CITATION : 2013 WAIRC 00848 CORAM : COMMISSIONER S J KENNER HEARD : FRIDAY, 4 OCTOBER 2013 DELIVERED : FRIDAY, 4 OCTOBER 2013 FILE NO. : B 89 OF 2013 BETWEEN : CHRISTINA SCHULTZ Applicant AND ANTHONY ASPHAR (ASPHAR SURVEY PTY LTD) Respondent Catchwords : Industrial law (WA) – Contractual benefits claim – Notice claim in excess of the employee collective agreement – Applicant’s claim for notice is enforceable under s 29(1)(b)(ii) of the Industrial Relations Act 1979 (WA) – Order issued Legislation : Industrial Relations Act 1979 (WA) s 29(1)(b)(ii) Result : Order issued Representation: Applicant : In person Respondent : No appearance 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 1558 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 93 W.A.I.G. Reasons for Decision Ex Tempore 1 These proceedings are an application by Christina Schultz against Anthony Asphar (Asphar Survey Pty Ltd). It is plain that whilst the applicant has described an individual and a corporation as the respondent, the proceedings are against the corporation, Asphar Survey Pty Ltd. The application is brought under s 29(1)(b)(ii) of the Act by which the applicant seeks the recovery of certain contractual entitlements in the gross sum claimed of $4,322.72. 2 Ms Schultz’s evidence was that she commenced employment with Asphar Survey as a survey draftsperson on or about 25 June 2012. In accordance with her particulars of claim as a survey draftsperson, Ms Schultz was engaged in duties, amongst others, of computerised drafting. Ms Schultz testified that she remained employed until on or about 1 March 2013. She was employed on a full-time basis at a salary of $60,000 per annum. 3 In evidence before the Commission is a copy of Ms Schultz’s contract of employment as exhibit A1. The contract of employment dated 13 June 2012 refers to various entitlements in relation to her employment, including salary, leave and, importantly for present purposes, notice of termination of employment. 4 The contract of employment also refers to a document described as an “Employee Collective Agreement.” It would appear from Ms Schultz’s evidence that a document known as the Asphar Survey Pty Ltd Employee Collective Agreement 2009, an agreement registered with the Fair Work Commission, was an agreement which covered her terms and conditions of employment and is the agreement referred to in exhibit A1, her written letter of employment. 5 It is trite to observe in these proceedings that the Commission can only enforce a common law contract which does not involve the enforcement of an award or industrial agreement of this Commission. Insofar as an award or agreement of the Fair Work Commission is concerned, similarly, an enforcement of those instruments cannot be pursued before this Commission. 6 However, having regard to Ms Schultz’s evidence in terms of her employment, it would seem that the period of one month's notice set out in her contract of employment is in excess of the terms of the Employee Collective Agreement 2009, which at clause 25.2 requires a minimum period of notice of at least two weeks' notice given by the employee. Therefore, on the basis of that evidence and exhibit A1, in particular, I am satisfied that Ms Schultz’s claim for notice is a common law claim which is enforceable under s 29(1)(b)(ii) of the Act: Steele v Tardiani (1946) 72 CLR 386; Roberts v Groome (1984) 64 WAIG 774; Mason v Bastow (1990) 70 WAIG 19. 7 Insofar as the circumstances surrounding the termination of her employment are concerned, Ms Schultz testified that she gave notice of termination of employment by letter of 27 February 2013. That letter, which is exhibit A2, provides that her last working day will be 27 March 2013 and in accordance with her contract, Ms Schultz was giving four weeks’ notice of termination to her employer. 8 Shortly thereafter it seems there was correspondence between her and the management of Asphar Survey, the net effect of which, as set out in exhibit A3, a series of email exchanges between Ms Schultz and her manager, was that she was released from working out her period of notice at the direction of the employer and her employment ceased on her last day, which was 1 March 2013. Accordingly, Ms Schultz claims the balance of her period of notice as a common law contractual entitlement from 4 March to 27 March 2013 inclusive. 9 In evidence before the Commission are pay sheets (exhibit A4). Those documents cover the pay periods 11 February to 24 February 2013 and 25 February to 10 March 2013. Ms Schultz’s evidence was, and those documents reflect, that she was paid a gross hourly rate of $28.85 per hour. Her evidence was that over the period of 4 March to 27 March 2013 inclusive, her ordinary hours of work would have been 136.8 hours. 10 Ms Schultz’s evidence was and I find that after she left her employment she received no further payment by way of salary for the period of 4 March to 27 March 2013. Therefore, I am satisfied that Ms Schultz has been denied a contractual benefit in terms of the balance of her period of notice which she gave under her contract, being four weeks, over that period of time. 11 Calculating the hours of work that Ms Schultz would have worked over that period, being 136.8 hours, at her gross hourly rate of $28.85, leads to a total sum of $3,946.68 gross which has been denied to her as a contractual benefit. This being the period of notice she otherwise would have worked had she been allowed to remain in employment to the end of the notice period on 27 March 2013. 12 Accordingly, to that extent, I am satisfied the applicant has established her contractual claim to the balance of her period of notice in that sum. Part of Ms Schultz’s claim, that being for annual leave, cannot be pursued in this jurisdiction. I order accordingly. 2013 WAIRC 00851 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES CHRISTINA SCHULTZ APPLICANT -v- ANTHONY ASPHAR (ASPHAR SURVEY PTY LTD) RESPONDENT CORAM COMMISSIONER S J KENNER DATE FRIDAY, 4 OCTOBER 2013 FILE NO/S B 89 OF 2013 CITATION NO. 2013 WAIRC 00851 93 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1559 Result Order issued Representation Applicant In person Respondent No appearance Order HAVING heard Ms C Schultz on her own behalf and there being no appearance by the respondent the Commission, pursuant to the powers conferred on it under the Industrial Relations Act, 1979 hereby orders – (1) THAT the respondent pay to the applicant the sum of $3,946.68 as a denied contractual benefit less any amount payable to the Commissioner of Taxation pursuant to the Income Tax Assessment Act 1997 and actually paid within 21 days of the date of this order. (2) THAT otherwise the application be and is hereby dismissed. (Sgd.) S J KENNER, [L.S.] Commissioner. 2013 WAIRC 00819 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION