CITATION : 2010 WAIRC 00101 CORAM : THE HONOURABLE J H SMITH, ACTING PRESIDENT CHIEF COMMISSIONER A R BEECH COMMISSIONER J L HARRISON HEARD : MONDAY, 15 FEBRUARY 2010 DELIVERED : FRIDAY, 5 MARCH 2010 FILE NO. : APPL 75 OF 2009, FBM 8 OF 2009 BETWEEN : MEDIA, ENTERTAINMENT AND ARTS ALLIANCE OF WESTERN AUSTRALIA (UNION OF EMPLOYEES)) Applicant AND (NOT APPLICABLE) Respondent 134 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 90 W.A.I.G. CatchWords : Industrial Law (WA) – Application pursuant to s 62(2) of the Industrial Relations Act 1979 (WA) for the Full Bench to authorise alteration to registered rules as a matter referred to in s 71(5) – Application pursuant to s 71 for a declaration relating to qualifications of persons for membership of a State Branch of a Federal organisation and offices which exist with the Branch – Applications granted. Legislation : Industrial Relations Act 1979 (WA) s 55(4), s 55(4)(a), s 55(4)(b), s 55(4)(c), s 55(4)(d), s 62, s 62(1), s 62(2), s 62(3), s 62(4), s 71, s 71(1), s 71(2), s 71(3), s 71(4), s 71(5). Industrial Relations Commission Regulations 2005 (WA) reg 72(b). Result : Order made; Declaration issued. Representation: Counsel: Applicant : Mr D H Schapper Solicitors: Applicant : Derek Schapper, Barrister & Solicitor Reasons for Decision THE FULL BENCH: The Applications 1 The Full Bench has before it two applications made under the Industrial Relations Act 1979 (WA) (the Act). The applicant seeks to obtain a s 71 certificate to enable the offices that exist in its rules to be held by persons holding corresponding offices in its counterpart Federal body. A certificate will also enable it to make an agreement with its Federal organisation relating to the management and control of funds. 2 Prior to the issuance of a certificate, the applicant's rules must be altered and the Full Bench must issue a declaration pursuant to s 71 of the Act. In APPL 75 of 2009, the applicant seeks to ensure that its rules comply with the requirements of s 71 and the application for the declaration is the subject of FBM 8 of 2009. 3 In APPL 75 of 2009, pursuant to s 62(2) of the Act the applicant as a registered organisation seeks the authorisation of the Full Bench to register an alteration to its rules to provide as required by s 71(5) of the Act that each office in the State organisation may from time to time as the Committee of Management of the State organisation may determine be held by the person who in accordance with the rules of the State organisation's counterpart Federal body holds the corresponding office in that body. Pursuant to s 62(2) an alteration of an organisation's rules of this kind can only be authorised by a Full Bench. 4 The application to authorise the alteration to the rules is part of APPL 75 of 2009. APPL 75 of 2009 was an application under s 62 of the Act to alter a number of rules of the applicant. Except for the alteration sought to add a new r 18 – Offices which raises a matter referred to in s 71(5) of the Act, the other alterations sought by the applicant were registered by the Registrar on 18 February 2010 pursuant to s 62(1) and s 62(3) of the Act. 5 In the part of APPL 75 of 2009 that is before the Full Bench, the applicant seeks to add a new r 18 – Offices as follows: Each office in the Association may, from such time as the Council may determine, be held by the person who, in accordance with the rules of the Association's Counterpart Federal Body namely the Media, Entertainment and Arts Alliance – Western Australian Branch, holds the corresponding office in that body. 6 Section 62(1) and s 62(2) of the Act provides: (1) Upon and after the registration of rules in accordance with section 58(1), an alteration to those rules by the organisation concerned shall not be or become effective until the Registrar has given to the organisation a certificate that the alteration has been registered. (2) The Registrar shall not register any alteration to the rules of an organisation that relates to its name, qualifications of persons for membership, or a matter referred to in section 71(2) or (5) unless so authorised by the Full Bench. 7 In FBM 8 of 2009, the Full Bench has before it an application made pursuant to s 71 of the Act for a declaration by the Full Bench that: (a) The Media, Entertainment and Arts Alliance – Western Australian Branch is the counterpart Federal body of the Media, Entertainment and Arts Alliance of Western Australia (Union of Employees); (b) The offices which exist with the counterpart Federal body are, or are deemed to be the same as the offices that exist in the Media, Entertainment and Arts Alliance of Western Australia (Union of Employees). 8 Some of the alterations registered by the Registrar on 18 February 2010 are material to the application to make the declaration sought under s 71 of the Act. These are as follows: 4. Amend paragraph (b) of Rule 19 – Council by deleting the underlined words (b) The Council shall consist of the President, three Vice-Presidents, the Secretary, Assistant Secretary (where Council has approved the creation of an Assistant Secretary) and no more than 25 delegates from the sections of the Association. The numbers of delegates shall be determined by the Council. 90 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 135 5. Amend Rule 20 – Powers and Duties of Council by deleting the whole of paragraph (q). Paragraph (q) reads "The right to create the office of Assistant Secretary". 6. Delete the whole of Rule 28 – Duties of Assistant Secretary. … 8. Delete the words "Assistant Secretary (where determined by Council)" from paragraph (b)(i) of rule 53 – Elections. 9 Both applications before the Full Bench are unopposed. APPL 75 of 2009 (a) The Applicant's Rules about Alteration 10 Pursuant to s 62(4) of the Act, the requirements of s 55(4) of the Act must be complied with before the Full Bench can approve a rule alteration application. Section 55(4) of the Act provides that the Full Bench shall refuse an application by the organisation under this section unless it is satisfied that – (a) the application has been authorised in accordance with the rules of the organisation; (b) reasonable steps have been taken to adequately inform the members — (i) of the intention of the organisation to apply for registration; (ii) of the proposed rules of the organisation; and (iii) that the members or any of them may object to the making of the application or to those rules or any of them by forwarding a written objection to the Registrar, and having regard to the structure of the organisation and any other relevant circumstance, the members have been afforded a reasonable opportunity to make such an objection; (c) in relation to the members of the organisation — (i) less than 5% have objected to the making of the application or to those rules or any of them, as the case may be; or (ii) a majority of the members who voted in a ballot conducted in a manner approved by the Registrar has authorised or approved the making of the application and the proposed rules; (d) in relation to the alteration of the rules of the organisation, those rules provide for reasonable notice of any proposed alteration and reasons therefor to be given to the members of the organisation and for reasonable opportunity for the members to object to any such proposal; and (e) rules of the organisation relating to elections for office — (i) provide that the election shall be by secret ballot; and (ii) conform with the requirements of section 56(1), and are such as will ensure, as far as practicable, that no irregularity can occur in connection with the election. (b) Statutory Requirements Met 11 Pursuant to s 55(4)(a) of the Act, the Full Bench shall refuse the rule alteration unless it has been authorised by the organisation in accordance with its rules. The authority to alter the rules of the applicant is found in r 49 – New Rules and Alterations of Rules. Rule 49 provides: (a) No new rules shall be made nor shall any of the rules of the Association for the time being be altered, added to, amended or rescinded except by the Council. Any proposal to alter, amend, add to or rescind the Rules shall be submitted to the Secretary to enable it to be circulated to all members of the Union at least 28 days before the date on which the meeting or the postal ballot of Council to consider the proposal is scheduled to begin. A member wishing to object to a proposed amendment shall notify the Secretary in writing of his or her objection and the reasons for it not less than 14 days before the meeting of Council which will consider the amendment. The Secretary shall circulate the objection to members of Council at least 7 days before the meeting of Council. (c) Any proposal to alter, amend, add to or rescind the rules may be proposed by any Sectional Committee at any time between meetings of the Council. Such proposed rules and/or amendments shall be submitted to the Secretary and shall be circulated in accordance with (b) hereof. (d) No new rule (or amendment, addition or rescission) shall be made which alters any sectional professional rights without the section first approving any such change in accordance with the rules governing those sections. 12 The application to authorise the addition of a new r 18 – Offices is brought pursuant to r 49(a). The facts supporting the applicant's application that it has complied with r 49 and the statutory requirements of the Act are set out in an affidavit by the Secretary of the applicant, Mr Michael Sinclair-Jones, sworn on 9 February 2010. 13 The evidence of Mr Sinclair-Jones in his affidavit and documents attached to his affidavit establishes the following relevant matters: 136 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 90 W.A.I.G. (a) A notice was sent to members on 16 November 2009 setting out the proposed amendments, the reasons for the amendments and informed members that they could object to the proposal by forwarding a written objection to the Registrar of the Commission no later than 21 days after the date of the Council meeting. In addition as required by r 49(a), members were also advised that they could object by written notice to the Secretary not less than 14 days before the meeting of Council (annexure 1 of the affidavit). (b) The notice informed members that a Council meeting at which the proposed alterations would be considered was scheduled for 15 December 2009 (annexure 1 of the affidavit). Consequently I am satisfied that the requirement of r 49 to circulate any proposal to amend the rules to all members of the Union at least 28 days before the date of the proposed meeting of Council to consider proposals was met. (c) The Secretary received no objections or comments from any members in response to the notice of 16 November 2009. (d) The notice was sent by email to all members. For those members with no email address, members were contacted to confirm a current postal address and notices were sent to those addresses. Those members that refused to give personal address details were sent a notice at their work address or post office box address. As the rules of the applicant do not prescribe or specify the means by which members must be given notice, I am satisfied that the members of the organisation were served with the notice. (e) Minutes of the applicant's Council meeting of 15 December 2009 record that the proposed alterations were considered. Rule 21 – Meetings of the Council provides that a quorum shall be no less than a third of the members of the Council. The minutes of the meeting record that four of the five members of Council were present at the meeting and that those members unanimously agreed to the proposal to amend r 18 amongst other proposals to amend the rules which were registered by the Registrar on 18 February 2010 but not the subject of this part of Appl 75 of 2009 which is before the Full Bench. The Council also unanimously agreed to authorise an application to be made to the Commission to register the amendments (annexure 2 of the affidavit). 14 Having regard to the matters stated in the affidavit of Mr Sinclair-Jones and the attached documents, we are satisfied that s 55(4)(b), s 55(4)(c) and s 55(4)(d) of the Act have been complied with as it is clear that adequate notice of the proposed change to the rules was given to members and that they had a reasonable opportunity to make an objection to the change. It is notable that no objection has been forthcoming. 15 For these reasons we are of the opinion that an order should be made that the Registrar be authorised to register an alteration to the rules of the applicant by registering r 18 – Offices. FBM 8 of 2009 – Application for s 71 Certificate 16 The counterpart Federal body of the applicant is the Media, Entertainment and Arts Alliance Western Australian (the Branch). The applicant seeks a declaration that pursuant to s 71(2) of the Act the Full Bench is of the opinion that the rules of the counterpart Federal Body prescribing the offices which exist in the Branch are deemed to be the same as the rules prescribing the offices which exist in the State organisation in accordance with s 71(1) and s 71(4) of the Act. (a) Qualifications of Persons for Membership 17 Pursuant to s 71(1) of the Act, a counterpart Federal body, in relation to a State organisation, means a Western Australian Branch of an organisation of employees registered under the Commonwealth Act the rules of which: (a) relating to the qualifications of persons for membership; and (b) prescribing the offices which shall exist within the Branch, are, or, in accordance with this section, are deemed to be, the same as the rules of the State organisation relating to the corresponding subject matter; 18 By operation of s 71(2) of the Act the rules of the State organisation and its counterpart Federal body relating to the qualifications of persons for membership are deemed to be the same if, in the opinion of the Full Bench, they are substantially the same. 19 Further s 71(3) provides: The Full Bench may form the opinion that the rules referred to in subsection (2) are substantially the same notwithstanding that a person who is — (a) eligible to be a member of the State organisation is, by reason of his being a member of a particular class of persons, ineligible to be a member of that State organisation's counterpart Federal body; or (b) eligible to be a member of the counterpart Federal body is, for the reason referred to in paragraph (a), ineligible to be a member of the State organisation. 20 In an affidavit sworn by Mr Sinclair-Jones dated 15 February 2010 he attests that the annexures to the application are true and correct in relation to each statement of fact made in each of the annexures. In an annexure to the application made pursuant to reg 72(b) of the Industrial Relations Commission Regulations 2005, r 4 of the applicant's rules and r 4 of the Media, Entertainment and Arts Alliance (the Federal Union) rules relating to qualifications of persons for membership are compared. The applicant says in this annexure that: Part A of the Applicant's rule is not materially different from Part A of the Counterpart Federal Body's rule. Part B of the Applicant's rule is not materially different from Part B of the Counterpart Federal Body's rule. [Rule B(h) has no counterpart in the Applicant's rule] 90 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 137 Part C of the Applicant's rule is not materially different from Part C of the Counterpart Federal Body's rule. [Rule Part C(a)7 has no equivalent in the Applicant's rules but those persons (Federal and State public servants) are probably eligible for membership of the applicant in any event] Part D of the Applicant's rule is not materially different from Part D of the Counterpart Federal Body's rule. Part E of the Applicant's rules has Part G of the Counterpart Federal Body's rules as its counterpart which, though differently expressed, covers much of the same classes of employees. Parts E and H of the Counterpart Federal Body's rules have no counterpart in the Applicant's rules. 21 In an annexure headed "Regulation 72(d)" the applicant states that: (a) there are 1,246 members of the applicant and its counterpart Federal body; (b) all members of the applicant are also members of the counterpart Federal body; and (c) all members of the counterpart Federal body are members of the applicant. 22 An examination of r 4 of the rules of the applicant and r 4 of the Federal Union's rules reveals that all persons who are to be eligible to be members of the applicant are eligible to be members of the Branch. However, there is one category of membership of persons who are eligible to be members of the Branch who are ineligible to be members of the applicant. These are persons set out in Part E of r 4 of the Federal Union's rules. Part E of r 4 of the Federal Union's rules establishes a category of persons eligible to be members who are independent contractors who, if they were employed performing work of the kind which they usually perform as independent contractors, would be employees and eligible for membership of the Branch. Historically Federal industrial legislation has enabled federally registered organisations to enrol subcontractors as members whereas such categories of persons in Western Australia have been unable to be registered under the provisions of the Act. It is also notable that Part H provides a category of persons ineligible for membership of the Union who are employed by named organisations in Queensland. It is our view that this category of ineligibility for membership is immaterial as this rule simply excludes persons from membership who are employed by a number of organisations in Queensland and it is not relevant to qualifications for membership of the Branch. 23 For these reasons we are of the opinion the qualifications of persons for membership set out in the rules of the applicant and rules that apply to the Branch are substantially the same. (b) Offices 24 When determining whether the offices that exist in the Branch are the same as the offices of the applicant, it is necessary for the Full Bench to consider the functions and powers of each office based on a consideration of the similarity or otherwise of the content of the rules: Jones v Civil Service Association Inc (2003) 84 WAIG 4 (Pullin J) [35]. 25 In an annexure to the application titled "Regulation 72(c)" the applicant compares the offices that exist within its organisation and the offices that exist within the Branch. The document states as follows: Applicant's rule/office Counterpart Federal Body rule/office Rule 25- President Rule 19(c) – Branch President Rule 25A – 3 Vice-presidents Rule 19(c) – 3 Vice-Presidents Rule 26 – Secretary Rule 19(c) - Secretary Rule 19(b) – such number of Section Delegates as determined by Council and Rule 54 Rule 19(c) – such number of Section Delegates as determined by Council and Rule 80 In both the Applicant and the Counterpart Federal Body, the number of section delegates has long been determined to be 0. Rule 19(b) and 28 – Assistant Branch Secretary – not created. Not applicable 26 When the application was filed on 21 December 2009 the office of Assistant Branch Secretary was still in existence although historically this position had never been filled. However, this office was deleted by the variations to the rules set out in paragraph [8] of these reasons when those variations were registered by the Registrar on 18 February 2010. 27 The supreme governing body of the applicant is the Council (r 19(a)). The supreme governing body of the Branch is the Branch Council (r 19(a) of the Federal Union rules). Prima facie the offices of both the State organisation and the Branch pursuant to r 19(b) of the applicant's rules and r 19(c) of the Federal Union's rules are the same. The applicant's Council consists of the President, three Vice-Presidents, the Secretary and no more than 25 delegates from the sections of the applicant (r 19(b)). Under r 19(c) of the Federal Union's rules the Branch Council consists of the Branch President, three Branch Vice- Presidents, the Branch Secretary and delegates from the sections of the Association as determined by r 80 (other than in those 138 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 90 W.A.I.G. branches where Federal Council has determined that the number of delegates shall be zero). As set out in the applicant's annexure titled "Regulation 72(c)" in both the applicant's organisation and in the Branch, the number of section delegates has long been determined to be zero. In any event, the applicant's rules and the Federal Union's rules provide a very similar formula for the selection of sectional delegates. Rule 54 – Formula for Election of Sectional Delegates to Council of the applicant's rules, sets the number of section delegates by applying the annual income of each section from entrance fees and membership subscriptions for the aggregate dues paid to the applicant and its Branch for the previous financial year and ascertains the notional number of members of each section by dividing the amount of income for each section by $200 (or another amount as determined by Council). The same formula is contained in r 80 of the Federal Union's rules. However, the proportional formula to be obtained of national sections under r 80 is to be applied is 50, whereas the proportional formula to be obtained in respect of sections under the applicant's rules is 25. Further pursuant to r 54(vi) of the applicant's rules, where sections are entitled to three or more delegates or three or more Vice-President positions are to be filled, one of each three positions filled shall be a woman according to a formula that follows. There is no equivalent of r 54(vi) in the rules of the Federal Union. However, there is no requirement in s 71(4) of the Act that the offices be identical only that there be a corresponding office for each office in the State organisation. 28 In relation to each of the duties of the President, Branch President, the Vice-Presidents, the Secretary and the Branch Secretary it is clear that the rules of the applicant and of the Branch are not identical. However, when the powers and duties of each of those positions in the rules are examined, it is apparent that all of the powers and duties of each of the Branch offices are also found in the powers and duties of the offices that exist pursuant to the applicant's rules. There are, however, some additional duties which are required of the holders of the offices of the applicant which, in our view, are not material to the determination of this application. These matters relate to the keeping of books of account as required by the Act and other statutory duties under the Act. It is also notable that the terms of office for each of the offices are the same. Pursuant to r 52 – Terms of Office of the applicant's rules, the terms of office for the Secretary is four years and for Honorary officers two years. Under r 78 – Terms of Office of the Federal Union's rules, full-time Branch officers hold office for a term of four years and Honorary branch officers two years. For these reasons we are of the opinion that in each of the offices of the applicant's State organisation there is a corresponding office in the Branch. 29 For the reasons set out above, we are satisfied that the Media, Entertainment and Arts Alliance – Western Australian Branch is the counterpart Federal body in relation to the applicant. Accordingly, it is appropriate to make the declaration in the form provided for in s 71(1), s 71(2) and s 71(4) of the Act. 30 Once the order authorising the Registrar to register the alteration to the rules of the applicant by adding a new r 18 is made and the s 71 declaration is made, s 71(5) issues a mandatory command to the Registrar to issue a certificate in the form prescribed by that sub-section. 2010 WAIRC 00106 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES MEDIA, ENTERTAINMENT AND ARTS ALLIANCE OF WESTERN AUSTRALIA (UNION OF EMPLOYEES) APPLICANT -and- (NOT APPLICABLE) RESPONDENT CORAM FULL BENCH THE HONOURABLE J H SMITH, ACTING PRESIDENT CHIEF COMMISSIONER A R BEECH COMMISSIONER J L HARRISON DATE MONDAY, 8 MARCH 2010 FILE NO/S APPL 75 OF 2009 CITATION NO. 2010 WAIRC 00106 Result Order made Appearances Applicant Mr D H Schapper (of counsel) 90 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 139 Order This matter having come on for hearing before the Full Bench on 15 February 2010, and having heard Mr D H Schapper, of counsel, on behalf of the applicant, the Full Bench orders that:— The Registrar is hereby authorised to register an alteration to the rules of the applicant by adding a new rule 18 – Offices. By the Full Bench (Sgd.) J H SMITH, [L.S.] Acting President. 2010 WAIRC 00105 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES MEDIA, ENTERTAINMENT AND ARTS ALLIANCE OF WESTERN AUSTRALIA (UNION OF EMPLOYEES) APPLICANT -and- (NOT APPLICABLE) RESPONDENT CORAM FULL BENCH THE HONOURABLE J H SMITH, ACTING PRESIDENT CHIEF COMMISSIONER A R BEECH COMMISSIONER J L HARRISON DATE MONDAY, 8 MARCH 2010 FILE NO/S FBM 8 OF 2009 CITATION NO. 2010 WAIRC 00105 Result Declaration issued Appearances Applicant Mr D H Schapper (of counsel) Declaration This matter having come on for hearing before the Full Bench on 15 February 2010, and having heard Mr D H Schapper, of counsel, on behalf of the applicant, the Full Bench pursuant to its powers in s 71 of the Industrial Relations Act 1979 (the Act), hereby declares that:— (a) The Media, Entertainment and Arts Alliance – Western Australian Branch is the counterpart Federal body of the Media, Entertainment and Arts Alliance of Western Australia (Union of Employees); (b) The rules of the applicant and its counterpart Federal body relating to the qualifications of persons for membership are deemed to be the same, in accordance with s 71(2) of the Act. (c) The rules of the counterpart Federal body prescribing the offices which exist in the Branch are hereby deemed to be the same as the rules of the applicant, prescribing the offices which exist in the applicant, in accordance with s 71(4) of the Act. By the Full Bench (Sgd.) J H SMITH, [L.S.] Acting President. 140 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 90 W.A.I.G. COMMISSION IN COURT SESSION—Matters dealt with— 2010 WAIRC 00059 GOVERNMENT SERVICES (MISCELLANEOUS) GENERAL AGREEMENT, 2010 EDUCATION ASSISTANTS' (GOVERNMENT) GENERAL AGREEMENT 2010 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES THE LIQUOR, HOSPITALITY AND MISCELLANEOUS UNION (WA BRANCH APPLICANT THE EXECUTIVE DIRECTOR DEPARTMENT OF EDUCATION AND THE EXECUTIVE DIRECTOR LABOUR RELATIONS DIVISION DEPARTMENT OF COMMERCE RESPONDENTS CORAM CHIEF COMMISSIONER A R BEECH COMMISSIONER S J KENNER COMMISSIONER S M MAYMAN HEARD MONDAY, 8 FEBRUARY 2010 DELIVERED THURSDAY, 11 FEBRUARY 2010 FILE NO. AG 1 OF 2010, AG 3 OF 2010 CITATION NO. 2010 WAIRC 00059 CatchWords Practice and procedure - Further and better particulars - Discovery and inspection of documents - Relevant principles - Orders made - Industrial Relations Act, 1979 s 27(1)(o) Result Order issued Representation Applicant Mr B Owen Respondent Mr R Bathurst of counsel Reasons for Decision COMMISSION IN COURT SESSION: 1 The substantive proceedings in these matters are applications pursuant to s 42G of the Industrial Relations Act 1979 (“the Act”) for the registration of two agreements, they being the Education Assistants’ (Government) General Agreement 2010 and the Government Services (Miscellaneous) General Agreement 2010 (“the Agreements”). The Commission in Court Session is requested to determine, for the purposes of s 42G (2) of the Act, the rates of pay to apply under the Agreements. 2 In accordance with the joint request of the Liquor Hospitality and Miscellaneous Union (WA Branch) (“LHMU”) and the respondents, the substantive applications have been listed for hearing for six days commencing on 10 March 2010. Interlocutory Applications 3 By application filed on 4 February 2010 the LHMU seeks an order pursuant to s 27(1)(o) of the Act in the following terms: “(1) particulars of the grounds upon which the Government denies that the LHMU is entitled to the pay increase it seeks (the LHMU Wages Claim) and maintains that the wage increases should, instead, the 2.5%, 2.5% and 3% over the next three years; and (2) discovery on oath of all documentation in the possession, custody or power of the Government relating to any matter and issue in the proceedings for the arbitration of the LHMU Wages Claim and without limiting the generality of the discovery that is fair and just to be provided by the Government (in accordance with regulation 20(7)) to enable the LHMU to properly and fairly present its case and understand the case against it, the LHMU seeks, in particular, discovery on oath of documentation concerning the following: (a) consideration by or on behalf of the Government of the LHMU Wages Claim; (b) advice (not including legal advice) about the LHMU Wages Claim; (c) economic analyses of or concerning the LHMU Wages Claim; (d) the application of the Government’s Public Sector State Wages Policy to the LHMU Wages Claim.” 90 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 141 4 Given the impending dates of hearing of the substantive claims, the Commission in Court Session heard the interlocutory application on 8 February 2010. At the hearing of the application, the LHMU, after making only limited submissions in support of the application, was granted leave by the Commission in Court Session to file and serve written submissions in reply by 9 February 2010, which it has done through its counsel, Mr Hooker. 5 For the purposes of dealing with this application, we will also refer to the written outline of submissions and annexures provided by Mr Bathurst, counsel appearing on behalf of the various State Government entities who are the respondents to which these proceedings relate. 6 Additionally, we should also observe that during the course of the hearing on 8 February, the State Government made an oral application for particulars and discovery, in relation to the LHMU’s wages claim. This application was previously expressed in a letter from the State Solicitor’s Office to the LHMU dated 4 February 2010 which relevantly provides as follows: “Particulars and Discovery by the LHMU Would you please provide, within five days of the date of this letter, particulars of the grounds upon which the LHMU claims that it is entitled to the pay increases it seeks. If it is alleged that there has been work value changes for any classification of employee in question, would you please specify the exact nature of that alleged change, when it allegedly occurred and how the LHMU claims it is to be valued. Further, if it is alleged that any amount of the pay rise sought is justifiable on the basis of gender discrimination or inequality, please specify the exact nature of that alleged discrimination or inequality and why it is said to justify a wage increase. Would you please also provide, within five days of the date of this letter, discovery of all documentation in the LHMU’s possession, custody or power concerning any alleged: (a) change in work value for any classification of employee in question; and (b) gender discrimination or inequality which is said to justify a wage increase.” 7 We will deal with both applications in these reasons. Particulars 8 The Commission is empowered by s 27(1)(o) of the Act to make such orders as may be just with respect to any interlocutory proceedings to be taken before the hearing of any matter, including delivery of particulars of claims of all parties, discovery, inspection or production of documents. As a matter of general principle, a party to proceedings before the Commission is entitled to reasonably know the case brought against it. The relevant provisions of the Industrial Relations Commission Regulations 2005 (“the Regulations”) require applicants and respondents to particularise their claims or answers respectively. 9 Furthermore, as in the present proceedings, by r 22 of the Regulations, it is open to a party to any matter before the Commission to apply to the Commission in Chambers for an order that any other party to the matter furnish further and better particulars of any claim, answer, counter-proposal or other matters stated in or in relation to the matter. 10 In the present context, the circumstances of the claims are somewhat unusual. This is the first application pursuant to s 42G of the Act, whereby the Commission in Court Session is being asked to determine the rates of pay to have application in the Agreements upon their registration by the Commission in Court Session. The only “claims” before the Commission in Court Session, as such, are set out in the “Agreement For Arbitration” annexed to the applications. The relevant part of this for present purposes is as follows: “The LHMU will argue for wage increases of 7%, 6.5%, 6.5% and the Government respondents will argue for wage increases of 2.5%, 2.5% and 3%”. 11 As to the LHMU application for particulars, counsel for the respondents submitted that in their letter of 4 February 2010 to the LHMU, the respondents have set out particulars of their position. The particulars are as follows: “The Government’s proposed pay increase of 8% over 3 years: (a) in accordance with the Public Sector Wages Policy 2009, maintains the real value of wages for the employees in question; (b) reflects the fact that the LHMU has not agreed to any efficiencies or work practice reform initiatives being included in the relevant industrial agreements; (c) reflects the fact that there has not been any changes, or alternatively, material changes, in work value for the employees in question; (d) is appropriate given the budgetary constraints facing the State and the difficult economic circumstances; (e) is appropriate taking into account the size of the Western Australian Public Sector and the adverse budgetary consequences if inappropriately large pay increases were to flow on to other employee groups; (f) is fair in all the circumstances.” 142 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 90 W.A.I.G. 12 In our view, the above sets out with reasonable particularity the basis for the respondents’ position in relation to the wage increases to apply in the Agreements. We are not persuaded that any further particularity is necessary in order to enable the LHMU to adequately understand the case it has to meet. Accordingly, the LHMU application for further particulars is refused. 13 In terms of the the respondents’ request for particulars of the LHMU claim, in our opinion, the the respondents, consistent with the principles to which we have just referred, are entitled to know the general basis of the claim they will be required to meet at the hearing of the applications. We note that no issue was taken with this in paragraph [9] of the written submissions filed by the LHMU. Indeed it has undertaken to provide particulars and discovery in a “reasonable time”. Nonetheless, given the impending dates of hearing of the substantive claims we consider that the LHMU should be required to provide particulars of its claim within a defined timetable, which we deal with in the order to issue. Discovery 14 It is fair to say that the primary focus of the oral and written submissions of the parties was in relation to the matter of discovery of documents in relation to the claims. Relevant Principles Regarding Discovery 15 It is trite to observe that in this jurisdiction, discovery is not available as of right. Rather it is for a party making an application for an order under s 27(1)(o) of the Act to establish that it would be just for such an order to be made: ALHMWU and Others v. Burswood Resort Management (Ltd) and Others (1995) 75 WAIG 1801. 16 Relevantly, in Burswood, the Full Bench considered the approach to be taken in this jurisdiction in relation to applications for discovery and said at 1805: “The Commission may therefore only make an order if such an order is just (see Springdale Comfort Pty Ltd t/a Dalfield Homes v. BTA (op cit) (IAC). S.26(1)(a) of the Act would not seem to be excluded from operation by the words of s 27(1)(o) but we do not think that it alters the question to be asked and answered under s.27(1)(o). It is for the applicant for an order under s.27(1)(o), to establish that it is just for such an order to be made. The expression “just” means “right and fair, having reasonable and adequate grounds to support it, well-founded and conformable to a standard of what is proper and right”. (see Loxton v. Ryan (1921) State Reports (Qld) 79 at 84, 88 per Lukin J). Perhaps more appositely in Smith’s Weekly Publishing Co Ltd v. Sunday Times Newspaper Co Ltd (op cit), which was a case relating to discovery of documents Isaacs and Rich JJ at page 562 held that “just” means “just according to law”. 17 Generally speaking, if an order for discovery is made, it may be made requiring the parties to the proceedings to furnish a list to one another, setting out a list of documents which are or have been in the party’s possession or power, relating to any matter in question in the proceedings. This will include documents which may advance a party’s case or damage the case of its opponent, or otherwise which may fairly lead to a train of inquiry in connection with the subject matter of the proceedings: Compagnie Financiere et Commerciale du Pacifique v. The Peruvian Guano Company (1882) 11 QBD 55 per Brett LJ at 63. Contentions of Parties 18 The LHMU submitted that a number of issues will be contested in these proceedings such that its general request for discovery should not be regarded as oppressive. It submitted that these issues will include: (a) An erosion of the value of LHMU members’ salaries compared to other public sector employees in particular nurses, teachers, and police; (b) State Government expenditure in areas of policy and reform taking precedence over and above fair and reasonable remuneration for LHMU members proposed to be covered by the Agreements; and (c) The general operation and effect of the State Government’s Wages Policy particularly as to how and to what extent the Wages Policy applies to the claims. 19 There were also general submissions made by the LHMU that the position adopted by the State Government that the LHMU’s request is oppressive is dubious, given the resources of the State and the LHMU’s assertion that the State Government had previously advised that no such documents were in its possession, custody or power. 20 Counsel for the respondents submitted that the general request for discovery of all documents in its possession, custody or power relating to any matter in issue in the proceedings for the arbitration of the LHMU Wages Claim is of such a width as to make it oppressive. Additionally, a further submission was made by counsel to the effect that there has been an accepted practice in Australia for many years that in proceedings of this kind, internal working documents of parties are, other than in exceptional circumstances, not discoverable: Re Federated Clerks Union of Australia Print H2892; Construction, Forestry, Mining and Energy Union v. A Aarons Waterbed Centre and Others Print N4704; The Amalgamated Metal Workers’ and Shipwrights Union and Electricity Trust of South Australia and Others Print E3438. 21 These decisions relied upon by counsel for the respondents were decisions of the Australian Industrial Relations Commission and its predecessors in relation to summonses for production of documents in the absence of any general power for the provision of discovery and inspection of documents under the relevant Commonwealth legislation. Having considered the 90 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 143 authorities to which counsel referred, with respect, we do not agree with the approach taken in those decisions. We do not consider they have application in this jurisdiction, where no such general principle has been endorsed. In our opinion, the approach to be taken is that as set out in Burswood, that being for the Commission in Court Session to consider whether an application for an order under s 27(1)(o) of the Act is just in all of the circumstances of the case. Consideration 22 One of the respondents’ claim for an order is that the LHMU provide discovery of all documentation in its possession, custody or power concerning any alleged change in work value for any change in work value for any classification of employee in question and gender, discrimination or inequality which is said to justify a wage increase. In relation to this, we note the preparedness of the LHMU in paragraph [9] of its written submissions to comply with the respondents’ request. 23 Additionally, we observe that discovery is confined to what is in issue on the pleadings (Burswood supra at 1805). In this case we are not prepared to require the LHMU to give discovery in advance of the provision by it of its particulars. We are prepared to accept that the LHMU will provide discovery in accordance with its position in paragraph [9] of the written submissions and a liberty to apply may be exercised by the respondents if it is needed. 24 In relation to the LHMU claim for an order for discovery on oath of all documentation in the possession, custody or power of the Government relating to any matter and issue in the proceedings for the arbitration of the LHMU wages claim, we observe firstly that an order can only issue against the respondents and not the State Government. Even so, we consider the wording “any matter in issue” to be too broad in the absence of the LHMU’s particulars. We also consider such an order would be oppressive for that reason. 25 We do not think an order should specifically include consideration by or on behalf of the Government of the LHMU wages claim. In our view, the relevant position of the respondents is the respondents’ final position and in any event we consider an order in such terms would be too broad. We are also of the view that any advice to the Government about the LHMU wages claim is not relevant. 26 However, given the respondents’ particulars outlined above, and paragraph 5(c) of the LHMU’s written submissions, we do consider it is just that an order should issue in the terms of subparagraphs (2)(c) and (d) of the schedule to the LHMU’s application, namely: “(c) economic analyses of or concerning the LHMU wages claim; (d) the application of the Government Public Sector State Wages Policy to the LHMU wages claim.” 27 We propose to order accordingly. Mode of Taking Evidence 28 The parties have informed us that evidence that will be adduced from approximately 24 witnesses in total. Some 20 witnesses are to be called by the LHMU and four by the respondents. In this connection, the respondents have requested that the Commission in Court Session make orders for the filing and service of witness statements to stand as the evidence in chief of the maker. The LHMU appears not to oppose the provision of witness statements as such, however, it wishes to call six witnesses to give their evidence in chief orally. 29 The Commission has the power under s 27(1)(hb) of the Act to require evidence or argument to be presented in writing. Additionally, modern case management principles, in particular where a large number of witnesses are to be called in proceedings, contemplate the making of orders for the use of witness statements in appropriate cases. We consider that such an order should be made in this case given the parties agreed position that the matter be listed for or hearing for six days. This will assist in enabling the matter to be completed within the agreed time. 30 However, we also acknowledge the request by the LHMU to call evidence in chief orally from some of its witnesses. In paragraph 10 of its written submissions the LHMU says that at this stage it does not intend to call more than six witnesses for this purpose. Subject to what follows, the orders to issue in relation to the filing and service of witness statements will make provision for this and, as a matter of balance, it will also extend to the respondents. Case Management Generally 31 The proceedings have been listed for hearing for six days commencing on 10 March 2010. The requested length of hearing and the commencement date arise from an agreement between the parties which the Commission in Court Session has accommodated. In these circumstances, the Commission in Court Session wishes to observe that the parties should tailor the presentation of their cases in order that the matter can be completed within the agreed time. The Commission in Court Session also refers to the case management powers that it has under s 27(1)(ha) of the Act, which include the power to determine periods reasonably necessary for the fair and adequate presentation of the respective cases of the parties to the proceedings and require the cases to be presented within the respective periods. The Commission in Court Session foreshadows that it will consider the use of these powers if it becomes necessary in the circumstances of this case. Despite the foregoing, if for whatever reason, the matters require further listing dates, we wish to state that while every consideration will be given to the availability of counsel, the Commission has an obligation to act with as much speed as the requirements of the Act and a proper consideration of the matter before it permit and the availability of counsel will not be determinative of that obligation. 32 A minute of proposed order now issues. 144 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 90 W.A.I.G. 2010 WAIRC 00063 GOVERNMENT SERVICES (MISCELLANEOUS) GENERAL AGREEMENT, 2010 EDUCATION ASSISTANTS' (GOVERNMENT) GENERAL AGREEMENT 2010 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES THE LIQUOR, HOSPITALITY AND MISCELLANEOUS UNION (WA BRANCH) APPLICANT -v- THE EXECUTIVE DIRECTOR DEPARTMENT OF EDUCATION AND THE EXECUTIVE DIRECTOR LABOUR RELATIONS DIVISION, DEPARTMENT OF COMMERCE RESPONDENTS CORAM CHIEF COMMISSIONER A R BEECH COMMISSIONER S J KENNER COMMISSIONER S M MAYMAN DATE FRIDAY, 12 FEBRUARY 2010 FILE NO/S AG 1 OF 2010, AG 3 OF 2010 CITATION NO. 2010 WAIRC 00063 Result Order made regarding provision of particulars, discovery and witness statements Representation Applicant Mr B. Owen Respondents Mr R. Bathurst (of counsel) Order HAVING HEARD Mr B. Owen on behalf of the applicant and Mr R. Bathurst (of counsel) on behalf of the respondents, the Commission in Court Session acting pursuant to s 27(1)(o) of the Industrial Relations Act, 1979 hereby makes the following orders: 1. THAT the application by the Liquor, Hospitality and Miscellaneous Union (“LHMU”) for particulars of the grounds upon which the Government denies that the LHMU is entitled to the pay increase it seeks is dismissed. 2. THAT by 15 February 2010 the LHMU file and serve upon the respondents particulars of the grounds upon which it claims that it is entitled to the pay increases it seeks. 3. THAT liberty is reserved to the respondents to seek an order for discovery following the provision of particulars by the LHMU. 4. THAT by 26 February 2010 the respondents give to the LHMU informal discovery and inspection of all documents which are in their respective custody, possession, power or control and which relate to: (a) the economic analyses of or concerning the LHMU Wages Claim; (b) the application of the Public Sector Wages Policy 2009 to the LHMU wages claim in this matter. 5. THAT other than as provided elsewhere in this order, evidence in chief be given by way of signed witness statements which will stand as the evidence in chief of the maker. 6. THAT by 3 March 2010 the parties file and serve upon one another any signed witness statements upon which they intend to rely. 7. THAT the LHMU and the respondents respectively may adduce oral evidence from no more than 6 witnesses. 8. THAT by 8 March 2010 the LHMU and the respondents file and serve an outline of submissions and any authorities upon which they intend to rely. 9. THAT the parties or any of them have liberty to apply at short notice to vary this order. (Sgd.) A R BEECH, Chief Commissioner, [L.S.] Commission In Court Session. 90 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 145 2010 WAIRC 00067 GOVERNMENT SERVICES (MISCELLANEOUS) GENERAL AGREEMENT, 2010 EDUCATION ASSISTANTS' (GOVERNMENT) GENERAL AGREEMENT 2010 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES THE LIQUOR, HOSPITALITY AND MISCELLANEOUS UNION (WA BRANCH) APPLICANT -v- THE EXECUTIVE DIRECTOR DEPARTMENT OF EDUCATION AND THE EXECUTIVE DIRECTOR LABOUR RELATIONS DIVISION, DEPARTMENT OF COMMERCE RESPONDENTS CORAM CHIEF COMMISSIONER A R BEECH COMMISSIONER S J KENNER COMMISSIONER S M MAYMAN DATE TUESDAY, 16 FEBRUARY 2010 FILE NO. AG 1 OF 2010, AG 3 OF 2010 CITATION NO. 2010 WAIRC 00067 Catchwords Speaking to the minutes – Industrial Relations Act, 1979 s 35(1) Result Order issued Supplementary Reasons for Decision 1 This is our unanimous decision. The parties were given an opportunity to speak to the Minutes by way of written submissions. The LHMU submitted that the Minutes of Proposed Orders accurately reflect the reasons for decision and opposed any change to the Minutes in response to the respondents’ submissions. The respondents raised three issues. 2 The first matter raised by the respondents is that to ensure there can be no misapprehension as to what is required by way of particulars to be provided by the LHMU, Order 2 of the Minutes should be amended so that the particulars should include, without limitation: “(a) the percentage increase that the LHMU alleges each classification of employee in question is entitled to; (b) if it is alleged that there has been any work value changes for any classification of an employee in question, the exact nature of that alleged change, when it allegedly occurred and how the LHMU states it is to be valued; and (c) if it is alleged that any amount of the pay rise sought is justifiable on the basis of gender discrimination or inequality, the exact nature of that alleged discrimination or inequality and why it is said to justify a wage increase.” 3 We are of the view that the Minutes which issued reflect the decision reached by the Commission in Court Session. We considered the respondents are entitled to know the general basis of the claim they will be required to meet at the hearing of the applications and we noted the response of the LHMU in paragraph [9] of its written submissions which undertakes to provide the particulars. We do not propose to anticipate what those particulars might be. In the event that the respondents consider that insufficient particularity has been provided, the liberty to apply reserved to the parties is exercisable at short notice. 4 The respondents next point out that in Order 2 the date of 27 February 2010 is a Saturday. It had been the intention of the Commission in Court Session to refer to the preceding Friday which is 26 February 2010 and this change will be made. 5 Finally, the respondents foreshadow that it is likely they will need to lead evidence in rebuttal to the evidence provided by the LHMU. They request that the Minutes clarify that at the hearing either party may lead evidence in rebuttal to the witness statements filed and served by the other party. 6 We note that the reasons which were issued did not deal with evidence in rebuttal (or perhaps statements in reply). We are of the view that whether statements in reply are needed is an issue which will only be known once all witness statements are available, and accordingly we believe this issue is one that is better dealt with at the commencement of the hearing. No change will be made to the Minutes in this regard. 7 Therefore, the Order will issue in the terms of the Minutes other than for the correction of the date of 26 February 2010. 146 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 90 W.A.I.G. 2010 WAIRC 00084 GOVERNMENT SERVICES (MISCELLANEOUS) GENERAL AGREEMENT, 2010 EDUCATION ASSISTANTS' (GOVERNMENT) GENERAL AGREEMENT 2010 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES THE EXECUTIVE DIRECTOR DEPARTMENT OF EDUCATION; THE EXECUTIVE DIRECTOR LABOUR RELATIONS DIVISION, DEPARTMENT OF COMMERCE APPLICANTS -v- THE LIQUOR, HOSPITALITY AND MISCELLANEOUS UNION (WA BRANCH) RESPONDENT CORAM CHIEF COMMISSIONER A R BEECH COMMISSIONER S J KENNER COMMISSIONER S M MAYMAN DELIVERED WEDNESDAY, 24 FEBRUARY 2010 FILE NO. AG 1 OF 2010, AG 3 OF 2010 CITATION NO. 2010 WAIRC 00084 Catchwords Practice and procedure - Further and better particulars - Discovery and inspection of documents - Orders made - Industrial Relations Act, 1979 s 27(1)(o) Result Order to issue Representation Applicant Mr R. Bathurst (of counsel) Respondent Mr B. Owen Further Reasons for Decision 1 This is our unanimous decision. We announced at the conclusion of the proceedings that we intended to issue our decision as soon as possible with brief written reasons to follow. A minute of proposed order has issued and these are the reasons for that order. 2 The respondents filed an application for further and better particulars on 18 February 2010 in response to the particulars of the LHMU’s wages position filed on 15 February 2010. We listed the application urgently and what follows are our reasons for the order we have made. Necessarily, these Reasons will be brief and follow on from and adopt our earlier Reasons ([2010] WAIRC 00059). 3 We commence by noting a significant deficiency in the particulars provided by the LHMU on 16 February 2010 when compared with the undertakings given by it in its earlier written submissions of 9 February 2010. We refer to: (a) the LHMU statement at [5](b) in its written submission that numerous examples of government effecting spending on areas of policy and reform will be particularised; and (b) the undertaking at [9] to provide the particulars requested by the respondents in the letter from the State Solicitor’s Office of 4 February 2010 which, for ease of reference, were: • particulars of the grounds upon which the LHMU claims that it is entitled to the pay increases it seeks. If it is alleged that there has been work value changes for any classification of employee in question, would you please specify the exact nature of that alleged change, when it allegedly occurred and how the LHMU claims it is to be valued. Further, if it is alleged that any amount of the pay rise sought is justifiable on the basis of gender discrimination or inequality, please specify the exact nature of that alleged discrimination or inequality and why it is said to justify a wage increase. 4 The Commission in Court Session accepted this latter undertaking in its Reasons for Decision [2010] WAIRC 00059 at [23] and especially in the Supplementary Reasons [2010] WAIRC 00067 at [3] as the basis for not ordering the particulars to be provided. We express our extreme disappointment that the LHMU has not done so. 5 We have previously stated in our Reasons for Decision at [13] that the respondents are entitled to know the general basis of the claim they will be required to meet. We consider, given the previous undertaking by the LHMU to provide greater detail of at least some of the issues now requested and also the submissions of the respondents, that it is appropriate for the LHMU to provide greater detail of its position. We consider that it will assist in the proper preparation for the hearing for the respondents to know in greater detail the case it has to meet. 90 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 147 6 We acknowledge the relatively tight timeframe the parties have imposed upon themselves for the hearing of this matter and that the resources of the LHMU may be limited compared to the resources available to the respondents. In turn, the scope we have to give practical recognition of any limitation is itself limited to the parties’ own timeframe. 7 As to paragraph 1 of the particulars, we consider it is not apparent on what basis the LHMU is saying that its members are treated unfairly and that the respondents are entitled to know the basis. Similarly in relation to paragraph 2, we consider the respondents are entitled to know the basis for arguing that the Government Wages Policy does not maintain the real wages of the LHMU’s members. 8 As to paragraph 3(c) of the particulars, we consider the reference to “State Government utilities” is sufficiently descriptive of what is being referred to. In relation to paragraph 3(d) we refer to the undertaking of the LHMU in its written submission to give these particulars and we shall require them to do so. Similarly in relation to 3(e) the LHMU has already undertaken to supply these particulars in the context of the letter from the SSO of 4 February 2010. We will require this to be done. In relation to the valuation of any change in work roles and work value, we consider the wording in the letter from the SSO of 4 February 2010 to be preferable to the currently proposed wording because the LHMU’s valuation may not necessarily be by way of dollar value. 9 We consider the request for particulars relating to non-adherence to Government Wages Policy should be clarified as requested given the LHMU’s written submissions at [5](a). 10 We are also of the view that discovery should be ordered as requested. We note the preparedness of the LHMU to do so in its written submission at [9]. 11 The final matter is the respective dates of operation. We consider the particulars to be provided ought be able to be provided by the end of this week, that being 26 February 2010. We do take into account the LHMU’s submissions as to its limited resources and we are prepared to given the LHMU to the midday of an additional working day to provide discovery. That is the Tuesday after the long weekend, being Tuesday 2 March 2010. According to Order 4 of 12 February 2010 ([2010] WAIRC 00063) the respondents are to give discovery to the LHMU by 26 February and we consider in fairness to both parties, the dates of discovery should be aligned. The order to issue will therefore also vary that earlier order accordingly. This was not a matter raised by either party nor by the Commission in Court Session during the proceedings and accordingly we will extend an opportunity to be heard in writing on this issue prior to finalising the order to issue from these proceedings. 12 In all other respects, we have requested any submissions by way of speaking to the minutes to be made in writing to us. 2010 WAIRC 00087 GOVERNMENT SERVICES (MISCELLANEOUS) GENERAL AGREEMENT, 2010 EDUCATION ASSISTANTS' (GOVERNMENT) GENERAL AGREEMENT 2010 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES THE EXECUTIVE DIRECTOR DEPARTMENT OF EDUCATION ; THE EXECUTIVE DIRECTOR LABOUR RELATIONS DIVISION, DEPARTMENT OF COMMERCE APPLICANTS -v- THE LIQUOR, HOSPITALITY AND MISCELLANEOUS UNION (WA BRANCH) RESPONDENT CORAM CHIEF COMMISSIONER A R BEECH COMMISSIONER S J KENNER COMMISSIONER S M MAYMAN DATE WEDNESDAY, 24 FEBRUARY 2010 FILE NO/S AG 1 OF 2010, AG 3 OF 2010 CITATION NO. 2010 WAIRC 00087 Result Order made regarding provision of particulars and discovery; Previous Order varied Representation Applicant Mr R. Bathurst (of counsel) Respondent Mr B. Owen Order HAVING HEARD Mr R. Bathurst (of counsel) on behalf of the applicants and Mr B. Owen on behalf of the respondent, the Commission in Court Session acting pursuant to s 27(1)(o) of the Industrial Relations Act, 1979 hereby makes the following orders: 148 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 90 W.A.I.G. PARTICULARS THAT by 26 February 2010: 1. The LHMU state precisely each fact or circumstance relied upon to support the allegation that the timing and implementation of the Government Wages Policy treats the members of the LHMU unfairly and inequitably. 2. The LHMU state precisely each fact or circumstance relied upon to support the allegation that the Government Wages Policy does not maintain the real wages of LHMU members. 3. The LHMU provide full particulars of the “current trends in WA Government spending”. 4. As to paragraph 3(e) of the Particulars, provide particulars of the alleged changes in work roles and work value performed by LHMU’s members, including, but not limited to, particulars of: (a) The exact nature of the alleged changes in work roles and work value; (b) When the alleged changes occurred; and (c) How the LHMU claims the changes are to be valued. 5. As to paragraph 4 of the Particulars, state precisely each fact or circumstance relied upon to support the allegation that the Government Wages Policy has not been adhered to including, but not limited to, particulars of: (a) When it is alleged the Government Wages Policy came into force; and (b) Which other groups of employees have allegedly received wage increases which were not in adherence with the Government Wages Policy and when those increases were granted. DISCOVERY THAT the LHMU serve on the Applicants by midday 2 March 2010, by way of informal discovery, any documents in its possession, custody or power concerning: 1. The LHMU’s claim at paragraph 1 of the Particulars that the Government Wages Policy, both in timing and implementation, treats the members of the LHMU unfairly and inequitably; 2. The LHMU’s claim at paragraph 2 of the Particulars that the Government Wages Policy does not maintain the real wages of LHMU members; 3. The LHMU’s claim at paragraph 3(e) of the Particulars that there have been changes in the work roles and work value performed by LHMU’s members concerned; and 4. The LHMU’s claim at paragraph 4 of the Particulars that the Government Wages Policy has not been adhered to for other groups of employees whose workforce is predominately male, and that it is unfair to strictly adhere to the wages policy in respect of the members the subject of this claim, who are predominately female. AND the Commission in Court Session hereby further orders: THAT the date of 26 February 2010 in Order 4 of the Order of 12 February 2010 ([2010] WAIRC 00063) be deleted and replaced with the date of midday 2 March 2010. (Sgd.) A R BEECH, Chief Commissioner, [L.S.] Commission In Court Session. INDUSTRIAL MAGISTRATE—Claims before— 2010 WAIRC 00110 WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT PARTIES TRANSPORT WORKERS' UNION OF AUSTRALIA CLAIMANT -v- TWENTIETH SUPERPACE NOMINEES PTY LTD T/AS SCT LOGISTICS RESPONDENT CORAM INDUSTRIAL MAGISTRATE G. CICCHINI HEARD MONDAY, 7 DECEMBER 2009, TUESDAY, 8 DECEMBER 2009, WEDNESDAY, 9 DECEMBER 2009, THURSDAY, 10 DECEMBER 2009 DELIVERED WEDNESDAY, 3 MARCH 2010 CLAIM NO. M 8 OF 2009, M 9 OF 2009, M 10 OF 2009 CITATION NO. 2010 WAIRC 00110 90 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 149 CatchWords Alleged breach of clause 19.4.2 of the SCT, Forrestfield WA Agreement 1999, clause 19.4.2 of the SCT Logistics Perth WA Agreement 2003; and clause 19.4.2 of the SCT Logistics Perth WA Agreement 2006; Allegation that three of the Claimant’s members employed by the Respondent were unable to take lunchbreaks; Claim for overtime payments for working through lunchbreaks. Legislation Workplace Relations Act 1996 Industrial Instruments Transport Workers Award 1998 SCT Forrestfield WA Agreement 1999 SCT Logistics, Perth WA Agreement 2003 SCT Logistics Perth WA Agreement 2006 Cases Cited Metropolitan Health Services Board v Australian Nursing Federation (2000) 98 IR 390 Briginshaw v Briginshaw [1938] 60 CLR 336 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 Kucks v CSR Ltd (1996) 66 IR 102 AMIEU v Coles Supermarkets Australia Pty Ltd (1998) 80 IR 208 Cases Referred to in Judgement Project Blue Sky Inc and Others v Australian Broadcasting Authority [1998] 194 CLR 355 City of Wanneroo v Holmes (1987) 30 IR 362 BHP Billiton Iron Ore Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers (Western Australian Branch) [2006] WASCA 124 Result Claims Proven Representation Claimant Mr S. Millman instructed by Messrs Slater and Gordon Lawyers appeared for the Claimant. Respondent Mr M. Rinaldi with Mr C Broadbent instructed by Marsh and Maher appeared for the Respondent. REASONS FOR DECISION Background 1 The Respondent is a national transport and logistics company with its main office in Victoria. It undertakes rail and road bulk transport operations in Australia, primarily providing rail transport across the continent, and road transport along the north- south transport corridors of eastern Australia. It owns and operates locomotives and rolling stock systems on the east-west rail network. These are connected through modal facilities in New South Wales, Victoria, South Australia and Western Australia. 2 In Western Australia it operates a localised distribution network centred at its Forrestfield depot where rail freight is received. From that place it distributes stock by road transport within the Perth metropolitan and outer metropolitan areas and to Bunbury. From time to time it also services more distant locations such as Albany and Geraldton; however most of its long distance road transport is carried out by a third party carrier. It also conducts a third party logistics operation on behalf of the Fosters Group from premises adjacent to its Forrestfield depot. 3 Timothy Falconer, Mitchell O’Brien and Bernie Williams, all members of the Transport Workers Union (TWU), work for the Respondent at its Forrestfield depot. They are longstanding employees of the Respondent. Mr Falconer and Mr O’Brien are engaged to drive trucks. They drive “B double” configured trucks and sometimes semi trailers in delivering stock to client distribution centres and other places. Mr Williams on the other hand is engaged to drive a forklift at the Forrestfield depot. His primary responsibility is to unload and back load trains. He sometimes is engaged in moving stock to and within warehouses. In each case their duties have remained unchanged for many years and were as described during the material period. Industrial Instruments 4 The employment of Mr Williams, Mr O’Brien and Mr Falconer has, during the relevant period, been regulated by the Transport Workers Award 1998 (the Award) and a number of enterprise bargaining agreements (EBAs). The EBA prevails over the Award, to the extent of any inconsistency. The first EBA namely SCT Forrestfield WA Agreement 1999 (1999 Agreement) came into force in November 1999 and was replaced in August 2003 by the SCT Logistics Perth WA Agreement 2003 (2003 Agreement). The 2003 Agreement was in turn replaced in 2006 by the SCT Logistics Perth WA Agreement 2006 (2006 Agreement). 150 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 90 W.A.I.G. Claims and Response 5 The Claimant alleges that the Respondent is in breach of the 1999, 2003 and 2006 Agreements by not paying Mr Williams, Mr O’Brien and Mr Falconer their correct entitlements for having worked through their lunchbreaks in circumstances where they were unable to have a lunchbreak. Truck Drivers 6 It is alleged that from March 2003 until December 2007 Mr O’Brien and Mr Falconer were unable to take a lunch or meal break because the system of work adopted by the Respondent was such that it made no provision for taking a lunch or meal break. Half an hour’s pay at double time is claimed for each day worked. 7 The Respondent contends that truck drivers were at all relevant times able to take and did take paid lunchbreaks. They were never requested to defer their lunch. Indeed there was never an inability to have a lunchbreak. Most truck drivers with some exceptions preferred to not take an unpaid lunchbreak because it suited their purposes providing them with advantages such as earlier finishing times or more pay. 8 The Respondent asserts that the lunchbreaks issue has only arisen because of the changes made in February 2008, enforcing the taking of an unpaid half hour lunchbreak. Prior to then, there had never been any complaint by drivers or by the Respondent about the lunchbreak practice or any suggestion that truck drivers had been incorrectly paid. Forklift Driver 9 The Claimant alleges that Mr Williams was, on occasions during the period April 2003 to December 2007, directed to work through his lunchbreak and although paid for having done so was not paid his correct entitlement that is at overtime rates. 10 The Respondent contends that Mr Williams’ claim that he was directed to work through his lunchbreak on the material dates is both unsubstantiated and incorrect. The Respondent suggests that his claims are not credible and should not be accepted. Relevant Employment Conditions Hours 11 Each EBA required fulltime employees to work a 10 hour day, consisting of 8 hours at ordinary time and 2 hours of overtime four days per week. Employees could also choose to work a 5th day consisting of 7.6 hours payable at ordinary rates. If they chose to work a 5th day, they were not required to work the full day however they were required to work for at least 4 hours on that day. Any time worked in excess of 7.6 hours on 5th day was payable at overtime rates. That arrangement continues. Meal break/Lunchbreak 12 The Award allowed employees to take a daily regular unpaid meal break of between 30 minutes and one hour during the ordinary hours of work except where unforseen extraordinary circumstances arose which made the taking of the regular meal break impracticable. 13 It provided and continues to provide: 36 Meal Times 36.1 Regular meal break 36.1.1 An employee shall be allowed a regular meal break during the ordinary hours of work except where unforseen extraordinary circumstances arise which make the allowance of the regular meal break impracticable. 14 The meal break shall: 36.1.1(a) be of a regular duration of not more that one hour or less than 30 minutes; 36.1.1(b) commence not earlier that three and one-half hours after an employee’s fixed starting time of the ordinary hours of work; and 36.1.1(c) commence not later than five an one-half hours after an employee’s fixed starting time of the ordinary hours of work. 36.1.2 Provide that in respect of 36.1.1(b) and 36.1.1(c), where it is reasonable and practicable the meal break shall be arranged to be in balance with the ordinary hours of work. 36.1.3 If the meal break is not allowed, all time worked after the commencement time of the regular meal break until a break without pay for a meal time is allowed shall be paid for at the rate of ordinary time, the payment to be in addition to any payment due in respect of a weekly or casual wage. 15 The applicable EBA provisions relating to lunchbreaks provided: CLAUSE 19.4.2 Driver Employees ect Driver employees agree to defer lunchbreaks upon request and will continue at ordinary rate of pay until such time that a lunchbreak is available. If an employee is unable to have a lunchbreak, then that employee will be paid at an additional 30 minutes overtime. An employee may request a lunchbreak and approval may not be withheld. Lunchbreaks may be allocated by management to drivers on return to yard during each shift which if allocated must be taken. 90 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 151 16 Although only subclause 19.4.2 of the 2006 Agreement has been reproduced above the relevant clauses in the 1999, 2003 are the same as the 2006 Agreement except that the word “an” is missing before the words “additional 30 minutes overtime” in the 2003 Agreement. 17 The Award and the EBAs use different terms relating to the taking of a break for a meal or lunch. In my view, nothing turns on the use of different terminology. Clearly each provision is aimed at ensuring that an employee is able to take a timed, unpaid break in order to have a meal and/or do other things or to receive payment in lieu thereof in the event that it is unable to be taken. 18 The terms “lunchbreak” and “meal break” are not defined in the respective industrial instrument in which they are found. The common link with respect to each is that the word “break” is used. “Break” is defined in the Shorter Oxford Dictionary to mean; “To rupture union or continuity; to disrupt; to stop for the time…” 19 It follows that in order to have a meal break or a lunchbreak there must a disruption to work and discontinuance of it. It must necessarily entail stopping for the time required by the applicable industrial instrument, primarily to facilitate the consumption of lunch or a meal. Issues to be Determined 20 The pivotal issues to be determined in these matters are whether during the material period Mr O’Brien, Mr Falconer and Mr Williams were: 1. requested by the Respondent to defer their lunchbreak; and 2. unable to have a lunchbreak. 21 The Respondent submits that in order to prove its claim the Claimant must establish that on each relevant day the men were requested by the Respondent to defer or not to take their lunchbreak and they were unable to have a lunchbreak. On the other hand the Claimant seems to suggest that all that is required is establish that the men were unable to take a lunchbreak. 22 I accept the Respondent’s submission. A proper construction of the subclause requires both elements to be satisfied. Witnesses 23 The Claimant called Mr O’Brien, Mr Falconer, Mr Williams and its employee Mr Joshua Dalliston. Mr Dalliston prepared a number of spread sheets (exhibits 4.1, 4.2 and 4.3) using information contained on Mr O’Brien, Mr Falconer, and Mr Williams’ time cards (Exhibit 5 volumes 1-3) in order to particularise the claims. 24 The Respondent called a number of its current and past employees. They were Mr Bradley Moore, its current State Manager, his predecessor Mr Neil Griffiths, who now works for another transport company, Mr Douglas James, its former Operations Manager who retired in 2008, Mr Mark Pitcher, its current Refrigeration Manager and former Operations Manger who before then was a truck driver working for the Respondent, Mr Andrew Gunn, Transport Manager at the Fosters warehouse, Mr Edward Davies, its Operations Manager for Rail and Mr Stephen Walker, its current Transit Operations Manager. Assessment of Witnesses 25 Mr O’Brien, Mr Falconer and Mr Williams gave their evidence in an open, forthright, unequivocal and seemingly honest manner. Much of their evidence has not been contradicted and in any event is supported by the documentary evidence. They stood firm when challenged under cross-examination. There is no reason as to why their evidence should not be accepted. I prefer their evidence where there is direct conflict. 26 The evidence given by Mr Moore is of little assistance given that much of what is in issue predated his employment. Mr Gunn’s evidence lacked relevance. Mr Pitcher’s evidence was anecdotal and lacked detail with respect to Mr O’Brien and Mr Falconer. The evidence given by Mr Griffiths, Mr James, Mr Davies and Mr Walker lacked the specificity required to attract significant weight. Much of Mr Davies’ evidence was predicated on assumptions rather than direct knowledge or observations. Mr Walker’s evidence was somewhat limited. His concession that his memory is not all that good (see transcript - p314) also raises difficulty. Findings of Fact - Truck Drivers 27 Mr O’Brien testified that about 15 years ago, when he began full time employment as a truck driver with the Respondent, it’s then Fleet Controller Terry Tallowin told him that because of the need to meet customer requirements a dedicated lunchbreak would not be taken. He said that it was “common knowledge” that drivers were required to work though lunch. I accept his evidence in that regard. It has not been rebutted. Mr Douglas James’ evidence supports the fact that prior to 1999 and subsequently there was a practice of not taking an unpaid half hour break. He testified that the practice not to take an unpaid lunchbreak was something not only well known to Mr Griffiths’ predecessor Mr Warchomij but also to Claimant. He formed that view whilst involved in the 1999 EBA negotiations. The practice not to take lunchbreaks continued until 2008. 28 In 2008 Mr Griffiths made a decision to enforce the taking of an unpaid half hour lunchbreak. His decision upset many truck drivers and indeed drew a barrage of protests culminating in a dispute which required the intervention and assistance of the Australian Industrial Relations Commission. His decision to enforce the taking a lunchbreak was in part based on his view that drivers had been abusing the system. He had observed them to take what was in effect paid lunchbreaks. He put a stop to that. Further he was of the view that “a recorded lunchbreak” was desirable to demonstrate that the Respondent was complying with occupational safety and health requirements relating to fatigue management. 152 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 90 W.A.I.G. 29 It is obvious that the practice of not taking of a dedicated lunchbreak would have suited the Respondent’s operational requirements because it would have inevitably created efficiencies. The taking of a dedicated half hour lunchbreak would have made the Respondent’s Fleet Controllers scheduling tasks more difficult and would have got in the way of customer requirements. Indeed the Respondent’s primary objective was the need to meet customer requirements. Such was clear from Mr O’Brien and Mr Davies’ evidence. The absence of an organised lunchbreak would have assisted the Respondent by enabling its processes to flow more rapidly and not to delay deliveries. 30 Mr O’Brien testified that Mr Tallowin’s directive did not suit him. He much prefers the current system which enforces the taking of an unpaid half hour lunchbreak. Notwithstanding that, I accept that the former practice suited most truck drivers. Mr Pitcher’s evidence, that of Mr Falconer and the documentary evidence (see Exhibit 9) establishes that the majority of truck drivers including Mr Falconer preferred not to take an unpaid half hour lunchbreak because it provided them with time and/or monetary advantages such as earlier finishing times or the earlier commencement of overtime. Both the Respondent and its truck drivers derived benefits from that practice. 31 There is no dispute about the fact that despite the practice of not having a lunchbreak Mr O’Brien and Mr Falconer were nevertheless able to have their lunch when ever they wanted. They do not suggest that they were not able to have lunch on any particular day nor is suggested that they forwent eating lunch. Their evidence is that they generally ate their lunch at or on their truck at convenient times, mainly whilst waiting for their truck to be loaded or unloaded. Occasionally lunch was eaten elsewhere or whilst driving. They did not expect to take an unpaid lunchbreak. It is not suggested by them that they were on each relevant day asked by the Respondent to defer and/or not take a lunchbreak. It appears also that they accepted that situation. They did not, except in the rarest of circumstances, ask their employer to allow them an unpaid lunchbreak. When such a request was made it was granted. 32 The Respondent argues, based on the observations of Mr Griffith and Mr James that despite there being no provision for the taking of an unpaid half hour lunchbreak, truck drivers nevertheless took a daily lunchbreak. Mr Griffith and Mr James testified that they had, on occasions, seen drivers sitting in lunch rooms and at other places having lunch. Mr Griffiths in particular asserts that truck drivers had multiple opportunities to take lunchbreaks and indeed did take lunchbreaks away from their trucks be it at the SCT depot, customer distribution centres or other places. He saw many of them including Mr Falconer taking lunchbreaks at such places. However Mr Griffiths’ evidence and that of Mr James cannot and does not establish that truck drivers took a dedicated full half hour lunchbreak on each of those occasions. Their evidence which was based on limited observations lacked specificity. They made broad generalised allegations which were anecdotal in nature. At best such evidence can only establish that from time to time some drivers were seen to be stopped away from their trucks having their lunch. It cannot establish that on each day relevant to these claims that Mr O’Brien and Mr Falconer took a full half hour lunchbreak. The evidence does not establish that truck drivers discontinued work to have lunch. Rather the evidence is to the effect that there was no “break” in the truck drivers’ obligations. They had to be ready to drive as soon as their truck was ready to be driven. Their duty was to be remaining at the ready and they did that. Time spent whilst waiting for their truck to be loaded or unloaded or waiting for paper work does not constitute a break. 33 I conclude that during the period of these claims and up to February 2008 neither Mr O’Brien nor Mr Falconer took an unpaid half hour lunch or meal break. There was no provision for it within the Respondent’s operations. At that time both the Respondent and its truck drivers participated in a longstanding practice which had developed that lunch or meals would be eaten whilst on the job when convenient, having regard to the work at hand. Indeed the relevant time records kept by the Respondent with respect to Mr O’Brien and Mr Falconer clearly reflect that a dedicated unpaid half hour lunch or meal break was not taken except in the rarest of circumstances. Lorraine Pritchard who was the Respondent’s Payroll Clerk during the material period said in her statement, received by consent, that unless otherwise indicated the default position was that truck drivers would work without taking a lunchbreak and be paid accordingly. The result was that they were paid for a 10.5 hour day (5.30am to 4 pm) consisting of 8 hours at ordinary time, 2 hours at time and a half, and 30 minutes at double time. The effect of truck drivers not taking lunch was that they were able to perform an extra 30 minutes work per day paid at double time. They were not paid overtime rates for having worked through their lunchbreak. Findings of Fact - Forklift Driver 34 Mr Williams’ position was somewhat different. Ms Pritchard in her statement said that the default position with respect to forklift drivers was that they would take a daily unpaid half hour lunchbreak. Typically forklift drivers would commence at 5.30am and finish at 4.00pm. They would be paid 8 hours at ordinary time (5.30am to 2.00pm) which spanned to across the lunchbreak period and thereafter 2 hours at time and a half (2.00pm to 4.00pm). If the forklift driver’s time card signed off by a person with authority indicated that on a given day no lunchbreak had been taken then the half hour normally deducted to take account of the lunchbreak would not be made resulting in the forklift driver receiving an additional half hour of overtime at double time. 35 I accept that in each instance where Mr Williams’ time cards indicate that he did not take a lunchbreak that a lunchbreak was not taken. Lunch was not taken because of a requirement made of him by of one of his dock supervisors. Not surprisingly he cannot, now many years after the event, specifically recall the name of the particular supervisor concerned in each instance. He can specifically remember Ron Marsh, Warren Osboine and Dave whose surname he could not recall, as being some of the dock supervisors who required him to work through lunch. However in more recent years he has had many different dock supervisors. It is of note that the bulk of the claim which relates to him covers the period August 2006 to December 2008. The Respondent’s employment records (Exhibit 8) establish that Mr Ron Marsh’s employment with the Respondent ceased on 18 August 2006 and that Mr Osboine’s employment ceased on 30 April 2007. It follows therefore that most of the directives to 90 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 153 work through lunch would have come from other dock supervisors. The evidence of Mr Davies and Mr Walker enables a finding to be made that Mr Williams was supervised by many dock supervisors. It is probable therefore that Mr Williams was instructed to work through his lunchbreak not only by those he specifically remembers but also by others including Adrian Baines, Stuart Wells, Manuel Merredin, Brett Williams, Steve Wilfing, Jason Taylor and Adam Luscombe. 36 I accept that Mr Williams never worked through lunch without authority or directive. The increased requirements for him to work through lunch which started in about August 2006 coincided with him working at Warehouse 3 leading up to the busy Christmas period. I also accept that he did not make his own arrangements to work through lunch in order to leave early for medical appointments. His medical issues have only arisen in the last 12 to 14 months and post date the material period. 37 The Respondent contends also that Mr Williams worked through his lunch hour so that he could leave before the end of his shift. It provided a schedule attached to counsels’ written submissions highlighting numerous examples gleaned from Exhibit 5 of when that is said to have occurred. Mr Williams denied that he worked through his lunchbreak so that he could leave early. I accept his evidence. The fact Mr Williams regularly left early on occasions when he worked through his lunchbreak is quite apparent but that does not necessarily lead to the conclusion that he worked through his lunchbreak, in order to finish early. The earlier finish is also consistent with Mr Williams’ evidence that he was instructed to work through his lunchbreak. It follows that on those occasions he could have finished earlier because he worked through his lunchbreak. 38 Except for the odd instance the ‘N/L” (no lunch) notation on Mr Williams’ job card was made by one of his dock supervisors. An examination of his time cards (Exhibit 5) reveals that many of the N/L entries noted thereon have not been initialled by either his manager or his supervisor but despite that at the end of the relevant week a manager or supervisor has authorised payment to him for having worked through a lunchbreak as recorded on his time card. The entries on his time cards which were initially accepted by the Respondent to be accurate clearly corroborate Mr Williams’ assertions. It is difficult in those circumstances to rationalise how the Respondent can now take issue with the correctness of Mr Williams’ time cards. 39 I accept Mr Davies’ and Mr Walker’s evidence that they did not at any stage ask Mr Williams or anyone else for that matter not to take lunch. It seems that they only asked rail forklift drivers unloading trains to defer their lunchbreaks when the Respondent was under time pressure to meet customer demands. On such occasions they asked them to delay taking their lunchbreak by about half an hour in order to finish unloading a train. However I do not accept their contention that all forklift drivers always had lunch and if they did not it was so they could get away early. It is obvious that that Mr Davies did not directly supervise Mr Williams and that Mr Walker only did so occasionally. In fact Mr Williams was supervised by any number of dock supervisors under Mr Davies’ control. Both Mr Davies and Mr Walker accepted under cross-examination that they cannot know whether any of the dock supervisors instructed Mr Williams to work through lunch. Mr Davies said that if that had happened he would have expected to be told but was not. Any of a number of supervisors had authority to adjust time cards and authorise payments and accordingly the instruction given to work through lunch may not have been brought to Davies’ attention. There appears to have been no protocols for the reporting of such eventuality. I find that dock supervisors have, without Mr Davies’ knowledge or consent, instructed Mr Williams to work through his lunch hour. Mr Walker’s evidence (transcript pp 334-5) suggests a degree of autonomy given to dock supervisors. Just because Mr Davies and Mr Walker were unaware that Mr Williams had been instructed to work through lunch does not mean it did not happen. 40 The Respondent has over many years not taken issue with the correctness of the entries made on Mr Williams’ time cards. It has accepted those entries as being legitimate and accordingly where claimed paid him at the ordinary rate of pay for having worked through his lunchbreak. In those circumstances it will be difficult, without significant evidence of weight to the contrary, for the Respondent to displace Mr Williams’ credible evidence about his time card entries being correct. Determination 41 The determination of these claims necessarily requires the construction of subclause 19.4.2 of the Agreements. The contemporary approach to construction which stems from Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 is that factors such as purpose, general policy and context have to be taken into account rather than just the literal meaning of a provision so as to create consistency and fairness. The interpretation of the relevant industrial instruments in these matters begins with a consideration of the words used and their natural meaning but they cannot be interpreted in a vacuum divorced from industrial realities. (See City of Wanneroo v Holmes (1987) 30 IR 362 per French J at 378 and BHP Billiton Iron Ore Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers (Western Australian Branch) [2006] WASCA 124 per Pullin J at [19] - [23]). 42 The proper construction of the subclause will necessarily require a consideration of the objectives of the Agreements. The broad objectives of each Agreement are the same. Clause 2 of the 2006 Agreement states that it is “built on a concentrated focus aimed at delivering the best possible service to the customer.” It recognises that the customer provides the Respondent and its employees with work, revenue, profit, viability and growth. Subclause 2.3 makes it clear that “the customer is the cornerstone” of the Respondent and its employees’ future. Clause 5 further refines the Agreement’s objectives. It states that the Agreement is aimed at developing and maintaining a culture of common purpose, trust, and co-operation that will improve the Respondent’s profitability. It also goes on to specify the following further objectives: 5.1 Operate within flexible, responsive parameters to meet dynamic customer market requirements. 5.2 Develop a highly motivated, multi skilled. Flexible and adaptable workforce. 5.3 Continue to foster co-operation between all staff in a climate of consultation not confrontation through the recognition of the needs and concerns of all employees. 154 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 90 W.A.I.G. 5.4 Remove inefficient work practices and processes in all areas of operation to ensure flexibility and quality, timeliness and reliability of services. 5.5 All employees will conduct themselves in a professional manner that will enhance the Company image. 5.6 To provide wage increases in line with Clause 24 of this Agreement. 43 The objectives of efficiency, timeliness flexibility and co-operation are reflected in individual clauses of the Agreements. Those clauses recognise the existence of practices aimed at meeting the objectives of the Agreement so as to increase the Respondent’s profitability. Clause 20 is one such clause. It provides: CLAUSE 20. FLEXIBILITY DURING HOURS OF WORK CLAUSE 20.1 Breaks The flexibility which currently exists in the depot in the staggering of meal and rest breaks to enable continuous loading/unloading will continue. Additionally this practice will be reviewed as required by the Consultative Committee to ensure continuous operation, high service levels and the flexibility to meet customer’s requirements. It is intended that lunch breaks be taken during shunting activities where possible. 44 Subclause 19.4.2 of the Agreements fits comfortably with objectives of the Agreements and is consistent with other provisions within them. It too recognises existing practices. It appears to have been concluded on the basis that truck drivers did not, as a matter of routine, take lunchbreaks but would be afforded one upon their request. That pre-existing practice was not only contemplated by the Agreements but also formed part of the Respondent’s operation. The documentary evidence (Exhibit 5) supports that. For example Mr Falconer’s time cards demonstrate that he routinely did not take lunchbreaks however on 5 July 2006 he took a one hour lunchbreak. The inference to be drawn is that he sought an extended lunchbreak for some special purpose and was granted it (see page 961, volume 3 of Exhibit 5). 45 There can be no suggestion that subclause 19.4.2 of the Agreement somehow fetters or removes the Award entitlement to a lunchbreak. To the contrary the subclause appears to reaffirm the entitlement to a lunchbreak and makes specific provision for its taking. The third and fourth sentences of the subclause provide: “An employee may request a lunch break and approval may not be withheld. Lunch breaks may be allocated by Management to drivers on return to the yard during each shift which if allocated must be taken.” Truck Drivers 46 One of the critical issues to be decided in the matters relating to Mr O’Brien and Mr Falconer is whether they took a lunchbreak. 47 The taking of a lunchbreak, as opposed to merely eating lunch at a convenient time involves a disruption to the continuity of work. It creates a hiatus in the continuum of work. The taking of a lunchbreak will inevitably require the cessation of work responsibilities and obligations in order to consume a meal (if desired) and/or to do anything else not connected with work that the employee wants to do in his or her own time. 48 Accounting for some rare exceptions, it is clear that during the material period neither Mr O’Brien nor Mr Falconer took lunchbreaks. That was because the Respondent’s system of work which was customer focused did not facilitate the taking of lunchbreaks. It is the case that each of Mr O’Brien and Mr Falconer were able to eat their lunch at convenient times. However when doing so they were still on duty with all the attendant responsibilities that such entails. They were required to maintain governance over their truck and could not leave their trucks other than for short periods. In essence they were tied to their truck and could not get away to do other things. The fact that on very odd occasions they may have been able to leave their trucks for short periods and even have a meal away from them does not change the character of what was happening. What was happening was that they were having lunch whilst working and not during a dedicated lunchbreak. It follows that they had lunch but not a lunchbreak. 49 Subclause 19.4.2 recognises the need to service customers. It was created against that background and to give efficacy to the objectives of the Agreements. Consistent with objectives of the Agreements, truck drivers agreed to defer their lunchbreaks. The first sentence of the subclause reflects that. It provides: “Driver employees agree to defer lunch breaks upon request and will continue at ordinary rate of payment until such time that a lunchbreak is available.” 50 The first sentence of the subclause is an affirmation, expressed as an agreement, of the existing practice and willingness of drivers to defer their lunchbreak in order to achieve the Respondent’s objectives with which they agreed. In those circumstances the words “upon request” therein can be construed to mean a standing request that truck drivers defer their lunchbreaks until such time as the Respondent allowed one. That standing request originated prior to the commencement of the 1999 Agreement. It was recognised, adopted and continued in the 1999 and subsequent Agreements until it was ceased by directive in February 2008. The existence of the standing request is apparent from the conduct of the parties. The industrial 90 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 155 reality was that truck drivers worked in accordance with the practice which they and the Respondent had developed that they not take a lunchbreak. The drivers were prepared to do so to meet the Respondent’s objectives. It is obvious that neither Mr O’Brien nor Mr Falconer were on each day specifically instructed to defer their lunchbreak. It did not happen that way. The meaning of “upon request” in the first sentence of subclause 19.4.2 must, so as to achieve consistency and fairness, be construed to include standing request having regard to the existent industrial reality. 51 The second sentence of subclause 19.4.2 provides: “If an employee is unable to have a lunch break, then that employee will be paid an additional 30 minutes overtime.” 52 Mr O’Brien and Mr Falconer were, almost invariably, unable to take a lunchbreak. They were not afforded the opportunity to do so because the Respondent’s work practices failed to facilitate the taking of a lunchbreak. The Respondent’s position throughout was that the ability to consume a meal during an interlude in work was sufficient. The facilitation of time during which lunch can be consumed is however an entirely different concept to the taking of a lunchbreak. 53 In order for the claims relating to Mr O’Brien and Mr Falconer to succeed, the Claimant must prove on the balance of probabilities that for each day claimed, the Respondent requested Mr O’Brien and Mr Falconer to defer taking their lunchbreak and that they in each instance were unable to take a lunchbreak on the day. I am satisfied that has occurred. There has been a breach of the Agreements and each of Mr O’Brien and Mr Falconer are entitled to payment of an additional 30 minutes overtime for the days worked during the period of the claim with the exception of the claim relating to Mr Falconer for the week ending 9 July 2006. In that regard it is obvious that on 5 July 2006 Mr Falconer took a one hour unpaid lunchbreak and accordingly the claim for that day cannot succeed. An adjustment will have to be made to the calculations in Exhibit 4.3. Forklift Driver 54 The claim relating to Mr Falconer is to be determined on the facts. As indicated earlier I accept his evidence that he was, with respect to the days claimed, instructed to work through his lunchbreaks and that he was thereafter unable to have a lunchbreak. It follows that there has been a breach of the Agreements and that Mr Williams is entitled to be paid an additional thirty minutes over time for each day he worked through his lunchbreak. Rate of Pay 55 Clause 19.4.2 provides that if an employee is unable to have a lunchbreak, then that employee will be paid at “an additional 30 minutes overtime”. 56 The Respondent contends that the penalty payment referred to in the clause is extra time above that which is payable. Therefore the 30 minute penalty payment is to be paid at the ordinary rate of pay. It is not a prescribed penalty such as 1.5 times or double time which appears elsewhere in the Agreements. Such prescribed penalty rates could have been easily stipulated in subclause 19.4.2 but are not. The only reference to the rate is that of “continuing at the ordinary rate of pay” which appears not only in subclause 19.4.2 but also in subclause 36.1.3 which refers to an additional payment at the rate of ordinary time where a meal break is not allowed. 57 I do not accept the Respondent’s contention. Subclause 19.4.2 expressly provides for the payment of 30 minutes “overtime” when a lunchbreak is unable to be taken. If it was intended that the 30 minutes be paid at ordinary time then it would have said so. It could have provided something similar to that contained in subclause 36.1.3 of the Award which stipulates the payment of ordinary time when a meal break is unable to be taken. It appears rather that the word “overtime” has been deliberately used. The word “overtime” means working beyond ordinary hours. When work is done beyond ordinary hours it attracts a penalty rate. The rate at which the penalty will be applied will be dependant upon the prevailing circumstances. In these instances the correct rate was double time. 58 I accept that the Claims as reflected in Exhibits 4.1, 4.2 and 4.3 have been calculated using the correct rates of pay. Conclusion 59 The claim made in relation to Mr Williams is made out in its entirety. 60 The claims relating to Mr O’Brien and Mr Falconer are not made out in their entirety. Parts of those claims fall outside the six year limitation period. Given that such claims were lodged on 18 March 2009 the allegations with respect to the pay period ending 16 March 2003 cannot succeed. Furthermore there needs to be an adjustment made with respect Mr Falconer given the error in Exhibit 4.3. He took an unpaid lunchbreak on 5 July 2006 and therefore the Claimant cannot be successful with respect to that day. Otherwise the claims are proved. 61 As a consequence of the breaches of subclause 19.4.2 of the 1999, 2003 and 2006 Agreements the Respondent has underpaid Mr Williams $2,119.15, Mr O’Brien $13,859.79 and Mr Falconer $17,771.26. G. Cicchini Industrial Magistrate 156 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 90 W.A.I.G. UNFAIR DISMISSAL/CONTRACTUAL ENTITLEMENTS— 2010 WAIRC 00079 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES KIM GIDDENS APPLICANT -v- LHMU RESPONDENT CORAM COMMISSIONER S M MAYMAN DATE MONDAY, 22 FEBRUARY 2010 FILE NO/S U 193 OF 2009 CITATION NO. 2010 WAIRC 00079 Result Application discontinued Representation Applicant Ms K Giddens Respondent Mr N Whitehead Order WHEREAS this is an application pursuant to Section 29(1)(b)(i) of the Industrial Relations Act 1979; AND WHEREAS this application was the subject of conciliation conferences before Commissioner Wood on 18 November 2009 and 9 December 2009; AND WHEREAS at the conclusion of the conference held on 9 December 2009 no agreement was reached between the parties; AND WHEREAS the matter was re-allocated to Commissioner Mayman; AND WHEREAS agreement was reached between the parties; AND WHEREAS on 11 February 2010 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, hereby orders: THAT this application be, and is hereby discontinued. (Sgd.) S M MAYMAN, [L.S.] Commissioner. 2010 WAIRC 00078 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES BARRY HALES APPLICANT -v- ROGER SECA & DEREK SIMPSON AUTO ONE - MARGARET RIVER RESPONDENT CORAM COMMISSIONER S M MAYMAN DATE MONDAY, 22 FEBRUARY 2010 FILE NO/S U 240 OF 2009 CITATION NO. 2010 WAIRC 00078 90 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 157 Result Application discontinued Representation Applicant Mr B Hales Respondent Mr R Seca and Mr D Simpson Order WHEREAS this is an application pursuant to Section 29(1)(b)(i) of the Industrial Relations Act 1979; AND WHEREAS on 22 December 2009 the Commission convened a conference for the purpose of conciliating between the parties; AND WHEREAS at the conclusion of the conference agreement was reached between the parties; AND WHEREAS on 11 February 2010 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, hereby orders: THAT this application be, and is hereby discontinued. (Sgd.) S M MAYMAN, [L.S.] Commissioner. 2010 WAIRC 00066 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES MIGUEL LOBATO APPLICANT -v- GORDON HULL RESPONDENT CORAM COMMISSIONER S M MAYMAN DATE MONDAY, 15 FEBRUARY 2010 FILE NO B 228 OF 2009 CITATION NO. 2010 WAIRC 00066 Result Application discontinued Representation Applicant Mr M Lobato Respondent Mr G Hull Order WHEREAS this is an application pursuant to Section 29(1)(b)(ii) of the Industrial Relations Act 1979; AND WHEREAS on 1 February 2010 the Commission convened a conference for the purpose of conciliating between the parties; AND WHEREAS at the conclusion of the conference agreement was reached between the parties; AND WHEREAS on 4 February 2010 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, hereby orders: THAT this application be, and is hereby discontinued. (Sgd.) S M MAYMAN, [L.S.] Commissioner. 158 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 90 W.A.I.G. 2010 WAIRC 00100 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES MARK DOUGLAS MCKINNON APPLICANT -v- JOHN HOLLAND GROUP PTY LIMITED RESPONDENT CORAM ACTING SENIOR COMMISSIONER P E SCOTT DATE THURSDAY, 4 MARCH 2010 FILE NO/S B 221 OF 2009 CITATION NO. 2010 WAIRC 00100 Result Application dismissed for want of jurisdiction Order HAVING heard the applicant on his own behalf and there being no appearance for the respondent, the Commission, pursuant to the powers conferred under the Industrial Relations Act 1979, hereby orders: THAT the application be, and is hereby dismissed. (Sgd.) P E SCOTT, [L.S.] Acting Senior Commissioner. 2010 WAIRC 00099 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES MARK DOUGLAS MCKINNON APPLICANT -v- JOHN HOLLAND GROUP PTY LIMITED RESPONDENT CORAM ACTING SENIOR COMMISSIONER P E SCOTT DATE THURSDAY, 4 MARCH 2010 FILE NO/S U 221 OF 2009 CITATION NO. 2010 WAIRC 00099 Result Application dismissed for want of jurisdiction Order HAVING heard the applicant on his own behalf and there being no appearance for the respondent, the Commission, pursuant to the powers conferred under the Industrial Relations Act 1979, hereby orders: THAT the application be, and is hereby dismissed. (Sgd.) P E SCOTT, [L.S.] Acting Senior Commissioner. 90 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 159 2010 WAIRC 00077 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES MS BARBARA WYLIE APPLICANT -v- COMMISSIONER OF POLICE RESPONDENT CORAM ACTING SENIOR COMMISSIONER P E SCOTT DATE MONDAY, 22 FEBRUARY 2010 FILE NO/S U 261 OF 2009 CITATION NO. 2010 WAIRC 00077 Result Application dismissed Order WHEREAS this is an application pursuant to Section 29(1)(b)(i) of the Industrial Relations Act 1979; and WHEREAS by a letter dated the 22nd day of January 2010 the Commission directed the applicant to advise of whether or not she was a government officer, and if so, whether the appropriate jurisdiction was the Public Service Appeal Board; and WHEREAS on the 16th day of February 2010 the applicant filed a Notice of Discontinuance in relation to the application; and NOW THEREFORE, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby orders: THAT this application be and is hereby dismissed. (Sgd.) P E SCOTT, [L.S.] Acting Senior Commissioner. 2010 WAIRC 00092 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES MONIQUE O'GARR APPLICANT -v- WESTCOAST AUTOMOTIVE SUPPLIES RESPONDENT CORAM COMMISSIONER S M MAYMAN DATE TUESDAY, 2 MARCH 2010 FILE NO/S U 238 OF 2009 CITATION NO. 2010 WAIRC 00092 Result Application discontinued Representation Applicant No appearance Respondent No appearance Order WHEREAS this is an application pursuant to Section 29(1)(b)(i) of the Industrial Relations Act 1979; AND WHEREAS on 19 February 2010 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, hereby orders: THAT this application be, and is hereby discontinued. (Sgd.) S M MAYMAN, [L.S.] Commissioner. 160 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 90 W.A.I.G. 2010 WAIRC 00074 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES FRANK THOMAS PARKER APPLICANT -v- BLOODWOOD TREE ASSOC. INC. RESPONDENT CORAM COMMISSIONER S M MAYMAN HEARD WEDNESDAY, 20 JANUARY 2010 DELIVERED THURSDAY, 18 FEBRUARY 2010 FILE NO. U 187 OF 2009 CITATION NO. 2010 WAIRC 00074 CatchWords Whether agreement made to compromise claim – applicant claims agreement made under duress – respondent claims applicant breached agreement - uncertainty in reaching agreement considered - Industrial Relations Act 1979 (WA) Result Application referred for further conciliation Representation Applicant Mr F T Parker Respondent Mr B Neville Reasons for Decision 1 Frank Thomas Parker (the applicant) was employed by Bloodwood Tree Association Inc. (the respondent) as a workcoach from 5 May 2008 to 14 September 2009. The applicant asserts he was constructively dismissed by the respondent when he was forced to resign. The applicant now seeks relief by way of an application pursuant to s 29(1)(b)(i) of the Industrial Relations Act 1979 (the Act), alleging that he was harshly, oppressively and unfairly dismissed by the respondent. The applicant seeks compensation for the unfairness of the dismissal. 2 A conference was held between the parties on 3 November 2009 pursuant to s 32 of the Act and an agreement was reached and reflected in correspondence dated 5 November 2009 from the Western Australian Industrial Relations Commission (the Commission) to the parties. 3 The supposed agreement was reflected in correspondence from my Associate to the parties dated 5 November 2009: 1. The respondent will pay to the applicant the sum of $9,000. The payment will be made by close of business on Friday 6 November 2009. 2. Neither party will make any adverse comments with respect to the other party. 3. The agreement is in full and final settlement of all matters relating to the applicant’s employment with the respondent. 4. The terms of the agreement are to remain confidential. 4 Following the conference there was contact between the applicant and the Commission regarding various aspects of the settlement. The applicant was requested to submit a Form 14, Notice of withdrawal or discontinuance. None was forthcoming. The matter was then listed for the applicant to show cause why the application ought not be dismissed. Preliminary issue 5 A preliminary issue has now arisen in this matter, that being the question of whether an agreement was ever reached between the parties in conciliation. 6 This matter was listed for hearing on 20 January 2010 by video link-up for the applicant to show cause as to why an order ought not issue dismissing the application. Subsequent to the proceedings, the Commission wrote to the parties asking for written submissions by 31 January 2010 on their views as to what ought to occur in the event the application is not dismissed with respect to the payment of $9,000 each party acknowledges has been made and received. Further, the applicant was to advise what it is he now seeks. Respondent’s submissions 7 It is suggested by the respondent the terms of the agreement as reached in conciliation are being breached by the applicant. 8 With respect to the preliminary issue the respondent says that it was agreed to settle the applicant’s claim in certain terms and in return the applicant would discontinue the application. The respondent submits he has honoured the agreement and paid to the applicant the sum of $9,000, an aspect conceded by the applicant. 90 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 161 9 It was further agreed no adverse comments would be made by either party of each other. The respondent submitted he was currently seeking legal advice given he believed adverse comments were continuing to be made by the applicant. Further, the respondent considers adverse comments were subsequently made by the applicant in correspondence between the applicant and the local Member of Parliament. The respondent submitted the latter matters had been referred to solicitors regarding the issue of defamation. The respondent submitted: It’s just I’ve had a legal opinion on statements he’s made to the Member of Parliament Mr Haas, and they are defamatory and there is a letter going out to Mr Parker to state such. ts 3 10 The respondent understood the matter had been settled by way of the agreement reached at conciliation. It is the respondent’s view the Commission ought issue an order dismissing the application. In his written submissions the respondent emphasised the agreement reached at conciliation amounted to full and final settlement of the claim by the applicant against the respondent. The respondent asserted the applicant had breached that agreement and advised in his submissions of 25 January 2010: that unless the applicant makes good this verbal agreement by way of filing a completed Notice of Discontinuance in due course, then the sum of $9,000 should be returned to Bloodwood Tree Association Inc. forthwith. Applicant’s submissions 11 The applicant submitted the terms of the agreement were reached while he was under significant pressure. The applicant submitted he was in a state of anxiety in relation to a number of issues and did not realise what he was doing at the conciliation conference. The applicant was nervous about the Commission proceedings. Further the applicant’s father had recently died in Sydney and at the time of the conciliation proceedings the applicant was attempting to have his father’s body returned to Western Australia for burial. The applicant submitted he had great concerns about the terms of the proposed agreement. These added to his overall anxiety in relation to the matter. 12 In his written submissions of 22 January 2010 the applicant submitted: I have been experiencing severe financial hardship due to my “unfair dismissal”, in that, I have been deprived of my livelihood and my social standing. In respect to the $9,000 paid to me, and received, I can only say that I will abide by the rulings of your court. 13 The applicant further submitted he was seeking from the respondent: (a) a written agreement the applicant had been unfairly dismissed; (b) an apology; (c) compensation based on the previous Driver Trainer’s income (based on the 2008/2009 year); and (d) compensation for at least 12 months. 14 The applicant raised concerns regarding threatening tactics demonstrated by the respondent in regard to court action, tactics the applicant suggested were causing increased anxiety. Findings 15 I have listened carefully to each of the parties and closely observed them during the presentation of their submissions by way of video. In my view the applicant, on occasion, presented his submissions honestly and to the best of his recollection. I adopt a similar view about the submissions made Mr Neville for the respondent. Mr Neville appeared angered when detailing exchanges that had allegedly occurred. 16 I find it passing strange that the respondent had a copy of personal correspondence written by the applicant to his local Member of Parliament outlining the nature of this dispute. 17 It is the Commission’s view that at the time the agreement was reached the applicant was under significant pressure created in part by his father’s recent death and a lack of certainty surrounding the conciliation proceedings. 18 It is common ground the applicant received $9,000 from the respondent, an aspect of the terms of settlement. 19 Further, the Commission finds that several of the terms have been breached by the applicant and the respondent namely: (a) the requirement for each party to refrain from making adverse comment about the other party; and (b) the requirement for the terms of the agreement to remain confidential. Legal Issues 20 Where parties to proceedings settle or compromise the proceedings prior to or during the hearing of the claim or matter, the settlement is a new agreement between the parties and may be enforced like any other contract: Halsbury’s Laws of England (4th ed) [391]. 21 Further, it is undoubtedly the case, that given the nature of the Commission’s jurisdiction, where agreements are reached in conciliation proceedings, parties should not be able to go back on the terms of that settlement. Given that one of the fundamental objects of the Act is resolution of disputes by conciliation, parties should be held to their bargain arising out of conciliation proceedings: Foley v G & J Reely School of Dancing Pty Ltd trading as Arthur Murray School of Dancing (1996) 76 WAIG 4342; MacLeod v Paulownia Trees Pty Ltd (1997) 78 WAIG 1057. 162 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 90 W.A.I.G. 22 Pressure in a less obvious form may arise where the influence exercised to the extent that the applicant’s ability to make decisions is reduced and the subsequent decision reached cannot be regarded as having been freely made. In such circumstances it may be determined that the agreement reached cannot be allowed to stand: Sappideen C, O’Grady P and Warburton G, Mackens Law of Employment (6th ed, 2009) [4.135]. Was an Agreement Concluded? 23 In these proceedings, the applicant and the respondent have each observed there was an agreement reached. It is the Commission’s view that what has been blurred is whether the agreement was achieved under duress. For an agreement to be properly concluded, the parties must have a true understanding of the agreement’s terms. The terms of the agreement must be sufficiently definite and absolute to allow the agreement reached to be enforced at law: Lindgren K E, Carter J W and Harland D J, Contract Law in Australia (1986) [258]. 24 In this matter the issue is whether there was an agreement. In the absence of clear evidence from which it can be held that such was the case, then it is not open in my opinion, to conclude that there was the necessary understanding on the part of the applicant to bring the matter to an end. 25 As far as the respondent was concerned, a proposal was put and was taken by the applicant on the face of it, to be fair for the purposes of settling the matter. However, the circumstances surrounding the applicant’s acceptance, were far from definite or decisive. During the proceedings the applicant submitted: In relation to the supposed agreement that we did come to, as I was saying, I was under emotional duress, I was panicking, I had never said anything before … had anything to do with this. ts 4 26 The Commission accepts that during the conference the applicant was under duress and did not fully appreciate the terms of the proposed compromise agreement. Therefore the agreement reached cannot be allowed to stand. Conclusion 27 In my view, for the aforementioned reasons, it cannot be said that there has been a final agreement reached in this matter and accordingly a declaration will issue to this effect. 28 In light of this, it is necessary to relist further conciliation proceedings as soon as practicable, which will proceed in Port Hedland. A critical issue for the applicant to consider will be the standing of the $9,000 payment already made by the respondent. 2010 WAIRC 00073 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES FRANK THOMAS PARKER APPLICANT -v- BLOODWOOD TREE ASSOC. INC. RESPONDENT CORAM COMMISSIONER S M MAYMAN DATE THURSDAY, 18 FEBRUARY 2010 FILE NO/S U 187 OF 2009 CITATION NO. 2010 WAIRC 00073 Result Declaration issued Representation Applicant Mr F T Parker Respondent Mr B Neville Declaration HAVING heard Mr Parker as the applicant and Mr Neville on behalf of the respondent, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby: DECLARES that to date there has been no final agreement conciliated in the aforementioned matter between the applicant and the respondent. (Sgd.) S M MAYMAN, [L.S.] Commissioner. 90 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 163 2010 WAIRC 00075 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES SHAYNE OLD APPLICANT -v- MANDURAH TOYOTA RESPONDENT CORAM COMMISSIONER S M MAYMAN DATE MONDAY, 22 FEBRUARY 2010 FILE NO/S U 199 OF 2009 CITATION NO. 2010 WAIRC 00075 Result Application discontinued Representation Applicant Mr S Old Respondent Mr G Fisher Order WHEREAS this is an application pursuant to Section 29(1)(b)(i) of the Industrial Relations Act 1979; AND WHEREAS on 9 November 2009 and 29 January 2010 the Commission convened conferences for the purpose of conciliating between the parties; AND WHEREAS at the conclusion of the conference held on 29 January 2010 agreement was reached between the parties; AND WHEREAS on 12 February 2010 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, hereby orders: THAT this application be, and is hereby discontinued. (Sgd.) S M MAYMAN, [L.S.] Commissioner. CONFERENCES—Matters referred— 2010 WAIRC 00103 DISPUTE RE EMPLOYMENT STATUS OF UNION MEMBER WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES THE STATE SCHOOL TEACHERS' UNION OF W.A. (INCORPORATED) APPLICANT -v- DIRECTOR GENERAL OF THE DEPARTMENT OF EDUCATION AND TRAINING RESPONDENT CORAM COMMISSIONER J L HARRISON HEARD MONDAY, 2 NOVEMBER 2009, TUESDAY, 3 NOVEMBER 2009, WEDNESDAY, 4 NOVEMBER 2009 DELIVERED FRIDAY, 5 MARCH 2010 FILE NO. CR 40 OF 2008 CITATION NO. 2010 WAIRC 00103 164 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 90 W.A.I.G. Catchwords Industrial Relations (WA) – Claim that respondent has incorrectly determined an employee’s salary level and wrongly capped employee’s salary – Claim that employee should be paid the rate of a trained teacher - Application for an order that outcome applies to all other employees in similar circumstances - Whether employee is an untrained/unqualified teacher for the purposes of the relevant industrial instruments – Employee classified as an untrained/unqualified teacher - Application dismissed - Industrial Relations Act 1979 s 44(9); School Education Act 1999 s 235; Western Australian College of Teaching Act 2004; Public Sector Management Act 1994; Vocational Education and Training Act 1996 Result Dismissed Representation Applicant Ms E J Carbone (of Counsel) Respondent Mr J Misso (of Counsel) Reasons for Decision 1 On 5 December 2008, the State School Teachers’ Union of W.A. (Incorporated) (“the applicant”) (“the union”) lodged an application in the Commission pursuant to s 44 of the Industrial Relations Act 1979 (“the Act”) with respect to a dispute over the permanent status of one of its members, Mr Stephen Adams who is employed by the Director General of the Department of Education and Training (“the respondent”). 2 As conciliation proceedings did not resolve the dispute the matter was referred for hearing and determination pursuant to s 44(9) of the Act. During conciliation proceedings it became apparent that the parties were also in dispute over Mr Adams’ salary level and the salary paid to other teachers who were employed in similar positions to Mr Adams and this matter was also referred for hearing. The Schedule of the memorandum of matters referred for hearing and determination is as follows: “1. The applicant claims that the respondent has incorrectly determined Mr Stephen Adams’ salary level and as a result the respondent has wrongly capped his salary. The applicant also claims that the respondent has refused to provide Mr Adams with permanent status. The applicant is seeking the following orders: (a) That Mr Adams be confirmed as a permanent employee pursuant to Clause 92.1 of the School Education Act Employees’ (Teachers and Administrators) General Agreement 2006 (“the Agreement”). (b) That Mr Adams has a right to incremental progression with respect to his salary. (c) That Mr Adams’ salary and entitlements be adjusted accordingly and any payment and entitlements due to Mr Adams be paid to him. (d) That the respondent provide a letter to Mr Adams advising him that he is a permanent employee and withdrawing previous contrary advice. (e) That all personnel records pertaining to Mr Adams be adjusted accordingly. (f) That the abovementioned outcomes apply to all other employees who have been historically paid in accordance with the teacher salary scale in similar circumstances as Mr Adams. 2. The respondent denies the claim and opposes the orders being sought. Applicant’s contentions 3. The applicant’s contentions are as follows: (a) the applicant disputes that Mr Adams is not eligible for permanency as there are no exceptions of the nature alleged that exist to granting permanency under Clause 92.1(a) of the Agreement; (b) it has never been the intention of the applicant, a party to the Agreement, to agree to inferior conditions of employment for Limited Authority to Teach (“LAT”) holders who undertake teaching duties (as defined) in schools, simply because they hold a LAT; (b) Clause 92.1(a) of the Agreement refers to ‘employees’ who are a broader class of the applicant’s membership encompassing administrators and school psychologists as well as all those who teach; (c) the applicant disputes that it is lawful to follow a policy that is: • inconsistent with sound industrial principles of fairness; • disputed by the applicant union who has not been engaged in any consultation concerning the formulation of an alleged policy concerning an important employment condition; • a subordinate legal authority to the Agreement which does not provide exceptions to permanency of the nature the respondent is constructing; • not clear and transparent for current employees and potential employees; and • appears arbitrary in nature; 90 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 165 (d) the Western Australian College of Teaching Act 2004 operates to protect the standards of the teaching profession by its regulation of LATs, in that the Act confines LATs to those instances where suitably qualified teachers are not available; (e) in the event that a more suitably qualified teacher is available at a future time and a LAT holder (such as Mr Adams) is unable to have their LAT renewed, the respondent is empowered by virtue of s 236 of the School Education Act 1999 (WA) to transfer the employee. Respondent’s contentions 4. The respondent’s contentions are as follows: (a) Mr Adams is an employee of the respondent at the WA College of Agriculture in Morawa; (b) the payment of Mr Adams’ salary is and has been made in accordance with the terms and conditions provided in the Teachers (Public Sector Primary and Secondary Education) Award 1993, the Agreement and the replacement School Education Act Employees’ (Teachers and Administrators) General Agreement 2008 as applied at the relevant times; (c) the respondent agreed to grant permanency to Mr Adams on 14 April 2009, therefore there is no need for hearing and determination of this issue.” 3 The following facts were agreed between the parties at the outset of the hearing: 1. The applicant is an organisation of employees registered under the Act. 2. Mr Stephen Adams was initially employed by the respondent under the Government School Teachers’ and School Administrators’ Certified Agreement 2004 (“the 2004 Agreement”) and the Teachers (Public Sector Primary and Secondary Education) Award 1993 (“the Award”). 3. The respondent is the Chief Executive Officer of the Department of Education and Training and with respect to Mr Adams is an “employing authority” for the purposes of Division 3, Part 5 of the Public Sector Management Act 1994. 4 At the outset of the hearing it was put to the parties that as Mr Adams had been offered permanent status by the respondent Order 1(a) being sought by the applicant was therefore redundant. However, the applicant maintained that as this offer was conditional on Mr Adams retaining a Limited Authority to Teach (“LAT”) from the Western Australian College of Teaching (“WACOT”) and was contingent upon the applicant withdrawing his application this offer was rejected. On this basis the applicant continued to pursue Order 1(a). During the respondent’s final submissions it confirmed that the offer of permanency to Mr Adams was still available, subject to Mr Adams retaining a LAT, and the applicant therefore agreed to accept this offer on behalf of Mr Adams. In the circumstances the evidence given during the proceedings with respect to the employment status of Mr Adams has been excluded and Order 1(a) was no longer being sought by the applicant. Applicant’s evidence 5 Mr Adams gave evidence by way of a witness statement which was updated at the hearing by the inclusion of an additional pay slip (Exhibit A4). 6 Mr Adams is currently employed on a full-time basis as the Design and Technology Automotive Teacher and Program Co- ordinator at the Western Australian College of Agriculture in Morawa (“the College”) and he has been in this position since May 2006. Mr Adams has not been subject to any disciplinary proceedings nor has he been the subject of any performance related issues. 7 Mr Adams is responsible for running the College’s automotive program. In this role he teaches the Certificate II Automotive course to year 11 and 12 students and an Automotive Transport course to year 10 students. He has also taught Vocational Mathematics at the College. Mr Adams reviewed and developed the College’s Certificate II Automotive Program, he redesigned the College’s automotive workshop facilities and he is responsible for the automotive section’s budget and expenditure. Mr Adams has been a member of the College’s finance committee since 2007. 8 Mr Adams gained a Certificate IV in Assessment and Workplace Training in 2004. Mr Adams stated that he is a qualified Automotive Mechanic and he has worked in the automotive industry for over 30 years. Mr Adams holds a Trade Certificate in Automotive Engineering and has the following current automotive certificates and licences: • Motor Vehicle Industry Board Repairer’s Certificate – No. MR 407; • Energy Safety Gas fitting Permit – Installing and Servicing – No. GF003564; • Refrigerant Handling Licence – AUTO – No. L043374; and • Institute of Automotive Mechanical Engineers (IAME) – No. 00926121. 9 Mr Adams worked on a full-time basis as an Automotive Lecturer within the TAFE system from April 2003 through to April 2006. During this period Mr Adams taught Automotive Certificates II and III as well as a number of high school automotive introductory courses. Prior to becoming a TAFE lecturer Mr Adams was employed as a service technician and between 1983 and 1998 he ran Crown Auto Repairs, an automotive repair and servicing business, which involved managing annual budgets, hiring and training staff, purchasing, sales, customer relations, marketing and overseeing financial processes. 10 Mr Adams undertook the following professional development courses between 2003 and 2006: Adult and Adolescent Learning Strategies; Powerpoint – Adding sound and music; 166 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 90 W.A.I.G. SCDL – Word – Mail Merge; SCDL – Excel – Foundations; SCDL – Excel 2 – Formulas and Functions; SCDL – Excel 3 – Charts and Graphs; SCDL – Word – Foundations; Job Application and Interview Skills; Ethical Behaviour and Corruption Prevention; ESS – Employee Self Service workshop; SCDL – Excel 1 – Foundations; SCDL – Powerpoint – Charts and Graphs; TAA – Skills Recognition Workshop; SCDL – Word 2 – Tables, Images and Objects; SCDL – Powerpoint 1; Swan TAFE – 50 Lecturers Program; Professional Development for Lecturers – Midland; Induction Orientation Program; Flexible Learning Showcase; Learning and Assessment Strategies Workshop; Disability Awareness; and Delivery Strategies Workshop. 11 Whilst working as an automotive technician, Mr Adams completed the following industry training courses: CFC Awareness Course for Service Personal (sic) – Motor Trade Association of WA; NR21 Automotive Air conditioning 86723 – Automotive Training Services, South Metropolitan; Automotive LP Gas Servicing “A” Pass – Department of Education WA; Automotive LP Gas Installations “A” Pass – Department of Education WA; Bosch Electronic Ignition Systems – Petro Ject Training Centre; Advance EFI Stage One – Petro Ject Training Centre; Bosch Jectronic Fuel Injection Systems “L” and “LE” - Petro Ject Training Centre; Electronic Fuel Injection – Repco Auto-tech Clinic; Engine Management Systems – Repco Auto-tech Clinic; Braking Systems – Repco Auto-tech Clinic; Clutch Designs - Repco Auto-tech Clinic; and Engine Electronic – Department of Education WA. 12 Mr Adams holds a current St John Ambulance Senior First Aid Certificate. 13 Mr Adams gave evidence about how he became employed at the College. Mr Adams stated that in early 2006 the College’s Principal Mr Craig Chadwick asked him to apply for the position of Design and Technology teacher at the College and Mr Chadwick initially offered him a salary significantly less then what he was being paid at TAFE. After Mr Adams decided not to apply for this position Mr Chadwick then offered him a salary of approximately $53,000 per annum which Mr Adams accepted. At the time Mr Adams was not told that he would not be receiving ongoing wage increases and Mr Adams gave evidence that he only found out after he commenced with the respondent that his salary was to be capped. 14 Mr Adams gave evidence that WACOT gave him a LAT on 11 April 2006 which was valid until 31 December 2006 and this was later extended by WACOT to 31 December 2007. Mr Adams has since been given two more LATs, one from 12 February 2008 to 31 December 2009 and another from 17 December 2009 to 31 December 2010. 15 Mr Adams stated that his first payslip from the respondent described his job as that of teacher and his grade was as a “TCH/UT/2” which Mr Adams did not understand (Exhibit A4 attachment SA 14). Mr Adams’ second payslip for the period 5 May 2006 to 18 May 2006 increased his pay rate to be comparable to what he was paid at TAFE and states that his grade was a “TCH/TT/8”. Another payslip for the period 26 January 2007 to 8 February 2007 specifies that his grade is a “TCH/UT/6” and as this rate of pay was less than what he should have been paid Mr Chadwick took steps to rectify this (see Exhibit A4 attachments SA 15 to 17). When Mr Adams was being paid at the salary level of TCH/L1/8 he asked Mr Chadwick to request that the respondent review his salary level to reflect the remuneration package paid to TAFE teachers taking into account his trade qualifications and the teaching duties that he was undertaking at the College. As a result on 30 November 2007 Mr Adams and a colleague at the College, Mr Stuart Wilkinson, who was also a design and technology teacher, both 90 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 167 progressed to salary level TCH/L2/1. Mr Adams gave evidence that Mr Chadwick told Mr Adams at the time that his salary would progress through to Level 2.4. In January 2008 Mr Adams found out that his pay grade had been reduced to TCH/L1/8 and this omission was again rectified with his pay returning to TCH/L2/1 in early 2008 (Exhibit A4 attachments SA 20 and 21). On 18 April 2008 Mr Adams progressed to level TCH/L2/2 (Exhibit A4 attachment SA 22). When Mr Adams was due to receive his next salary increment in May 2009, taking his salary to TCH/L2/3 his grade was changed to that of Teacher/UT/8 on his payslips and his payslips also referred to him receiving salary maintenance (Exhibit A4 attachment SA 24). In May 2009 Mr Chadwick told Mr Adams that he would not be receiving an increase to Level 2.3 and his salary was to be capped at Level 2.2. In response Mr Adams told him that he believed that he had an assurance from him that he would proceed through to Level 2.4 and it was on that basis that he had agreed to another two year contract to work at the College. As at the date of the hearing Mr Adams remains being paid at a level TCH/UT/1/8 employee, although he is in receipt of salary maintenance at Level 2.2. 16 Under cross examination Mr Adams stated that all negotiations about what he was to be paid was with his Principal, Mr Chadwick and he confirmed that he had no discussions with Mr Chadwick about progressing up the salary scale. Mr Adams agreed that he had received an email from Mr Iain Dennis, which was sent prior to him commencing employment with the respondent, that refers to him being employed as an unqualified teacher however he could not recall reading the email until recently seeing a copy of it. Mr Adams agreed that he does not hold a teaching qualification but he stated that when he was employed by the respondent he did not understand that he was classified as an untrained teacher. Mr Adams is aware that a LAT lasts for a maximum of two years. 17 Mr Adams stated that when he was advised by the respondent that his salary level was 1.8, even though he was paid at a Level 2.2 at the end of 2008, he contacted the respondent’s head office and in response Mr Chadwick confirmed that even though his salary level was stated as 1.8 he would not be paid any less than a level 2.2 salary. Mr Adams agreed that even though his salary level was 1.8 his salary continued to be paid at Level 2.2 through salary maintenance. 18 Mr Adams stated that the nature of the students he teaches is no different at TAFE or at the College however classroom management is different. 19 Under re-examination Mr Adams again stated that he was unaware that he was employed as an untrained teacher and “didn’t even know the term ‘untrained teacher’” (T51) and Mr Adams could not recall receiving the email from Mr Dennis in April 2006 confirming that this was the case. Mr Adams stated that the issue of him being on salary maintenance did not arise until May 2009. Mr Adams maintained that he was a qualified teacher as he holds a Certificate IV in Training and Assessment and he has the requisite skills and experience to be a teacher. Mr Adams confirmed that he was performance managed by the Deputy Principal at the College. 20 Dr Margaret Henderson gave evidence by way of witness statement (Exhibit A5). As her evidence in the main went to the issue of Mr Adams’ permanent status, it is unnecessary to include her evidence. 21 Ms Anne Gisborne gave evidence by way of a witness statement (Exhibit A7). Ms Gisborne is the union’s President and she has held this position since January 2008. Prior to this she was the applicant’s Senior Vice President from 2002 through to 2007. Ms Gisborne has taught for over 20 years and has been actively involved in the applicant’s activities for over 16 years. 22 Ms Gisborne stated that as the applicant’s President and in her role as Senior Vice President she has been the lead negotiator when finalising successive collective enterprise agreements. Ms Gisborne co-ordinated the applicant’s position in the School Education Act Employees' (Teachers and Administrators) General Agreement 2006 (“the 2006 Agreement”) and the School Education Act Employees’ (Teachers and Administrators) General Agreement 2008 (“the 2008 Agreement”) and she also co- ordinated negotiations on behalf of the applicant in recent award variations to and the consolidation of the Teachers (Public Sector Primary and Secondary Education) Award 1993 (“the Award”), which was registered in December 2008. 23 Ms Gisborne gave evidence that provisions in the 2006 Agreement and the 2008 Agreement provide a forum and mechanism for ongoing consultation about VET issues. Ms Gisborne gave evidence that after the introduction of the Western Australian College of Teaching Act 2004 (“the WACOT Act”), during joint committees and working party discussions between the applicant and the respondent and during consultations at the VET forum, no issue was raised by the respondent with respect to the status of Mr Adams and other teachers in a similar situation with respect to their LAT status and entitlements. Ms Gisborne stated that since the WACOT Act came into effect in 2004 the first time discussions took place about teachers employed holding a LAT were at the most recent meeting of Employee Relations Executive Committee (“EREC”) on 23 September 2009. 24 Ms Gisborne stated that at the EREC meeting held on 20 October 2009 the applicant disputed Mr Adams being described as an untrained teacher and the parties remained in disagreement about this issue. Ms Gisborne stated that the 2006 Agreement and the 2008 Agreement and the recent variation and consolidation of the Award makes no mention of the WACOT Act nor do they provide for differential entitlements for teachers holding a LAT. Furthermore, during negotiations for the 2006 Agreement and the 2008 Agreement no discussion took place with respect to LAT teachers being treated separately to other teachers. Ms Gisborne maintains that WACOT accepts holders of LAT to be teachers who undertake a specific role and they perform the same functions as other teachers, they undertake the same roles and responsibilities and are subject to the same accountability requirements. 25 Ms Gisborne gave evidence that during negotiations for the 2008 Agreement the parties agreed to rename and divide some of the salary scales and she stated that one of the outcomes was that the new teachers scale better reflected the fact that the first time appointment of a graduate teacher was at a Level 1.6 and Ms Gisborne stated that Level 1.6 was to be renamed Level 2.1 in February 2010 under the 2008 Agreement. Ms Gisborne stated that Clause 22(4) of the Award contemplates teachers who may not have graduated being appointed in accordance with the teachers scale and she stated that the applicant’s intention in 168 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 90 W.A.I.G. accepting the salary scales being retitled was that no person appointed as a teacher would be paid below the current Level 1.6 of the teachers scale and the parties also intended to continue to explore a career path for “assistant teachers”. Ms Gisborne gave evidence that during these discussions the respondent did not raise the prospect of employing persons in designated teacher positions on any other scale but the teachers scale nor was there any discussion about restricting the progression of a teacher holding a LAT to a particular salary scale. Ms Gisborne stated that the parties agreed to put a new table titled ‘untrained teachers’ scale in the 2008 Agreement and no mention was made by the respondent at the time of any intention to employ LAT holders in accordance with this scale. The applicant understands that teachers holding a LAT have been progressing in accordance with the teachers salary scale and she was unaware that a teacher in this category had a cap on their salary. Ms Gisborne gave evidence that the applicant did not intend that the untrained teachers scale apply to employees responsible for performing all of the usual functions of a teacher as well as the usual duties of a teacher and that the applicable scale in these circumstances is the teachers scale. Ms Gisborne stated that the increments contained in Table 1 of the untrained teacher scale were taken from Level 1.1 to 1.4 of the previous teachers scale in the 2006 Agreement and they were put into the new untrained teacher scale in the 2008 Agreement to make it clear that teachers who were undertaking the usual functions and duties of a teacher did not start on those incremental scales. 26 Ms Gisborne maintained that the classifications existing in the untrained teacher scale in the 2008 Agreement predate the introduction of WACOT (see Clause 37 of the Government School Teachers’ and School Administrators’ Certified Agreement 2000) and Ms Gisborne stated that the purpose of having the untrained teachers scale, which was discussed during negotiations for the 2006 Agreement and the 2008 Agreement was to develop a position of teacher assistant which could sit below the teachers salaries scale and she stated that Clause 30 of the 2006 Agreement reflects this discussion, specifically Clauses 30.6 and 30.7. Ms Gisborne stated that even though there is no specific reference to “assistant teacher” in the 2008 Agreement, Clauses 47 and 57 considers this issue. 27 Ms Gisborne gave evidence that during negotiations for the 2008 Agreement the respondent never raised its intention that teachers holding a LAT would be provided with inferior conditions with respect to their salary and access to permanency. Ms Gisborne stated that during negotiations for the 2006 Agreement there was some discussion about “unqualified teachers” and the applicant made it clear to the respondent that a person holding a LAT and who undertook the full range of duties and responsibilities as a teacher was entitled to be paid as a trained teacher. Ms Gisborne maintained that the applicant did not consider that a person in this situation who lacks teacher training qualifications should have their entitlement or income as a teacher affected. Furthermore, there is no reference in the 2006 Agreement, the 2008 Agreement and the Award variation and consolidation to the WACOT Act nor is there any provision for differential entitlements for teachers employed who hold a LAT. 28 Ms Gisborne stated that the capping of Mr Adams’ salary was never agreed to by the applicant and it is her view that the respondent’s unilateral action in this regard is arbitrary and not in the public interest as this action results in teachers in this situation being paid an uncompetitive salary. 29 Under cross-examination Ms Gisborne stated that she understood the untrained teacher scale to apply to graduates who were not qualified teachers and was a career path for students prior to fully qualifying as a teacher and she gave evidence that this issue was raised during discussions about alleviating the work load for teachers and administrators. Ms Gisborne stated that she was not aware that anyone was currently employed under this scale. 30 Under re-examination Ms Gisborne stated that she has been directly involved in agreement negotiations with the respondent since 2004 and Ms Gisborne re-iterated that during the negotiations for the 2008 Agreement there were no discussions about the untrained teacher category. 31 Mr Kris Weinert was summonsed to give evidence. Mr Weinert teaches Automotive Mechanical Certificate II courses at the Western Australian College of Agriculture at Denmark (“Denmark College”) and he has undertaken this role since 16 October 2006. Mr Weinert gave evidence that Denmark College is a Registered Training Organisation (“RTO”) and its students are in Year 11 and 12, it is a residential school and the courses are Vocational Education and Training (“VET”) subjects. Mr Weinert said that in total there were five agricultural colleges in Western Australia and courses run at these colleges are accredited under the Australian Quality Training Framework (“AQTF”) training regime. Denmark College also runs School Education Act 1999 (SE Act) courses. Mr Weinert stated that in order to teach a VET course, he is required to hold a Certificate IV in Workplace Training, which he has and he is required to be competent to deliver the courses which he undertakes and to moderate these courses and he assesses student outcomes against AQTF national competencies. Mr Weinert has a LAT which expires in September 2010. Mr Weinert stated that he is required to have a LAT because he is classified as not having a teaching degree and he is required to have a LAT to work in a high school. Mr Weinert stated that he is not required to have a teaching qualification from a tertiary institution to teach and assess students in the VET area. Prior to teaching at Denmark College Mr Weinert taught at TAFE for three and a half years. 32 Mr Weinert gave evidence that the respondent paid for him to upgrade and retain his qualifications. 33 Mr Weinert confirmed that as a teacher he facilitates student learning, he believes that he competently runs classes, he works in accordance with Denmark College’s plan, he assesses students and writes reports with respect to their achievements, he answers to Denmark College’s Principal and the relevant Head of Teaching, he supervises students, maintains order and discipline and he undertakes administrative duties including writing references and photocopying duties. Mr Weinert also undertakes other duties as required such as driving Denmark College’s bus, he takes students on excursions, he undertakes yard duty, he supervises students and is involved in their behaviour management and he also undertakes counselling of students as well as pastoral care. 90 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 169 34 Mr Weinert gave evidence that details about the level contained in his payslips recently changed. Up until mid May 2009 his payslip reflected him as being a Teacher Level 2.2 and from that point onwards his payslip stated that he was an Untrained Teacher Level 8 and salary maintenance at Level 2.2 was then applied to his pay. Mr Weinert stated that in October 2009 his salary maintenance amount was increased to incorporate an increase equivalent to the Teacher Level 2.3 pay rate under salary maintenance (see Exhibits A2 and A3). Mr Weinert gave evidence that he started on the Level 1.8 pay rate when he commenced employment with the respondent and his salary increased on an annual basis and Mr Weinert gave evidence that he understood from discussions with colleagues that Level 2.4 was the highest salary level that he could be paid. Mr Weinert stated that he had no discussions with the respondent about the change in his classification on his payslip in May 2009 nor was any documentation reflecting this changed provided to him at the time. 35 Mr Weinert stated that he has had extensive experience in the automotive industry both as an employee and a business owner and he has also supervised numerous apprentices and Mr Weinert considers himself more than qualified to teach in the automotive area given his qualifications and his experience. 36 Mr Weinert stated that he enjoys teaching, his students were keen to attend his classes and student participation in the courses he taught was growing. 37 Mr Weinert took umbrage at being classified as an untrained teacher on the basis that he is highly trained and skilled in his area of expertise, he has undertaken a four year apprenticeship and has had extensive experience in the automotive area subsequent to completing this qualification. Mr Weinert has also been a TAFE teacher, he has assisted with teacher training at Denmark College, he has undertaken a range of courses outside of his area of expertise and he has also undertaken moderation and assessment with other teachers. 38 Mr Weinert stated that it would be difficult for him to gain formal teaching qualifications as he would be on a reduced salary and once he qualified he could be sent anywhere in the State which would create issues for his family. 39 Under cross examination Mr Weinert stated that he was aware of the classification of untrained teacher when he applied for the position at Denmark College and he agreed that when he commenced employment with the respondent there was no undertaking given to him that he would receive on-going salary increments. When it was put to Mr Weinert that obtaining a Certificate IV qualification was not demanding, he stated that this qualification was not difficult for him to achieve given his relevant skills and experience and he stated that if a person undertaking this course did not have his background then it would be challenging for them. Mr Weinert stated that in order to run his courses he had to determine the competencies to be assessed, design the learning process, work out the assessment instruments and prepare a training package for each competency. These courses were then evaluated and validated through a moderation process. 40 Mr Weinert confirmed that he was assessed under a performance management process at Denmark College by his Head of Teaching and he stated that feedback was given to him that his is going well in his role. 41 Mr Geoffrey Moyle was summonsed to give evidence. Mr Moyle is employed by the respondent as the Director of Agricultural Education and in this role he manages the respondent’s five residential agricultural colleges. Mr Moyle has been in this position since July 2008. Mr Moyle commenced employment with the respondent in 1977 and has had a range of teaching and administrative positions during that period. Mr Moyle confirmed that each of the five residential agricultural colleges has RTO status and he confirmed that he generated a discussion paper which he presented to Principals of the respondent’s agricultural colleges at one of their regular meetings (see Exhibit A7, attachment AG 4). 42 Mr Moyle stated that students at agricultural colleges completed secondary graduation if they successfully completed requirements to do so and Mr Moyle confirmed that the colleges are subject to the AQTF standards with which they must comply or they will lose their registration. Mr Moyle stated that under AQTF standards teachers at the respondent’s agricultural colleges must have a Certificate IV in Workplace Training and Assessment in order to deliver VET courses. Respondent’s evidence 43 Mr Chadwick gave evidence by way of a witness statement (Exhibit R1). Mr Chadwick has been employed by the respondent as the Principal of the College since 2003. In this role Mr Chadwick oversees the daily operations of the College as well as its farm and residence, he manages the physical and financial operations, its human resources and he oversees and directs the curriculum delivery for the College’s educational and training programs. 44 Mr Chadwick gave evidence that Mr Adams was appointed to the College as an unqualified teacher and he was required to obtain a LAT from WACOT before he could commence employment. Mr Chadwick gave evidence that when Mr Adams started working at the College he was assigned the salary grade of 1.8 and he stated that this level was negotiated by Mr Adams with Mr Dennis and Mr Neil Wilson on behalf of the respondent as Mr Adams was not prepared to work at the College if he was to be paid at the untrained teacher salary of Level 1.6. Mr Chadwick gave evidence that he told Mr Adams at the time that his salary would not progress beyond Level 1.8. 45 Mr Chadwick was told by Mr Adams in December 2007 that the salary level of an unqualified teacher holding a LAT at Denmark College had progressed past Level 1.8 and this teacher was being paid at salary Level 2.1. After Mr Adams informed him of this, Mr Chadwick contacted the respondent’s staffing section to obtain wage parity for his staff at the College. Mr Chadwick confirmed that since that time both Mr Adams and the other unqualified teacher at the College were given salary increments up to Level 2.2 but he was advised in early 2009 by the respondent’s payroll section that Mr Adams and the other teacher had been moved back to Level 1.8 and their salary was being maintained at Level 2.2 by salary maintenance allowance. 46 Under cross-examination Mr Chadwick stated that he was aware that an untrained teacher could be paid up to Level 1.8 and he stated he informed Mr Adams that he would not receive any further increments past this level. Mr Chadwick gave evidence that when he was told in early 2009 that Mr Adams’ salary had been capped at Level 2.2 he was advised by the respondent that 170 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 90 W.A.I.G. it was a mistake to allow Mr Adams to progress past the salary Level of 1.8. Mr Chadwick confirmed that Mr Adams facilitates learning, he delivers competency based assessment modes aligned to the requirements in the Vocational Education and Training Act 1996, he works under the College’s plans, he regularly reports on students within the context of this plan, he is answerable to him, he supervises students and provides discipline to them to the highest standard and he undertakes other duties as directed. 47 Under re-examination Mr Chadwick stated that to the best of his knowledge a Certificate IV qualification is for delivering competency based units from training packages and possibly up to 300 to 400 hours of tuition was involved in completing this qualification and it was his understanding that to obtain a teaching qualification required a much greater number of hours of study. Mr Chadwick confirmed that Mr Adams was subject to the same performance management processes as other teachers at the College. 48 Ms Petra Cameron gave evidence by way of witness statements (Exhibits R2 and R2[2]). Ms Cameron is employed by the respondent as the Acting Senior Labour Relations Advisor in the Labour Relations Directorate. In this role she: • provides high level advice, support and information on employment and industrial relations issues relevant to the respondent including the interpretation and application of awards, agreements, legislation and policy; • mentors and provides information and professional advice to the respondent’s managers and members of the labour relations team; • promotes, protects and negotiates the intentions and interests of the respondent at a senior level in relevant industrial relations forums; • develops and improves client relations; and • participates in the business and planning activities of the Directorate and provides significant input into the development, implementation and review of the respondent’s labour relations policy and procedures. 49 Ms Cameron has been employed in industrial relations in the Western Australian Public Sector since March 2005 and she has been in her current position since April 2008. Ms Cameron gave evidence that she has a comprehensive understanding of the respondent’s industrial instruments and she stated that she was involved in the preparation and negotiation of the 2008 Agreement. 50 Ms Cameron stated that a person seeking employment as a teacher must be a member of WACOT before they can teach. Ms Cameron stated that membership of WACOT in the LAT category is granted where the person applying for membership has specialist skills or a completed teaching qualification that does not meet the requirements for registration as a teacher but who has nevertheless been offered employment as a teacher. Ms Cameron stated that all other WACOT membership categories require the person applying for membership to hold a teaching qualification approved by WACOT and the minimum approved qualification requirement is four years of completed higher education study with at least one year of this study consisting of a pre-service teacher education program in early childhood, primary, middle or secondary education. 51 Ms Cameron stated that under s 235 of the SE Act and consistent with the requirements for WACOT membership, teachers employed by the respondent are required to hold an appropriate qualification. These teachers fall into two groups: a. teachers with teaching qualifications – the minimum qualification being successful completion of four years of tertiary education which includes at least one year of full-time teacher education; or b. teachers without teaching qualifications who are employed on the basis of their specialist knowledge, training, skills or qualifications in a particular field to teach in specialist programs such as the languages, arts, sports, business, maths, science and technology when suitably qualified teachers cannot be found. 52 Ms Cameron stated that when the WACOT Act came into effect in 2004 teachers without a teaching qualification were required to have a LAT and if a teacher failed to obtain a LAT the WACOT Act prohibited them from teaching in any school. A teacher who is not a member of WACOT therefore cannot perform any teaching duties for the respondent. 53 Ms Cameron stated that the change in terminology from “unqualified teacher” to “untrained teacher” in the 2008 Agreement occurred as a consequence of the Award modernisation process undertaken as part of the last round of bargaining between the applicant and the respondent. Ms Cameron gave evidence that three classifications of teacher were identified by the respondent – “four-year-trained”, “five-year-trained” or “unqualified” teachers and the term “unqualified teacher” was regarded by representatives of the respondent to be incorrect terminology because s 235 of the SE Act states that all teachers are required to have a qualification in order to be employed. Ms Cameron stated that in June 2008 the respondent decided that the term “untrained” was the best terminology to describe unqualified teachers and as a result this was incorporated into the draft replacement 2008 agreement. Ms Cameron stated that in late 2008 the respondent’s Teacher Establishment System, which is an electronic database for the management of teacher placements in Government schools, was upgraded to incorporate the untrained teacher status and this assisted the respondent to ensure that the appropriate documentation was sent to both trained and untrained teachers. 54 Ms Cameron stated that under the Award, the 2006 Agreement and the 2008 Agreement the only provisions where separate entitlements apply based on whether a teacher is trained or untrained is the incremental range for salary, internal relief and casual rates of pay. This distinction is based on the Award provision specifying that untrained teachers cannot progress to a salary level higher than 1.8. 55 Ms Cameron stated that salary rates for teachers are inserted into the respondent’s Human Resource Management Information System (“HRMIS”) using a scale for untrained teachers (“UT”) ranging from salary levels 1.1 to 1.6 and a scale for trained teachers (“TT”) ranging from salary levels 1.6 to 2.4. Incremental progression within each scale is automatic however 90 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 171 progression from the UT scale to the TT scale is not. Ms Cameron stated that the salary rates for trained and untrained teachers overlap on Level 1.6 to Level 1.8 and as the UT scale only goes up to Level 1.6, untrained teachers at Level 1.7 or Level 1.8 are therefore placed on the TT scale in HRMIS. As HRMIS cannot distinguish between trained and untrained teachers who are on the TT scale errors occurred enabling some untrained teachers who under the Award cannot progress to salary levels higher than 1.8 being overpaid. Where such overpayments occur the respondent is obliged to recovers these overpaid monies. 56 Ms Cameron stated that Schedule B – Salaries in the 2008 Agreement contains separate salary tables for untrained teachers and teachers. Ms Cameron stated that the applicant and respondent agreed to set out the salaries in Schedule B in this way to take into consideration the limitations of the HRMIS as well as the Award provision which requires progression from Level 1 to Level 2 of the salary scale being subject to the attainment of a four year teaching qualification. Ms Cameron stated that during negotiations for amendments to the Award and the final terms of the 2008 Agreement Ms Gisborne was advised that changing the term “unqualified teacher” to “untrained teacher” was necessary as the respondent can only employ qualified teachers or in certain circumstances people who have a specialist knowledge or skills who hold a LAT including music teachers, language teachers and other specialist or trade based positions. Ms Cameron stated that during these negotiations she explained to the applicant’s representatives that whilst these teachers do not hold a qualification in teaching they are qualified in their trade, language or area of expertise hence the term “unqualified teacher” was deemed inappropriate. Ms Cameron stated that she specifically advised Ms Gisborne that not many teachers were paid on the “untrained teacher” salary scales and these scales are used for teachers who were not qualified as teachers. Ms Cameron stated that these changed provisions were endorsed by the applicant’s executive. 57 Ms Cameron stated that “Industrial Relations Advice No 1 of 2009” confirms that where employees are being paid at rates higher than their applicable salary level these affected employees will have their salary maintained until such time as the correct salary rate exceeds their current rate (see Exhibit R2 attachment PC6). As a result where untrained teachers have a salary level greater than 1.8 due to errors created by the HRMIS system the respondent maintains their salary levels rather than recover any overpayment of these salaries. 58 Ms Cameron stated that before the enactment of the WACOT Act and the registration of the 2006 Agreement the respondent employed teachers without teaching qualifications to be in control of and supervise classes in the same way as a teacher with a teaching qualification. Such teachers were employed in specialist subject areas such as music, drama and languages and they were paid on the “unqualified teachers” salary scales of Level 1.1 to 1.6 and up to 1.8 at the discretion of the respondent. Ms Cameron disagreed that teachers holding a LAT commenced on the same pay scale as a graduate and are paid the same as a fully qualified teacher with a teaching qualification. Ms Cameron stated that the introduction of the WACOT Act from 2004 had no impact on the way the respondent remunerated its teachers. 59 Ms Cameron stated that the respondent has consistently paid teachers without a teaching qualification in accordance with the Award and by 2008 these practices had been in place for almost 14 years without any issues arising. Ms Cameron concedes that there is no difference between the functions, roles and responsibilities and accountabilities of teachers fully registered by WACOT and those holding a LAT. However, LAT teachers do not have a teaching qualification and are only given a LAT when suitably qualified teachers cannot be found and the LAT restricts the teacher so that they can only teach in a specific subject area, location and for a finite period. 60 Ms Cameron stated that during the negotiations for the 2008 Agreement there were no discussions between the parties regarding the need to make it clear that teachers were not paid salaries below Level 1.6 nor was there a discussion about the need to provide a salary scale for “assistant teachers”. Documentation was also provided to Ms Gisborne clearly showing that approximately 700 full time equivalent teachers were paid on salary levels below 1.6 (see Exhibit R2[2] attachment PCR9. Ms Cameron stated that the separation of the salary scales in the 2008 Agreement was at the respondent’s initiative because of the limited capabilities of the HRMIS, the need to provide a single reference point for all rates of pay according to classifications and to implement the new salary structure and present it in a readable format. Ms Cameron concedes that from time to time there have been instances where untrained teachers have progressed beyond the maximum increment as prescribed in the Award through administrative error and when this has occurred employees have had their salary maintained so as not to financially disadvantage them. 61 Ms Cameron maintains that as successive agreements and the Award applied to untrained teachers there was therefore no necessity to hold any discussions with the applicant about this issue and she stated there has been no change in the entitlements of untrained teachers since 1993. Ms Cameron stated that it was the respondent’s intention and obligation to fill all teaching positions by suitably qualified teachers and the employment of LAT teachers was therefore kept to a minimum. However during times of teacher shortage this has resulted in the employment of untrained teachers becoming more prevalent. 62 Under cross examination Ms Cameron conceded that there had been errors in the way in which the respondent had handled Mr Adams’ employment and she stated that she was unaware if Mr Adams had been given written advice that he had been overpaid. Ms Cameron confirmed that during discussions for the 2008 Agreement there was no discussion about LAT teachers specifically being placed on the untrained teachers scale as this was not the terminology used by the respondent as it used the term untrained teachers. 63 Ms Cameron confirmed that untrained teachers were paid pursuant to Clause 22(2) of the Award and she conceded that the duties of an untrained teacher were the same as those of trained teachers who have as a minimum, a four year teaching qualification. 172 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 90 W.A.I.G. 64 Mr Wilson gave evidence by way of a witness statement (Exhibit R3). Mr Wilson is employed by the respondent as the Manager of Teacher Staffing in the Staffing Directorate and in this role he facilitates the staffing of public schools throughout Western Australia and the appointment and transfer of teachers across Western Australia. Mr Wilson has worked with the respondent since 1977. Mr Wilson has been in his current role since January 2005. Mr Wilson is familiar with the appointment processes for both teachers and school administrators. 65 Mr Wilson stated that untrained teachers working for the respondent are paid on a salary scale that, in May 2006, ranged from Level 1.1 to Level 1.6 in accordance with Clause 47.6 of the Government School Teachers’ and School Administrator’s Certified Agreement 2004 (“the 2004 Agreement”) and movement through this salary scale was by annual increment based on a specified number of service days and calculated automatically by the HRMIS. In order to attract and retain teachers in areas of need, such as design and technology, the respondent may increase the salary of untrained teachers up to a maximum of Level 1.8 and the procedure adopted by the Staffing Directorate in a case of this nature was to request substantiating documentation from the teacher who sought to be paid at a higher salary level. This documentation was then considered by staff in the Staffing Directorate and one salary increment was applied to the teacher’s salary for every three years of related work experience. Mr Wilson stated that this was a long standing business rule used by the respondent. Mr Wilson stated that moving an untrained teacher to a higher salary level than 1.6 required the untrained teacher to be placed on the trained teacher salary scale within HRMIS and because increments were automatically applied by HRMIS the salary of untrained teachers placed on the teachers scale had to be monitored manually to ensure that they did not progress above Level 1.8. 66 Mr Wilson stated that given Mr Adams’ work experience Mr Wilson authorised that Mr Adams be paid at commencement at a Level 1.8 and Mr Wilson stated that the respondent’s payroll section were asked to ensure that his salary did not progress above this level however this request was not followed. 67 Mr Wilson stated that under the 2008 Agreement the salary for untrained teachers can progress to Level 1.8 whereas under previous agreements the salary of an untrained teacher could only progress above Level 1.6 upon a consideration of substantiating document and the HRMIS system was altered at the time to reflect this. 68 Mr Wilson stated that the community expects and demands that qualified teachers teach students and this is one of the cornerstones of the national teacher registration requirements. Mr Wilson maintained that to allow untrained teachers to progress to the top of the salary scale would be inappropriate because it would fail to recognise the additional study and higher education fees incurred by teachers who undertake teacher training and appropriately reflect this additional training in the salaries structure and teachers would not undertake such training which may have a significant impact on public confidence in the education system. 69 Mr Salvatore Mastrolembo gave evidence by way of a witness statement (Exhibit R4). Mr Mastrolembo is employed by the respondent as the Payroll Operations Manager within the respondent’s Shared Services Centre. In this role he manages the respondent’s payroll operations. Mr Mastrolembo is familiar with the respondent’s payroll procedures and processes. 70 Mr Mastrolembo stated that Mr Adams was employed as a Level 1.8 employee from 1 May 2006 and this level was approved by Mr Dennis, Mr Wilson and Kim Ward the respondent’s Director of Staffing. Mr Mastrolembo understood that this salary level was to remain at Level 1.8 because the Award precludes untrained teachers from rising about this level. Mr Mastrolembo stated that as HRMIS was programmed so that untrained teachers could not be paid a salary above Level 1.6, Mr Adams’ salary level was recorded on the trained teacher salary level in HRMIS. 71 Mr Mastrolembo stated that in January 2008 Mr Adams’ salary was increased to Level 2.1 at the request of one of the respondent’s staffing consultants and on 1 May 2008 HRMIS automatically increased his salary to Level 2.2 as this was the increment applied to all teachers on salary Level 2.1. This error was corrected on 1 May 2009 when Mr Adams’ status was changed in HRMIS to “untrained teacher Level 1.8” with no increment date inserted. Mr Mastrolembo stated that since that time Mr Adams’ salary has remained at Level 2.2 on a salary maintenance basis until such time as the salary payable at Level 1.8 exceeds his current salary rate, in accordance with advice from the respondent’s Acting Executive Director– Workforce. 72 Mr Mastrolembo stated that he understands that the respondent employs 177 untrained teachers, that is teachers who have not undertaken teacher training and he has ascertained that of these five have progressed above Level 1.8. 73 Mr Dennis gave evidence by way of a witness statement (Exhibit R5). Mr Dennis is currently employed by the respondent as the Manager Operations for the West Coast Education District and between August 2003 and May 2008 he was a staffing consultant for the respondent in the area of art, design and technology and home economics. 74 Mr Dennis gave evidence that he discussed the process for appointing Mr Adams as an untrained teacher in early 2006 with Mr Chadwick and at the time he explained to Mr Chadwick the process of obtaining an ID number and discussed the salary level for untrained teachers. On 10 April 2006, Mr Dennis sent a memo to WACOT requesting that Mr Adams’ application for a LAT be endorsed (Exhibit R5 attachment ID2). 75 Mr Dennis stated that he was aware that under the Award the highest salary level payable to an untrained teacher was Level 1.6 and the respondent had discretion to increase this to Level 1.8. Mr Dennis stated that from 2004 onwards there was pressure on the respondent to staff classes in the design and technology area due to a shortage of trained teachers in this area and there was an increased demand from employers and students in this area. After Mr Adams requested a salary level higher than Level 1.6 and after he supplied documentation with reasons for supporting an increase salary the respondent used its discretion to appoint Mr Adams above Level 1.6 up to a cap of Level 1.8. In doing so Mr Dennis intended that Mr Adams would not receive any annual increments to this salary on the basis of the limitation provided for in the Award (see Exhibit R5 attachment ID4). 90 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 173 Submissions Applicant’s submissions 76 The applicant submits that as Mr Adams fulfils the same roles and duties of a tertiary trained teacher under the SE Act, then he should be paid the rate of pay of a trained teacher and even though Mr Adams holds a LAT this should not impact on the salary he should be paid. 77 The applicant argues that Mr Adams is not an untrained teacher for the purposes of the WACOT Act and the 2008 Agreement, even though he is regarded by the respondent as being an untrained teacher. Additionally, Mr Adams holds appropriate qualifications to teach in his current role. The applicant concedes that holding a Certificate IV qualification does not equate to that of a tertiary teaching qualification however, the skills held and exercised by Mr Adams as well as the role undertaken by him entitles him to be paid as a Level 2.4 teacher. The applicant also maintains that teachers in a similar situation to Mr Adams should be able to access the teachers salary scale up to Level 2.4 on the basis that they are entitled to equal pay for undertaking equal work and they undertake the full range of duties expected of a teacher. Respondent’s submissions 78 The respondent maintains that when determining Mr Adams’ salary the provisions of the 2008 Agreement as well as the Award must be taken into account. The respondent argues that when interpreting industrial agreements the ordinary meaning of the text is paramount (see Robe River Iron Associates v Amalgamated Metal Workers and Shipwrights Union of Western Australia [1987] 67 WAIG 1097). When determining the true interpretation of the 2008 Agreement and the meaning of relevant clauses the Commission is to refer to the presumed mutual intentions of the parties and if the terms of the industrial agreement are clear and unambiguous, which the respondent submits they are in this case it is not permissible to look at extrinsic material to qualify the meaning (see Codelfa Construction Pty Ltd v State Rail Authority [NSW] [1982] 149 CLR 337). 79 The respondent does not dispute that Mr Adams fulfils the duties normally undertaken by a teacher however the trained teacher salary scale does not apply to him as he does not have a teaching qualification from a higher education institution and Mr Adams is not a trained teacher under the relevant agreements and the Award, specifically Clause 22(2) of the Award. 80 The respondent submits that the term ‘untrained teacher’, as defined in Clause 7 of the 2008 Agreement, means a teacher who does not have tertiary teacher training. As Mr Adams holds a LAT on the basis that he does not have a tertiary teaching qualification, this also confirms that Mr Adams should not be entitled to be paid the salary level of a trained teacher. Additionally, holding a LAT limits where an employee can teach and that employee is restricted to teaching certain subjects which is different to that which applies to a tertiary trained teacher. The untrained teacher scale must therefore apply to Mr Adams and other teachers who do not hold a relevant tertiary teaching qualification. 81 The respondent argues that there was never any agreement between the parties nor did the parties intend that an untrained teacher would progress beyond salary Level 1.8 and no documentation exists confirming otherwise. It is also a relevant consideration that since 1993 the Award provides that Level 1.8 is the maximum salary that an untrained teacher can be paid. As the teacher salary scale incorporates the placement of three, four and five year trained teachers it follows that an untrained teacher is an employee whose qualifications do not meet those requirements. The respondent also argues that gaining a Certificate IV qualification does not mean that a person is a trained teacher as this certificate is not an equivalent qualification to that of a tertiary trained teacher. The respondent maintains that even though there is a shortage of design and technology teachers and that the salary scales of an untrained teacher may not be competitive with other careers this issue is not the subject of arbitration with respect to this application. 82 The respondent submits that the fact that Mr Adams’ current salary is above Level 1.8 is as a result of administrative errors and Mr Adams has therefore been placed on salary maintenance. 83 The respondent objects to the issuance of the order being sought by the applicant that all employees in a similar category to Mr Adams be paid as a fully trained teacher because the evidence given in the proceedings only related to Mr Adams. Findings and Conclusions Credibility 84 I listened carefully to the evidence given by each witness and closely observed each witness. In my view each witness gave their evidence honestly and to the best of their recollection and I find that the evidence give by each witness was given in a considered and forthright manner. Given my confidence in the evidence of all of the witnesses who gave evidence in these proceedings I have no hesitation in accepting the evidence they gave. 85 The applicant is seeking the issuance of orders contained in points 1 (b) to (f) of the Schedule of the memorandum of matters referred for hearing and determination (see paragraph 2). Order 1(b) being sought by the applicant is that Mr Adams be classified and paid at a salary level higher than Level 1.8 of the Untrained Teacher scale in the 2008 Agreement and that he be entitled to be paid the rates of pay of a trained teacher and progress up the teacher scale in the same manner as a three, four or five year trained teacher. The respondent argues that as Mr Adams is an untrained teacher for the purposes of the relevant industrial instruments and given the salary restrictions placed on an untrained teacher in these instruments the appropriate salary level for Mr Adams can be no higher than Level 1.8 notwithstanding the fact that he is currently being paid as a Level 2.2 employee under a salary maintenance arrangement. 86 What it is necessary to determine is the salary level to which Mr Adams is entitled and whether or not he is an untrained or unqualified teacher for the purposes of the Award and the 2004, 2006 and 2008 agreements. It is also necessary to consider the applicant’s claim that even though Mr Adams does not hold a tertiary teaching qualification, he has teaching qualifications, he fulfils the role of a teacher and as he holds an authority to teach (LAT) this should enable him to progress up the salary scale beyond Level 1.8. 174 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 90 W.A.I.G. 87 As Mr Adams’ terms and conditions of employment since the commencement of his employment with the respondent were and are now regulated by a range of industrial instruments it is appropriate to review and interpret these relevant provisions to determine his correct salary level. 88 The interpretation of an award is a matter of law. When interpreting an award one must read the terms of the award, give the words in the clause or clauses in question their ordinary commonsense meaning and ascertain whether the words used have an unambiguous meaning. If the terms of the award are clear and unambiguous it is not permissible to look at extrinsic material to qualify the meaning of the clause or clauses in issue (see Norwest Beef Industries Limited and Another v West Australian Branch, Australian Meat Industry Employees Union, Industrial Union of Workers [1984] 64 WAIG 2124). 89 In Brown & Root Energy Services Pty Ltd v Construction Industry Long Service Leave Payments Board (2001) 81 WAIG 665 at 671 Smith, C, as she was then, also observed the following: "In interpreting industrial instruments tribunals usually do not apply a literal approach, as awards and enterprise agreements may have been drafted by industrial rather than skilled draftsmen (Robe River Iron Associates v Amalgamated Metal Workers' and Shipwrights' Union per Kennedy J at 1100). This approach to interpretation was explained by Street J in Geo A Bond and Co Ltd (in liq) v McKenzie (1929) 28 AR 499 at 503-504— ‘Now, speaking generally, awards are to be interpreted as any other enactment is interpreted. They lay down the law affecting employers and employees in their relation as such, and they have to be obeyed to the same extent as any other statutory enactment. But at the same time, it must be remembered that awards are made for the various industries in the light of the customs and working conditions of each industry, and they frequently result, as this award in fact did, from an agreement between parties, couched in terms intelligible to themselves but often framed without that careful attention to form and draughtsmanship which one expects to find in an Act of Parliament. I think, therefore, in construing an award, one must always be careful to avoid a too literal adherence to the strict technical meaning of words, and must view the matter broadly, and after giving consideration and weight to every part of the award, endeavour to give it a meaning consistent with the general intention of the parties to be gathered from the whole award.’” 90 There was no dispute and I find that Mr Adams’ employment was governed by the 2004, 2006 and 2008 agreements and the Award, as varied from time to time. There are a number of clauses in these industrial instruments which are relevant to the salary scale of untrained/unqualified and trained teachers and definitions relevant to these classifications. 91 When Mr Adams commenced employment at the College in May 2006 the Award did not contain a definition for untrained teacher but instead contained a definition of an unqualified teacher. This definition reads as follows: “"Unqualified teacher" shall mean a teacher who does not hold an approved teacher's qualification.” At this time the Award also contained the following definition: “"Teacher" shall mean as defined in the Education Act 1928 and shall include – (a) any person engaged in teaching in a government school; (b) any person employed by the Minister and engaged in teaching in a pre-school centre; and (c) any person holding or acting in a position in the Ministry for which a teaching academic qualification is required, but does not include any public servant, whether or not he or she holds, or acts in a position in respect of which a teaching academic qualification is required;” 92 As at May 2006, the Award contained the following provisions at Clause 8. – Salaries: “(1) For the purpose of this clause - … “Unqualified teacher” shall mean a teacher who does not hold an approved teacher’s qualification. … (3) (a) Teachers who possess an approved qualification shall be placed on the salary scale prescribed in Schedule B, Table I of this award as follows – (i) Three-year trained teacher - Level 1, Point 4; (ii) Four-year trained teacher - Level 1, Point 5; (iii) Five-year trained teacher – Level 1, Point 6; provided that teachers who possess approved qualifications in excess of those specified above may be placed on the salary scale at the discretion of the employer. (b) Teachers who do not possess an approved qualification may be placed on salary points lower than those specified in paragraph (a) of this subclause at the discretion of the employer. 90 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 175 (c) On first appointment to the Ministry, other than directly from a teacher training institution, teachers may be placed on the appropriate salary scale in Level 1 or 2 as determined by the employer having regard for their qualifications and experience. (4) Progression from Level 1 to Level 2 of Schedule B, Table I, will be subject to attainment of a four year trained qualification, except that the employer may allow a three-year trained teacher to progress to Level 2 subject to subclause (10) of this clause. … (6) An unqualified teacher may not proceed beyond Level 1, point 6, of Schedule B, Table I, except that the employer may at his/her discretion, and under such terms as he/she thinks fit, allow an unqualified teacher to progress to Level 1, point 8.” 93 Clause 22. – Salaries of the Award, as at 16 December 2008, provides as follows: “(1) (a) The salaries and pay rates for employees are contained in Schedule B. – Salaries of this Award. (b) Employees covered by this award are to be paid as per the provisions comprising: (i) Part 1 – Wages Adjusted by Arbitrated Safety Net Adjustments; or (ii) Part 2 – Expired Industrial Agreement Wages whichever are the greater. (2) Teachers who possess a qualification recognised by the Director General as being an appropriate qualification are placed on the salary scale prescribed in Schedule B. – Salaries of this Award, as follows: (a) Three-year-trained Teacher - Level 1, Point 5. (b) Four-year-trained Teacher - Level 1, Point 6. (c) Five-year-trained Teacher - Level 1, Point 7. Teachers who possess approved qualifications in excess of those specified above may be placed above Level 1 point 7 at the discretion of the Employer. Untrained Teachers may be placed on salary points lower than those specified in clause 22(2) at the discretion of the Employer. An Untrained Teacher can not proceed beyond Level 1, point 8. (3) Level 1 and 2 Teachers who have added to their qualifications after appointment may be given accelerated progression subject to the following restrictions: (a) An Untrained Teacher appointed from a teacher training institution who obtains approved teaching qualifications within a period of three (3) years after leaving the teacher training institution is placed on the same salary point as their contemporaries at the time of appointment who were appointed with qualifications. (b) Untrained Teachers other than those referred to in clause 22(3)(a) advance one increment on gaining a qualification recognised by the Director General as being an appropriate qualification. (c) A two (2)-year-trained Teacher who obtains the qualifications of a three (3)-year-trained Teacher is to advance one increment but can not proceed beyond the maximum of Level 1. (d) A three (3)-year trained Teacher who obtains the qualifications of a four (4)-year-trained Teacher is to advance one increment. (e) A four (4)-year-trained Teacher who completes a course of higher study, approved by the Employer, leading to an award such as Doctoral Degree, Master's Degree or approved Graduate Diploma, must advance one (1) increment but can not proceed beyond the maximum of Level 2, Schedule B – Salaries Table I of this Award. Only one (1) increment can be obtained under clause 22(3)(e). (4) If a person, immediately before graduating as a qualified Teacher, is employed on a permanent or fixed-term contract basis to fill a teaching vacancy, they are entitled to receive the salary and entitlements as prescribed for Graduate Teachers.” 94 Clause 5. – Definitions of the Award, as at 16 December 2008, provides the following definitions: “"Untrained Teacher" means a Teacher who does not have teacher training” “"Teacher" means a person as defined in the Act, and unless otherwise specified in this Award, the term is used to include the classifications identified in Clause 15 – Teacher Career/Classification Structure of this Award” “"Three-Year-Trained Teacher" means a Teacher who successfully completed an academic qualification requiring a sequence of the equivalent of three (3) years of full time, post-matriculation tertiary education which incorporates an approved course of initial teaching training, or obtained other qualifications approved as of equivalent standard;” “"Four-Year-Trained Teacher" means a Teacher who has successfully completed an academic qualification requiring a sequence of the equivalent of four (4) years of full time, post-matriculation tertiary education which incorporates an approved course of initial teacher training, or obtained other qualifications approved as of equivalent standard” 176 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 90 W.A.I.G. “"Five-Year-Trained Teacher" means a Teacher who has successfully completed an academic qualification requiring a sequence of the equivalent of five (5) years of full time, post-matriculation tertiary education which incorporates an approved course of initial teacher training, or obtained other qualifications approved as of equivalent standard” “"Approved" means approved by the Employer” 95 Clause 46 – Compaction of Teachers Incremental Salary Scale in the 2004 Agreement contained the following table: “46.5 Effective from 2005 the Teachers Salary Structure shall be as follows: Current Rate February 2004 February 2005 February 2006 Teachers 1.1 $30,985 $31,915 $33,872 $33,858 1.2 $32,595 $33,573 $34,580 $35,617 1.3 $34,474 $35,508 $36,573 $37,671 1.4 $35,961 $37,040 $38,151 $39,296 1.5 $38,288 $39,437 $40,620 $41,838 1.6 $40,543 $41,759 $43,012 $44,302 1.7 $43,486 $45,563 $46,930 $48,338 1.8 $48,640 $50,099 $51,602 $53,150 2.1 $50,135 $52,025 $53,586 $55,193 2.2 $52,211 $54,164 $55,789 $57,463 2.3 $56,126 $57,810 $59,544 $61,330 Senior Teacher 1 - $59,310 $61,089 $62,922 Senior Teacher 2 - $60,496 $62,311 $64,180 Level 3 Classroom Teacher $62,972 $65,050 $67,197 $69,414 96 Clause 47 –Teacher Career Structure in the 2004 Agreement provided as follows: “47 TEACHER CAREER STRUCTURE 47.1 The jointly agreed Teacher Competence and Standards Working Party will continue to monitor and make recommendations to the parties on further development and implementation of the Teacher Career Structure as initiated in the 1996 Teachers Agreement. Level 1 & 2 Teachers 47.2 Teachers who possess an approved qualification shall be placed on the salary scale prescribed in clause 45 – Teacher Salary Increases of this Agreement as follows: (a) Four-year trained teacher – Level 1, Point 5; (b) Five-year trained teacher – Level 1, Point 6; provided that teachers who possess approved qualifications in excess of those specified above may be placed on the salary scale at the discretion of the employer. 47.3 Teachers who do not possess an approved qualification may be placed on salary points lower than those specified in subclause 47.2 at the discretion of the employer. 47.4 On first appointment to the Department of Education and Training, other than directly from a teacher training institution, teachers may be placed on the appropriate salary scale in Level 1 or 2 as determined by the employer having regard for their qualifications and experience. 47.5 A teacher who has not had a satisfactory report may not advance further than three (3) annual increments from the salary point on appointment. 47.6 An unqualified teacher may not proceed beyond Level 1, point 6, of clause 45 – Teacher Salary Increases, except that the employer may at his/her discretion, and under such terms as he/she thinks fit, allow an unqualified teacher to progress to Level 1, point 8. 47.7 Teachers employed on Level 1 and 2 who have added to their qualifications after appointment may be given accelerated progression subject to the following restrictions – (a) An unqualified teacher appointed from a teacher training institution who obtain approved teaching qualifications within a period of three (3) years after leaving the teacher training institution shall be placed on the same salary point as his/her contemporaries at the time of appointment who were appointed with qualifications. 90 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 177 (b) Unqualified teachers other than those referred to in paragraph (a) of this subclause shall advance one increment on gaining approved teaching qualifications. (c) A four-year trained teacher who completed a course of higher study, approved by the employer, leading to an award such as Doctoral Degree, Master’s Degree or approved Graduate Diploma, shall advance one increment but shall not proceed beyond the maximum of Level 2 outlined in clause 45 – Teacher Salary Increases (provided that only one increment can be obtained under this subclause).” 97 An approved qualification in the 2004 Agreement means approved by the employer. 98 Clause 5. - Relationship to Award and Previous Agreements in the 2004 Agreement provided as follows: “5.1 This Agreement shall replace the Government School Teachers’ and School Administrators’ Certified Agreement 2000, Government School Administrators’ Workplace Agreement 2000 and all previous memoranda and agreements which had application to the parties to this Agreement prior to the registration of this Agreement. 5.2 The conditions prescribed in this Agreement shall, to the extent of any inconsistency, prevail over the terms prescribed in the Award. Otherwise the terms of the Award shall be read wholly in conjunction with this Agreement, and such terms are included in this Agreement.” 99 Clause 50 – Teacher Salary Increases in the 2006 Agreement provided the following table: “50.2 Salaries shall be paid in accordance with the following table: Current Rate August 2006 February 2007 August 2007 February 2008 Teachers LEVEL 1.1 $33,858 $34,704 $35,399 $36,107 $37,009 LEVEL 1.2 $35,617 $36,507 $37,238 $37,982 $38,932 LEVEL 1.3 $37,671 $38,613 $39,385 $40,173 $41,177 LEVEL 1.4 $39,296 $40,278 $41,084 $41,906 $42,953 LEVEL 1.5 $41,838 $42,885 $43,743 $44,618 $45,733 LEVEL 1.6 $44,302 $45,410 $46,318 $47,244 $48,425 LEVEL 1.7 $48,338 $49,546 $50,537 $51,548 $52,837 LEVEL 1.8 $53,150 $54,479 $55,568 $56,680 $58,097 LEVEL 2.1 $55,193 $56,573 $57,704 $58,858 $60,330 LEVEL 2.2 $57,463 $58,900 $60,078 $61,279 $62,811 LEVEL 2.3 $61,330 $62,863 $64,121 $65,403 $67,038 LEVEL 2.4 - - - $67,446 $69,132 Senior Teacher 1 $62,922 $64,495 $65,785 $69,140 $70,868 Senior Teacher 2 $64,180 $65,785 $67,100 $71,067 $72,844 Level 3.1 Classroom Teacher $69,414 $71,149 $72,572 $74,275 $76,132 Level 3.2 Classroom Teacher - - - $75,848 $77,744 100 Clause 34 – Teacher Career Structure in the 2006 Agreement provided as follows: “34.1 The teacher career structure consists of: (a) Graduate Teacher, a teacher in his/her first two years of teaching, (b) Teacher, a teacher who has taught for more than 2 years; (c) Senior Teacher 1 and 2, a teacher who has successfully completed the Senior Teacher process as per Clause 36. (d) Level Three Classroom Teacher, a teacher who has attained L3 Classroom Teacher status as per Clause 37. 34.2 In the event an unqualified person, before graduation, is required to fill a teaching vacancy, such an employee who is on fixed term or permanent employee shall be employed at a salary level of no less than 1.5 and will enjoy the entitlements as described for graduate teachers.” 101 Clause 9 – Definitions of the 2006 Agreement contained the following definitions and also contained definitions of a “Four- year-trained teacher” and a “Five-year-trained teacher” in the same terms as the Award: “"Unqualified teacher" means a teacher who does not hold an approved teacher's qualification” 178 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 90 W.A.I.G. “"Tertiary Education" means undertaking a course at an approved education institution for which the pre-requisite is a successful Year 12 of schooling or its approved equivalent” 102 Clause 5 – Relationship to Award and Previous Agreements of the 2006 Agreement reads as follows: “5.1 This Agreement replaces the Government School Teachers’ and School Administrators’ Certified Agreement 2004 which had application to the Parties to this Agreement prior to the registration of this Agreement. 5.2 The conditions prescribed in this Agreement shall, to the extent of any inconsistency, prevail over the terms prescribed in the Award. Otherwise the terms of the Award shall be read in conjunction with this agreement.” 103 Clause 7 – Definitions in the 2008 Agreement provides the following definitions and also contains definitions of a “Three- Year-Trained Teacher”, a “Four-year-trained teacher” and a “Five-year-trained teacher” in the same terms as the Award: “"Teacher" means a person as defined in the Act, and unless otherwise specified in this Agreement, the term is used to include the classifications identified in Clause 15 – Teacher Career/Classification Structure of the Award” “"Untrained Teacher" means a Teacher who does not have teach