CITATION : 2014 WAIRC 00026 CORAM : COMMISSIONER S J KENNER HEARD : MONDAY, 11 NOVEMBER 2013, TUESDAY, 19 NOVEMBER 2013 DELIVERED : TUESDAY, 21 JANUARY 2014 FILE NO. : B 82 OF 2012 BETWEEN : CHRISTOPHER JAMES TAYLOR Applicant AND JULIE DRAGE TRADING AS STARCAP LOGISTICS Respondent Catchwords : Industrial law (WA) - Contractual benefits claim - Application to adjourn the hearing - Claim in excess of the Transport Workers (General) Award 1961 - Applicant’s claim for unpaid wages and allowances is enforceable under s 29(1)(b)(ii) of the Industrial Relations Act 1979 (WA) - Factual dispute regarding the hours of work and a compromise payment - Order issued Legislation : Industrial Relations Act 1979 (WA) s 29(1)(b)(ii) Result : Application upheld. Order issued Representation: Counsel: Applicant : Mr A Dzieciol of counsel Respondent : Mr K Morrison as agent Case(s) referred to in reasons: Mason v Bastow (1990) 70 WAIG 19 Roberts v Groome (1984) 64 WAIG 774 Steele v Tardiani (1946) 72 CLR 386 Reasons for Decision 1 Mr Taylor was employed by Starcap Logistics as a truck driver HC Class from 19 March 2012 to 4 April 2012. As a driver, Mr Taylor was engaged to drive trucks with oversized loads throughout Western Australia and the Northern Territory. These proceedings relate to a contractual benefits claim brought by Mr Taylor, by which he alleges that Starcap has underpaid him, by an amendment to his claim, in the amount of $4,168 for wages and allowances. 2 Prior to the hearing of the substantive claim, Starcap made an application to adjourn the hearing. The grounds advanced by Starcap, through Mr Knudson, one of the principals of the business, was that he did not have representation and that given the Transport Workers Union were representing Mr Taylor, Starcap would be at a disadvantage. The Commission listed the application to hear the application to adjourn. The Commission was not minded to adjourn the substantive hearing. Starcap had been aware for some months that the Union was acting on behalf of Mr Taylor. It had taken no steps to obtain representation, if it wanted to. Accordingly, the substantive claim proceeded to be heard by the Commission. 3 Mr Taylor testified that he agreed with Mr Knudson to work for Starcap on the basis that he would be paid $350 per day for road trips and $28 per hour for work done in Starcap’s yard and around town in Perth. Additionally, Mr Taylor said that it was also agreed that whilst on road trips, he would be paid an extra $70 per night to cover expenses, when required to travel away from Perth. It was common ground that Mr Taylor’s employment was governed by the Transport Workers (General) Award 1961. However, Mr Taylor was paid substantially above the minimum award rate of pay. Therefore, the Commission has jurisdiction to deal with Mr Taylor’s contractual benefits claim under s 29(1)(b)(ii) of the Industrial Relations Act 1979, as the recovery of a single contractual debt for the entire sum: Steele v Tardiani (1946) 72 CLR 386; Roberts v Groome (1984) 64 WAIG 774; Mason v Bastow (1990) 70 WAIG 19. 4 Mr Taylor gave evidence that he duly worked for Starcap however, over the period of his employment, from 19 March to 4 April 2012, he was only paid the sum of $500. Mr Taylor said he eventually left the employment, because he was not getting paid. The basis for Mr Taylor’s claim was set out in a schedule tendered by him, in effect standing as amended particulars of claim. 5 It was not in contest that Mr Taylor worked over the period of 19 March to approximately 4 April 2012, although there was some factual dispute as to a few days worked over this period. However, the basis of Starcap’s defence to Mr Taylor’s claim in the main was that Mr Taylor was paid what was owed to him, by way of a cash payment, of $1,800, in August 2012. Mr Knudson testified that Mr Taylor informed him at about this time, that if Starcap paid this sum in cash, that the matter would be resolved. This was strongly denied by Mr Taylor. He said he had never requested nor been paid cash by Starcap. The only evidence of any payment being received by Mr Taylor was for the sum of $500, paid by direct bank transfer to his bank account on 3 April 2012, as set out in exhibit A2. 134 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 94 W.A.I.G. 6 The disputed issues is in relation to the hours worked by Mr Taylor related to work done by him at the Kings (OneSteel) yard at an induction on 30 March 2012 and for time worked at that location from 2 to 4 April 2012. Mr Taylor testified that he kept a diary in his truck of his hours of work. He also agreed that he signed timesheets and handed them to his supervisor each day. A copy of the relevant timesheets was exhibit R2. 7 Mr Taylor accepted in his testimony that there was some discrepancy between his amended particulars of claim and the hours recorded on his timesheets. Given that the timesheets were completed and signed at the time of the performance of the work, Mr Taylor accepted that for the purposes of his claim, they should be regarded as an accurate record. I find accordingly. For 26 March 2012, the hours should be 10 not 11. For 28 March they should be 9 rather than 13. For 29 March the hours recorded were 12 not 10. For 30 March and 2 April they should be 10 hours and 9.5 hours respectively. At the agreed hourly rate of $28 per hour, the total for the hours worked is 102 hours in the sum of $2,856. In addition, to be taken into account is the sum of $1,680 for a trip to the North West from 20 March to 23 March 2012 inclusive, at the agreed rate of $350 per day, including payment of $70 per overnight stay for expenses. Thus, the total adjusted sum is $4,536, less the payment of $500 made, resulting in an amount said to be owed of $4,036. 8 As noted, there was a factual dispute on the timesheets in relation to hours of work. For 30 March 2012, Mr Taylor said he was required to attend an induction at the Kings yard in Spearwood. He said this was paid time and he had never done inductions in his own time previously. Mr Taylor said that the induction was a large and complex one. He returned to the Starcap yard after the induction to “do some bits and pieces” and then went home. Ten hours are recorded on the timesheet for this. However, on Mr Knudson’s evidence, he said that the induction was in Mr Taylor’s own time and that he noted this on the timesheet. Mr Knudson also testified that the induction was only for about three and a half hours, as he had done it himself. 9 I am not prepared to accept that Mr Taylor should not have been paid for the induction. There is an obligation on an employer to ensure that all employees attend inductions as part of occupational health and safety requirements. However, I am prepared to accept that the hours of work claimed should not be for the full day and I would make an allowance of 5 hours for work performed on 30 March 2012. This reduces the hours worked by 5 hours, in the sum of $140. In relation to work done on 4 April 2012 at the Kings yard, Starcap asserted that no work was done at all on this day. This is contrary to the evidence contained in the timesheets and the testimony of Mr Taylor. In the absence of any evidence being led to the contrary by Starcap, I accept the evidence of Mr Taylor on this issue. 10 The major factual contest in this case, relates to the issue of the alleged “cash payment” made to Mr Taylor by Mr Knudson on or about 14 August 2012. Mr Taylor testified that he never received any cash payments from Starcap. Mr Knudson said that after Mr Taylor left Starcap, and commenced this claim, he received a telephone call from Mr Taylor. Mr Knudson agreed that Starcap owed Mr Taylor about $1,795. However, he could not find any paperwork to support the balance of Mr Taylor’s wages claim. Mr Knudson said that Mr Taylor telephoned again sometime after, on about 14 August 2012, and said that if Starcap paid him $1,795 he would not pursue the claim any further. 11 Based on this, Mr Knudson said he withdrew $2,000 in cash from the Starcap bank account and gave $1,800 in cash to Mr Taylor. He said he met Mr Taylor at the front of the Starcap premises on 14 August and gave him the money. A copy of a bank statement, exhibit R1, refers to a “miscellaneous debit” of $2,000 on 14 August 2012. An undated handwritten note appears alongside the withdrawal which said “wages Chris Taylor”. No other written record reflects this payment. There was no evidence that this notation was made at the time of the withdrawal of the funds. 12 Mr Taylor emphatically denied he made a request or received any such payment from Mr Knudson or anyone else from Starcap. The only payment he said he received from the business was $500 by the direct bank transfer to him on 3 April 2012, to which I have already referred. 13 Resolution of this issue turns on determining the conflict on the evidence between Mr Taylor and Mr Knudson. Exhibit A3 was a PAYG summary for Mr Taylor. He said he received this in early August 2012. It was for the 2012 financial year ending on 30 June 2012. It records payments to Mr Taylor by Julie Drage, the proprietor of Starcap, in the total amount of $2,660. This comprised a sum $2,380 in wages and $280 in travel allowances. The period during which payments were said to be made was 12 March 2012 to 25 March 2012. I pause to observe that this was not the period of employment of Mr Taylor. There is a signature box at the bottom of the document. The signature is obscured on the copy tendered in evidence. However, the name “Julie Drage” appears as the payer. It is dated 8 July 2012. It is reasonable to infer that the signature would be that of Julie Drage. The declaration made is to the effect that “the information given on this form is complete and correct”. It clearly is not. The period of employment of Mr Taylor is incorrect. Additionally, there is no evidence that the payments referred to in the summary were made to Mr Taylor. It is common ground, as I have noted, that in his period of employment, Mr Taylor was only paid the amount of $500 by Starcap, and not until 3 April 2012. Mr Knudson said he had no knowledge of exhibit A3 as he does not get involved in this side of the business. 14 By the time of the alleged contact by Mr Taylor with Mr Knudson in August 2012, Starcap was aware of Mr Taylor’s claim and that he was in dispute with it in relation to underpayments of wages and allowances. It is therefore very surprising, to say the least, that a payment of a sum of approximately $1,800 would be made in cash to a former employee, months after the termination of their employment, without any written record at all of such a payment. This is particularly in light of the existence of such a dispute. It would not have been difficult at all for even the briefest note, acknowledging the payment, to have been made. 15 The terms of exhibit R1 also do not provide adequate support for the assertion of the payment of $1,800 to Mr Taylor. Firstly, it is not for the amount of $1,800, which was said to have been the payment made to Mr Taylor. Secondly, there is nothing to suggest that the monies withdrawn were not withdrawn for some other purpose. Thirdly, there is nothing to suggest that the handwritten note on the copy of the bank statement was made at or about the time the money was said to have been paid to Mr Taylor. Finally, taken in the context of the evidence as a whole, the terms of exhibit A3 are troubling. It records payments allegedly made to Mr Taylor by Starcap, when no such payments were made. All of these issues go to the credibility of Starcap’s evidence in relation to whether such a compromise payment was made. There is also the overriding evidence that 94 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 135 although Mr Taylor commenced employment with Starcap on 19 March 2012, he had not, despite requests, received any wages or allowance payments at all until 3 April 2012, and then only in the sum of $500. 16 There was also an assertion made by Starcap that Mr Taylor has caused some damage to the truck and had lost some items of property whilst on a trip. No evidence was led by Starcap about this and Mr Taylor said this was never raised with him. In the absence of any evidence from Starcap on this issue, the Commission cannot deal with the matter any further. In any event, even if such findings could be made, these matters are separate to and cannot offset any contractual entitlement of Mr Taylor, unless the contract of employment provided for it. 17 For all of these reasons, I prefer the testimony of Mr Taylor to that of Mr Knudson on the disputed payments issue. I therefore find that Starcap is indebted to Mr Taylor in the sum of $3,896. I also accept that the overnight accommodation rate was agreed at $70, as this is noted on the first page of exhibit R2, the timesheet dated 19 March 2012. A handwritten note of calculations, presumably made by Starcap after the timesheet was submitted by Mr Taylor, refers to payments for 20 March and 21 March at $350 and with the following addition “+ 140 allowance”, which must mean $70 was the agreed daily allowance rate, for 2 nights away. 18 Therefore, the Commission will order Starcap to pay Mr Taylor the sum of $3,896 gross within 14 days as a denied contractual benefit. 2014 WAIRC 00033 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES CHRISTOPHER JAMES TAYLOR APPLICANT -v- JULIE DRAGE TRADING AS STARCAP LOGISTICS RESPONDENT CORAM COMMISSIONER S J KENNER DATE FRIDAY, 24 JANUARY 2014 FILE NO/S B 82 OF 2012 CITATION NO. 2014 WAIRC 00033 Result Order issued Representation Applicant Mr A Dzieciol of counsel Respondent Mr K Morrison as agent Order HAVING heard Mr Dzieciol of counsel on behalf of the applicant and Mr Morrison as agent on behalf of the respondent the Commission, pursuant to the powers conferred on it under the Industrial Relations Act, 1979 hereby orders – THAT the respondent pay to the applicant as a denied contractual benefit the sum of $3,896 gross within 14 days less any amount payable to the Commissioner of Taxation under the Income Tax Assessment Act 1997 (Cth) and actually paid. (Sgd.) S J KENNER, [L.S.] Commissioner. SECTION 29(1)(b)—Notation of— Parties Number Commissioner Result Catherine Cahill Access Global Resources B 2/2014 Chief Commissioner A R Beech Discontinued Dannica Hickey Subi Hairdressing U 144/2013 Chief Commissioner A R Beech Discontinued Deborah Lee Sontag Kira Incorporated U 126/2013 Chief Commissioner A R Beech Discontinued Elvio Ruggiero Alara Resources Ltd B 184/2013 Chief Commissioner A R Beech Discontinued Gail Valerie McDonnell Mrs Anna Latto and Mr Alan Latto U 151/2013 Chief Commissioner A R Beech Discontinued Hugh Sutherland Rogers J-Corp Pty Ltd B 165/2013 Chief Commissioner A R Beech Discontinued Jeffrey Holt Groundforce Rentals WA Pty Ltd B 153/2013 Chief Commissioner A R Beech Discontinued 136 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 94 W.A.I.G. Parties Number Commissioner Result Michael William Schembri RCR Tomlinson B 182/2013 Chief Commissioner A R Beech Discontinued Mr Kevin Keane Advance Formwork Pty Ltd B 100/2013 Chief Commissioner A R Beech Discontinued Parmal Patel Metro Gates & Balustrades Pty Ltd B 157/2013 Chief Commissioner A R Beech Discontinued Ronald Kenyon Gold Corporation (The Perth Mint) ABN 98838298431 U 210/2013 Chief Commissioner A R Beech Discontinued CONFERENCES—Matters arising out of— 2014 WAIRC 00024 DISPUTE RE LONG SERVICE LEAVE WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES RAYMOND BURCH APPLICANT -v- KEP MANAGEMENT SERVICES PTY LTD ACN 074 110 393 RESPONDENT CORAM COMMISSIONER S J KENNER DATE TUESDAY, 21 JANUARY 2014 FILE NO/S C 229 OF 2013 CITATION NO. 2014 WAIRC 00024 Result Discontinued Representation Applicant Mr B Jackson of counsel Respondent Mr M Cox of counsel Order WHEREAS the applicant sought and was granted leave to discontinue the application, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act, 1979 hereby orders – THAT the application be and is hereby discontinued by leave. (Sgd.) S J KENNER, [L.S.] Commissioner. 2013 WAIRC 01068 DISPUTE RE IMPLEMENTATION GUIDELINES FOR REGISTERED AGREEMENT WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES UNITED VOICE WA APPLICANT -v- THE DIRECTOR GENERAL OF THE DEPARTMENT OF EDUCATION RESPONDENT CORAM COMMISSIONER S J KENNER DATE WEDNESDAY, 18 DECEMBER 2013 FILE NO/S C 220 OF 2013 CITATION NO. 2013 WAIRC 01068 94 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 137 Result Order issued Representation Applicant Ms A Hamlin Respondent Mr M Hammond Order HAVING heard Ms A Hamlin on behalf of the applicant and Mr M Hammond on behalf of the respondent the Commission, pursuant to the powers conferred on it under the Industrial Relations Act, 1979 hereby orders – THAT the application be and is hereby discontinued. (Sgd.) S J KENNER, [L.S.] Commissioner. CONFERENCES—Matters referred— 2013 WAIRC 01057 DISPUTE RE ALLEGED UNAUTHORISED DEDUCTIONS WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES THE AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION OF EMPLOYEES, WEST AUSTRALIAN BRANCH APPLICANT -v- PUBLIC TRANSPORT AUTHORITY OF WESTERN AUSTRALIA RESPONDENT CORAM COMMISSIONER S J KENNER DATE FRIDAY, 6 DECEMBER 2013 FILE NO/S CR 4 OF 2013 CITATION NO. 2013 WAIRC 01057 Result Order issued Representation Applicant Mr K Singh Respondent Mr D Matthews of counsel Order HAVING heard Mr K Singh on behalf of the applicant and Mr D Matthews of counsel on behalf of the respondent the Commission, pursuant to the powers conferred on it under the Industrial Relations Act, 1979 hereby orders – THAT the application be and is hereby discontinued. (Sgd.) S J KENNER, [L.S.] Commissioner. CONFERENCES—Notation of— Parties Commissioner Conference Number Dates Matter Result Health Services Union of Western Australia (Union of Workers) Minister for Health Scott A/SC PSAC 36/2013 N/A Dispute re employment contract and hours Discontinued Health Services Union of Western Australia (Union of Workers) Minister for Health Scott A/SC PSAC 18/2013 31/05/2013 25/06/2013 Dispute re voluntary redundancy Discontinued 138 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 94 W.A.I.G. Parties Commissioner Conference Number Dates Matter Result Health Services Union of Western Australia (Union of Workers) The Director General of Health as delegate of the Minister of Health in His incorporated capacity under section 7 of the Hospitals and Health Services Act 1927 (WA) Scott A/SC PSAC 11/2013 22/04/2013 Dispute re investigation process Discontinued United Voice WA The Director General, Department of Education and Training Scott A/SC C 232/2013 25/11/2013 Dispute re funding changes Concluded PROCEDURAL DIRECTIONS AND ORDERS— 2014 WAIRC 00083 WA HEALTH - AUSTRALIAN NURSING FEDERATION - REGISTERED NURSES, MIDWIVES, ENROLLED (MENTAL HEALTH) AND ENROLLED (MOTHERCRAFT) NURSES - INDUSTRIAL AGREEMENT 2013 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES 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 SERVICE BOARD, THE PEEL HEALTH SERVICES BOARD, WA COUNTRY HEALTH SERVICE AND THE WESTERN AUSTRALIAN ALCOHOL AND DRUG AUTHORITY APPLICANT -v- AUSTRALIAN NURSING FEDERATION, INDUSTRIAL UNION OF WORKERS PERTH RESPONDENT CORAM COMMISSIONER J L HARRISON DATE WEDNESDAY, 5 FEBRUARY 2014 FILE NO/S AG 19 OF 2013 CITATION NO. 2014 WAIRC 00083 Result Order issued Representation Applicant Mr D Matthews (of counsel) and Mr N Fergus Respondent Ms V Loveridge and Ms E Hadrys Order This is an application for the registration of the WA Health - Australian Nursing Federation - Registered Nurses, Midwives, Enrolled (Mental Health) and Enrolled (Mothercraft) Nurses - Industrial Agreement 2013. The matter has been listed for hearing under s 42G of the Industrial Relations Act 1979 (the Act) as the parties agreed to the Commission arbitrating a number of clauses which are in dispute between the parties. The applicant seeks leave under s 31(4) of the Act to have a legal practitioner conduct all of its case at the s 42G hearing. The respondent objects to this. Submissions Applicant • Section 31(4) of the Act provides that if a matter of law is to be argued and a legal practitioner is granted leave to appear, this person can appear and conduct the applicant’s case for the entire proceedings. • Section 6(c) of the Act is not the most important part of s 6, the objects of the Act, when determining whether legal representation should be allowed. 94 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 139 • Section 26(1)(c) applies with respect to the Commission exercising its discretion in this instance. As the respondent’s claims have a potentially significant impact on the State’s finances and therefore the State’s population this is a relevant consideration and should be taken into account. There is also a significant public interest in the outcome of these proceedings given the cost of the respondent’s claims. • Legal representatives can assist with the expeditious and efficient conduct of a case before the Commission. • The applicant has agreed that the new agreement should not include any loss of conditions. A number of matters of law therefore arise with respect to the applicant responding to the respondent’s additional claims. • The applicant argues that legal issues arise with respect to its claim that the agreement reached between the applicant and the respondent on 24 February 2013 was based on illegitimate pressure and these legal and equitable arguments impact on whether the additional claims being sought by the respondent should be granted. • A number of significant legal matters are raised or are likely to be raised with respect to many of the proposed clauses being sought by the respondent. These clauses relate to accrued days off, claims for pay increases based on service, payment for personal leave, requests for purchased leave, access to the deferred salary scheme, access to redundancy and workers compensation payments, provision of parking and regulation of parking charges and the establishment of three consultative committees. Respondent • The arbitration of the clauses being sought by the respondent does not raise nor is it likely to raise any legal questions of substance. • There is no disadvantage to the applicant if it is not represented by a legal practitioner as the applicant’s industrial relations section is well resourced and experienced. • The proceedings could be extended by lengthy legal argument if a legal practitioner appears. • If any legal issues arise with respect to this application this could be dealt with by written submissions or a brief appearance by a legal practitioner. • It is inappropriate for the applicant to argue that illegitimate pressure was applied by the respondent and its members to reach the agreement between the applicant and the respondent on 24 February 2013 as the applicant has agreed to arbitrate outstanding matters via this application. Consideration Beech SC made the following observations concerning the granting of leave for a legal practitioner to appear in proceedings in Civil Service Association of Western Australia Incorporated v Director General, Department of Justice (2003) 83 WAIG 503. With respect, I adopt his views: It may be able to be said that most, if not all, proceedings before the Commission may involve some question of law. This is because the Commission is a creature of a statute which operates in accordance with that statute and arguments may arise regarding the interpretation of the statute. Further, matters of employment law are frequently central to the issues which are brought to the Commission. The point to be made is that s.31 of the Industrial Relations Act 1979 does not give a right to parties to be represented by counsel merely because a question of law is raised or argued or likely to be raised or argued. Therefore, the fact that a question of law may be raised of itself may not be sufficient justification for the Commission to exercise its discretion to permit counsel to appear. In other words, merely because the declaration and orders sought “relate or touch upon questions of law” (to quote from the respondent’s letter of 21 February 2003) does not mean that counsel is to be given leave to appear. Rather, the question of law raised or argued, or likely to be raised or argued, should be a question of substance and not mere technicality. I say this because the Act provides means for settling disputes with the maximum of expedition and the minimum of legal form and technicality. The prospect of there being raised unnecessary legal form and technicality, particularly, but not solely, where it inhibits the settling of industrial disputes may well not be the sort of consideration which would justify the exercise of discretion in favour of a legal practitioner appearing in a matter (Western Mining Corporation v. AWU, op.cit) [36] - [37]. Section 31(4) of the Act provides as follows: (4) Where a question of law is raised or argued or is likely in the opinion of the Commission to be raised or argued in proceedings before the Commission, the Commission may allow legal practitioners to appear and be heard. Section 31(4) provides that the Commission may allow a legal practitioner to appear in a matter when a question of law is raised or argued or in the opinion of the Commission is likely to be raised or argued in the proceedings. Section 31(4) gives the Commission discretion to determine if a legal practitioner can appear if legal issues are to be argued and on what matters that legal practitioner can be heard. As this section gives the Commission the power to grant leave to a legal practitioner to appear to be heard as it deems appropriate, I find that the terms of s 34(1) do not mandate that a legal practitioner given leave to appear must be heard with respect to all matters in the proceedings. Section 6(c) of the Act provides that when exercising its discretion the Commission is required to settle disputes within the context of a minimum of legal form and technicality and I take this object into account when determining whether leave to appear in these proceedings should be granted to a legal practitioner and the manner in which this person is granted leave to appear. On the information currently before me it is my view that legal issues of some substance are to be raised or are likely to be raised in these proceedings. In the circumstances I will grant leave to counsel for the applicant to appear to be heard on the legal issues relevant to this application. 140 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 94 W.A.I.G. In my view the applicant will not be disadvantaged by not having a legal practitioner appear on its behalf to conduct all of its case as it is my view that the applicant is sufficiently resourced and its employees appropriately experienced to be able to adequately conduct the remainder of its case. On 31 January 2014 the Commission issued a Minute of Proposed Order and the applicant requested a Speaking to the Minutes. At the Speaking to the Minutes held on 4 February 2014 the applicant sought clarification about the operation of the proposed order. Given that the applicant was seeking clarification of the proposed order the Commission was of the view that no issue had been raised about the Minute of Proposed Order not reflecting the decision and the parties were advised that the order would issue in the terms of the Minute. NOW HAVING HEARD Mr D Matthew (of counsel) and Mr N Fergus on behalf of the applicant and Ms V Loveridge and Ms E Hadrys on behalf of the respondent, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby orders – THAT leave is granted for the applicant to be represented by a legal practitioner to make submissions with respect to legal issues relevant to and arising out of this application. (Sgd.) J L HARRISON, [L.S.] Commissioner. 2014 WAIRC 00082 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES TROY DOUGLAS SEMMENS APPLICANT -v- TORAK PTY LTD TRADING AS PRESTIGE PRODUCTS) RESPONDENT CORAM COMMISSIONER S M MAYMAN DATE WEDNESDAY, 5 FEBRUARY 2014 FILE NO/S B 8 OF 2014 CITATION NO. 2014 WAIRC 00082 Result Change of respondent's name Representation Applicant Mr T D Semmens Respondent Mr S Edwards (as agent) Order WHEREAS this application was lodged in the Commission pursuant to s 29(1)(b)(ii) of the Industrial Relations Act 1979 (WA); AND WHEREAS at the conference held on 4 February 2014 the respondent advised the Commission the respondent had been incorrectly named; AND WHEREAS the Commission formed the view that it was appropriate to amend the respondent’s name; NOW THEREFORE, I the undersigned, pursuant to the powers conferred on me under the Industrial Relations Act 1979, hereby order – THAT the name Prestige Products (John Poleykett – Owner) be deleted and Torak Pty Ltd trading as Prestige Products be inserted in lieu thereof. (Sgd.) S M MAYMAN, [L.S.] Commissioner. 94 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 141 2014 WAIRC 00092 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES RICHARD SIMPSON APPLICANT -v- MURRAY TAYLOR RESPONDENT CORAM ACTING SENIOR COMMISSIONER P E SCOTT DATE WEDNESDAY, 12 FEBRUARY 2014 FILE NO/S B 152 OF 2013 CITATION NO. 2014 WAIRC 00092 Result Name of respondent amended Order WHEREAS this is an application pursuant to Section 29(1)(b)(ii) of the Industrial Relations Act 1979; and WHEREAS at the hearing on the 11th day of February 2014 the applicant sought to amend the name of the respondent to “Uduc Brook Farms Pty Ltd"; and WHEREAS the respondent agreed to the name of the respondent being amended; NOW THEREFORE, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby orders: THAT the name of the respondent in the application be amended to "Uduc Brook Farms Pty Ltd". (Sgd.) P E SCOTT, [L.S.] Acting Senior Commissioner. 2014 WAIRC 00016 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES KYRILLOS SAWERES APPLICANT -v- SALVATORE SCAFFIDI - MUTA RESPONDENT CORAM COMMISSIONER S M MAYMAN DATE TUESDAY, 14 JANUARY 2014 FILE NO/S B 190 OF 2013 CITATION NO. 2014 WAIRC 00016 Result Change of respondent's name Representation Applicant Mr K Saweres Respondent Ms J Swift (of counsel) Order WHEREAS this application was lodged in the Commission pursuant to s 29(1)(b)(ii) of the Industrial Relations Act 1979 (WA); AND WHEREAS the matter was listed for conference on 13 January 2014; AND WHEREAS at the conference it became clear that the respondent had been incorrectly named; AND WHEREAS the Commission formed the view that is was appropriate to amend the respondent’s name; AND WHEREAS the parties agreed to amend the respondent’s name; 142 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 94 W.A.I.G. NOW THEREFORE, I the undersigned, pursuant to the powers conferred on me under the Industrial Relations Act 1979, hereby order – THAT the name Dijana Badrov, Pharmacist Manager, United Discount Chemists Darch ABN: 76 196 485 028 Scaffidi-Muta, Salvatore be deleted and Salvatore Scaffidi – Muta inserted in lieu thereof. (Sgd.) S M MAYMAN, [L.S.] Commissioner. 2013 WAIRC 00790 DISPUTE RE ENTERPRISE BARGAINING WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES THE AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION OF EMPLOYEES, WEST AUSTRALIAN BRANCH APPLICANT -v- PUBLIC TRANSPORT AUTHORITY OF WESTERN AUSTRALIA RESPONDENT CORAM COMMISSIONER S J KENNER DATE WEDNESDAY, 4 SEPTEMBER 2013 FILE NO. C 219 OF 2013 CITATION NO. 2013 WAIRC 00790 Result Recommendation issued Representation: Applicant Mr T Kucera of counsel and with him Mr K Singh, Mr P Robinson, Mr L Page, Mr R Debenham, Mr C Fogliani and Mr C Dearth Respondent Mr R Farrell and with him Ms J Allen-Rana, Mr E Gearon and Ms T Kerr Recommendation WHEREAS on 27 August 2013 the Union made an application for a conference under s 44 of the Industrial Relations Act 1979 in relation to enterprise bargaining negotiations between it and the Authority; AND WHEREAS on 3 September 2013 the Commission convened a compulsory conference under s 44 of the Act. At the conference, the Union referred to the negotiations between it and the Authority for a new industrial agreement which have been on foot for approximately eight months; The Union referred to recent correspondence between it and the Authority in relation to ongoing delays in the Authority making a formal offer for a replacement industrial agreement. It referred to the Authority’s response, most recently on 27 August 2013, to the effect that it was hopeful of receiving approval from the Government to make a formal offer by about mid-September 2013; AND WHEREAS at the conference the Authority indicated that it had been advised that it would be in a position to make a formal offer to the Union on Friday 13 September 2013 and proposed a meeting with the Union for that purpose; AND WHEREAS in the course of the conference, the parties canvassed various means by which the terms of the formal offer may be communicated to employees and the timeframe over which that process could take place; AND WHEREAS the Union requested that the Commission make orders in relation to the matters raised by the Authority which orders were opposed by the Authority. The Commission indicated, following consideration, that it would not make the orders sought but would consider making recommendations in relation to the future conduct of bargaining between the parties; NOW THEREFORE the Commission, pursuant to the powers conferred on it under ss 42B and 44 of the Industrial Relations Act, 1979 hereby recommends – (1) THAT the Authority provide to the Union a formal bargaining offer by 12 noon Friday, 13 September 2013. (2) THAT the parties confer in relation to the most appropriate means by which the terms of the formal offer may be communicated to employees and the timeframe over which such communication process will take place, including the formal response of the Union to the Authority’s offer. (3) THAT the parties report back to the Commission as to the progress of these matters by Friday 20 September 2013. (4) THAT the compulsory conference be adjourned to a date and time to be fixed by the Commission. (Sgd.) S J KENNER, [L.S.] Commissioner. 94 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 143 2014 WAIRC 00043 APPEAL AGAINST THE DECISION TO TERMINATE EMPLOYMENT ON 12 AUGUST 2013 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION