CITATION : 2014 WAIRC 00405 CORAM : COMMISSIONER S J KENNER HEARD : WEDNESDAY, 6 FEBRUARY 2013, THURSDAY, 28 FEBRUARY 2013, THURSDAY, 14 MARCH 2013, FRIDAY, 14 JUNE 2013, MONDAY, 19 AUGUST 2013, THURSDAY, 5 SEPTEMBER 2013, FRIDAY, 7 MARCH 2014 DELIVERED : WEDNESDAY, 14 MAY 2014 FILE NO. : B 212 OF 2012 BETWEEN : OVIDIU PUSCAS Applicant AND CAIMES PTY LTD (ACN 102 573 928) Respondent Catchwords : Industrial law (WA) – Contractual benefits claim – Documentary and oral evidence considered – Principles applied – Finding that the applicant worked the hours claimed and was not paid accordingly – Order issued Legislation : Industrial Relations Act 1979 (WA) s 27(1)(d) 94 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 741 Result : Application upheld Representation: Counsel: Applicant : Mr N Marouchak Respondent : No appearance Solicitors: Applicant : MKI Legal Case(s) referred to in reasons: Hotcopper Australia Ltd v Saab (2001) 81 WAIG 2704 Reasons for Decision 1 In reasons for decision of 13 December 2013, the Commission found that Mr Puscas was an employee of Caimes and that Mr Puscas’ claim was within the Commission’s jurisdiction: Puscas v Caimes Pty Ltd (ACN 102 573 928) [2013] WAIRC 01063. In that decision, the Commission referred to an agreement in about June 2010, by which Mr Puscas and Caimes agreed for Mr Puscas to work initially on a part time basis for about 20 hours per week, at the rate of $30 per hour net for all work performed. From about October 2011, it was further agreed between Mr Puscas and Caimes, that Mr Puscas would increase his weekly hours of work to 40 per week, and be paid $1,500 per week. Revocation of leave to appear 2 The matter was relisted by the Commission to hear Mr Puscas’ claim for contractual benefits in the form of salary payments not paid to him by Caimes, in the sum of $39,146.40 net. For the purposes of the earlier proceedings, Caimes had previously been granted leave to appear by video link from Queensland. That leave was continued. As was the practice in the earlier proceedings, Caimes was required to provide to the Commission, in good time, prior to the hearing, details of the video link to be established. Despite repeated requests from my Associate, and also despite the Commission foreshadowing revocation of the leave to appear by video link, Caimes failed to do so. 3 Accordingly, the leave granted to Caimes to appear by video link was revoked by order of the Commission of 6 March 2014: [2014] WAIRC 00164. At the commencement of the hearing, Caimes failed to appear. Being satisfied that Caimes had been duly notified of the hearing, and no reason having been advanced by it as to why the matter should not proceed, under s 27(1)(d) of the Industrial Relations Act 1979, the Commission proceeded to hear Mr Puscas’ claim in the absence of Caimes. The contractual claim 4 As already averted to above, Mr Puscas testified that he was owed unpaid salary in the sum referred to. This represents $12,251.40 net for the 2010/11 financial year and $26,895 net for the 2011/12 financial year. Mr Puscas testified that he submitted a tax file declaration to Caimes. He also said that he had received contact from the Australian Taxation Office, as he wanted to finalise his tax arrangements. Mr Puscas informed the ATO that he could not do so, as he had not received PAYG summaries from Caimes, which he had previously requested. 5 Mr Puscas outlined again, his arrangements with Mr Bozkurt, on behalf of Caimes. He testified that he initially commenced working for Caimes in June 2010, at the rate of $30 per hour net, for about 20 hours’ work per week. Any hours worked by Mr Puscas in excess of 20 per week, were to be paid at the same rate of pay. Mr Puscas kept records of his hours of work, and payments received. Tendered as exhibit A3 was a bundle of documents. Tabs A to G in the bundle, refer to various time recording systems used by Caimes, to record client related work done by staff. Mr Puscas said that as these various systems were changed or alternatively, in the process of being built or modified, Mr Puscas used his “Google Apps Calendar” to record time and work performed for Caimes. A copy of these records, for the period over Mr Puscas’ employment, was tab J in exhibit A3. 6 Mr Puscas also kept records of time worked, salary paid and salary due, in the form of schedules set out at H(a) and H(b) in exhibit A3. Schedule H(a) refers to work performed in the 2011/12 financial year. The table refers to the week number, the weekly period, the hours worked, net salary payable, net salary actually paid, and any shortfall. Mr Puscas testified that he would tally his hours of work for each week, and enter the figures into the table. He would then enter the salary he expected to receive for that work. The actual amount, paid into his bank account by Caimes, was then entered. Schedule H(b), shows 20 hours per week initially for the first few months. After this, the hours vary from about 25 to about 40 hours per week. 7 By the end of 2010, Mr Puscas testified that he reached agreement with Mr Bozkurt, that from about January 2011, Mr Puscas would work at least 25 hours per week. Mr Puscas was also studying at this time. Later, in further discussions with Mr Bozkurt in about September 2011, Mr Puscas said that he and Mr Bozkurt agreed to increase Mr Puscas’ hours worked to 40 hours per week, at the same hourly rate of pay. This would lead to a net payment from Caimes to Mr Puscas of $1,200 per week. Mr Puscas testified that it was agreed with Mr Bozkurt that this arrangement would take effect from October 2011. Despite this agreement however, and Mr Puscas working the hours required, he said that Caimes kept paying him at the former rate for 25 hours per week, at $30 per hour net, being $750 per week. 8 The direct debits to Mr Puscas’ bank account from Caimes, consistent with the contents of schedules H(a) and H(b) in exhibit A3, were set out at annexure OVP1 to Mr Puscas’ supplementary affidavit. Annexure OVP1 is a copy of Mr Puscas’ bank statements which cover the period June 2010 to July 2012. The last payment recorded, is for the sum of $1,500, on 18 July 2012. I note however, that the bank statement for the period 19 June to 18 September 2011 was not included in 742 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 94 W.A.I.G. annexure OVP1. On the documentary and oral evidence as a whole however, including the record of payments received maintained by Mr Puscas, the pattern of payments from Caimes to Mr Puscas is clear enough, on balance. 9 Mr Puscas testified that he raised the issue of monies owed to him by Caimes, with Mr Bozkurt. Mr Puscas sent emails to Mr Bozkurt in early 2012, raising the issue of salary owed. In early July 2012, Mr Puscas said he raised the issue again with Mr Bozkurt by email. A copy of these emails was at tab H in exhibit A3. Mr Puscas testified that he spoke with Mr Bozkurt about getting his PAYG summaries, as he needed to submit his tax returns. According to Mr Puscas, when he raised these matters with him, Mr Bozkurt became “blunt”. It became apparent to Mr Puscas, that there was going to be a problem with his claims. Mr Puscas placed the matter in the hands of his solicitor, who wrote to Caimes. On receiving Mr Puscas’ solicitor’s letter, Mr Bozkurt telephoned Mr Puscas. Mr Puscas was informed that he was no longer working for Caimes and Mr Puscas said he was locked out of the Caimes information technology systems. 10 In addition to the record of work contained in exhibit A3, also annexed to Mr Puscas’ supplementary affidavit at annexure OVP2, are various handwritten notes containing records of work performed by Mr Puscas for Caimes, over some of the relevant periods. Mr Puscas testified that he would then transfer the information on these notes to excel spreadsheets, as contained in the schedules H(a) and H(b) to exhibit A3. Mr Puscas said that given the way that he was required to work at this time, he generally did not keep the notes that he made, once the hours of work and the relevant time periods were recorded in the spreadsheet. 11 Additionally, marked as exhibit A4, also accompanying Mr Puscas’ supplementary affidavit, was a DVD of very many emails sent and received by Mr Puscas, in connection with work performed by Mr Puscas for Caimes, over the relevant period. The email account used was one that Mr Puscas said he was instructed to use by Mr Bozkurt, for all Caimes related work. Consideration 12 I have carefully considered the oral and documentary evidence in this matter. It is for Mr Puscas to establish that the benefit he has claimed was a benefit under his contract of employment and that it has been denied to him: Hotcopper Australia Ltd v Saab (2001) 81 WAIG 2704. I refer to my earlier finding that Mr Puscas was an employee over the relevant period of time. I am further satisfied that Mr Puscas worked for the hours that he said he did in the period June 2010 to September 2011, on the basis of an hourly rate of pay of $30 net, initially for 20 hours per week, increasing to 25 hours per week in or about January 2011. Further, from about October 2011, the agreed hours of work, consistent with the clear pattern of increasing hours of work to that time, were increased to 40 hours per week at the same hourly rate of pay, in accordance with the agreement reached between Mr Puscas and Mr Bozkurt. 13 From the documentary evidence before the Commission, in particular schedules H(a) and H(b) to exhibit A3 and Mr Puscas’ bank records at annexure OVP1 to Mr Puscas’ supplementary affidavit, despite the omission referred to above, in conjunction with his oral evidence, I am satisfied that Mr Puscas worked the hours as agreed with Mr Bozkurt, set out in the claim. I am also satisfied that despite agreement with Mr Bozkurt to increase Mr Puscas’ hours of work, the payments received by him from Caimes were not in accordance with that agreement. Accordingly, Mr Puscas has been denied the contractual benefits he is claiming. An order should be made in his favour. 14 In terms of the quantum, given the agreement between Mr Puscas and Caimes was for Mr Puscas to receive a rate of pay of $30 hour net, the basis of the order to be made will be in net terms. It will be in the total sum claimed. Clearly, given the Commission’s earlier finding that at all material times Mr Puscas was an employee of Caimes, then there was and is an obligation on Caimes to remit the appropriate tax deductions to the ATO under the relevant income tax legislation. Also, as a consequence of the Commission’s earlier finding that Mr Puscas was an employee of Caimes, Caimes is required to issue to Mr Puscas PAYG statements for the 2010/11 and 2011/12 financial years, in order that Mr Puscas can lodge his taxation returns with the ATO. 15 An order now issues. 2014 WAIRC 00418 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES OVIDIU PUSCAS APPLICANT -v- CAIMES PTY LTD (ACN 102 573 928) RESPONDENT CORAM COMMISSIONER S J KENNER DATE TUESDAY, 20 MAY 2014 FILE NO/S B 212 OF 2012 CITATION NO. 2014 WAIRC 00418 Result Application Upheld Representation Applicant Mr N Marouchak of counsel Respondent No appearance 94 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 743 Order HAVING heard Mr N Marouchak of counsel on behalf of the applicant and there being no appearance 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 the sum of $39,146.40 net as a denied contractual benefit within 21 days. (Sgd.) S J KENNER, [L.S.] Commissioner. 2014 WAIRC 00466 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES ELIZABETH SQUANCE APPLICANT -v- LORD AND COMPANY RESPONDENT CORAM ACTING SENIOR COMMISSIONER P E SCOTT DATE TUESDAY, 10 JUNE 2014 FILE NO/S U 82 OF 2014 CITATION NO. 2014 WAIRC 00466 Result Order issued Order WHEREAS this is an application pursuant to Section 29(1)(b)(i) of the Industrial Relations Act 1979; and WHEREAS on the 4th day of June 2014 the Commission convened a conference for the purpose of conciliating between the parties; and WHEREAS on the 6th day of June 2014 the parties advised that they had reached agreement in respect of the application and that the terms of any agreement reached in settlement of the claim be reflected in an Order of the Commission; NOW THEREFORE, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979, and by consent, hereby orders: 1. THAT the termination of the applicant’s employment will be characterised as a resignation. 2. THAT the parties will not disparage one another. 3. THAT the respondent will refer any enquiries from prospective employers to Ms S McDiarmid. 4. THAT the respondent pay to the applicant the equivalent of 8 weeks’ salary on the basis that 4 weeks will be paid on Friday, 13 June 2014 and the balance four weeks from that date. 5. THAT the agreement is in full and final settlement of all matters associated with the employment including any allegation of sexual harassment. 6. THAT the application be, and is otherwise dismissed. (Sgd.) P E SCOTT, [L.S.] Acting Senior Commissioner. 2014 WAIRC 00440 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES MR LUKE JOHN STEVENSON APPLICANT -v- MR MATTHEW BYASS RESPONDENT CORAM COMMISSIONER S M MAYMAN DATE WEDNESDAY, 28 MAY 2014 FILE NO/S U 188 OF 2013 CITATION NO. 2014 WAIRC 00440 744 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 94 W.A.I.G. Result Application discontinued Representation Applicant Mr LJ Stevenson Respondent Mr M Byass Order WHEREAS this is an application pursuant to section 29(1)(b)(i) of the Industrial Relations Act 1979 (WA); AND WHEREAS on 30 January 2014 and 19 March 2014 conferences between the parties were convened; AND WHEREAS at the conclusion of the conference an agreement was reached between the parties; AND WHEREAS on 28 May 2014 the applicant filed a Notice of Discontinuance in respect of the application; NOW THEREFORE, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979 (WA), hereby orders: THAT this application be, and is hereby discontinued. (Sgd.) S M MAYMAN, [L.S.] Commissioner. SECTION 29(1)(b)—Notation of— Parties Number Commissioner Result Darryl Warren Consolidated Site Services (WA) Pty Ltd ABN: 97 164 603 525 B 58/2014 Commissioner S J Kenner Discontinued Emma Jayne Corley Peard and Associates Pty Ltd t/as Peard Real Estate Hillarys B 42/2013 Chief Commissioner A R Beech Discontinued CONFERENCES—Matters referred— 2014 WAIRC 00409 DISPUTE RE TERMINATION OF EMPLOYMENT WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES THE AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION OF WORKERS WESTERN AUSTRALIAN BRANCH APPLICANT -v- COMBINED METAL INDUSTRIES RESPONDENT CORAM COMMISSIONER S M MAYMAN DATE THURSDAY, 15 MAY 2014 FILE NO/S CR 5 OF 2014 CITATION NO. 2014 WAIRC 00409 Result Application discontinued Representation Applicant Ms P Lim Respondent Mr G McCorry (as agent) Order WHEREAS this is an application pursuant to s 44 of the Industrial Relations Act 1979; AND WHEREAS this matter was listed for hearing on 3 and 4 June 2014; 94 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 745 AND WHEREAS the hearing was vacated as the applicant advised the Commission it did not intend to proceed with the matter; AND WHEREAS on 7 May 2014 the applicant filed a Notice of Discontinuance in respect of this application; NOW THEREFORE, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby orders: THAT this application be, and is hereby discontinued. (Sgd.) S M MAYMAN, [L.S.] Commissioner. CONFERENCES—Notation of— Parties Commissioner Conference Number Dates Matter Result Australian Medical Association (WA) Incorporated The Minister for Health Scott A/SC PSAC 32/2012 3/12/2012 1/02/2013 7/06/2013 Dispute re higher duties allowance Discontinued The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch Public Transport Authority of Western Australia Kenner C C 236/2013 23/12/2013 19/03/2014 Dispute re transfer of employee Discontinued United Voice WA The Director General Disability Services Commission Harrison C C 230/2013 24/10/2013 Dispute re outside employment Discontinued United Voice WA The Catholic Education Office, Western Australia Mayman C C 14/2014 N/A Dispute re initiation of bargaining agreements Discontinued PROCEDURAL DIRECTIONS AND ORDERS— 2014 WAIRC 00457 APPEAL AGAINST DECISION OF EMPLOYER WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES STEVEN LOCKWOOD APPLICANT -v- DIRECTOR GENERAL, DEPARTMENT OF EDUCATION RESPONDENT CORAM CHIEF COMMISSIONER A R BEECH DATE THURSDAY, 5 JUNE 2014 FILE NO. APPL 52 OF 2013 CITATION NO. 2014 WAIRC 00457 Result Directions Issued Representation Applicant Mr S Kemp (of counsel) Respondent Mr D Matthews (of counsel) and with him, Ms C Bradstater Direction WHEREAS this matter is listed for hearing Monday, 11 to Friday, 15 August 2014; AND WHEREAS the parties have conferred and agreed upon the following in relation to the hearing of the matter and request that it issue as a Direction; AND WHEREAS the Commission is of the view that a Direction in those terms is appropriate for the orderly hearing of the matter, 746 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 94 W.A.I.G. NOW THEREFORE I, Chief Commissioner, acting pursuant to the powers in s 27(1)(o) of the Industrial Relations Act 1979 hereby make the following Direction: 1. The Respondent shall leads its evidence first. 2. The evidence of the child witnesses shall be heard before the evidence of the adult witnesses. 3. The child witnesses shall provide their evidence by way of CCTV in the presence of a support person from a location outside of the Western Australian Industrial Relations Commission. 4. The parties agree that, as the matter is to proceed by way of a hearing de novo, matters relating to procedure are not in issue in the proceedings. 5. Direction 4 will not preclude either party from referring to the Respondent’s investigation report filed in the proceedings in submissions or cross-examination. 6. By Monday, 14 July 2014 the Respondent will serve upon the Applicant: (a) a list of the witnesses it intends to call at the hearing; and (b) a tender bundle of documents that it intends to rely upon at the hearing. 7. By Monday, 28 July 2014 the Applicant will serve upon the Respondent: (a) a list of the witnesses it intends to call at the hearing; and (b) a tender bundle of documents that it intends to rely upon at the hearing. 8. Liberty is reserved to either party to apply on short notice to the other to vary or amend this Direction. (Sgd.) A R BEECH, [L.S.] Chief Commissioner. 2014 WAIRC 00435 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES DARRYL KELLY SMITH APPLICANT -v- ELECTRICAL DISTRIBUTORS OF WA PTY LTD RESPONDENT CORAM ACTING SENIOR COMMISSIONER P E SCOTT DATE TUESDAY, 27 MAY 2014 FILE NO. B 33 OF 2014 CITATION NO. 2014 WAIRC 00435 Result Direction issued Representation Applicant Mr S Edwards as agent Respondent Mr J Moore Direction HAVING heard Mr S Edwards as agent on behalf of the applicant and Mr J Moore on behalf of the respondent, the Commission, pursuant to the powers conferred under the Industrial Relations Act 1979, hereby directs: 1. THAT the respondent discover to the applicant all documents in existence in relation to the bonus payment in issue which go to the formula for the calculation and the financial documents upon which that calculation would be based for the year ended 30 June 2013 within 14 days; 2. THAT the respondent file and serve an amended Notice of Answer and Counterproposal particularising its response within 14 days of this direction; 3. THAT this matter be listed for hearing for one day at a time to be arranged; 4. THAT there be liberty to apply. (Sgd.) P E SCOTT, [L.S.] Acting Senior Commissioner. 94 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 747 2014 WAIRC 00464 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES TRACY MCAULIFFE APPLICANT -v- GOLDFINGER FACILITY MANAGEMENT PTY LTD RESPONDENT CORAM CHIEF COMMISSIONER A R BEECH DATE TUESDAY, 10 JUNE 2014 FILE NO. B 122 OF 2014 CITATION NO. 2014 WAIRC 00464 Result Direction issued Representation Applicant Ms T McAuliffe (by written correspondence) Direction WHEREAS a claim was filed in the Commission pursuant to s 29(1) (b)(ii) of the Industrial Relations Act 1979 on 3 June 2014; AND WHEREAS on 3 June 2014 the applicant filed an application for an order that the time for the respondent to file an answering statement be shortened on the grounds that from 5 June 2014 she will be travelling outside of Western Australia and then returning to Ireland on 1 July 2014;. AND WHEREAS I consider it appropriate to reduce the time by which the respondent is to file a statement in answer to the claim made; NOW THEREFORE I the undersigned, pursuant to r 99D(4) of the Industrial Relations Commission Regulations 2005, hereby direct - THAT the respondent is to file an answering statement within seven (7) days of the date of service of the claim upon the respondent. (Sgd.) A R BEECH, [L.S.] Chief Commissioner. 2014 WAIRC 00460 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES GERARD LEAHY APPLICANT -v- MEEDAC INCORPORATED RESPONDENT CORAM COMMISSIONER S M MAYMAN DATE FRIDAY, 6 JUNE 2014 FILE NO. B 176 OF 2013 CITATION NO. 2014 WAIRC 00460 Result Order issued Representation Applicant Mrs Mitchell (of counsel) Respondent Mr P King Order THE COMMISSION has heard from the applicant and the respondent and in order to expedite the hearing the parties have agreed to a number of directions. Accordingly, the Commission in accordance with the powers conferred on it under the Industrial Relations Act 1979 hereby directs - 748 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 94 W.A.I.G. 1. The hearing be set down for 29 and 30 July 2014; 2. Discovery of documents is to be informal and is to be concluded by close of business on Friday, 4 July 2014; 3. The parties are to draw up statement of agreed facts prior to the hearing; 4. The applicant is to file and serve on the respondent witness statements by close of business on 15 July 2014; 5. The respondent is to file and serve on the applicant witness statements by close of business on 22 July 2014: and 6. There be liberty to apply at short notice. (Sgd.) S M MAYMAN, [L.S.] Commissioner. 2014 WAIRC 00031 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES MICHELLE DANIELA ALEXIUS-BROWN APPLICANT -v- DEPARTMENT OF REGIONAL DEVELOPMENT RESPONDENT CORAM COMMISSIONER S J KENNER DATE THURSDAY, 23 JANUARY 2014 FILE NO/S B 208 OF 2013 CITATION NO. 2014 WAIRC 00031 Result Order issued Representation Applicant In person Respondent Mr P Humphries Order WHEREAS on 19 December 2013 the applicant filed an application under s 29(1)(b)(ii) of the Industrial Relations Act 1979 alleging the respondent had denied her contractual benefits in the sum of $55,800; AND WHEREAS by notice of application filed on 22 January 2014 the respondent seeks an order under reg 36 of the Industrial Relations Commission Regulations 2005 to extend the time within which to file a notice of answer on the grounds that due to the Christmas/New Year holiday period and an administrative oversight, the documents were not distributed internally within the respondent in a timely fashion. Accordingly, the respondent has not had an adequate opportunity to formulate its notice of answer; AND WHEREAS the Commission, having considered the application and the grounds on which the application is made, considers that an order should be made extending the time within which the respondent may file its notice of answer to 29 January 2014; NOW THEREFORE the Commission, pursuant to the powers conferred on it under the Industrial Relations Act, 1979, hereby orders – THAT the time within which the respondent is to file its notice of answer in the herein application is extended to 29 January 2014. (Sgd.) S J KENNER, [L.S.] Commissioner. 94 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 749 2014 WAIRC 00444 DISPUTE RE TERMINATION OF EMPLOYMENT WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES THE STATE SCHOOL TEACHERS' UNION OF W.A. (INCORPORATED) APPLICANT -v- THE GOVERNING COUNCIL OF KIMBERLEY TRAINING INSTITUTE RESPONDENT CORAM ACTING SENIOR COMMISSIONER P E SCOTT DATE FRIDAY, 30 MAY 2014 FILE NO/S C 11 OF 2014 CITATION NO. 2014 WAIRC 00444 Result Consent order issued Representation Applicant Mr M Amati Respondent Mr D Anderson of counsel and with him Ms G Husk Order WHEREAS this is an application pursuant to Section 44 of the Industrial Relations Act 1979 (WA); and WHEREAS on the 16th day of April 2014, the 1st day of May 2014, the 9th day of May 2014, the 19th day of May 2014 and the 30th day of May 2014 the Commission convened conferences for the purpose of conciliating between the parties; and WHEREAS at the conference on the 30th day of May 2014 the applicant sought that the matter be referred for hearing and determination; and WHEREAS the applicant sought an interim Order, pending the hearing and determination of the matter, that the respondent cease its disciplinary process regarding Mr Petticrew, the subject of the application; and WHEREAS the respondent consented to such an Order; NOW THEREFORE, the Commission, pursuant to the powers conferred on it under s 44 of the Industrial Relations Act 1979, and by consent, hereby orders: 1. THAT notwithstanding the respondent’s letter of 15 May 2014, the respondent cease its disciplinary process regarding the alleged breach of discipline arising from an incident on 24 February 2014, against Mr James Alex Petticrew, pending the hearing and determination of this matter. 2. THAT there be liberty to apply. (Sgd.) P E SCOTT, [L.S.] Acting Senior Commissioner. 2014 WAIRC 00411 DISPUTE RE USE OF FIXED TERMS CONTRACTS WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES UNITED VOICE WA APPLICANT -v- THE MINISTER FOR HEALTH IN HIS INCORPORATED CAPACITY UNDER S7 OF THE HOSPITALS AND HEALTH SERVICES ACT 1927 (WA) AS THE HOSPITALS FORMERLY COMPRISED IN THE METROPOLITAN HEALTH SERVICE BOARD RESPONDENT CORAM COMMISSIONER J L HARRISON DATE THURSDAY, 15 MAY 2014 FILE NO/S C 13 OF 2014 CITATION NO. 2014 WAIRC 00411 750 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 94 W.A.I.G. Result Interim order issued Representation Applicant Ms A Hamlin Respondent Ms J Symons Order On 17 April 2014 the applicant lodged a s 44 application concerning a dispute with the respondent about whether a fixed term contract under clause 16.2 of the WA Health – LHMU – Enrolled Nurses, Assistants in Nursing, Aboriginal and Ethnic Health Workers Industrial Agreement 2011 (the Agreement) applied to one of its members, Mr Rod Tucker. The applicant is seeking that the following interim order issue pending the hearing and determination of Mr Tucker’s correct classification: THAT Mr Rod Tucker be reinstated to his position as an Assistant in Nursing at the respondent’s Royal Perth Hospital, Wellington Street Campus until the resolution of the dispute. The respondent opposes this interim order. Submissions Applicant This dispute concerns whether Mr Tucker was employed under a fixed term contract in an Assistant in Nursing (AIN) position and his entitlement to remain in this position or his former Patient Carer Assistant (PCA) position to which he was transferred on 21 April 2014. The applicant relies on clause 66.2(i) of the dispute settlement procedure of the Agreement which requires that the status quo be maintained, that is Mr Tucker remain in his AIN position, pending the resolution of the dispute about Mr Tucker. An interim order that Mr Tucker be reinstated as an AIN until the determination of this matter is appropriate. The balance of convenience is in favour of Mr Tucker and it is just to issue the interim order being sought. There are substantive matters to be tried in relation to Mr Tucker’s employment status and position and there is a strong prima facie case for relief and the damage done to Mr Tucker if the interim order is not made outweighs any damage to the respondent. Respondent The Commission cannot enforce the Agreement or remedy a breach of it and if there has been a breach of the Agreement the applicant must pursue this claim in the Industrial Magistrates Court. The respondent sees no reason why conciliation and arbitration cannot be undertaken whilst Mr Tucker remains in his PCA role and Mr Tucker will not be financially disadvantaged or suffer practical disadvantage if he remains in his PCA position. The respondent submits that the industrial relationship between the parties in respect to the matter in question would not deteriorate if the interim order does not issue and the applicant has failed to demonstrate that there is a substantial matter to be tried. Consideration I find that this application relates to an industrial matter as it concerns Mr Tucker’s employment classification. I am of the view that the Commission has jurisdiction to issue the interim order being sought by the respondent as s 44(6) of the Industrial Relations Act 1979 (the Act) enables the Commission to issue orders which will assist in the arbitration of a dispute concerning an industrial matter. I also find that the issue in dispute, that is, the correct classification of Mr Tucker, does not relate to the enforcement of the Agreement. When taking into account equity and fairness, s 26 considerations and after considering the parties’ submissions with respect to this matter I have decided that an interim order should issue in the terms sought by the applicant. In making this decision I have not reached a concluded view on the merits relevant to this dispute. Whilst Mr Tucker will not suffer a financial disadvantage if he continues working as a PCA and the respondent will have to fill the PCA position not undertaken by Mr Tucker, Mr Tucker will be denied the opportunity to utilise recently gained higher level AIN skills if the interim order does not issue. By continuing to work as an AIN pending the arbitration of this dispute, Mr Tucker will be able to undertake Enrolled Nurse studies without undertaking PCA relief duties and it is also the case that AIN duties continue to be required to be undertaken at Wellington Street campus. In reaching my decision, I take into account that the applicant initiated a dispute with the respondent about Mr Tucker’s employment status whilst Mr Tucker was working as an AIN which could be regarded as the status quo at the time this dispute was raised with the respondent. This application was lodged expeditiously as it was lodged prior to Mr Tucker being required to return to his former role as a PCA and issuing the interim order in the terms sought is not irreversible. I also find that the issue in dispute is serious as the Commission must determine whether Mr Tucker is entitled to an ongoing position as an AIN in the circumstances where the respondent may not have employed him as an AIN on a fixed term contract. NOW THEREFORE having heard Ms A Hamlin on behalf of the applicant and Ms J Symons on behalf of the respondent, the Commission having regard for the interests of the parties directly involved and pursuant to the powers vested in it by the Act, hereby orders - 1. THAT Mr Rod Tucker be reinstated to a position as an Assistant in Nursing at the respondent’s Royal Perth Hospital, Wellington Street Campus pending the hearing and determination of this application. 94 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 751 2. THAT liberty to apply is granted to the parties to vary or rescind this order. (Sgd.) J L HARRISON, [L.S.] Commissioner. 2014 WAIRC 00461 DISPUTE RE OUTSTANDING PAYMENTS WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES NINO MERENDA TRADING AS THUNDER APPLICANT -v- CONSOLIDATED SITE SERVICES PTY LTD RESPONDENT CORAM CHIEF COMMISSIONER A R BEECH DATE FRIDAY, 6 JUNE 2014 FILE NO. RFT 12 OF 2014 CITATION NO. 2014 WAIRC 00461 Result Direction issued Representation Applicant Mr A Dzieciol (of counsel) Direction WHEREAS a notice of referral of a dispute was filed in the Commission pursuant to s 40(a) and/or (b) of the Owner Drivers (Contracts and Disputes) Act 2007 on 6 June 2014 concerning monies said by the applicant to be owed to him by the respondent; AND WHEREAS on 6 June 2014 the applicant filed an application for an order that the time for the respondent to file an answering statement be shortened to seven (7) days on the grounds that: - There is no dispute that the monies are owed; - The respondent has on several occasions promised to pay the monies to the applicant but has failed to do so; and - The applicant is a small business and the non-payment is causing hardship to him. AND WHEREAS by telephone on 6 June 2014 Mr A Dzieciol, of counsel on behalf of the applicant, gave his assurance to the Commission that the respondent has admitted that the money claimed is owed; AND WHEREAS I therefore consider it appropriate to reduce the time by which the respondent is to file a statement in answer to the claim made; NOW THEREFORE I the undersigned, pursuant to r 99D(4) of the Industrial Relations Commission Regulations 2005, hereby direct - THAT the respondent is to file an answering statement within seven (7) days of the date of service of the notice of referral upon the respondent. (Sgd.) A R BEECH, [L.S.] Chief Commissioner. 752 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 94 W.A.I.G. 2014 WAIRC 00462 DISPUTE RE OUTSTANDING PAYMENTS WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES GC AND GE LIDDICOAT APPLICANT -v- CONSOLIDATED SITE SERVICES PTY LTD RESPONDENT CORAM CHIEF COMMISSIONER A R BEECH DATE FRIDAY, 6 JUNE 2014 FILE NO. RFT 13 OF 2014 CITATION NO. 2014 WAIRC 00462 Result Direction issued Representation Applicant Mr A Dzieciol (of counsel) Direction WHEREAS a notice of referral of a dispute was filed in the Commission pursuant to s 40(a) and/or (b) of the Owner Drivers (Contracts and Disputes) Act 2007 on 6 June 2014 concerning monies said by the applicant to be owed to him by the respondent; AND WHEREAS on 6 June 2014 the applicant filed an application for an order that the time for the respondent to file an answering statement be shortened to seven (7) days on the grounds that: - There is no dispute that the monies are owed; - The respondent has on several occasions promised to pay the monies to the applicant but has failed to do so; and - The applicant is a small business and the non-payment is causing hardship to him. AND WHEREAS by telephone on 6 June 2014 Mr A Dzieciol, of counsel on behalf of the applicant, gave his assurance to the Commission that the respondent has admitted that the money claimed is owed; AND WHEREAS I therefore consider it appropriate to reduce the time by which the respondent is to file a statement in answer to the claim made; NOW THEREFORE I the undersigned, pursuant to r 99D(4) of the Industrial Relations Commission Regulations 2005, hereby direct - THAT the respondent is to file an answering statement within seven (7) days of the date of service of the notice of referral upon the respondent. (Sgd.) A R BEECH, [L.S.] Chief Commissioner. 2014 WAIRC 00441 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES BRIAN KEITH WALL APPLICANT -v- SHIRE OF DANDARAGAN RESPONDENT CORAM ACTING SENIOR COMMISSIONER P E SCOTT DATE FRIDAY, 30 MAY 2014 FILE NO. U 27 OF 2014 CITATION NO. 2014 WAIRC 00441 Result Direction issued 94 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 753 Direction WHEREAS this is an application pursuant to Section 29(1)(b)(i) of the Industrial Relations Act 1979; and WHEREAS the application was set down for a Directions hearing on the 11th day April 2014; and WHEREAS the parties agreed to Directions for the preparation for the hearing of the matter; and WHEREAS the Commission is of the opinion that the issuing of the Directions will assist in the conduct of the hearing of the matter; NOW THEREFORE, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979, and by consent, hereby directs: 1. THAT the applicant and respondent file and serve witness statements and copies of any documents upon which they rely by 5.00 pm Monday the 30th day of June 2014. 2. THAT the applicant and respondent file and serve Outlines of Submissions and a List of Authorities upon which they rely by 5.00 pm Monday the 14th day of July 2014. 3. THAT the applicant and respondent jointly file a written summary of the factual matters that are not in dispute by 5.00 pm Monday the 21st day of July 2014. (Sgd.) P E SCOTT, [L.S.] Acting Senior Commissioner. 2014 WAIRC 00480 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION