Citation : [2013] WAIRC 00293; (2013) 93 WAIG 538 File No : B 162 of 2012 CatchWords : Industrial law (WA) - Appeal filed out of time - Leave granted to institute an appeal - Application to adduce fresh evidence refused - Whether action of employer conferred a right to stand down an employee without pay considered - Found employee stood down for disciplinary reasons in circumstances where no right to deduct pay - No error in discretion to accept evidence of employee's evidence in respect of the terms of contract demonstrated - Error found in finding that payment for 40 hours a week was retrospective - Turns on own facts - Appeal allowed in part Legislation : Industrial Relations Act 1979 (WA) s 27(1)(n), s 29(1)(b)(ii), s 49, s 49(4)(a) Industrial Relations Commission Regulations 2005 (WA) reg 33(1) Fair Work Act 2009 (Cth) s 524, s 524(1)(c) Workplace Relations Act 1996 (Cth) (repealed) s 691A, s 691B Result : Appeal allowed Representation: Appellant : Mr P King, as agent Respondent : Mr A M Dzieciol (of counsel) Case(s) referred to in reasons: Coal & Allied Mining Services Pty Ltd v MacPherson [2010] FCAFC 83; (2010) 270 ALR 414 Codelfa Constructions Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 Cousins v YMCA of Perth [2001] WASCA 374; (2001) 82 WAIG 5 Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458 Malik v Albert, Director General, Department of Education of Western Australia [2004] WASCA 51; (2004) 84 WAIG 683 O'Meara v John Paul College [2014] WAIRC 00036; (2014) 94 WAIG 50 Case(s) also cited: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 94 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 679 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v TransAdelaide [2009] FWA 351, 25 September 2009 Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 House v The King (1936) 55 CLR 499 Re Minister for Immigration & Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 Kioa v West [I985] HCA 81; (1985) 159 CLR 550 MacPherson v Coal & Allied Mining Service Pty Ltd (No 2) [2009] FMCA 881; (2009) 189 IR 50 Muir v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601 Norbis v Norbis (1986) 161 CLR 513 Salemi v Minister for Immigration and Ethnic Affairs (No 2) (1977) 14 ALR I The Minister for Health in his incorporated capacity under section 7 of the Hospitals and Health Services Act 1927 (WA) as the hospitals formerly comprised in the Metropolitan Health Services Board v Denise Drake-Brockman [2012] WAIRC 00150; (2012) 92 WAIG 203 Reasons for Decision SMITH AP AND BEECH CC: Introduction 1 Carmike Nominees Pty Ltd trading as West Coast Vacuum Trucks (Carmike) seeks to institute an appeal under s 49 of the Industrial Relations Act 1979 (WA) (the Act) against a decision given by the Commission, constituted by a single Commissioner, given on 20 May 2013 in B 162 of 2012. 2 The time prescribed for instituting an appeal against a decision of a single member of the Commission is within 21 days of the date of a decision. Carmike filed a notice of appeal on 13 June 2013 which was three days outside the time prescribed under s 49 of the Act for instituting an appeal to the Full Bench. 3 Application B 162 of 2012 was an industrial matter referred to the Commission by David Pratt under s 29(1)(b)(ii) of the Act. Mr Pratt claimed that he had been denied unpaid wages of $5,663, one week and one day's wages for the period ending on 18 June 2012 in the sum of $1,344 and two weeks' pay in lieu of notice $2,240. After hearing the matter Commissioner Kenner upheld part of the claim and ordered Carmike to pay Mr Pratt the sum of $5,663 for unpaid wages for 202.25 hours of work and $1,344 for unpaid wages from 12 June to 18 June 2012 inclusive. 4 The appeal was listed for hearing before the Full Bench on 12 March 2014. At the hearing of the appeal an application was made on behalf of Carmike for leave to extend time in which to file the notice of appeal to the Full Bench and to extend the time in which to file and serve the appeal books. The applications for extension of time were opposed by the respondent. After hearing submissions by the parties in respect of the applications for extension of time the Full Bench informed the parties that it would reserve its decision as to whether leave would be granted and that it wished to hear the arguments in respect of the merits of the appeal. Facts found by the Commission at first instance 5 Carmike is engaged in the business of waste removal, trenchless excavations and potholing. Mr Pratt was employed by Carmike as an operator of a vacuum truck from 9 January 2012 until his employment was terminated on 18 June 2012. 6 Mr Pratt was engaged under a contract of employment which was partly written and partly oral. To the extent that the contract of employment was oral, it comprised conversations between Mr Pratt and Mr Michael John Bray. 7 Mr Pratt's claim for unpaid wages of $5,663 arose out of a claim for wages for 40 paid hours each week. Carmike at the hearing at first instance and in this appeal contends that there was an agreement between the parties that: (a) If Mr Pratt worked less than 20 hours in a week he would be paid for 20 hours; and (b) If Mr Pratt worked more than 20 hours in a week, he would be paid for 40 hours. 8 Although part of the contract of employment was in writing, there was nothing in the written contract of employment in respect to this issue. It was common ground that this matter then fell to be resolved on the basis of what was said to have been orally agreed between Mr Pratt and Mr Bray. 9 In respect of a claim for wages for one week and one day ending on 18 June 2012 and two weeks' pay in lieu of notice, Carmike contended that Mr Pratt breached his contract of employment, by refusing to perform duties he was required to perform on 12 June 2012. As a result, it said it lawfully dismissed Mr Pratt for misconduct, in which case no further monies were owing. 10 The parties agreed that Mr Pratt's employment was covered by the Waste Management Award 2010 (Cth) (the award). It was accepted, however, by the parties that each of the claims related to the recovery of amounts in excess of the award entitlements. 11 The learned Commissioner made the following findings: (a) There was a conflict on the evidence as to the agreed hours of work. Mr Pratt testified that at the time of the initial discussions before he commenced employment, there was no mention of hours of work. He said, however, that at all times he expected to be a full-time employee and to be paid for 40 hours per week. He raised this matter after the commencement of his employment. When he raised the issue with Mr Bray, Mr Bray informed him that he would pay him at least 20 hours per week and if he worked more than 20 hours per week, he would be 680 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 94 W.A.I.G. paid for 40 hours. In response, Mr Pratt informed Mr Bray that he was not able to survive on 20 hours per week. Accordingly, Mr Bray agreed to discuss the issue with his partner and Mr Pratt subsequently received a telephone call from Mr Bray and was informed that as they did not want to lose his services, they had agreed to pay him for a 40 hour week. (b) Mr Bray's evidence was at odds with that of Mr Pratt. Mr Bray testified that as the Carmike's business was new, it depended on jobs coming in as to the hours Mr Pratt would work. At the time the parties entered into the agreement on 6 January 2012, Mr Bray said that he mentioned this to Mr Pratt. He proposed to pay Mr Pratt 20 hours per week if he worked up to that number of hours, and 40 hours if he worked in excess of 20 hours per week. Mr Bray contended, therefore, that Mr Pratt was employed on a part-time basis. In the early stages of his employment, particularly during January 2012, Mr Pratt was doing a lot of inductions, obtaining licences for the business and running around in the truck. Mr Bray was therefore prepared to pay Mr Pratt for these hours of work. (c) There is a substantial discrepancy between the documentary evidence in the form of payslips set out in exhibit A3, and Mr Pratt's timesheets set out in exhibit R1. The payslips cover the period 9 January 2012 up to and including 17 June 2012. Contrary to the evidence of Mr Bray, for some 11 of the total of 22 pay periods, Mr Pratt was paid for 40 hours per week but on only three of those occasions did Mr Pratt work more than 20 hours per week. Thus, the employer's own time and wages and payroll records were not consistent with the case advanced by Carmike. Coupled with the fact that Mr Pratt said in his evidence that he raised the issue of his wages and hours with Mr Bray, the evidence as a whole supports the proposition advanced by Mr Pratt. 12 Accordingly, it was an oral term of the contract that Mr Pratt be paid by Carmike for 40 hours per week, irrespective of the actual hours worked. 13 For these reasons, the learned Commissioner was satisfied that Mr Pratt had established his claim in relation to the hours of work on the balance of probabilities and that he had been denied a contractual benefit, some 202.25 hours at $28 per hour in the total sum of $5,663. 14 The learned Commissioner then went on to consider Mr Pratt's claim for two weeks' pay in lieu of notice and the claim for wages from the period of 12 June 2012 to 18 June 2012. These claims arose out of an interpretation of events that occurred on or about 12 June 2012. On that day Mr Pratt was asked by Mr Bray to perform a potholing job in Bayswater. Potholing is an extension of trenchless excavation work. The issue was whether such work was a duty Mr Pratt was required to perform. 15 It is common ground that on 12 June 2012, Mr Pratt had finished a job about mid-morning that day when he received a telephone call from Mr Bray who told him the next job for the day was a potholing job in Bayswater. This was work that Mr Pratt had not previously performed. Mr Pratt refused to perform the work and claimed that this sort of work was 'not in his contract'. Mr Bray was not impressed by Mr Pratt's refusal to work. Mr Pratt told Mr Bray words to the effect 'we can either terminate this contract, rip it up and redraw it up, alright, to a new contract with the potholing and all that in the contract'. 16 Mr Bray's testimony was that Carmike's business was formed for the purpose of carrying out potholing work. He intended to meet Mr Pratt onsite at Bayswater on the day in question, to do the work with him. Mr Bray said the work involved nothing really different to other liquid waste work. When Mr Pratt said to him that if he was not happy with him not performing this sort of work, they may as well 'go our own separate ways', Mr Bray told Mr Pratt that if that was the way he wanted it he would have to reorganise the work and Mr Pratt should take the truck home. Later in the day, Mr Pratt was requested to drop the truck off at Carmike's premises, which he did. 17 When Mr Bray gave evidence, he said he gave Mr Pratt a week to consider his position. On or about 18 June 2012, Mr Bray telephoned Mr Pratt. He said that he did so because he had had no contact from Mr Pratt and was unsure of his intentions. Also, he wanted to confirm that they were 'parting ways'. 18 Mr Pratt's evidence was that he put it again to Mr Bray whether he wanted to 'rip up the contract and start it again'. Mr Bray's response was there was 'no point in going on' and he took this as the termination of his employment. 19 After considering this evidence, the learned Commissioner found that the request by Mr Bray to Mr Pratt to perform the Bayswater job on 12 June 2012 was both lawful and reasonable. In coming to this view, the learned Commissioner had regard to the express terms of the contract of employment and found that the duties expressed in the contract included work involving trenchless excavation and potholing. In these circumstances, he found that at common law, the wilful disobedience of a lawful and reasonable instruction may constitute grounds for summary dismissal. He also found that the conduct of Mr Pratt in refusing to perform the work in question, and in suggesting to Mr Bray that the contract be 'ripped up and redrawn', was, on any reasonable view, a repudiation of the essential conditions of the contract. For these reasons, the learned Commissioner found that there was no obligation on Carmike to give Mr Pratt two weeks' notice under cl 8 – Termination of the contract, when the contract was terminated. 20 As to the status of the period between 12 June 2012 and 18 June 2012, the learned Commissioner rejected an argument put on behalf of Carmike that Mr Pratt had abandoned his employment and found that Mr Pratt was waiting confirmation of the outcome of the somewhat uncertain response of Mr Bray on 12 June 2012. He also found that Mr Bray did not exercise the contractual right of dismissal at that time. The learned Commissioner then found that Mr Pratt was dismissed as a consequence of the telephone call between Mr Pratt and Mr Bray on 18 June 2012. 21 The learned Commissioner then observed that there is no right at common law, nor under the award, to stand down an employee without pay and as the contract of employment remained on foot until 18 June 2012, Mr Pratt was entitled to be paid to 18 June 2012. For these reasons, the learned Commissioner ordered that Carmike pay Mr Pratt the sum of $1,344 for unpaid wages from 12 June 2012 to 18 June 2012. Application to adduce fresh evidence 94 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 681 22 During the hearing of the appeal, Carmike's representative, Mr King, sought to tender into evidence a copy of an advertisement that was said to have been placed by Carmike in The West Australian newspaper advertising the job that Mr Pratt applied for. The application was opposed. After hearing from the parties, the Full Bench informed the parties that the application was refused. The reasons why the Full Bench refused the application are as follows: (a) Section 49(4)(a) of the Act provides that an appeal to the Full Bench shall be heard and determined on the evidence and matters raised in the proceedings before the Commission; (b) The Full Bench does have a discretion to receive additional evidence within strict confines which is that fresh evidence can only be admitted if: The evidence, insofar as it was relevant, and some of it was not, could only be admissible if it were not 'available to the appellant at the time of the trial' and could not by reasonable diligence have been made available. Further, it is only admissible if the evidence sought to be admitted is credible, although it does not have to be beyond controversy. Further, it can only be admitted if it is almost certain that, if the evidence had been available and adduced, an opposite result would have been reached: Underdown v Dowford Investments Pty Ltd [2005] WAIRC 1243; (2005) 85 WAIG 1437 [8] (Sharkey P and Kenner C); applied in Merredin Customer Service Pty Ltd v Green [2007] WAIRC 01150; (2007) 87 WAIG 2789 [10]; Liquor, Hospitality and Miscellaneous Union, West Australian Branch v The Minister for Health [2011] WAIRC 00192; (2011) 91 WAIG 291 [60]. (c) As the advertisement is contained in records that could have been searched by Carmike prior to the hearing at first instance, we were not satisfied that the advertisement could not by reasonable diligence have been made available at the time of the hearing. Grounds of appeal 23 At the hearing of the appeal, Carmike sought leave to amend the grounds of appeal. As the application was not opposed, leave to amend was granted. The amended grounds of appeal are: a. Ground 1: Commissioner Kenner erred in denying the Appellant natural justice/procedural fairness. Commissioner Kenner denied the Appellants [sic] request for the closing submissions to be written not oral. b. Ground 2: Commissioner Kenner erred in law in that he failed to take into account the statutory provision of section 524 Fair Work Act 2009 whereby a [sic] employee can in certain circumstances be stood down without pay. c. Ground 3: Commissioner Kenner erred in fact in finding that in relation to 11 of a total of 22 pay periods during the course of Mr Pratt's employment, Mr Pratt was paid for 40 hours per week but on only 3 occasions, did Mr Pratt work more than 20 hours. In his assessment of the time sheets and pay slips Commissioner Kenner failed to take into account the relevant provisions of the Waste Management Award 2010. d. Ground 4: Commissioner Kenner erred in fact in his decision that the applicant was employed as a full time employee for 40 hours per week and that it was the oral term of the agreement that Mr Pratt be paid by Carmike for 40 hours per week irrespective of the actual hours worked. e. Ground 5: Commissioner Kenner erred in fact in making the oral agreement retrospective for the whole of the employment period 9 January 2012 to 18 June 2012. The applications for extension of time – submissions 24 Carmike submits that the Full Bench must act fairly and in good conscience in exercising its discretion to grant an extension of time. It also contends that the discretion to accept an appeal outside of the 21 day time period and the filing of the appeal books outside the 14 day time period required under the Industrial Relations Commission Regulations 2005 (WA) (the Regulations) ought to be exercised, unless it would be unfair to do so: Malik v Albert, Director General, Department of Education of Western Australia [2004] WASCA 51; (2004) 84 WAIG 683; Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458. 25 As to the reasons for the delay in filing the Notice of Appeal, Mr King informed the Full Bench on behalf of Carmike that: (a) When the decision was handed down, he had been unable to contact the directors of Carmike, Mr Bray and Ms Domek, to obtain instructions as to whether an appeal should be instituted. Mr Bray and Ms Domek were overseas on their honeymoon; (b) When he was able to finally contact Mr Bray, the time for filing a notice of appeal had almost expired. He then gave Mr Bray a brief summary of the decision and sought instructions as to whether the appellant wished to file an appeal; (c) Mr Bray provided instructions to him to file an appeal just when the time period for filing an appeal had expired. At that time, he was becoming unwell and was unable to attend to his duties; (d) Both directors of the company were overseas for the entire 21 day period after the decision was delivered by the Commission; (e) Carmike will be prejudiced if an extension of time is not granted as it would have to pay money to Mr Pratt which it says is not owed; (f) There is no prejudice to Mr Pratt if an extension of time is granted; (g) The merits of the substantive application may be taken into account when determining whether to grant an extension of time and that requires hearing the points raised in Carmike's submissions. 682 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 94 W.A.I.G. 26 On behalf of Mr Pratt a submission was made that the Full Bench must consider the length of the delay, the reason for the delay and consider whether there is any prejudice to either party and the prospects of the success of the appeal. Whilst Mr Pratt concedes that the delay is not lengthy, he says that Carmike's case is not strong. As to the reasons for the delay, it is pointed out that the first explanation that has been given is the explanation given from the bar table at the hearing of this appeal. There is no affidavit or any other material setting out the circumstances as to when the directors of Carmike went overseas and when they returned. This, Mr Pratt says, is not satisfactory. In particular, if a party seeks the indulgence of a tribunal to exercise its discretion to extend the time prescribed for doing a particular matter, it should provide an affidavit providing an explanation for that delay setting out the circumstances surrounding the delay and from that information the tribunal can assess whether the excuse for the delay is reasonable in the circumstances. Should leave be granted to extend time to the appellant to institute an appeal? 27 The Commission is empowered under s 27(1)(n) of the Act to grant an extension of time to bring an appeal. However, the granting of an extension of time is not automatic and in each case turns on its own facts. The discretion is conferred for the sole purpose of enabling the Commission to do justice between the parties and it is always necessary to consider the prospects of success of the applicant: Cousins v YMCA of Perth [2001] WASCA 374; (2001) 82 WAIG 5 [46] (Kennedy J, with whom Scott and Parker JJ agreed), recently applied in O'Meara v John Paul College [2014] WAIRC 00036; (2014) 94 WAIG 50 [20]. 28 The discretion can only be exercised in favour of an applicant on proof that strict compliance of the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard for the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: Gallo v Dawson (459) (McHugh J). 29 It is conceded in this matter by Mr Pratt that the length of the delay is very short. Whilst the reasons for delay have not been put to the Full Bench in the usual way, but by way of assertions made from the bar table, we are of the opinion that there is an adequate explanation for the delay. We are also of the opinion that, with the exception of ground 5 of the amended grounds of appeal, the grounds of appeal have no merit whatsoever. We are, however, satisfied that there is a strong case to be made out in respect of ground 5 when the evidence given by Mr Pratt is carefully considered. For these reasons, we would grant leave to appeal. Ground 1 of the appeal 30 In ground 1 of the appeal Carmike complains that it was denied procedural fairness as the learned Commissioner denied a request by its agent to put its closing submissions in writing. 31 At page 68 of the transcript of the hearing at first instance, after Mr King informed Commissioner Kenner that the case of Carmike was concluded, Commissioner Kenner asked Mr King to commence Carmike's closing address the following exchange occurred: KING, MR: I was about to make application for written submissions, Commissioner. KENNER C: Why? KING, MR: I've got a number of cases I've got to raise. KENNER C: No. I want to hear from the parties now, Mr King. It's not a complicated case. You can address the - address the evidence and - and the - and the exhibits. 32 At the hearing of the appeal a submission was made by Mr King that: (a) he had a 'lot of cases' to make submissions about and they wanted to make written submissions because there was a lot to get through; (b) The learned Commissioner wanted him to hurry through the submissions and that he had made up his mind. 33 However, when the transcript of the hearing is examined, it is clearly apparent that the learned Commissioner Kenner did not say to, or indicate to Mr King in any way that Carmike was restricted in the submissions it wished to make. 34 As Mr Pratt points out in his written submissions in this appeal, Carmike was provided with the same opportunity to present its case as all other parties who appear before the Commission and that the hearing at first instance proceeded in the manner prescribed by reg 33(1) of the Regulations which provides: Subject to subregulation (2), the procedure before the Commission, except before the President, on an appeal to be heard by the Full Bench or the Commission in Court Session, is as follows — (a) the applicant may make a brief statement outlining the applicant's case and describing the evidence the applicant will bring; (b) the applicant may then call the applicant's witnesses; (c) unless the Commission otherwise permits, the examination in chief may be conducted by not more than one person on behalf of the applicant, and the cross-examination may be conducted by not more than one person on behalf of each respondent; (d) the applicant will be allowed to re-examine but the re-examination must be confined to matters arising out of the cross-examination; (e) the case for the applicant must then close; (f) the respondent may then state the respondent's case and call the respondent's witnesses and paragraphs (c) and (d) apply with such modifications as are necessary; 94 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 683 (g) if the respondent has produced evidence in support of any counter-proposal the applicant may call witnesses in respect of the counter-proposal; (h) the respondent may then make closing submissions as to the evidence and the law; (i) the applicant may then make closing submissions as to the evidence and the law; (j) the respondent then has a right of reply limited to any questions of law raised that could not reasonably have been anticipated. 35 When the transcript of the hearing is examined, it is clear that Carmike had the opportunity to cross-examine Mr Pratt, state its case, call evidence in-chief and in re-examination and to make closing submissions as to the evidence and the law. 36 In addition, Carmike was represented. The evidence adduced by the parties did not depart from the matters pleaded in the application and the notice of answer and counter-proposal. Nor is there any claim made on behalf of Carmike that a matter of fact or law was raised in the hearing that took it by surprise which could have raised an expectation that it be afforded an opportunity of considering that matter and providing written submissions in respect of that issue following the conclusion of the hearing. 37 For these reasons, we are of the opinion that ground 1 of the appeal has no substance. Ground 2 of the appeal 38 Carmike contends that the learned Commissioner erred in finding that there is no right at common law or under the award to stand down an employee without pay, as s 524 of the Fair Work Act 2009 (Cth) confers such a right in certain circumstances. 39 Section 524 of the Fair Work Act provides: (1) An employer may, under this subsection, stand down an employee during a period in which the employee cannot usefully be employed because of one of the following circumstances: (a) industrial action (other than industrial action organised or engaged in by the employer); (b) a breakdown of machinery or equipment, if the employer cannot reasonably be held responsible for the breakdown; (c) a stoppage of work for any cause for which the employer cannot reasonably be held responsible. (2) However, an employer may not stand down an employee under subsection (1) during a period in which the employee cannot usefully be employed because of a circumstance referred to in that subsection if: (a) an enterprise agreement, or a contract of employment, applies to the employer and the employee; and (b) the agreement or contract provides for the employer to stand down the employee during that period if the employee cannot usefully be employed during that period because of that circumstance. Note 1: If an employer may not stand down an employee under subsection (1), the employer may be able to stand down the employee in accordance with the enterprise agreement or the contract of employment. Note 2: An enterprise agreement or a contract of employment may also include terms that impose additional requirements that an employer must meet before standing down an employee (for example requirements relating to consultation or notice). (3) If an employer stands down an employee during a period under subsection (1), the employer is not required to make payments to the employee for that period. 40 A submission is made on behalf of Carmike that it was entitled to rely upon s 524(1)(c) of the Fair Work Act when Mr Bray stood down Mr Pratt on 12 June 2012 because the effect of the acts and omissions of Mr Pratt on that day any work had to cease for which Carmike could not reasonably be held responsible. It is notable that this was not a submission put to the Commission at first instance. 41 Although it is not argued on behalf of Mr Pratt that it is not open to raise this new issue as a ground in this appeal, it is pointed out on behalf of Mr Pratt that there was no evidence put before the Commission on which it could have made a finding about the matters relevant to the application of s 524 of the Fair Work Act. This submission in our opinion has merit. Mr Bray gave evidence-in-chief that Mr Pratt told him he was not prepared to do the potholing work, and Mr Pratt was happy for us to go our own separate ways (ts 49). Mr Bray was then asked in examination-in-chief whether he gave Mr Pratt any time period to reconsider the matter and he said 'Yeah, approximately a week.' He then said he told Mr Pratt he would have to get back to him as he would have to reorganise this job (ts 50). 42 It was plain from the evidence of Mr Bray that the reason why he stood Mr Pratt down was because of disciplinary reasons, as Mr Pratt had refused a reasonable request to carry out potholing work. There was no evidence that Mr Pratt was stood down because of a stoppage of work during which Mr Pratt could not be usefully employed. 43 Similar circumstances arose in Coal & Allied Mining Services Pty Ltd v MacPherson [2010] FCAFC 83; (2010) 270 ALR 414. In that matter, Mr MacPherson advised management that he did not want to work a rostered shift for personal reasons. He was 'stood down' indefinitely and without pay until he was prepared to work in accordance with his contract of employment. Mr MacPherson initiated proceedings in the Federal Magistrates Court, claiming that Coal & Allied Mining Services Pty Ltd had breached s 691B of the Workplace Relations Act 1996 (Cth) (repealed). When the matter was heard, s 691A and s 691B contained substantially the same rights and obligations as s 524 of the Fair Work Act. The majority of the Full Court of the Federal Court found that Mr MacPherson was not 'stood down' as there was work for him to do which he chose not to do, rather he was 'put off pay', in circumstances where Coal & Allied was refusing to pay him for any period of time he was not prepared to work in accordance with his contract of employment. In particular, two members of the Full 684 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 94 W.A.I.G. Court, Marshall and Cowdroy JJ, found this was not a 'stand down' within the meaning of s 691A and s 691B of the Workplace Relations Act, an essential element of which is that the employer cannot gainfully employ the employee: [44]. 44 Justices Marshall, Cowdroy and Buchanan also found that Mr MacPherson was not entitled to be paid for the shift he did not work as terms of the certified agreement that applied to Mr MacPherson's employment provided for an entitlement to pay dependent on service, or at least a willingness to work: [46] - [54], [113] - [116]. However, in this matter whether the terms of the contract of employment only entitled Mr Pratt for payment for hours worked or availability for work, is not a matter raised on behalf of Carmike in any ground of appeal. Grounds 3 and 4 45 Grounds 3 and 4 rely upon argument put forward on behalf of Carmike that the learned Commissioner did not have proper regard to the provisions of the award, nor how the award affected how the weekly hours of work would have been calculated in each pay period. This was also an argument not raised as an issue in the submissions put to the Learned Commissioner at first instance. 46 In support of this argument, Carmike contends: (a) The learned Commissioner erred in fact in finding that in 11 out of 22 pay periods Mr Pratt was paid for 40 hours a week, but in only three periods did he work more than 20 hours a week. (b) The timesheets do not record all of the hours Mr Pratt was paid for. (c) If the learned Commissioner had proper regard to cl 13.1 - cl 13.2, cl 27.1 - cl 27.2, cl 28.1(a) - cl 28.1(e), cl 28.3(a) - cl 28.3(b), cl 28.5(a) - cl 28.5(c), cl 30.1 - cl 30.3 and cl 31.1 - 31.4 of the award he would have found that time worked by Mr Pratt outside the normal spread of hours and on Saturdays and Sundays were 'scaled up' by Mr Bray to take account of the provisions of the award that require payment of additional hours of work as overtime and penalty rates. (d) Clause 13.1 of the award provides a part-time employee is an employee who works less than 38 ordinary hours a week. Clause 27.2 of the award provides the ordinary hours of work must not exceed eight hours on Monday to Friday between 4.00 am and 5.00 pm. Clause 30.1 of the award provides that work done outside ordinary hours must be paid for at 150% of the relevant minimum wage calculated hourly for the first two hours and 200% after the first two hours. For work carried out of a Saturday cl 31.1 of the award requires an employee to be paid for at least four hours at overtime rates and pursuant to cl 31.4 of the award all time worked on Sunday must be paid for at 200% of the relevant minimum wage for a minimum of four hours. (e) Carmike says that when regard is had to the evidence of Mr Bray that he paid Mr Pratt 'by the award', when the timesheets for the weeks which Mr Pratt recorded hours worked of less than 20 hours and was paid for 40 hours are examined, it is apparent Mr Pratt's hours of work were scaled up in accordance with the provisions of the award so that Mr Bray paid Mr Pratt for 40 hours a week instead of 20 hours. Thus Carmike says that if the learned Commissioner had had regard to this evidence he should have accepted Mr Bray's evidence that if Mr Pratt worked in a week less than 20 hours he would be paid for 20 hours but if he worked more than 20 hours he would be paid for 40 hours a week. 47 Whilst it is clear that the learned Commissioner erred in finding that Mr Pratt worked more than 20 hours a week on three occasions, as the timesheets reveal that Mr Pratt recorded that he worked more than 20 hours a week on four occasions, this error is not material. The timesheets and payslips record that on 11 occasions Mr Pratt was paid for 40 hours a week. On four of those occasions, Mr Pratt recorded on his timesheet hours more than 20 hours a week. On seven of those occasions he recorded the following: (a) 16/1/2012 – 22/1/2012: 11.25 hours (no hours of work outside ordinary hours or on Saturday or Sunday); (b) 6/2/2012 – 12/2/2012: 8.25 hours (no hours of work outside ordinary hours or on Saturday or Sunday); (c) 13/2/2012 – 19/2/2012: 17.25 hours (no hours of work outside ordinary hours or on Saturday or Sunday); (d) 20/2/2012 – 26/2/2012: 12.50 hours plus 2 hours worked on Saturday; (e) 19/3/2012 – 25/3/2012: 8 hours including 4 hours worked on Thursday outside ordinary hours; (f) 21/5/2012 – 27/5/2012: 14.25 ordinary hours plus 1.50 hours worked on Saturday and 2.25 hours worked on Sunday; (g) 28/5/2012 – 3/6/2012: 19.75 hours including 4.75 hours worked on Wednesday outside of ordinary hours. 48 Consequently, it is clear that in three of seven weeks that Mr Pratt was paid for 40 hours he recorded less than 20 hours of work. Mr Pratt worked no time outside the ordinary hours of work prescribed in cl 27.2 of the award in these three weeks. In any event, in the week ending 25 March 2012, even if the overtime provisions in cl 30.1 of the award are applied to scale up four hours of overtime worked outside of ordinary hours to seven hours, the total number of notional hours worked that week would be 11 hours. However, Mr Pratt was paid for 40 hours' work in that week. 49 In any event, the provisions of the award only require the calculation of rates of pay at the award rate, not the contract rate of pay for the work. It is common ground that it was agreed that Mr Pratt was to be paid a rate of pay calculated at $28 an hour whereas the award rate of pay was at the material time either $18.78 or $19.10 an hour (Appeal hearing ts 42). 50 Whilst it is also common ground that in the first few weeks of work Mr Pratt carried out additional duties, this fact is also not material as for the first seven weeks of work Mr Pratt was paid for 40 hours a week on five occasions. On one occasion in that period which was the first week of work, his timesheet records he worked 29.75 hours and his payslip records he was paid for 94 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 685 29.75 hours. In the week ending 5 February 2012 his timesheet records he worked 11.50 hours and his payslip records he was paid for 20 hours of work. 51 Leaving these issues aside, the fundamental flaw in this argument is that there was no evidence that Mr Bray calculated the hours of work of Mr Pratt in the manner contended by Carmike in this appeal. The effect of Mr Bray's evidence was, if Mr Pratt worked for 20 hours a week, I paid him for 40 hours. Thus when he worked for 20 hours in a week for each two hours of work, he was paid four hours. In particular, the transcript of the hearing records that: KING, MR: Could the witness please be shown exhibit A1, Waste Management Award 2010. KENNER C: Why do you want to show Mr Bray that? KING, MR: I would like him to refer him to a clause in there, Commissioner. KENNER C: All right. KING, MR: Thank you. Well, first of all, Mr Bray, you said that you were fair in paying. Why did you want to pay Mr Pratt that amount, 40 if he worked more than 20?---As I said before, just as a - a goodwill gesture and to retain the services of Mr Pratt. Yes. And can I ask when - if Mr Pratt worked two hours a day?---He'd be paid a minimum of four. Did you pay him a minimum of four?---Yes. Could you please turn to page 11 of this and find clause 13?---Yes. There's - I think your copy's been underlined there?---13.1? He's got - sorry. Can you please read that?---13.1? Yes?---: 'A part-time employee is an employee who works less than 38 ordinary hours per week'. So he worked 38 hours or less, did he?---Yes (ts 53). 52 For these reasons, the appellant's arguments in respect of grounds 3 and 4 have absolutely no merit. They do not support a cogent argument that when proper regard is had to the timesheets and the payslips that the learned Commissioner erred in exercise of his discretion to accept the evidence given by Mr Pratt that it was an oral term of his contract of employment that he be paid for 40 hours of work each week. Ground 5 53 In ground 5, the appellant contends that even if Mr Pratt's evidence is accepted, his evidence was that the agreement made by the parties to pay him for 40 hours a week was not made, nor did it come into effect, until after the first pay period ending 15 January 2012. 54 Having considered the evidence given by Mr Pratt, we are of the opinion that the learned Commissioner erred in fact in finding that the oral agreement applied for the whole of the employment period from 9 January 2012 until 18 June 2012. 55 Ground 5 is that the learned Commissioner erred in making the oral agreement retrospective for the whole of the employment period. The Commission had concluded at [11]: … the evidence as a whole supports the proposition advanced by Mr Pratt. I am satisfied that it was an oral term of the contract that Mr Pratt be paid by Carmike for 40 hours per week, irrespective of the actual hours worked. I accept on the evidence that this issue was raised at an early stage by Mr Pratt with Mr Bray, and Mr Bray subsequently agreed, in order to keep Mr Pratt's services, to pay him 40 hours per week. 56 Mr Pratt gave evidence that he was under the 'impression' when he accepted the offer of employment that he would be engaged as a full time employee paid to work 40 hours per week (ts 21), and he approached Mr Bray early in his employment about discrepancies in his pay and told Mr Bray he needed more than 20 hours' pay a week, he needed a full week's wages (ts 17 - 18). 57 However, the material evidence of Mr Pratt, relevantly, at ts 19 was as follows: So where did you get the opinion that you were working 40 hours, fulltime? --- Well, when I spoke to Michael on the phone, right, like I said, he said he didn't want to lose me. I got dragged out of the shower at 8.30 or quarter to 9 at night. And he'd spoken to Carlie, his business partner, saying, 'We don't want to lose you. I'm going to start paying you 40 hours a week.' KENNER C: When was this, Mr Pratt? About when was this after you started? --- Probably late January, early February. I was living in Sawyers Valley then – on Great Eastern Highway, Sawyers Valley then. I was – got dragged out of the shower cos my partner, who is sitting over there - she grabbed the mobile, and I'd come out dripping wet of course, so I had to dry myself abruptly and answer the phone to – to – to Michael, Mr Bray. This evidence was not contradicted by Mr Bray in his evidence. In our view, the Commission was in the circumstances entitled to accept it. The evidence is that the conversation occurred in late January, early February. Mr Pratt did say earlier, ts 12, that he had spoken to Mr Bray 'from the very beginning - the very beginning of that, in January …' about needing fulltime work, however the evidence that he had not been paid 40 hours from the commencement of his employment does lead to the conclusion that it is more likely to have been late January, early February. 58 It is clear that expectations of a party are not receivable in a determination of the terms of a contract: Codelfa Constructions Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337, 352 (Mason J). Thus the only relevant evidence of Mr Pratt was when the oral agreement in question was formed. 686 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 94 W.A.I.G. 59 When regard is had to the evidence of Mr Pratt, it is clear that an agreement to pay Mr Pratt 40 hours a week irrespective of the hours worked each week was after Mr Pratt commenced work. It is also clear from Mr Pratt's evidence that the words 'I am going to start paying you' cannot, in the absence of any other evidence, be construed as an agreement to pay Mr Pratt additional pay for work completed on weeks prior to the agreement. These words make it clear the payment of 40 hours a week was going to commence from the time of that conversation and there is no evidence that it was to be made retrospective. 60 For these reasons, we are of the opinion that ground 5 of the appeal has been made out. It follows, therefore, that order (a) of the decision should be varied to exclude 10.25 hours at the rate of $28 an hour for the hours claimed in the week ending 15 January 2012. Proposed Order 61 We are of the opinion that an order should be made by the Full Bench as follows: (a) The time for instituting the appeal be extended to 13 June 2013; (b) The time for filing appeal books be extended to 10 December 2013; (c) The application made on behalf of Carmike to adduce fresh evidence is dismissed; (d) The appeal be upheld and order (a) of the decision in B 162 of 2012 [2013] WAIRC 00293 be varied to delete: (i) $5,663 and substitute $5,376; (ii) 202.25 and substitute 192. SCOTT ASC 62 I have read a draft of the reasons for decision of her Honour, the Acting President and the Chief Commissioner. I agree with those reasons and have nothing to add. 2014 WAIRC 00433 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES CARMIKE NOMINEES PTY LTD T/AS WEST COAST VACUUM TRUCKS APPELLANT -and- DAVID PRATT RESPONDENT CORAM FULL BENCH THE HONOURABLE J H SMITH, ACTING PRESIDENT CHIEF COMMISSIONER A R BEECH ACTING SENIOR COMMISSIONER P E SCOTT DATE TUESDAY, 27 MAY 2014 FILE NO/S FBA 5 OF 2013 CITATION NO. 2014 WAIRC 00433 Result Appeal allowed Appearances Appellant Mr P King, as agent Respondent Mr A M Dzieciol (of counsel) Order This appeal having come on for hearing before the Full Bench on 12 March 2014, and having heard Mr P King, as agent, on behalf of the appellant, and Mr A M Dzieciol (of counsel) on behalf of the respondent, and reasons for decision having been delivered on 15 May 2014, the Full Bench, pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby orders that — 1. The time for instituting the appeal be extended to 13 June 2013. 2. The time for filing appeal books be extended to 10 December 2013. 3. The application made on behalf of Carmike Nominees Pty Ltd t/as West Coast Vacuum Trucks to adduce fresh evidence is dismissed. 4. The appeal be upheld and the decision be varied: (a) by varying order (a) of the decision in B 162 of 2012 [2013] WAIRC 00293 to delete: (i) $5,663 and substitute $5,376; (ii) 202.25 and substitute 192. 94 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 687 (b) by adding an order that the total sum of $6,720 gross be paid in three equal instalments as follows: (i) the sum of $2,240 gross less any applicable tax, on or before 31 May 2014; (ii) the sum of $2,240 gross less any applicable tax, on or before 30 June 2014; and (iii) the sum of $2,240 gross less any applicable tax, on or before 31 July 2014. By the Full Bench (Sgd.) J H SMITH, [L.S.] Acting President. FULL BENCH—Unions—Application for Alteration of Rules— 2014 WAIRC 00438 APPLICATION FOR DECLARATION PURSUANT TO S 71(2) AND APPLICATION PURSUANT TO S.62 - ALTERATION OF REGISTERED RULES: ADDITION OF PART VIII - OFFICE BEARERS TO BE PERSONS HOLDING OFFICE IN PTA BRANCH WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION FULL BENCH