALTH SERVICES BOARD AND THE WA COUNTRY HEALTH SERVICES BOARD AND OTHERS RESPONDENT CORAM COMMISSIONER J L HARRISON DATE FRIDAY, 20 DECEMBER 2013 FILE NO/S APPL 46 OF 2013 CITATION NO. 2013 WAIRC 01077 Result Award varied Representation Applicant Ms A Hamlin and Mr S Dane Respondent Ms J Love and Ms G Rosendorff (as agent) Order HAVING heard Ms A Hamlin and Mr S Dane on behalf of the applicant and Ms J Love and Ms G Rosendorff as agent on behalf of the respondents, the Commission, pursuant to the powers conferred under the Industrial Relations Act 1979, hereby orders: THAT the Hospital Workers (Government) Award No. 21 of 1966 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 18 December 2013. (Sgd.) J L HARRISON, [L.S.] Commissioner. 20 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 94 W.A.I.G. SCHEDULE 1. Clause 5. – Definitions: Delete subclause (12) of this clause and insert the following in lieu thereof: (12) "Union" means United Voice WA. 2. Clause 15. – Overtime: Delete subclause (4) of this clause and insert the following in lieu thereof: 4) Where an employee is required to work overtime and such overtime is worked for a period of at least two hours in excess of the required daily hours of work, the employee shall be provided with a meal free of cost, or shall be paid the sum of $10.50 as meal money. 3. Clause 16. – Shift Work: A. Delete subclauses (1) of this clause and insert the following in lieu thereof: (1) Subject to subclause (2) of this clause, a loading of $2.78 per hour or pro rata for part thereof shall be paid for time worked on afternoon or night shift as defined hereunder: B. Delete subclauses (2) of this clause and insert the following in lieu thereof: (2) A loading of $4.19 per hour or pro rata for part thereof shall be paid for time worked on permanent afternoon or night shift. 4. Clause 17. – Weekend Work: A. Delete subclauses (1) of this clause and insert the following in lieu thereof: (1) In addition to the ordinary rate of wage prescribed by this award an employee shall be paid a loading of $11.22 per hour or pro rata for part thereof for ordinary hours worked between midnight on Friday and midnight on Saturday. B. Delete subclauses (2) of this clause and insert the following in lieu thereof: (2) In addition to the ordinary rate of wage prescribed by this award an employee shall be paid a loading of $22.39 per hour or pro rata for part thereof for ordinary hours worked between midnight on Saturday and midnight on Sunday. 5. Clause 19. – Allowances and Special Provisions: Delete this clause and insert the following in lieu thereof: In addition to the rates prescribed in Clause 39. - Wages of this award, the following allowances shall be paid: (1) (a) Employees handling foul linen in the course of their duties shall be paid $1.24 per hour or any part thereof, to a maximum of $3.75 per day. (b) Employees handling materials such as carpet tiles, curtains, sealed bags or fabrics, which have become soiled in the same manner as foul linen as defined in Clause 5. - Definitions, shall be paid an allowance according to subclause (1)(a) of this clause. (2) Orderlies employed on boiler firing duties - $2.55 per day. (3) Orderlies required to handle a cadaver - $2.19 per hour with a minimum payment of one hour. (4) Orderlies - Sir Charles Gairdner Hospital, sterilising sputum mugs - $2.55 per day. (5) (a) A storeman required to operate a ride-on power operated tow motor, a ride-on power operated pallet truck or a walk-beside power operated high lift stacker in the performance of his/her duties shall be paid an additional 56 cents per hour whilst so engaged. (b) A storeman required to operate a ride-on power operated fork lift, high lift stacker or high lift stock picker or a power operated overhead traversing hoist in the performance of his/her duties shall be paid an additional 73 cents per hour whilst so engaged. (6) A Food Service Attendant who is required to reconstitute frozen food and/or reheat chilled food, in addition to or in substitution of their normal duties, shall be paid an allowance of 90 cents per hour or part thereof whilst so engaged. 6. Clause 21. – Public Holidays: Delete subclause (3) of this clause and insert the following in lieu thereof: (3) Any employee who is required to work on a day observed as a public holiday shall be paid a loading of $33.73 per hour or pro rata for part thereof in addition to his/her ordinary rate of wage or if the employer agrees be paid a loading of $11.22 per hour or pro rata for part thereof in addition to his/her ordinary rate of wage and be entitled to observe the holiday on a day mutually acceptable to the employer and employee. 7. Clause 22. – Public Holidays: Delete subclause (3)(c) of this clause and insert the following in lieu thereof: (c) Any employee who is required to work on the day observed as a holiday as prescribed in this clause in his/her normal hours work or ordinary hours in the case of a rostered employee shall be paid a loading of $11.22 per hour or pro rata for part thereof and be entitled to observe the holiday on a day mutually acceptable to the employer and the employee. Provided that in any specified 12 monthly period, after an employee has accumulated five days in lieu of public holidays, by agreement between the employee and the employer, the employee may be paid for work performed on a day observed as a holiday as prescribed in this clause a loading of $33.73 per hour or pro rata for part thereof in addition to his/her ordinary rate of wage in lieu of the foregoing provisions of this subclause. 8. Clause 28. – Uniforms: Delete subclause (8)(d) of this clause and insert the following in lieu thereof: (d) All washable clothing forming part of the uniforms supplied by the employer shall be laundered free of cost to the employee. Provided that in lieu of such free laundering the employer may pay the employee $2.35 per week to partly cover the cost of same. 94 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 21 9. Clause 39. – Wages: Delete subclause (4)(b) of this clause and insert the following in lieu thereof: (b) Except where this clause specifies classifications which require the employee to be in charge of other employees, any employee who is placed in charge of: (i) not less than three and not more than ten other employees shall be paid $26.20 per week in addition to the ordinary wage prescribed by this clause; (ii) more than 10 and not more than twenty other employees shall be paid $39.00 per week in addition to the ordinary wage prescribed by this clause; (iii) more than 20 other employees shall be paid $52.00 per week in addition to the ordinary wage prescribed by this clause. 10. Schedule A – Parties to the Award: Delete this schedule and insert the following in lieu thereof: The following organisation is a party to this award: United Voice WA 2013 WAIRC 01078 PARLIAMENTARY EMPLOYEES AWARD 1989 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES UNITED VOICE WA APPLICANT -v- THE SPEAKER OF THE LEGISLATIVE ASSEMBLY AND OTHERS RESPONDENTS CORAM COMMISSIONER J L HARRISON DATE FRIDAY, 20 DECEMBER 2013 FILE NO/S APPL 47 OF 2013 CITATION NO. 2013 WAIRC 01078 Result Award varied Representation Applicant Ms A Hamlin and Mr S Dane and as agent for the Civil Service Association of Western Australia Incorporated Respondents Ms A McCracken and Mr R Heaperman (as agents) Order HAVING heard Ms A Hamlin and Mr S Dane on behalf of the applicant, and as agent for the Civil Service Association of Western Australia Incorporated, and Ms A McCracken and Mr R Heaperman as agents on behalf of the respondents, the Commission, pursuant to the powers conferred under the Industrial Relations Act 1979, hereby orders: THAT the Parliamentary Employees Award 1989 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 18 December 2013. (Sgd.) J L HARRISON, [L.S.] Commissioner. SCHEDULE 1. Clause 16. – Parliamentary Support Services Employee Wages: A. Delete subclauses (3) of this clause and insert the following in lieu thereof: (3) The following allowances shall be paid to PSSEs indexed according to State Wage decisions and shall be:- (a) Chef 1st year $139.30 per fortnight 2nd year $278.50 per fortnight (b) Tradesperson Cook (Sous Chef) 1st year $ 90.50 per fortnight 2nd year $139.30 per fortnight (c) Stewards to Speaker and President $69.50 per fortnight B. Delete subclauses (4) of this clause and insert the following in lieu thereof: (4) An allowance of $40.30 per fortnight shall be paid to all PSSEs employed in the kitchen, dining room and bar areas. 22 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 94 W.A.I.G. 2. Clause 19. – Meal Allowance: Delete subclause (1) of this clause and insert the following in lieu thereof: (1) An employee who is required to work overtime under Clause 10. – Overtime, and where such overtime extends beyond 5.00 p.m., a meal allowance shall be paid in accordance with the provisions of Clause 22. - Overtime of the Public Service Award 1992 as amended. Provided that where such overtime extends beyond 6.00 a.m. the following day, an allowance of $15.40 or the amount charged by the House, whichever is the higher, for such a three course meal shall be paid. 3. Clause 23. – Uniforms and Clothing: Delete subclause (2) of this clause and insert the following in lieu thereof: (2) Such uniforms supplied shall be laundered and/or dry cleaned by the employer and remain the property of the employer, provided that in lieu of the employer laundering and/or dry cleaning same, an employee shall be paid $8.70 per week for such laundering and/or dry cleaning, excepting any person employed as a Cook who shall be paid $13.40 per week for laundering and/or dry cleaning. 2013 WAIRC 01079 RANGERS (NATIONAL PARKS) CONSOLIDATED AWARD 2000 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES UNITED VOICE WA APPLICANT -v- THE CHIEF EXECUTIVE OFFICER (EXECUTIVE DIRECTOR) OF THE DEPARTMENT OF CONSERVATION AND LAND MANAGEMENT RESPONDENT CORAM COMMISSIONER J L HARRISON DATE FRIDAY, 20 DECEMBER 2013 FILE NO/S APPL 48 OF 2013 CITATION NO. 2013 WAIRC 01079 Result Award varied Representation Applicant Ms A Hamlin and Mr S Dane Respondent Ms A McCracken and Mr R Heaperman (as agents) Order HAVING heard Ms A Hamlin and Mr S Dane on behalf of the applicant and Ms A McCracken and Mr R Heaperman as agents on behalf of the respondent, the Commission, pursuant to the powers conferred under the Industrial Relations Act 1979, hereby orders: THAT the Rangers (National Parks) Consolidated Award 2000 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 18 December 2013. (Sgd.) J L HARRISON, [L.S.] Commissioner. SCHEDULE 1. Clause 9. - Overtime: A. Delete subclause (7)(a) of this clause and insert the following in lieu thereof: (7) (a) An employee required to work continuous overtime for more than one hour shall be supplied with a meal by the employer or be paid $12.25 for a meal, and if owing to the amount of overtime worked, a second or subsequent meal is required he/she shall be supplied with each such meal by the employer or be paid $7.20 each meal so required. B. Delete subclause (7)(d) of this clause and insert the following in lieu thereof: (d) An employee required to work continuously from midnight to 6.30am and ordered back to work at 8.00am the same day shall be paid $6.30 breakfast. 2. Clause 14. – Conditions and Allowances: A. Delete subclause (3) of this clause and insert the following in lieu thereof: (3) Mobile Rangers shall, in addition to their normal rate of pay, be paid an allowance of $127.00 per week to offset the costs associated with living in and maintaining a caravan. This allowance is to be moved year to year to reflect the change in CPI for Perth. 94 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 23 B. Delete subclause (4)(c) of this clause and insert the following in lieu thereof: (c) The employee using toxic substances or materials of a like nature shall be paid 62 cents per hour extra. Employees working in close proximity to employees so engaged shall be paid 56 cents per hour extra. C. Delete subclause (5)(d) of this clause and insert the following in lieu thereof: (d) An employee required to wear protective clothing or equipment for the purpose of this subclause shall be paid 70 cents per hour or part thereof while doing so unless the Union and the employer agree that by reason of the nature of the protective clothing or equipment the employee does not suffer discomfort or inconvenience while wearing it or, in the event of disagreement, the Western Australian Industrial Relations Commission so determines. UNFAIR DISMISSAL/CONTRACTUAL ENTITLEMENTS— 2013 WAIRC 01067 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES VANGY MAREE BAKER APPLICANT -v- PILBARA COMMUNITY LEGAL SERVICE INC. RESPONDENT CORAM COMMISSIONER J L HARRISON DATE WEDNESDAY, 18 DECEMBER 2013 FILE NO/S U 171 OF 2011, B 171 OF 2011 CITATION NO. 2013 WAIRC 01067 Result Withdrawn by leave Order These are applications pursuant to s 29(1)(b)(i) and s 29(1)(b)(ii) of the Industrial Relations Act 1979. On 3 November 2011 the Commission wrote to the applicant about service of the applications and the applicant advised that she did not wish to proceed with the matters. The Commission contacted the applicant on a number of occasions about lodging a Notice of Withdrawal or Discontinuance form with the respect to the matters and on 28 November 2013 the applicant confirmed that she wished to discontinue both applications. NOW THEREFORE, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby orders: THAT these applications be, and are hereby withdrawn by leave. (Sgd.) J L HARRISON, [L.S.] Commissioner. 2013 WAIRC 01071 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES MELISSA ODIAM APPLICANT -v- BN FORD & JDC FORD A/T FOR THE BEVDON TRUST T/AS KARMA CHALETS & KARISMA SPA RESPONDENT CORAM COMMISSIONER J L HARRISON DATE WEDNESDAY, 18 DECEMBER 2013 FILE NO/S U 74 OF 2013 CITATION NO. 2013 WAIRC 01071 24 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 94 W.A.I.G. Result Dismissed Representation Applicant In person Respondent Mr G Lilleyman (as agent) Order This is an application pursuant to s 29(1)(b)(i) of the Industrial Relations Act 1979. On 11 June 2013 the Commission convened a conference for the purpose of conciliating between the parties and at the conclusion of the conference the respondent was to provide further information to the applicant who had 14 days to consider her position. The applicant was contacted on several occasions as to her intentions in relation to this matter and on 27 September 2013 the applicant advised the Commission that she wished to withdraw her application. The Commission then contacted the applicant on a number of occasions about lodging a Notice of Withdrawal or Discontinuance form however this did not occur. On 1 November 2013 the Commission wrote to the applicant stating that if no written or verbal advice was received from her by close of business 15 November 2013 the matter would be listed for a show cause hearing as to why the matter should not be dismissed pursuant to s 27(1) of the Act. The applicant did not contact the Commission by the due date and the matter was listed for a show cause hearing on 18 December 2013 and the applicant was advised that non-attendance by her at these proceedings will result in an order issuing dismissing the application for want of prosecution. The applicant did not attend the show cause hearing on 18 December 2013 nor did she advise the Commission beforehand as to any reason why she was unable to attend the hearing. 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 dismissed. (Sgd.) J L HARRISON, [L.S.] Commissioner. 2014 WAIRC 00001 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION