CITATION : 2008 WAIRC 00092 CORAM : THE HONOURABLE M T RITTER, ACTING PRESIDENT SENIOR COMMISSIONER J H SMITH COMMISSIONER P E SCOTT HEARD : FRIDAY, 25 JANUARY 2008 DELIVERED : WEDNESDAY, 13 FEBRURAY 2008 FILE NO. : FBM 9 OF 2007 BETWEEN : THE CIVIL SERVICE ASSOCIATION OF WESTERN AUSTRALIA INCORPORATED Applicant CatchWords: Industrial Relations (WA) – s62(2) application to authorise registration of alteration of rules of a registered organisation – change to rules of qualification for membership – objection on the basis of overlapping coverage of another registered organisation – compliance with alteration rule of the organisation – statutory requirements – proposed rule referred to an “officer” under the Public Sector Management Act 1994 (WA) – “officer” not defined in Public Sector Management Act – proposed rule unclear and ambiguous - application refused. Legislation: Industrial Relations Act 1979 (WA) – ss55(2), 55(3), 55(4), 55(5), 58(3), 56, 62(2), 62(4), 66(1)(a)-(c) Public Service Act 1978 (WA) Public Sector Management Act 1994 (WA) Result: Application dismissed Representation: Counsel: Applicant : Mr W Claydon, industrial officer Objector : Mr D Ellis, of Counsel/Senior Industrial Officer Case(s) referred to in reasons: Adriansz v Epath WA Pty Ltd (2003) 83 WAIG 917 Stacey v Civil Service Association of Western Australia (Incorporated) (2007) 87 WAIG 1229 Case(s) also cited: Burswood Cinema Ltd v ATA (1925) 35 CLR 528 Cotter v National Union of Seamen [1929] 2 Ch 58 FIA v the Commonwealth (1951) 84 CLR 265 Foss v Harbottle (1843) 2 Hare 416 Re CSA (1995) WAIRC 37 Reasons for Decision RITTER AP: The Application 1 This is an application pursuant to s62(2) of the Industrial Relations Act 1979 (WA) (the Act) which was filed on 24 October 2007. The applicant, as a registered organisation under the Act, seeks the authorisation of the Full Bench for the Registrar to register an alteration to its qualification for membership rule. The application is supported by an unsworn statement of Ms Toni Walkington, the Acting General Secretary of the applicant. 2 The application sought: - “… the alteration to the membership rule of the organisation/association, the particulars of which are attached to this Form. The alteration to rule 6, along 88 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 195 with changes to other rules was proposed by the organisation/association in accordance with its rules and the Act on 22 August 2007 at the August meeting of the Council and passed at that meeting. Initially the proposal was communicated to Councillors by letter from the General Secretary, Toni Walkington dated 27 July 2007. The proposed alterations are set out in Appendices “E”, “F”, “H” and “I” of the attached statement of the General Secretary”. 3 A notice of objection was filed by the Health Services Union of Western Australia (Union of Workers) (the HSU) on 3 January 2008. Origin of the Application 4 The application arises out of my reasons for decision in a s66 application, Stacey v Civil Service Association of Western Australia (Incorporated) (2007) 87 WAIG 1229. In my reasons I set out at length the history of the employment of public sector employees in Western Australia since the passing of the Public Service Act 1978 (WA) (the PSA). I noted that the rules of the applicant still made reference to the PSA despite its repeal and replacement by the Public Sector Management Act 1994 (WA) (the PSMA). One of these was rule 12(l)(vi), which was central to the application in Stacey. At paragraphs [416]-[418] of Stacey I said, where the “CSA” refers to the present applicant:- “416 There are other references in the rules to the PSA apart from rule 12(l)(vi). Given the repeal of this Act and its replacement by the PSMA the references to the PSA ought to be removed. The rules where there is reference to the PSA are 6(a)(1), 19(a) and 20. Rules 19(a) and 20 provide for the appointment of the general secretary and assistant general secretary, like former rule 12(l)(vi), “subject to the same conditions and restrictions as an Officer appointed under the Public Service Act”. Given that the sentence containing this condition has been removed from rule 12(l)(vi), the practical impossibility of the application of this expression, the repeal of the PSA and replacement by the PSMA and the non-opposition by the CSA, it is appropriate to delete this part of these rules. I will therefore order that the CSA council make an application to the Commission to alter the rules of the CSA to delete these words in both rules 19(a) and 20. 417 The position relating to rule 6(a)(1) is more complicated in that it is contained within one of the membership rules of the CSA. The alteration of membership rules can only take place after authorisation by the Full Bench and registration by the Registrar, under s62(2) of the Act. Accordingly I think the President’s jurisdiction only extends to a direction or order that the CSA council and executive, in accordance with the rules of the CSA, take steps to alter the membership rule. 418 An order to this effect should be included in the final orders.” 5 Although paragraph [417] referred to rule 6(a)(1), the minute of proposed order and the order (made after a speaking to the minute hearing) mistakenly referred to rule “6(a)(i)”. This error has subsequently been corrected (Stacey v Civil Service Association of Western Australia (Incorporated) (2007) 87 WAIG 58). The Rule Alteration Sought 6 Appendix G to the statement of Ms Walkington are the minutes of the council meeting of the applicant held on 22 August 2007. Item 9.1 refers to rule changes as part of “General Business”. Relevantly, it records the following motion as being passed unanimously:- “The CSA council resolves that Rule 6(a)(1) of the Rules of the Civil Service Association of Western Australia (inc) be amended by deleting the words: Public Service Act, 1978-80; and replacing with the words Public Sector Management Act 1994 (WA).” 7 If the alteration sought is authorised and registered, rule 6(a)(1) will relevantly become:- “6 - MEMBERSHIP (a) Membership shall be confined to any person who is: (1) employed as an officer under and within the meaning of the Public Sector Management Act 1994 (WA); or …” The Stacey Order 8 Before examining the events as described by Ms Walkington, I wish to make two observations about the Stacey order. The first is that the order did not require the applicant, its executive or council to alter rule 6(a)(1). As explained in paragraph [417] of Stacey, quoted earlier, I do not think the President’s jurisdiction extends that far. The second is that as explained in the Stacey reasons, the purpose of the relevant order was to try and ensure that the rules of the applicant referred to the presently applicable legislation. The order did not in its terms limit the process to the deletion and replacement of the words specified, nor mandate that this was the only alteration required to rule 6(a)(1). 196 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 88 W.A.I.G. The Facts 9 Ms Walkington’s statement says the executive of the applicant discussed the terms of the orders in Stacey at its meeting on 11 July 2007. The executive then authorised Ms Walkington to act in accordance with the orders. 10 On 26 July 2007 Mr Mark Finnegan, an industrial advocate of the applicant, wrote directly to me to advise that the applicant had “initiated the necessary internal processes for the rule changes in compliance with” the orders made in Stacey. (This correspondence should properly have been addressed to my associate and not me personally, but nothing turns on this in the present application). 11 Ms Walkington next states that by letter dated 27 July 2007 she advised the executive and councillors of the proposed alterations to be discussed at the council meeting on 22 August 2007. A copy of the letter was attached to her statement. Also attached was a list of the councillors to whom the letter was sent. The preliminary agenda for the council meeting on 22 August 2007 listed the proposed rule changes at item 8.1. A separate but attached document set out the proposed rule alteration resolutions including, as one of five, the alteration of rule 6(a)(1). 12 Ms Walkington said that at the council meeting on 22 August 2007 the council passed unanimously the motions about rule alterations. As I have said earlier, the minutes of this council meeting were attached to Ms Walkington’s statement. 13 Ms Walkington says that she “authorised a notice of alteration of the rules to be drafted for the purpose of advising members”. Attached to her statement was a copy of the notice to members. Ms Walkington also said the “draft” appeared in the CPSU/CSA Journal. The CPSU/CSA Journal was posted to each member’s last known address on the applicant’s register of members. A copy of the Journal was attached to Ms Walkington’s statement. Ms Walkington said she was aware that the copies of the Journal were lodged with Australia Post for distribution to members on 10 September 2007 and members would have received their copy on 11, 12 or 13 September 2007 or thereabouts depending upon whether they resided in metropolitan or country areas. 14 Ms Walkington asserted the alteration resolutions were passed in accordance with rule 9 of the applicant’s rules. She also said she was not aware of any objection to the alteration by the members of the CSA. Rule 9 – Alteration of Rule 15 Rule 9 is about the alteration of the rules of the applicant. In full it reads:- “9 - ALTERATION OF CONSTITUTION (a) No amendment, addition to, variation, rescission, or substitution of this Constitution and Rules shall be made unless: (i) it has been passed by a majority of two thirds of the members eligible to vote and voting at a special general meeting convened for the purpose of considering such changes, provided that the quorum for such a meeting shall be one percent (1%) of financial members at the date of calling the meeting, or (ii) it has been approved by a simple majority of members voting in a referendum conducted in accordance with Rule 21, or (iii) it has been passed by a majority of two thirds of the members of the Council in attendance and voting at a meeting of the Council, provided that notice of the proposed amendment, addition to, variation, rescission, or substitution has been posted to each Council member, at least twenty one (21) days prior to the meeting: and unless a notice of the proposed alteration and the reasons therefore, is posted or delivered to each and every financial member of the Association. (b) Should a special general meeting convened in accordance with sub- rule 9(a)(i) lapse for want of a quorum, the proposed changes shall be considered by the next meeting of Council, in accordance with sub- rule 9(a)(iii). (c) (i) In the notice to members referred to in subrule (a) members are to be informed that they or any of them may object to the proposed alteration by forwarding a written objection to the Registrar to reach him no later than 21 days after the date of receipt of the notice. (ii) In the notice to members referred to in subrule (a) and with respect to any proposed alteration of the rule relating to the qualification of persons for membership of the union, members are to be informed that they or any of them may object to making of the application for the proposed alteration and/or object to the proposed alteration by forwarding a written objection to the Registrar to reach him no later than 21 days after the date of receipt of the notice. 88 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 197 (d) No alteration to any of the rules of the Association shall be or become effective until the Registrar has given to the Association a certificate that the alteration has been registered. (e) Any amendment, addition, variation, recession or substitution to the Constitution and Rules shall be published in the Civil Service Journal upon receipt by the Association from the Registrar of the certificate referred to in subrule (d) of this rule.” 16 Rule 9(a) provides for three alternative methods by which an amendment to the rules may be made. The present application is based upon compliance with rule 9(a)(iii). The uncontradicted statement of Ms Walkington establishes, in accordance with this subparagraph:- (a) Notice of the proposed amendment was posted to each council member at least 21 days prior to the meeting. The meeting took place on 22 August 2007 and the notice was posted to council members on 27 July 2007. (b) The amendment was passed by a majority of two thirds of the members of the council in attendance and voting at the meeting on 22 August 2007. As stated, the amendment was passed unanimously. (c) Notice of the proposed alteration and the reasons were posted or delivered to each financial member of the applicant by the inclusion on page 6 of the September 2007 CPSU/CSA Journal. This was lodged for posting to members on 10 September 2007. (d) The council meeting was quorate. Rule 12(j)(iii) provides that a quorum for a council meeting is “a majority of those entitled to attend and vote at the meeting”. Item 1 of the minutes of the meeting on 22 August 2007 lists those who were present as being the president, the vice president, the branch assistant secretary, 15 other councillors (including two via telephone conference) and the executive officer. Of these only the executive officer is not a councillor. Therefore 18 councillors in attended the meeting. The total number of councillors is not numerically fixed by the rules of the applicant. This is because rule 12(a)(vi) provides that the council includes councillors “who are members of the electorate they represent, elected by the financial members in that electorate”. Rule 12(c) and (d) describe the basis upon which electorates are determined. The statement of Ms Walkington does not expressly say how many councillors there were at the time of the relevant meeting. It says however that notice of the proposed amendments was sent to all councillors and this notice said the council meeting was to be held on 22 August 2007. An attached list shows the names of 32 councillors to which the notice was sent. If there were 32 councillors then 18 is more than half. There is no reason to doubt Ms Walkington’s assertion that the meeting was quorate in that it complied with rule 12(j)(iii). Certainly, it has not been asserted otherwise by any member of the applicant or the objector. The Publication of the Application 17 From a combination of ss62(4) and 55(2) of the Act, the alteration application was required to be published in the WAIG including a notice of entitlement to object. Publication took place in the WAIG dated 10 December 2007 (see 87 WAIG 3131). Section 55(3) of the Act was complied with in that the application was not listed for hearing until the expiration of 30 days from the date of publication. The hearing of the application took place on 25 January 2008. The Objection 18 The notice of objection by the HSU was filed on 3 January 2008. The grounds of the objection were set out in Schedule 1 as:- “1 The application seeks to replace the words “Public Service Act 1978- 80” with the words “Public Sector Management Act 1994 (WA)” in Rule 6(a)(1) – Membership of the Applicant’s rules. 2 The definition of “employee” in section 3 of the Public Sector Management Act 1994 is as follows:- “employee” means person employed in the Public Sector by or under an employing authority. 3 This broadens the definition of “employee” from that previously provided for in the Public Service Act 1978. 4 The definition of “employing authority” in section 3 of the Public Sector Management Act 1994 is as follows: “employing authority” has the meaning given by section 5 5 An employee within the public sector, employed under the Public Sector Management Act 1994 will encompass employees already covered by the Health Services Union of Western Australia (Union of Workers). 6 If the Full Bench of the Commission authorises the proposed rule change the Applicant union will then have constitutional coverage of membership that overlaps with that of the Health Services Union of Western Australia (Union of Workers). 7 This offends the Industrial Relations Act 1979. 198 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 88 W.A.I.G. 8 In particular this offends: a. section 6(a); b. section 6(ab); c. section 6(ad); and d. section 6(e) of the Industrial Relations Act 1979.” The Written Submissions 19 Prior to the hearing the applicant filed an outline of submissions dated 23 January 2008. At the front of the outline of submissions was a copy of a letter from Ms Walkington to the Registrar dated 23 January 2008. The letter referred to the objection by the HSU and said that meetings had taken place to try and meet the HSU’s concerns. The letter also said:- • “The CSA wishes to proceed with the current application for a rule change without amendment. • By this letter the CSA gives a written undertaking to the HSU that it will make a further application for a rule change to give effect to qualifying the word officer as a public service officer under the Public Sector Management Act and commence that process immediately following the approval of this rule change. • The CSA gives a written undertaking to the HSU that, pending the approval of the second rule change, the CSA will not undertake any action that would impinge upon the HSU’s coverage.” 20 On the same date the HSU provided a letter to my acting associate which contained an outline of their submissions. In summary these were:- (a) As the PSMA does not include a definition of “officer” the proposed alteration was ambiguous. Although the PSA had contained a definition of “officer” the PSMA referred to a “public service officer”, meaning “an executive officer, permanent officer, or term officer employed in the public service under Part 3” of the PSMA. (b) Although the application to the Full Bench by the applicant occurred because of the order made in Stacey, it was preferable to request that the Acting President amend that order. The amendment would enable the executive and council of the applicant to initiate the process to alter rule 6(a)(1) so that it referred to a person “employed as a public service officer within the meaning of the [PSMA]”. (c) It was more convenient and less costly to make an amendment to the rules once and not twice. 21 The HSU was represented by a solicitor/senior industrial officer at the hearing. He adopted the written outline of submissions. The applicant’s advocate also adopted his written submissions. In summary these submissions asserted/argued:- (a) The applicant and the HSU were not in agreement about how the latter’s objection should be resolved. (b) The applicant did not support the HSU’s submission that the order in Stacey be again amended, because:- (i) The rationale behind the HSU’s objection was wrong. (ii) The applicant was obliged to follow the directions contained in the orders made in Stacey because of s66(2)(b) of the Act. (iii) The HSU would not have standing to pursue an amendment to the orders made in Stacey because of the limited rights of standing in s66 applications set out in s66(1)(a)-(c) of the Act. (iv) The order in Stacey did not give rise to an unintended consequence or create an overlap between the eligibility rules of the applicant and the HSU. (v) It was doubtful the amendment suggested by the HSU could be made as it was not an accidental slip or omission as discussed in Adriansz v Epath WA Pty Ltd (2003) 83 WAIG 917. (vi) In addition any amendment to the rules application proposed by the HSU would not comply with rule 9 of the rules of the applicant. (c) The written submissions also set out what the applicant asserted was the failure of the HSU to understand the scope and extent of the coverage of the applicant and the HSU under the Act. Submissions were made on what was called the “basic demarcation” between the applicant and the HSU. Statutory Criteria 22 As I said earlier the application is made under s62(2) of the Act. Pursuant to s62(4) of the Act, ss55, 56 and 58(3) of the Act “apply, with such modifications as are necessary, to and in relation to an application by an organisation for alteration of a rule of a kind referred to in subsection (2)”. I have already referred to the present application complying with s55(2) of the Act about publication of the notice. 88 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 199 23 Section 55(4) of the Act provides that the Full Bench shall refuse an application by an organisation 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.” 24 I am satisfied by the statement of Ms Walkington and the attached documents that there has been compliance with each of s55(4)(a), (b), (c) and (d). Section 55(4)(e) is not relevant to the present application. 25 Section 55(5) of the Act is relied upon by the HSU and is in the following terms:- “(5) Notwithstanding that an organisation complies with section 53(1) or 54(1), the Full Bench shall refuse an application by the organisation under this section if a registered organisation whose rules relating to membership enable it to enrol as a member some or all of the persons eligible, pursuant to the rules of the first-mentioned organisation, to be members of the first-mentioned organisation unless the Full Bench is satisfied that there is good reason, consistent with the objects prescribed in section 6, to permit registration.” Determination 26 In my opinion it is unnecessary in the present application to decide if s55(5) of the Act is engaged and if so the consequences of this. 27 This is because in my opinion there is another basis upon which the application must be refused. It is that if the alteration is made, it will introduce uncertainty in the qualification for membership rule of the applicant. As pointed out earlier by reference to the submissions of the HSU, there is no definition of “officer” in the PSMA as there was in the PSA. The PSMA applies to a “public service officer”. A “public service officer” is defined in s3 to mean an “executive officer, permanent officer or term officer employed in the Public Service under Part 3”. In turn an “executive officer” is defined to mean a “chief executive officer” or “senior executive officer” (s3). A “permanent officer” is appointed under s64(1)(a) of the PSMA and a “term officer” under s64(1)(b) for a term not exceeding 5 years (s3). Apart from these officers however the PSMA applies to a “ministerial officer” appointed under s68 of the PSMA. These officers are not “public service” officers. In summary therefore:- (a) The PSMA does not apply to an “officer” as did the PSA. (b) The PSMA applies relevantly to a “public service officer” and also a “ministerial officer”. 200 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 88 W.A.I.G. 28 Due to this in my opinion the rule alteration sought would introduce uncertainty and ambiguity into the membership rule. The uncertainty is that the PSMA does not apply to or define an “officer”. The ambiguity is that an “officer” could mean a “public service officer”, a “ministerial officer” or both. This appeared to be accepted by the applicant’s advocate at the hearing. 29 What seems to have happened is the applicant construed order 2 in Stacey to mean that all that had to be done was to initiate the process to change the words of the rule from one Act to the other. As I said earlier I do not read the order in this way. Additionally, the present problem was regrettably not picked up at either the speaking to the minute hearing in Stacey or in any of the meetings referred to in Ms Walkington’s statement; in which the applicant’s council and executive discussed the implementation of the Stacey orders and/or the present application. 30 In my opinion it is important that the rules and in particular the membership rules of a registered organisation under the Act are clear. If the proposed alteration is made then there will be a lack of clarity and certainty in one of the applicant’s membership rules. Accordingly, in my opinion, the application must be refused. 31 The applicant is not prevented from initiating the process under its rules to alter the rule in a way which is consistent with the order made in Stacey and does not suffer from the problem which bedevils the present application. 32 For the reasons stated in my opinion the application must be dismissed. SMITH SC: 33 I have read in draft the Reasons for Decision of His Honour, the Acting President and I agree with those reasons and have nothing to add. SCOTT C: 34 I have had the benefit of reading in draft the Reasons for Decision of His Honour the Acting President. I agree and have nothing to add. 2008 WAIRC 00091 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES THE CIVIL SERVICE ASSOCIATION OF WESTERN AUSTRALIA INCORPORATED APPLICANT HEALTH SERVICES UNION OF WESTERN AUSTRALIA OBJECTOR CORAM FULL BENCH THE HONOURABLE M T RITTER, ACTING PRESIDENT SENIOR COMMISSIONER J H SMITH COMMISSIONER P E SCOTT DATE WEDNESDAY, 13 FEBRUARY 2008 FILE NO/S FBM 9 OF 2007 CITATION NO. 2008 WAIRC 00091 Decision Application dismissed Appearances Applicant Mr W Claydon, industrial officer Objector Mr D Ellis, of counsel/senior industrial officer Order This matter having come on for hearing before the Full Bench on 25 January 2008, and having heard Mr Warwick Claydon, industrial officer, on behalf of the applicant, and Mr D Ellis, of counsel/senior industrial officer on behalf of the objector, and reasons for decision having been delivered on 13 February 2008, it is this day, 13 February 2008, ordered that the application is dismissed. By the Full Bench (Sgd.) M T RITTER, [L.S.] Acting President. 88 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 201 AWARDS/AGREEMENTS—Variation of— 2008 WAIRC 00126 CLOTHING TRADES AWARD 1973 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES THE WESTERN AUSTRALIAN CLOTHING AND ALLIED TRADES' INDUSTRIAL UNION OF WORKERS, PERTH APPLICANT -v- FULLIN TAILORING CO AND OTHERS RESPONDENTS CORAM COMMISSIONER P E SCOTT DATE TUESDAY, 4 MARCH 2008 FILE NO/S APPL 123 OF 2007 CITATION NO. 2008 WAIRC 00126 Result Award Varied Representation Applicant Mr T Pope, on behalf of the Applicant Respondent Mr D Jones, on behalf of the Chamber of Commerce and Industry of Western Australia (Inc.) Order HAVING heard Mr T Pope on behalf of the applicant and having heard Mr D Jones on behalf of the Chamber of Commerce and Industry of Western Australia (Inc.), the Commission, pursuant to the powers conferred under the Industrial Relations Act 1979, hereby orders: THAT the Clothing Trades Award 1973 be varied in accordance with the following Schedule and that such variation shall have effect from the beginning of the first pay period commencing on or after the 8th day of February 2008. (Sgd.) P.E. SCOTT, [L.S.] Commissioner. SCHEDULE 1. Clause 12 – Overtime: Delete sub clause (4) and insert the following in lieu thereof: (4) An employee required to work for more than one hour after the usual ceasing time or beyond 6.00 p.m. (whichever is the later) on any day, Monday to Friday inclusive shall be paid meal money of $8.00 for the purchase of any meal required. 2008 WAIRC 00127 FOOD INDUSTRY (FOOD MANUFACTURING OR PROCESSING) AWARD WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES THE FOOD PRESERVERS' UNION OF WESTERN AUSTRALIA, UNION OF WORKERS APPLICANT -v- ANCHOR PRODUCTS PTY LTD AND OTHERS RESPONDENTS CORAM COMMISSIONER P E SCOTT DATE TUESDAY, 4 MARCH 2008 FILE NO/S APPL 122 OF 2007 CITATION NO. 2008 WAIRC 00127 202 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 88 W.A.I.G. Result Award Varied Representation Applicant Mr T Pope Respondent No Appearance Order HAVING heard Mr T Pope on behalf of the applicant and having received notification from the Chamber of Commerce and Industry of Western Australia (Inc.) that it consents to the proposed variations, the Commission, pursuant to the powers conferred under the Industrial Relations Act 1979, hereby orders: THAT the Food Industry (Food Manufacturing or Processing) Award be varied in accordance with the following Schedule and that such variation shall have effect from the beginning of the first pay period commencing on or after the 8th day of February 2008. (Sgd.) P.E. SCOTT, [L.S.] Commissioner. SCHEDULE 1. Clause 19. – Meal Allowance: Delete this clause and insert in lieu thereof the following: 19. – MEAL ALLOWANCE Where an employee required to work overtime for more than two hours, without being notified on the previous day or earlier that he/she will be so required to work, shall be supplied with a meal by the employer or paid $9.10 for a meal. If owing to the amount of overtime a second or subsequent meal is required the employee shall be supplied with each such meal by the employer or be paid $6.20 for each meal so required. If an employee in consequence of receiving such notice has provided himself/herself with a meal or meals and is not required to work overtime or is required to work less overtime than notified, he/she shall be paid the amounts prescribed above in respect of the meals not then required. 2. Clause 31. – Wages: Delete subclause (3) of this clause and insert in lieu thereof the following: (3) Leading Hands A Leading Hand In-Charge of: Per Week Extra $ (a) Less than three other employees 13.70 (b) Not less than three and not more that ten other employees 27.05 (c) More than ten other employees 39.75 CANCELLATION OF—Awards/Agreements/Respondents— 2008 WAIRC 00130 METROPOLITAN PRISON COMPLEX CATERING STAFF AWARD WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES ON THE COMMISSION'S OWN MOTION CORAM CHIEF COMMISSIONER A R BEECH DATE TUESDAY, 4 MARCH 2008 FILE NO/S APPL 7 OF 2008 CITATION NO. 2008 WAIRC 00130 Result Award cancelled Order WHEREAS the Commission, being of the opinion that there was no employee to whom the following award applied, did give notice on the 23rd day of January, 2008 of an intention to make an Order cancelling the award; AND WHEREAS at the 22nd day of February, 2008 there were no objections to the making of such an Order; 88 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 203 NOW THEREFORE, I, the undersigned Chief Commissioner of the Western Australian Industrial Relations Commission, pursuant to the powers conferred by s.47 of the Act, do hereby order that the following award be cancelled: METROPOLITAN PRISON COMPLEX CATERING STAFF AWARD (Sgd.) A R BEECH, [L.S.] Chief Commissioner. POLICE ACT 1892—APPEAL—Matters Pertaining To— 2008 WAIRC 00155 APPEAL AGAINST A DECISION OF THE COMMISSIONER OF POLICE TO TAKE REMOVAL ACTION WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES ANTHONY SEAN MOSS APPELLANT -v- COMMISSIONER OF POLICE RESPONDENT CORAM CHIEF COMMISSIONER A R BEECH SENIOR COMMISSIONER J H SMITH COMMISSIONER J L HARRISON DATE WEDNESDAY, 12 MARCH 2008 FILE NO/S APPL 8 OF 2008 CITATION NO. 2008 WAIRC 00155 Result Appeal adjourned Representation Appellant Mr G Pidco (of counsel), by correspondemce Respondent Ms D Scaddan (of counsel), by correspondence Order WHEREAS on 6 March 2008 Anthony Sean Moss lodged an appeal in the Commission pursuant to s.33P of the Police Act 1892 against his removal from the WA Police on 13 February 2008; AND WHEREAS the appellant has advised that he will lodge an appeal against his conviction in the District Court for a criminal offence and seeks to have this appeal stayed pending the outcome of the appeal to the Court of Criminal Appeal; AND WHEREAS the Commissioner of Police in correspondence advises that he would be prepared to agree to an adjournment of the hearing of the appeal pursuant to s.33T(2) of the Police Act 1892; AND WHEREAS on the information before it, the WAIRC is of the view that: (a) It is appropriate to regard the appellant’s request to have this appeal stayed pending the outcome of his appeal to the Court of Criminal Appeal as though it is an application made pursuant to section 33T(3) of the Police Act 1892. (b) The hearing of the appeal be adjourned until 6 December 2008, that being the date suggested by the appellant and is a date not exceeding 12 months as required by section 33T(4) of the Police Act 1892. (c) Compliance with regulations 90(a)(ii) and (iii) of the Industrial Relations Commission Regulations 2005 by the appellant and regulation 91 by the Commissioner of Police need not occur until further order, NOW THEREFORE, the WAIRC, pursuant to the powers conferred on it under s.33T of the Police Act 1892, hereby orders - 1. THAT the hearing of the appeal be adjourned until 6 December 2008. 2. THAT compliance with regulations 90(a)(ii) and (iii) of the Industrial Relations Commission Regulations 2005 by the appellant and regulation 91 by the Commissioner of Police need not occur until further order. 3. THAT either party may apply to vary the terms of this order. (Sgd.) A R BEECH, Chief Commissioner, [L.S.] On Behalf of the Western Australian Industrial Relations Commission. 204 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 88 W.A.I.G. UNFAIR DISMISSAL/CONTRACTUAL ENTITLEMENTS— 2008 WAIRC 00157 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES DALENE COETZEE APPLICANT -v- TRANSFIELD SERVICES RESPONDENT CORAM COMMISSIONER S M MAYMAN DATE THURSDAY, 13 MARCH 2008 FILE NO/S B 109 OF 2007 CITATION NO. 2008 WAIRC 00157 Result Application discontinued Representation Applicant In person Respondent Ms K Rankin and later Mr W Young Order WHEREAS this is an application pursuant to Section 29(1)(b)(ii) of the Industrial Relations Act 1979; AND WHEREAS on 2 August 2007 and 9 October 2007 the Commission convened conferences for the purpose of conciliating between the parties; AND WHEREAS at the conclusion of the conference held on 9 October 2007 agreement was reached between the parties; AND WHEREAS on 28 February 2008 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. 2008 WAIRC 00158 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES DALENE COETZEE APPLICANT -v- TRANSFIELD SERVICES RESPONDENT CORAM COMMISSIONER S M MAYMAN DATE THURSDAY, 13 MARCH 2008 FILE NO/S U 109 OF 2007 CITATION NO. 2008 WAIRC 00158 88 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 205 Result Application discontinued Representation Applicant In person Respondent Ms K Rankin and later Mr W Young Order WHEREAS this is an application pursuant to Section 29(1)(b)(i) of the Industrial Relations Act 1979; AND WHEREAS on 2 August 2007 and 9 October 2007 the Commission convened conferences for the purpose of conciliating between the parties; AND WHEREAS at the conclusion of the conference held on 9 October 2007 agreement was reached between the parties; AND WHEREAS on 28 February 2008 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. 2007 WAIRC 01322 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES LIDIA COLANGELO APPLICANT -v- THE TRUSTEE FOR AJG PEREIRA FAMILY TRUST RESPONDENT CORAM COMMISSIONER P E SCOTT DATE WEDNESDAY, 19 DECEMBER 2007 FILE NO/S U 168 OF 2007 CITATION NO. 2007 WAIRC 01322 Result Application Dismissed Order WHEREAS this is an application pursuant to Section 29(1)(b)(i) of the Industrial Relations Act 1979; and WHEREAS on Monday, the 3rd day of December 2007, the Commission convened a conference for the purpose of conciliating between the parties; and WHEREAS on Tuesday, 11th December 2007, the Applicant filed a Notice of Discontinuance in respect of the application; NOW THEREFORE, the Commission, pursuant to the powers conferred under the Industrial Relations Act 1979, hereby orders: THAT this application be, and is hereby dismissed. (Sgd.) P.E. SCOTT, [L.S.] Commissioner. 206 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 88 W.A.I.G. 2008 WAIRC 00103 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES SHANTARA COLT APPLICANT -v- ACTIV BUNBURY – DIANNE CANALE (AREA MANAGER) RESPONDENT CORAM COMMISSIONER S M MAYMAN DATE TUESDAY, 19 FEBRUARY 2008 FILE NO U 170 OF 2007 CITATION NO. 2008 WAIRC 00103 Result Application discontinued Representation Applicant Ms S Colt Respondent Ms D Lituri Order WHEREAS this is an application pursuant to Section 29(1)(b)(i) of the Industrial Relations Act 1979; AND WHEREAS on 19 November 2007 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 8 February 2008 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. 2007 WAIRC 01055 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES SARA DE LONGIS APPLICANT -v- LUXE DAY SPA RESPONDENT CORAM COMMISSIONER S M MAYMAN HEARD WEDNESDAY, 1 AUGUST 2007 DELIVERED TUESDAY, 4 SEPTEMBER 2007 FILE NO. B 97 OF 2007 CITATION NO. 2007 WAIRC 01055 88 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 207 CatchWords Application re perceived bias – principles applied – Industrial Relations Act 1979 Result Application relating to perceived bias dismissed Representation Applicant Ms S De Longis Respondent Ms M M in de Braekt (of counsel) Reasons for Decision 1 This application alleging Ms Sara De Longis (‘the applicant”) had been denied contractual benefits was filed on 29 May 2007 and on 20 June 2007 Luxe Day Spa (“the respondent”) filed a Notice of Answer and Counter Proposal. A conciliation conference was held on 5 July 2007. The conference failed to resolve the matter and a hearing was set down for 1 August 2007. Two jurisdictional matters were identified by the respondent one of which had been alluded to in the conciliation conference. The jurisdictional issues outlined by the respondent referred to: - Gift vouchers allegedly received by the applicant were a gift and not part of the employment contract therefore not an “industrial matter” as defined under the Industrial Relations Act 1979 (“the Act”); - The issue of payment in lieu of notice was allegedly given under duress and after the employment relationship had concluded therefore such payment was not an “industrial matter” pursuant to the Act. 2 Counsel for the respondent submitted that each of the jurisdictional issues referred to as matters of jurisdiction ought be dealt with by an Industrial Magistrate and not the Western Australian Industrial Relations Commission (“the Commission”). Preliminary discussions had occurred on the question of jurisdiction during conciliation proceedings and there was agreement that the jurisdictional and then substantive submissions would be dealt with on the same day. At the outset of the hearing, counsel for the respondent raised a perception of bias and made application that I should disqualify myself from further hearing and determination of the matter. The applicant made no submissions on the issue of disqualification. Respondent’s Submissions 3 Counsel for the respondent submitted there were a number of objections which could have been taken but in appreciation of the applicant being unrepresented, had not been proceeded with. It is important to have clarified on what basis certain documents are being accepted by the Commission. Counsel for the respondent submitted that she was being prevented from articulating objections, and no reasonable person could conclude that the respondent was being provided a fair and impartial hearing. 4 Counsel for the respondent outlined there was no need to prove actual bias, merely a perception of bias was required to be demonstrated. Counsel for the respondent gave the example of the attempt by Mr De Longis to assist the witness from the bar table while the applicant was in the witness box as being quite proper. 5 Counsel for the respondent asserted she would like the Commission to pronounce her name correctly. Counsel for the respondent submitted that the respondent ought be given a fair hearing and be able to fully understand what was going on in proceedings and on what basis certain documents were being accepted by the Commission. Counsel for the respondent submitted that she was not receiving a fair and impartial hearing. 6 Counsel for the respondent referred to The King v Sussex Justices 1 KB 259 where the principle in cases of this nature is that “nothing is to be done which creates even a suspicion that there has been an improper inference with the course of justice”. Conclusions Legal Principles 7 The principles to be applied in any consideration of bias as to whether it would not be appropriate for a member of the Commission to carry out arbitration functions in respect of the matter before them were reflected in O’Toole v Mulberry Enterprises Pty Ltd trading as Ampol Maddington (1995) 75 WAIG 1667 and Commonwealth Bank of Australia v Heap (2002) 117 IR 28. The Commission further identifies the principles to be applied in the consideration of matters of alleged bias to be those reflected by Mason J in Re JRL; ex parte CJL (1986) 161 CLR 342 at 352: “In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgement and this must be firmly established… Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have that case tried by someone thought to be more likely to decide the case in their favour.” 8 The standard of observation of whether there is a perception of bias is based on the fair minded observer referred to as “the reasonable observer”. The test itself is, in the Commission’s view, an objective one. Principles in relation to the objective test were considered by his Honour the President in Lyndsay Barrington Carter v Margery Ann Drake and Others (1992) 72 WAIG 736. In the same decision the President referred to the principles outlined by Dixon CJ, Williams, Webb and Fullagar JJ in R v Australian Stevedoring Industry Board; ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 116 and referred to Re Polites; ex parte Hoyts Corporation Pty Ltd (1991) 65 ALJR 445 at page 448 and said:- 208 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 88 W.A.I.G. “When bias of this kind is in question, as distinguished from a bias through interest, before it amounts to a disqualification, it is necessary that there should be strong grounds for supposing that the judicial or quasi-judicial officer has so acted that he cannot be expected fairly to discharge his duties. Bias must be 'real'. The officer must so have conducted himself that a high probability arises of a bias inconsistent with the fair performance of his duties, with the result that a substantial distrust of the result must exist in the minds of reasonable persons. It has been said that 'preconceived opinions - though it is unfortunate that a judge should have any - do not constitute such a bias, nor even the expression of such opinions, for it does not follow that the evidence will be disregarded', per Charles J, R v London County Council; Ex parte Empire Theatre (1984) 71 LT 638 at 639. Even if it were suspicion, the test is not the suspicion of the ultra sensitive, the paranoid or cynical.”(see per Kirby P in S & M Motor Repairs Pty Ltd & Others v Caltex Oil (Australia) Pty Ltd 1988 12 NSWLR 374) . Indeed I would go further and say that the test does not rely upon the apprehension of the disappointed.” Findings 9 In relation to the application before me the Commission finds there had been no attempt by the Commission to limit the submissions to dismiss the respondent’s right to raise objections. The Commission finds that neither the respondent nor counsel for the respondent has been restricted. The Commission finds that one of the issues counsel for the respondent was concerned about during the preliminary stage of the hearing was the correct pronunciation of her name. The Commission apologised in advance if there were any circumstances (see transcript page 11) in the hearing in which her name was pronounced incorrectly and finds that counsel for the respondent’s concerns in this regard were unreasonable. 10 The Commission finds that there was no disadvantage to the respondent arising from the repeated technical points raised by the respondent’s counsel. At the time the application was brought by the respondent no evidence or submissions had been led on the substantive matter or indeed the jurisdictional issue by the respondent. The Commission finds at no stage has there been incorrect or improper dealing with evidence or submissions produced by the respondent in support of its claim. 11 The Commission having heard from the respondent on the issue of disqualification adjourned the hearing for a period and following consideration and having regard for equity, good conscience and the substantial merits of the case, the hearing was reconvened and the applicant and the respondent were advised of the Commission’s determination in this matter. Taking account of the relevant authorities and having regard for the circumstances in this matter I conclude there is no case for me to disqualify myself from dealing with this application. The Commission’s comments in the course of the hearing on 1 August 2007 should not raise in the mind of a reasonable person a perception of bias. The application as it relates to perceived bias is hereby dismissed. The parties were advised my reasons would issue later. These are those reasons. 12 An order reflecting my reasons will issue. 2007 WAIRC 01097 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES SARA DE LONGIS APPLICANT -v- LUXE DAY SPA RESPONDENT CORAM COMMISSIONER S M MAYMAN DATE WEDNESDAY, 12 SEPTEMBER 2007 FILE NO B 97 OF 2007 CITATION NO. 2007 WAIRC 01097 Result Order issued Representation Applicant Ms S. De Longis Respondent Ms M M in de Braekt (of counsel) 88 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 209 Order HAVING heard Ms M M in de Braekt (of counsel) on behalf of the respondent and the applicant on her own behalf, the Commission, pursuant to the powers conferred under the Industrial Relations Act 1979, hereby orders: THAT this application as it relates to perceived bias be, and is hereby dismissed. (Sgd.) S M MAYMAN, [L.S.] Commissioner. 2008 WAIRC 00005 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES SARA DE LONGIS APPLICANT -v- LUXE DAY SPA RESPONDENT CORAM COMMISSIONER S M MAYMAN HEARD WEDNESDAY, 1 AUGUST 2007, MONDAY, 5 NOVEMBER 2007 DELIVERED MONDAY, 7 JANUARY 2008 FILE NO. B 97 OF 2007 CITATION NO. 2008 WAIRC 00005 CatchWords Claim for a benefit under contract of employment – hotel vouchers and payment in lieu of notice - application upheld – Industrial Relations Act 1979 (WA) s 29(1)(b)(ii). Result Application for contractual entitlements upheld Representation Applicant Ms S De Longis Respondent Ms M in de Braekt (of counsel) Reasons for Decision 1 This is an application by Ms Sara De Longis (“the applicant”) pursuant to s 29(1)(b)(ii) of the Industrial Relations Act 1979 (“the Act”) seeking benefits due to her under her contract of employment with Luxe Day Spa (“the respondent”). The Claim 2 The applicant sought the payment of entitlements she claimed were due to her pursuant to her contract of employment with the respondent. The first claim related to hotel vouchers received for the sale of a packaged product. At the time the application was lodged these vouchers were valued at $400.00. The second part of the benefit claimed was two weeks payment in lieu of notice, a total of $607.50 (gross), subsequently amended in the course of proceedings to 41 hours, a total of $615.00 (gross). 3 The respondent objected to the Commission proceeding on the basis that the Commission lacked jurisdiction to deal with the claims. The respondent in its notice of answer and counter proposal raised two jurisdictional issues, those being: (i) the gift vouchers received by the applicant were gifts and not part of the employment contract therefore not an “industrial matter” as defined under the Act; and (ii) a written agreement to make the payment in lieu of notice was reached under duress and after the employment relationship had concluded therefore such payment was not an “industrial matter” pursuant to the Act. 4 The jurisdictional issues were followed by the submissions on merit and were dealt with together, having regard for the need for the Commission to determine the jurisdictional questions at first instance. Applicant’s Submissions and Evidence 5 The applicant testified she commenced employment with the respondent in March 2006 as a beauty therapist and later that year was promoted to the position of manager. The applicant testified she first learned of the respondent’s organisation when she attended the day spa for a treatment. During the applicant’s time on the premises she was approached by the respondent and asked if she would like a job. The applicant testified she subsequently came in for an interview, worked a trial period and was hired the following week by the respondent on $14.00 per hour as a casual on a three month probationary period. The applicant testified after the probationary period concluded the hourly rate was increased. 6 The applicant testified that when first employed the terms of the contract were not written but had been reached verbally. The applicant testified the rate was increased to $15.00 per hour in October 2006, she received sick leave and was no longer casual but considered to be permanent part-time, although on her own testimony she worked full-time hours. 210 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 88 W.A.I.G. 7 The applicant testified that the first written contract entered into with the respondent occurred in December 2006. The applicant testified she signed that contract in January, 2007. Extracts from the contract included: “LUXE DAY SPA … SARA DELONGIS.(sic). of ...3 CHAM BERS WAY, NORANDA. WA 6062... … Dear Employee this is a contract for your work place agreement which allows the owners of Luxe Day Spa a monitered (sic) working condition guide line to achieve the highest mandatory standard our company is compelled to keep.. That you are now a permenant (sic) parttime (sic) employee of Luxe Day Spa.. For the next three months you will be on probation period as Manager of Luxe Day Spa and will be paid fortnightly. You will be requird (sic) to do a minimum of 25 to 40 hrs per week. From time to time you may be requested to stay back if need be to do overtime when asked during busy periods of the year eg, Christmas and New Year period Sunday’s and Public Holidays if rostered on by the management of Luxe Day Spa. PUBLIC HOLIDAYS: Under the minimum condition act (sic) by the Dept of Consumer and Employment Protection in the Health/Beauty Industry act, (sic) employees are to be paid at the normal rate of pay. Your hourly rate as a Beauty Therapist working as a permenant (sic) parttime (sic) employee at Luxe Day Spa is $15 an hr from 18th day of December 2006, your weekly budget is $2000.00 per week, which being $1700 is of services and $300 being sales. This is a private and confidentialy (sic) agreement made strictly by Luxe Day Spa business owners and the employee ………………………………………………….. … … Day by MANAGER, if the condition is unsatisfactory it will be notified to the employee by three initial warnings then followed by Three (sic) initial warnings then followed by the three written warnings. DONT‘S THY SHALL NOT CONSPIRE! Against your fellow therapist (NO BITICHING!) (sic) Or you will be given an instant, dismissal. THY SHALL NOT STEAL! From the company or circumstantial evidence may lead t (sic) court action and an instant dismissal will be given (AVOID EMBARRESMENT) (sic) YOUR INSPIRATION Each therapist will be acheiving (sic) their personal weekly target which you have to moniter (sic). The programe (sic) will be carefully monitered (sic) for (3) months during your probatin (sic) period. The therapist working around 25-40 hrs per week, reaching her target will receive: A BONUS PAYMENT OF $50.00. HOLIDAY’S Should you wish to take holidays, a month’s notice is to be given to the company. If sick for more than a day a sick day’s notice from your doctor is to be given to the company. Should you wish to leave prior to the notice period company may, depending on the circumstances, agree to the early release, although payment will be made only for the time actually worked … IF AN EMPLOYEE ACCIDENTLY DAMAGES OR BREAKS ANY OF LUXE DAY SPA’S EQUIPMENT, HE OR SHE WILL NEED TO REPLACE THE EQUIPMENT OR THE EQUIVELENT (sic) AMOUNT WILL BE REDEEMED FROM THE LAST PAY DUE PRIOR TO LEAVING OR THEY COULD PAY BACK IN INSTALLMENTS (sic) WHILST WORKING AT LUXE DAY SPA. We hope that all of you will benefit from our work place agreement and think of all the little ways that you could improve upon your performance ensuring you that you reach your budget. I….. Sara De Longis………… Agree on the terms and condiotion (sic) upon the work place agreement contract here before me. Employee’s name … Sara De Longis…. Signed…………………. Address… 3 Chambers Way Noranda… Date….11/1/2007……… … Witness no1 name… Sam De Longis….. Signed………………….. Address… 3 Chambers Way Noranda… Date….11/1/2007……… … NOTE: Luxe Day Spa reserves the right to amend incentive schemes at any time.” (exhibit Luxe 1) 88 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 211 8 The applicant testified that when she was promoted to manager, the employees of the respondent were informed when a particular packaged product, namely Sea Creations cosmetics, was sold then employees would receive a hotel voucher. The applicant testified she received two hotel vouchers after selling two sets. The applicant testified that when each of the vouchers were given to her they were signed by Ms Gill and her husband. The applicant testified that she was the only employee to have received them. The applicant testified that after her termination the respondent had cancelled the two vouchers. One of these vouchers reflected the following: “Well done Sara…….. Signed ………….. Jaqulyn ☺ GIFT CERTIFICATE GIFT CERTIFICATE DUXTON HOTEL PERTH To Sara D’Longis, (sic) Please enjoy a Duxton Escape Package including overnight accommodation in Deluxe Room with a full buffet breakfast for two served in our Grill Restaurant. From Luxe Day Spa (For your sole purpose only. Not transferable) Valid until: 31 March 2007 Authorised by: Connie Receipt #1854 1034” (extract from exhibit L 6) 9 The applicant testified on 28 February 2007 she was informed by the respondent that Mr Gill would be coming to speak with the applicant and to wait. The applicant testified that during that period both she and the respondent made phone calls to Wageline to enquire about entitlement to payment in lieu of notice. Following those discussions the following letter was drafted by the respondent and signed by the respondent: “This is a letter to state that Sara De Longis has two week’s notice and pay in lieu from this day of 28th Feb (sic) 2007” (exhibit L 1) 10 The applicant testified at the time she was terminated she was working a full-time week, namely 38 hours at the rate of $15.00 per hour. The applicant testified she did receive a partial payment relating to payment in lieu of notice, namely 35 hours. On the submission of the applicant there remained outstanding some 41 hours after she was terminated, a total of $615.00. 11 The applicant indicated in cross examination that during her employment she was asked by the respondent to sign the contract of employment. At the time she had sought clarification from the respondent on a number of matters one related to the length of notice employees were required to give if the applicant was to leave. The applicant testified the respondent informed her that two weeks notice was required in the event she handed in her notice. 12 The applicant testified the monies received throughout her pay from the respondent were transferred electronically into her bank account on a fortnightly basis. Bank account statements were tabled (exhibit L 5) to confirm this arrangement. The final pay sheet identified two cheques were paid, one for $708.00 and the other for $440.00. The cheque for $708.00 included a period of payment in lieu of notice, namely 35 hours and part payment of holidays being for 18.5 hours. The second cheque for $440.00 was for the remaining holiday pay being 32 hours. 13 The applicant submitted that the contract provided for incentive bonus schemes to operate and allowed the respondent to amend any such schemes. Provision of the hotel vouchers was taken on the part of the applicant to be changing or adding to those bonus schemes. The amendment to provide the vouchers in return for selling Sea Creations products was reached verbally as indicated in evidence in the proceedings. 14 With regards to the probation period, the applicant submitted in conclusion that a probation period applied to the managerial role. It was possible for the applicant to be demoted down to a beauty therapist if the terms of the managerial contract were not met, given the employment probationary period that had been undertaken when the applicant first commenced had been completed satisfactorily. Respondent’s Evidence and Submissions 15 Counsel for the respondent raised the jurisdictional issues that the vouchers received by the applicant were gifts and not part of the employment contract therefore not an “industrial matter” as defined under the Act and that payment in lieu of notice was reached under duress and after the employment relationship had concluded therefore not an industrial matter as defined under s 7 of the Act. 16 Counsel for the respondent in its submissions relied on the decision of their Honours in Hotcopper Australia Ltd v David Saab 81 WAIG 2704- at para 28. Drawing on the principles reflected in the decision the respondent submitted the definition of “industrial matter” under the Act was required to be read down and the Commission’s powers contained under the Act to make monetary awards are limited to amounts accrued under terms of a contract, be they express or implied. Counsel for the respondent submitted the applicant’s claims may belong within the realms of a civil dispute required to be pursued through a civil jurisdiction and that the provision of gift vouchers for the selling of Sea Creations products was not necessary for the reasonable or effective operation of the contract. 17 Counsel for the respondent submitted that entitlement for payment in lieu of notice owed to the applicant given that the documentation relied on by the applicant as having been signed by the respondent was drawn up after the termination actually occurred and provided following duress applied by the applicant. 212 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 88 W.A.I.G. 18 Ms Gill for the respondent testified that the hotel vouchers relied on by the applicant as a contractual benefit were a gift and that she denied speaking to staff to inform them of the receipt of the gift vouchers in return for the sale of a particular product. The respondent conceded in testimony having spoken to all of the staff requesting them to increase the sales on Sea Creations products: “… and you never know you might get a little bit of a gift from us.” (transcript page 19) 19 The respondent testified that the hotel vouchers were personal and were to be considered to be gifts from Ms Gill’s personal account. The respondent testified that the sale of Sea Creations products was part of her everyday duties and the gift of hotel vouchers provided to the applicant for selling Sea Creations were not considered to be part of the wages. 20 The respondent testified that the employment contract reached with the applicant in December 2006 and signed in January 2007 replaced previous employment contracts. 21 In cross-examination the respondent testified that the applicant’s probation period had ended prior to the termination being effected. In cross-examination the respondent confirmed that no written warning had been provided to the employee but that all staff had been provided with verbal warnings relating to the treatment of clients. 22 Counsel for the respondent submitted that neither payment in lieu of notice nor the bonus or, as the respondent preferred to call them, the gift vouchers, could be considered to be an “industrial matter” consistent with the Act. Turning to the issue of the vouchers the respondent submitted that these were not an essential part of the contract and relied specifically on the decision of Gregor C in Cedric Turner v The Kings Park Board (1996) 77 WAIG 989. It was the submission of the respondent that it was not necessary for the vouchers to be given an order for the employment contract to function properly. 23 Counsel for the respondent submitted the onus is on the applicant to establish that the benefits sought is an implied or expressed term of the contract of employment and that no evidence had been placed before the Commission that the giving of the vouchers were necessary for the reasonable or effective operation of the contract in the circumstances of the case. The Commission is therefore not able to find that these vouchers were a contractual benefit. 24 Counsel for the respondent submitted that no payment in lieu of notice provision existed in the contract of employment, the applicant was on probation at the time and therefore not entitled to such payment. Counsel for the respondent submitted that at the time the document was signed by the respondent the employment relationship was no longer on foot. In the event the applicant wished to proceed then such application ought be made to the Magistrate’s court for the issue to be heard within a civil jurisdiction, as the Commission was unable to deal with it as it was beyond jurisdiction. Counsel for the respondent submitted that employment must have been terminated by the time there were payment in lieu of notice discussions and that further the respondent was under duress and felt pressured and threatened because the applicant refused to leave the premises and was making matters uncomfortable and inappropriate with regards to clients who were in the front foyer. 25 The respondent testified that on the day of termination she attempted to have the applicant sign an agreement indicating that the contract had been breached. The document was tabled without signature from the applicant and on the applicant’s own testimony she denied that this was the document at all, although she admitted having seen a similar document. The applicant testified during her own testimony that she had refused to sign a similar document. Commission’s Findings and Conclusion Credibility 26 I listened carefully to the evidence given by each of the witnesses. I have concerns about some of the evidence given by the respondent. In my view the respondent was unconvincing when giving evidence about the conversation she claimed she had with the applicant about what had occurred on the day of the applicant’s termination. On the issue of Ms Gill’s evidence regarding the hotel vouchers as being in addition to and not part of the employment contract I prefer the evidence of the applicant as understanding that the vouchers were part of the applicant’s contract of employment. The issue of whether the applicant was on probation at the time of her termination was confused at times by both witnesses. The applicant gave evidence she was in the manager’s position on a trial basis but had completed her probationary employment at the conclusion of three months. Ms Gill claimed the applicant to be on probation at the time of her termination. The Commission has not relied on evidence given by either witness in this regard and instead relies on the written contract between the parties signed some six weeks prior to the applicant’s termination. The Commission finds the evidence given by the applicant to be evidence that was given honestly and to the best of her ability with the exception of one occasion where she seemed to avoid counsel for the respondent’s question. It is the Commission’s view that where there is any inconsistency in the evidence given by the applicant and the respondent in these proceedings I prefer the evidence given by the applicant. 27 It is not at issue in this matter that at all relevant times the applicant was an employee of the respondent and was employed under a contract of service. I find that these claims are also industrial matters for the purposes of s 7 of the Act as they relate to payments the applicant claims are due to her which arise out of the applicant’s employment with the respondent. The issue to be determined therefore is what were the terms of the applicant's contract of employment with the respondent and whether it was a term of the contract of employment that the applicant is entitled to the payments she is seeking. Hotel Vouchers 28 The first question to be answered by the Commission in relation to this application is whether the hotel vouchers fall within the definition of “industrial matter” as defined in s 7 of the Act. This is a question of jurisdiction as raised by the respondent and to answer that question the Commission turns to the Industrial Appeal Court decision in Hotcopper Australia Ltd v Saab (op cit) at p 24 where Anderson J reflects on the jurisdiction of the Commission to award monetary compensation for matters referred under s 29(1)(b)(ii). Anderson J reflects of the jurisdiction of the Commission to award monetary compensation: 88 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 213 “This does not necessarily mean that the Commission may not entertain a reference under s 29(1)(b)(ii) unless it is in its form and in its terms a claim by an employee to recover in specie the precise benefit expressed or implied in the employment contract. In the context of the exercise of jurisdiction to resolve an industrial dispute of the kind described in s 29(1)(b)(ii), nothing much would seem to turn on the distinction between the two remedies (damages and specific performance) in the general run of cases. It seems to me that if there is a dispute which is an industrial matter, and the subject matter of it is a claim (in the sense of a complaint) of the kind defined in s 29(1)(b)(ii), it is a dispute that may be dealt with by the Commission on a reference by the employee. How it is dealt with will be for the Commission to decide within the powers and discretions conferred on it by those sections of the Act which regulate the manner in which the Commission may exercise its jurisdiction in any particular case. Without intending to express a concluded view, I am inclined to think that this would include making a monetary order for compensation - that is, a damages award - in an appropriate case, as long as its purpose is to do no more than is necessary to "redress the matter by resolving the conflict in relation to the industrial matter" - Welsh v Hills (1982) 62 WAIG 2708 - and as long as its effect is so limited.” 29 The Commission acknowledges the submission of the respondent that such considerations ought be read down however the Commission has considered, in relation to the hotel vouchers, whether the benefit sought was monetary compensation, an ex gratia payment or indeed a term of the applicant’s contract of employment whether expressed or implied. The first question to be answered by the Commission is whether the hotel vouchers, in the Commission’s view, fall within the definition of “industrial matter” as defined in s 7 of the Act. The Commission considers the denied contractual benefit claimed, being the hotel vouchers received by the applicant, are within the definition of “industrial matter” under the Act and are therefore able to be considered by the Commission. In making my decision the Commission finds it is not necessary, when interpreting the worth of the vouchers, to exercise a commercial decision. 30 In Comeng (N.S.W.) v Vehicle Builders’ Employees Federation [1983] AILR 362, Macken J. noted: "The primary obligation of Comeng towards its vehicle builders depends on the existence of a contract between the company and each vehicle builder. The terms of the relationship between them does not depend primarily on an award but rather on the contract of employment. In some contracts of employment there are additives which have the character of ex gratia payments and which, therefore, may be unilaterally withdrawn by the employer. It has not been suggested by Comeng that the overaward payments it makes to its employees have any such character. Such a contract cannot be unilaterally varied by one party to it". 31 The Commission finds there is no evidence to suggest that the hotel vouchers were understood to be able to be either removed or reduced at the employer's discretion. For this to be the case, the employer would have needed to make it clear at the outset. The Commission accepts Ms Gill described the ex gratia payment as a gift specifically for a stated purpose. Accordingly the applicant is entitled to treat her contract as having been amended to incorporate this provision. The Commission finds that the contract of the applicant contained a provision: “NOTE: Luxe Day Spa reserves the right to amend incentive schemes at any time.” (exhibit Luxe 1) 32 In summarising the evidence before the Commission the applicant can specifically recall the verbal agreement reached with the respondent regarding the sale of Sea Creations products to receive a bonus over and above the targets referred to in the applicant’s contract of employment on the sale of $1000.00 worth of Sea Creations products. For this to be the case, the employer would have needed to make it clear at the outset. The Commission finds that at a meeting held towards the end of 2006 employees of the respondent, including the applicant, were informed by the respondent they were entitled to be provided with a hotel voucher for every $1000.00 package of Sea Creations products sold. The Commission finds the hotel vouchers did not reflect a gratuity or ex gratia payment as referred to in Pacific Publications Pty Ltd v Cantlon [1983] AR (NSW) 423 and Ray v Radano [1967] AR (NSW) 471. The Commission finds the worth of the benefits to be clearly identifiable. Exhibit L6 specifies one of the vouchers as a “Duxton Escape Package” with one night’s overnight accommodation in the deluxe room including a full buffet breakfast for two served in the grill restaurant and the other voucher to be one night’s accommodation in a superior river room at the Sheraton Hotel, Perth (valid Friday, Saturday or Sunday). The monetary compensation able to be awarded in such a case would be equivalent to the rates charged by the hotels for the services specified within each voucher claimed as a denied contractual benefit. The Commission finds that the applicant earned and received two hotel vouchers in the early weeks of 2007 as a result of selling two sets of Sea Creations products. Under the arrangements that prevailed the applicant was entitled to a hotel voucher for every $1000.00 package of Sea Creations products sold. The Commission is satisfied that: - the respondent and applicant entered into this contractual arrangement during the applicant’s employment; - the applicant, since entering into the arrangement, sold two $1000.00 packages of Sea Creations products; - the applicant was provided with two hotel vouchers by the respondent; and - following the applicant’s termination these vouchers were withdrawn by the respondent The Commission finds therefore the applicant has been denied a contractual entitlement. Accordingly, the applicant is entitled to treat her contract as having been expressly amended to incorporate hotel vouchers to be received on the sale of Sea Creations packaged products. The Commission finds on two separate occasions, the vouchers were provided to the applicant and their value or worth was voided by the respondent following the applicant’s termination. The Commission finds those vouchers to be worth some $400.00. On balance the Commission finds the benefit as having been denied. 214 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 88 W.A.I.G. Payment in Lieu 33 The second jurisdictional issue as raised by the respondent, that being the applicant is not entitled to the written agreement to receive payment in lieu of notice as such agreement was reached under duress and after the employment relationship had concluded therefore the matter could not be considered an “industrial matter” pursuant to the Act. The Commission finds there was an agreement entered into between the respondent and the applicant on the day of the applicant’s termination and further that agreement was to make good a payment of two weeks payment in lieu of notice. The Commission finds that agreement was in writing as entered into evidence during proceedings. In considering the jurisdictional issue the Commission finds that at the direction of the respondent the applicant was instructed to remain outside the premises to await the arrival of the Ms Gill’s husband. During this period the Commission finds both the applicant and the respondent made phone calls to Wageline regarding entitlements to payment in lieu of notice. The Commission finds that at the time the agreement to pay two weeks payment in lieu of notice was entered into, the applicant was continuing to operate under instructions from the respondent. The Commission finds that the applicant at that stage was still employed and the claim is therefore within the jurisdiction of the s 7 of the Act. The Commission finds at no stage during this process was any threat, verbal or otherwise, issued by the applicant to the respondent. On balance the Commission finds the agreement to have been genuinely reached and the respondent was not operating under duress. Further, the Commission finds the term of the agreement reached amended the written contract of employment reached in late 2006 in so far as payment in lieu of notice. The applicant’s claim for notice extends to whether a contractual entitlement has been denied and the Commission finds that an express agreement was entered into between the applicant and the respondent amending the terms of the employment contract. Relevant also was the part payment of payment in lieu of notice already made to the applicant by the respondent (exhibit L4): “PERIODICAL PAYMENT FOR: FROM 26/2/2007 TO 11/3/2007 SARA DE LONGIS HR RATE $15 54 HR ADVANCED PAYMENT IN CHEQUE OF $708.00 WHICH INCLUDES ONE WEEK’S NOTICE OF TERMINATION OF EMPLOYMENT FROM 28TH OF FEBRUARY 2007 TO 7TH OF MARCH $810.00 $ 00.00 ---------------- GROSS WAGES BONUS BEING FOR 35.5 HRS AND PART PAYMENT OF HOLODAYS (SIC) IN LOU BEING FOR 18..5 HRS $810.00 $102.00 ---------------- -TAX SUPER CONTRIBUTED $72.90” $708.00 =NET WAGES (extract from exhibit L4) 34 The Commission finds that the respondent in part made good the contractual entitlement of payment in lieu of notice, a total of 35.5 hours, denying the applicant an outstanding entitlement of 41 hours at $15.00 per hour, a total of $615.70 (gross). Legal Position 35 The statutory basis for seeking relief through the Commission pursuant to applications of this nature has been reflected in many decisions. In Hotcopper Australia Ltd v David Saab (op cit) at p 2707 stated: “I observe that a claim made under s 29(1)(b)(ii) of the Act is not a claim for breach of contract of employment, in the common law sense, because the ability to make the claim, the nature of the claim and the remedies available are limited by and also stem from the wording of the subsections. Section 29(1)(b)(ii) prescribes and defines a particular statutory breach of contract within those limitations. The limitations (and/or conditions precedent to the exercise of jurisdiction and/or power) include the following:- (a) the claim must relate to an “industrial matter” as defined in s 7 of the Act; (b) the claim must be made by a “employee” as defined in s 7 of the Act. (c) the benefit claim must be a contractual benefit claim, i.e. the claimant must be entitled to the claim under his/her contract of service. (d) the subject contract must be a contract of service. (e) the benefit must not arise under an award or order of the Commission. (f) the benefit must have been denied by the employer.” 36 The Commission finds the applicant was an employee, was employed under a contract of service and the benefits sought by the applicant do not arise under an award or order of the Commission. The Commission has determined that the applicant’s contract of employment contained entitlements now sought by the applicant as having been denied. 37 Further submissions were sought from the parties regarding the prospect of entitlements arising under s 661 of the Workplace Relations Act 1996. Correspondence was forwarded to the applicant and respondent on 21 November 2007 and they were provided with seven days to respond: I thank the parties for their submissions. 88 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 215 38 The Commission concludes the applicant has been denied a contractual entitlement for payment in lieu of notice, an amount of $615.70 (gross) and the equivalent worth of the two vouchers provided to the applicant in return for the sale of Sea Creations products during her employment, a total of $400.00. 39 The Commission will issue a minute of order reflecting my reasons for decision. The parties will have until close of business Tuesday 8 January 2008 to advise my associate Ms Allison as to whether a Speaking to the Minutes will be required. If a Speaking to the Minutes is required that will be listed for Wednesday 9 January 2008. The Commission is anxious to ensure the order issues promptly given I am leaving the country for a number of weeks and foreshadow that it would be my intention to issue the final order no later than midday 9 January 2008. 2008 WAIRC 00104 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES SARA DE LONGIS APPLICANT -v- LUXE DAY SPA RESPONDENT CORAM COMMISSIONER S M MAYMAN DATE FRIDAY, 22 FEBUARY 2008 FILE NO/S B 97 OF 2007 CITATION NO. 2008 WAIRC 00104 Result Declaration and orders made Representation Applicant In person Respondent Ms M in de Braekt (of counsel) Declaration and Order HAVING heard the applicant in person and Ms in de Braekt (of counsel) on behalf of the respondent, the Commission pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby – 1. DECLARES that the respondent owes the applicant contractual benefits in the form of a voucher for one night’s accommodation at the Sheraton Hotel Perth in a superior river room (for use on a Friday, Saturday or Sunday) and a voucher for a Duxton Hotel escape package in a deluxe room with full buffet breakfast for two persons; and 2. DECLARES that the respondent owes the applicant contractual benefits in the sum of $615.70 (gross); and 3. ORDERS that the respondent pay the applicant the sum of $615.70 less taxation within seven (7) days of the date of the issuance of this order; and 4. ORDERS that the respondent provide the applicant the two vouchers referred to in clause one (1) herein within twenty one (21) days of the issuance of this order; and 5. ORDERS that the applicant access the two (2) vouchers referred to within six (6) months of the date of the issuance of this order; and 6. ORDERS that the application is hereby and is otherwise dismissed. (Sgd.) S M MAYMAN, [L.S.] Commissioner. 216 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 88 W.A.I.G. 2008 WAIRC 00107 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES DEBRA HARRIS APPLICANT -v- TIMBERLANE HOLDINGS PTY LTD T/A ROY WESTON WARWICK RESPONDENT CORAM COMMISSIONER P E SCOTT DATE MONDAY, 25 FEBRUARY 2008 FILE NO/S U 190 OF 2007 CITATION NO. 2008 WAIRC 00107 Result Application dismissed Representation Applicant Ms D Harris Respondent Mr B Richards Order WHEREAS this is an application pursuant to Section 29(1)(b)(i) of the Industrial Relations Act 1979; and WHEREAS on Thursday, the 24th day of January 2008 the Commission convened a conference for the purpose of conciliating between the parties; and WHEREAS on the 11th day of February 2008, the Applicant filed a Notice of Discontinuance in respect of the application; NOW THEREFORE, the Commission, pursuant to the powers conferred under the Industrial Relations Act 1979, hereby orders: THAT this application be, and is hereby dismissed. (Sgd.) P.E. SCOTT, [L.S.] Commissioner. 2008 WAIRC 00146 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES ARTHUR LEWIS NINYETTE APPLICANT -v- EDUCATION DEPARTMENT OF WA RESPONDENT CORAM COMMISSIONER J L HARRISON DATE TUESDAY, 11 MARCH 2008 FILE NO/S U 455 OF 2006 CITATION NO. 2008 WAIRC 00146 Result Dismissed Order WHEREAS this is an application pursuant to s29(1)(b)(i) of the Industrial Relations Act 1979; and WHEREAS on 22 September 2006 and 11 December 2006 the Commission convened conferences for the purpose of conciliating between the parties; and WHEREAS following the second conference the Commission was informed that the applicant’s claim was now being progressed via application PSAB 6 of 2006; and FURTHER the applicant undertook to discontinue this application; and WHEREAS the Commission contacted the applicant on a number of occasions about lodging a Notice of Discontinuance however this did not occur; and 88 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 217 WHEREAS on 27 November 2007 the Commission advised the applicant in writing that if he did not contact the Commission or lodge the Notice of Discontinuance by the close of business on 11 December 2007 the matter would be listed for a show cause hearing as to why the matter should not be dismissed; and WHEREAS as the applicant did not contact the Commission or lodge the Notice of Discontinuance by the due date the matter was listed for a show cause hearing on 7 March 2008 and the applicant was advised that non-attendance by the applicant at these proceedings will result in an order being issued dismissing the application for want of prosecution; and WHEREAS the applicant did not attend the hearing; NOW THEREFORE, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979 and given the circumstances of this case, hereby orders: THAT this application be, and is hereby dismissed. (Sgd.) J L HARRISON, [L.S.] Commissioner. 2008 WAIRC 00123 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES GARRY RAYMOND MANNING APPLICANT -v- CENTACARE RESPONDENT CORAM COMMISSIONER S WOOD DATE TUESDAY, 4 MARCH 2008 FILE NO U 176 OF 2007 CITATION NO. 2008 WAIRC 00123 Result Application discontinued Representation Applicant Mr G Manning Respondent Mr D Markovich, of Counsel Order WHEREAS this is an application pursuant to section 29(1)(b)(i) of the Industrial Relations Act 1979; and WHEREAS a conciliation conference was convened on 19 December 2007 at the conclusion of which the matter was adjourned; and WHEREAS the applicant advised the Commission on 21 January 2008 that he wanted to discontinue the application; and WHEREAS the parties have waived their rights to speak to the Minutes of Proposed Order pursuant to s.35(4) of the Industrial Relations Act 1979; NOW THEREFORE, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby orders - THAT the application be and is hereby discontinued. (Sgd.) S WOOD, [L.S.] Commissioner. 218 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 88 W.A.I.G. 2008 WAIRC 00139 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES JOSEPH FREDERICK YAPPO APPLICANT -v- ROBERT, ANGELA & ALEXANDER KEAMY TRADING AS R & A KEAMY & SONS RESPONDENT CORAM COMMISSIONER S WOOD DATE THURSDAY, 6 MARCH 2008 FILE NO U 199 OF 2007 CITATION NO. 2008 WAIRC 00139 Result Application discontinued Representation Applicant Mr J Yappo Respondent Mr J Brits of Counsel Order WHEREAS this is an application pursuant to section 29(1)(b)(i) of the Industrial Relations Act 1979; and WHEREAS a conciliation conference was convened on 31 January 2008 at the conclusion of which the matter was resolved; and WHEREAS the applicant advised the Commission on 25 February 2008 that he wanted to discontinue the application; and WHEREAS the parties have waived their rights to speak to the Minutes of Proposed Order pursuant to s.35(4) of the Industrial Relations Act 1979; NOW THEREFORE, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby orders - THAT the application be and is hereby discontinued. (Sgd.) S WOOD, [L.S.] Commissioner. CONFERENCES—Matters arising out of— 2008 WAIRC 00144 DISPUTE RE RETURN TO THE AWARD WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES THE CHIEF EXECUTIVE OFFICER, PUBLIC TRANSPORT AUTHORITY APPLICANT -v- THE AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION OF EMPLOYEES, WEST AUSTRALIAN BRANCH RESPONDENT CORAM SENIOR COMMISSIONER J H SMITH DATE TUESDAY, 11 MARCH 2008 FILE NO/S C 32 OF 2007 CITATION NO. 2008 WAIRC 00144 88 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 219 Result Interim Order issued Representation Applicant Mr C Gillam, Mr B Appleby and Mr S Majeks Respondent Mr G Ferguson and Mr P Woodcock Interim Order WHEREAS the Respondent on 3 December 2007 gave 30 days notice of its intention to retire from the Public Transport Authority Railcar Drivers (Transperth Train Operations) Enterprise Agreement 2006 AG 31 of 2006 ("AG 31 of 2006") which had the effect that from 2 January 2008 the Public Transport Authority Railcar Drivers (Transperth Train Operations) Award 2006 ("the Award") would regulate the terms and conditions of employment of railcar drivers employed by the Applicant; AND WHEREAS the Applicant on 10 December 2007 filed an application for a conference under s 44 of the Industrial Relations Act 1979 ("the Act") seeking an order that the expiry date of AG 31 of 2006 be varied to extend the expiry date of the industrial agreement to enable the parties to properly consult in relation to a new roster as the roster in place at that time had been devised and implemented having regard to the terms and conditions provided for by AG 31 of 2006 and not the Award; AND WHEREAS on 11 December 2007 the Commission convened a compulsory conference in respect of this matter. At the conference on 11 December 2007 Mr Gilliam on behalf of the Applicant informed the Commission that it would be able to put in place a new roster to operate from Sunday 17 February 2008 which would operate in accordance with the terms and conditions in the Award but that the Applicant was not in a position to do so earlier than that date as the devising and implementation of a roster was very complex and time consuming. At the conclusion of the conference the parties agreed to explore whether they could enter into an interim arrangement whereby it would be agreed that the terms of the Award could be partly implemented prior to the implementation of a new roster on 17 February 2008; AND WHEREAS on 14 December 2007 the Commission convened a further compulsory conference in respect of this matter. During the conference the parties discussed if agreement was reached in respect of arrangements to apply during an interim period, several clauses in the Award that would not be complied with from 2 January 2008 to 16 February 2008. Three of these clauses were clauses 3.1.1, 3.1.2 and 3.1.3 which deal with hours of duty and rosters. At the conference it was discussed by the parties that a roster made in accordance with the requirements of the Award would require the roster cycle of work to change from Sunday to Saturday to Monday to Sunday. This was also raised in a document handed to the Commission headed "Effect of Switching to Award on 3 January 2008". That document under the heading "Change of Payroll Cycle" stated: "a. Cycle currently Sunday to Monday. b. New cycle will be Monday to Sunday." AND WHEREAS on 17 December 2007 the Commission received a letter from the Applicant to the Respondent dated 14 December 2007 putting forth a proposal to resolve the transition from AG 31 0f 2006 to Award conditions in the New Year. In that letter it was stated that as part of that proposal, the Respondent would agree to the abeyance of a number of clauses in the Award between 3 January 2008 and 16 February 2008; AND WHEREAS on 19 December 2007 the Commission received a letter from the Respondent to the Applicant dated 18 December 2007 in which the Respondent informed the Applicant that a meeting of railcar drivers had accepted the Applicant's proposal set out in its letter dated 14 December 2007; AND WHEREAS on 4 January 2008 the Applicant filed an application (APPL 1 of 2008) to vary the Award. Included in the variations sought are amendments to clause 4.3.1(a) of the Award (Suburban Electric Railcar Allowance); AND WHEREAS on 13 February 2008 the Commission convened a further compulsory conference in relation to a dispute about a roster that was to run from 17 February 2008; AND WHEREAS the Commission convened a further compulsory conference in respect of the matter on 15 February 2008 in which the rostering issue was resolved; AND WHEREAS on 10 March 2008 the Commission convened a further conference in relation to the agreement reached by the parties set out in the letter dated 14 December 2007; AND WHEREAS the Commission was informed at the conference on 10 March 2008 by the Respondent that the Applicant has refused to make payments of the electric railcar allowance for each shift for the period from 6 January 2008 for six weeks in accordance with the agreement set out in the letter dated 14 December 2007; AND WHEREAS the Commission was informed by the Applicant that the Applicant would agree to make payments to railcar drivers of amounts equivalent to the electric railcar allowance calculated for each shift for a period of six weeks as an unspecified payment if the Respondent agreed to arbitrate the Applicant's award application to amend the Award in APPL 1 of 2008 with full rights of appeal providing that the Respondent gave an undertaking that no industrial action be taken by the Respondent or its members until the issue of the electric railcar allowance is resolved; 220 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 88 W.A.I.G. AND WHEREAS the Respondent informed the Commission that it would only agree to arbitration of the amendment clause 4.3.1(a) if both parties agreed to waive their right to appeal the decision of the Commission and that if the payments were not made to the railcar drivers on 13 March 2008 industrial action may occur. AND WHEREAS the Respondent made a request that an order should be made by the Commission that the payments should be made on 13 March 2008 and it informed the Commission that it would not oppose as part of the order that the Respondent and its members not take industrial action until the next pay date which would give the parties time to have further discussions about whether they could resolve the issue of whether the electric railcar allowance should be a shift allowance or a weekly allowance and whether the matter should go to arbitration on the basis that there be no appeal; AND WHEREAS following the conference on 10 March 2008 the Applicant's Solicitor advised the Commission in writing that the Applicant has no objection to the following orders being made by the Commission: "1. That the Suburban Electric Railcar Allowance be paid on a per shift basis for the period 6 January 2008 to 16 February 2008 without prejudice to the PTA's claim that the allowance is properly paid on a per week basis and without prejudice to the outcome of WAIRC Application No 1 of 2008, the PTA's application to vary the Public Transport Authority Rail Car Driver (Transperth Train Operations) Award 2006. 2. That until the issue of whether the Suburban Electric Railcar Allowance is payable on a per shift basis or a per week basis is resolved by agreement or arbitration, the Australian Rail Tram and Bus Industry Union, West Australian Branch, do nothing to encourage or facilitate industrial action by its members employed by the PTA and that members of the ARTBIU employed by the PTA not take any industrial action, with "industrial action" including but not limited to: (a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work; (b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee; and (c) a failure or refusal by an employee to attend for work or a failure or refusal to perform any work at all by an employee who attends for work." AND WHEREAS on 11 March 2008 the Commission convened a further conference in relation to this matter; AND WHEREAS the Commission is satisfied that it is appropriate to make an order to prevent the deterioration of industrial relations in respect of the matter in question until conciliation or arbitration has resolved that matter; AND WHEREAS the Commission is of the opinion it is necessary to make an order under s 44(6a)(b) of the Act to vary the operation of the Award and that it is necessary to prohibit industrial action whilst the parties are engaging in attempts to resolve this matter. However, the Commission is not satisfied that there is a threat of industrial action that at this time extends beyond Thursday, 27 March 2008. NOW THEREFORE pursuant to the powers vested in it and pursuant to s 44 of the Act, the Commission hereby orders that: (a) The provisions of the Award are varied from 3 January 2008 to 16 February 2008 in accordance with the agreement set out in the letter dated 14 December 2007; (b) That the Suburban Electric Railcar Allowance be paid on a per shift basis for the period 6 January 2008 to 16 February 2008 without prejudice to the Applicant's claim that the allowance is properly paid on a per week basis and without prejudice to the outcome of APPL 1 of 2008, the Applicant's application to vary the Award. (c) The Respondent, its officers, agents, employees and its members (who are railcar drivers) are not to take any industrial action; (d) The Respondent, its officers, agents, employees and its members (who are railcar drivers) are required to ensure that continuity of train services are not disrupted; (e) The Respondent, its officers, agents and employees are required to inform its members (who are railcar drivers) of this order and direct its members (who are railcar drivers) to comply with this order no later than 5.00pm on 11 March 2008; (f) In this order industrial action includes the following action but is not limited to: (i) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work; (ii) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee; and (iii) a failure or refusal by an employee to attend for work or a failure or refusal to perform any work at all by an employee who attends for work." (g) This order will remain in force until Thursday, 27 March 2008. (h) The parties have liberty to apply on (1) one hour's notice to vary or extend the terms of this order. (Sgd.) J H SMITH, [L.S.] Senior Commissioner. 88 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 221 2007 WAIRC 00301 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES THE CIVIL SERVICE ASSOCIATION OF WESTERN AUSTRALIA INCORPORATED APPLICANT -v- COMMISSIONER FOR CORRECTIVE SERVICES RESPONDENT CORAM PUBLIC SERVICE ARBITRATOR COMMISSIONER S J KENNER DATE THURSDAY, 29 MARCH 2007 FILE NO. PSAC 7 OF 2007 CITATION NO. 2007 WAIRC 00301 Result Direction issued Representation Applicant Mr E Schnell Respondent Ms K Jack Direction HAVING heard Mr E Schnell on behalf of the applicant and Ms K Jack on behalf of the respondent the Commission, and to assist the parties in the resolution of the present dispute, pursuant to the powers conferred on it under the Industrial Relations Act, 1979 (“the Act”) hereby directs - 1. THAT the parties confer as to the issues in dispute generally but with specific reference to: (a) Community Work Officers’ (“CWOs”) obligations to supervise offenders under relevant legislation; (b) requirements as to working hours imposed by the Public Service Award 1992 and the Public Service General Agreement 2006 in relation to CWOs; (c) the feasibility or otherwise of CWOs obtaining relief supervision or oversight during lunch intervals for example by additional support from either employee or honorary CWOs; (d) the possibility of CWOs receiving additional compensation in recognition of them not being able to leave offenders unsupervised for the purposes of taking a lunch interval; and (e) the obligations imposed on the employees concerned and the respondent under the Occupational Safety and Health Act 1984. 2. THAT the parties meet for the purposes of progressing the matters in issue according to the following timetable: (a) an initial conference of the parties in the week ending 6 April 2007; (b) any further conferences of the parties as may be required in the weeks ending 13 and 20 April 2007 respectively; 3. THAT the parties report back to the Commission at a re-listed s 44 compulsory conference on 27 April 2007. 4. THAT if the parties agree to progress an agency specific agreement they are referred to the obligation to bargain in good faith pursuant to s 42B of the Act. (Sgd.) S J KENNER, [L.S.] Commissioner. CONFERENCES—Notation of— Parties Commissioner Conference Number Dates Matter Result Health Services Union of Western Australia (Union of Workers) Director General of Health in Right of the Minister for Health as the Western Australian Country Health Service Scott C PSAC 29/2007 N/A Dispute re classification of union member Matter dismissed 222 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 88 W.A.I.G. Parties Commissioner Conference Number Dates Matter Result Health Services Union of Western Australia (Union of Workers) Director General of Health in right of the Minister for Health as the South Metropolitan Area Health Service Scott C PSAC 30/2007 21/08/2007 3/09/2007 22/10/2007 Dispute in relation to ongoing employment of Union Member Matter dismissed Liquor, Hospitality and Miscellaneous Union, Western Australian Branch The Roman Catholic Archbishop of Perth Wood C C 36/2007 14/02/2008 Dispute re classification of union member Concluded The Civil Service Association of Western Australia Incorporated Ms Heather Harker, Deputy Commissioner, The Department of Corrective Services Kenner C PSAC 7/2007 7/03/2007 19/03/2007 27/04/2007 Dispute regarding the taking of a break between shifts Discontinued The Civil Service Association of Western Australia Incorporated Director General Department for Community Development Scott C PSAC 24/2006 11/10/2006 Dispute regarding contractual entitlements for an employee Concluded INDUSTRIAL AGREEMENTS—Notation of— Agreement Name/Number Date of Registration Parties Commissioner Result Department of Corrective Services - Community Work Officers - Agency Specific Agreement 2008 PSAAG 3/2008 6/03/2008 The Civil Service Association of Western Australia Incorporated The Commissioner, Department of Corrective Services Commissioner S Wood Agreement registered Fire and Emergency Services Authority of Western Australia Agency Specifc Agreement 2008 PSAAG 5/2008 11/03/2008 The Civil Service Association of Western Australia Incorporated The Chief ExecutIve Officer, Fire and Emergency Services Authority of Western Australia Commissioner J L Harrison Registered RECLASSIFICATION APPEALS—Notation of— File Number Appellant Respondent Commissioner Decision Finalisation Date PSA 9/2008 Herbert Carman Director General of Health as delegate of the Minister for Health in his incorporated capacity under s7 of the Hospital and Health Services Act 1927 as the Metropolitan Health Service Scott C Reclassification Appeal Dismissed Not Applicable 88 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 223 File Number Appellant Respondent Commissioner Decision Finalisation Date PSA 16/2005 Warwick Smith Minister for Health in right of the Metropolitan Health Service, South Metropolitan Health Service, Fremantle Hospital Scott C Reclassification Appeal Dismissed Not Applicable PSA 19/2007 Stephen Fewster Department of the Attorney General Scott C Reclassification Appeal dismissed Not Applicable PSA 34/2004 Warwick Smith Minister For Health In Right Of the Metropolitan Health Service Scott C Reclassification Appeal Dismissed Not Applicable PSA 44/2007 Amanda Susan Hymans Director General of Health as delegate of the Minister for Health in his incorporated capacity under s7 of the Hospital and Health Services Act 1927 as the Metropolitan Health Service Scott C Reclassification Appeal Dismissed Not Applicable PSA 45/2007 Gail Lorelle Johnson Director General of Health as delegate of the Minister for Health in his incorporated capacity under s7 of the Hospital and Health Services Act 1927 as the Metropolitan Health Service Scott C Reclassification Appeal Dismissed Not Applicable PSA 46/2007 Linley Elaine Turner Director General of Health as delegate of the Minister of Health in his incorporated capacity under s7 of the Hospital and Health Services Act 1927 as the Metropolitan Health Service Scott C Reclassification Appeal Dismissed Not Applicable PSA 47/2007 Nicole Atkinson Director General of Health as delegate of the Minister for Health in his incorporated capacity under s7 of the Hospital and Health Services Act 1927 as the Metropolitan Health Service Scott C Reclassification Appeal Dismissed Not Applicable 224 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 88 W.A.I.G. File Number Appellant Respondent Commissioner Decision Finalisation Date PSA 48/2007 Wendy Elaine Horsley Director General of Health as delegate of the Minister for Health in his incorporated capacity under s7 of the Hospital and Health Services Act 1927 as the Metropolitan Health Service Scott C Reclassification Appeal Dismissed Not Applicable PSA 49/2007 Barbara Jane Ryan Director General of Health as delegate of the Minister for Health in his incorporated capacity under s7 of the Hospital and Health Services Act 1927 as the Metropolitan Health Service Scott C Reclassification Appeal Dismissed Not Applicable PSA 65/2007 Kelly Theresa Simpson Director General of Health as delegate of the Minister for Health in his incorporated capacity under s7 of the Hospital and Health Services Act 1927 as the Metropolitan Health Service Scott C Reclassification Appeal Dismissed Not Applicable PSA 66/2007 Susan Dartnell Director General of Health as delegate of the Minister for Health in his incorporated capacity under s7 of the Hospital and Health Services Act 1927 as the Metropolitan Health Service Scott C Reclassification Appeal Dismissed Not Applicable PSA 69/2007 Kristin Jones and Kirsty Morgan Director General of Health as delegate of the Minister for Health in his incorporated capacity under s7 of the Hospital and Health Services Act 1927 as the Metropolitan Health Service Scott C Reclassification Appeal Dismissed Not Applicable 88 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 225 OCCUPATIONAL SAFETY AND HEALTH ACT—Matters Dealt With— 2008 WAIRC 00106 IN THE WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION SITTING AS THE OCCUPATIONAL SAFETY AND HEALTH TRIBUNAL PARTIES COREY FLAVELL AND OTHERS APPLICANT -v- CBI CONSTRUCTORS PTY LTD RESPONDENT CORAM COMMISSIONER S M MAYMAN DATE FRIDAY, 22 FEBRUARY 2008 FILE NO/S OSHT 5 OF 2007 CITATION NO. 2008 WAIRC 00106 Result Directions cancelled Representation Applicant Mr G MacLean (of counsel) Respondent Mr J Blackburn and Ms L Gibbs (both of counsel) Directions WHEREAS this matter was listed for a Directions hearing before the Occupational Safety and Health Tribunal (“the Tribunal”) on Wednesday 13 February 2008 and having heard Mr G MacLean (of counsel) on behalf of the applicants and Mr J Blackburn (of counsel) on behalf of the respondent; AND WHEREAS having considered it necessary for the expeditious and just hearing and determination of this matter to cancel the Directions issued by the Tribunal on 12 December 2007; NOW THEREFORE the Tribunal pursuant to the powers of the Occupational Safety and Health Act 1984 hereby directs: That the Directions issued by the Tribunal on 12 December 2007 be cancelled. (Sgd.) S M MAYMAN, [L.S.] Commissioner. 2008 WAIRC 00105 IN THE WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION SITTING AS THE OCCUPATIONAL SAFETY AND HEALTH TRIBUNAL PARTIES JOEL WILSON AND OTHERS APPLICANT -v- CBI CONSTRUCTORS PTY LTD RESPONDENT CORAM COMMISSIONER S M MAYMAN DATE FRIDAY, 22 FEBRUARY 2008 FILE NO/S OSHT 4 OF 2007 CITATION NO. 2008 WAIRC 00105 226 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 88 W.A.I.G. Result Directions cancelled Representation Applicant Ms K Findlay-Grove (of counsel) Respondent Mr J Blackburn and Ms L Gibbs (both of counsel) Directions WHEREAS this matter was listed for a Directions hearing before the Occupational Safety and Health Tribunal (“the Tribunal”) on Wednesday 13 February 2008 and having heard Ms Findlay-Grove (of counsel) on behalf of the applicants and Mr J Blackburn (of counsel) on behalf of the respondent; AND WHEREAS having considered it necessary for the expeditious and just hearing and determination of this matter to cancel the Directions issued by the Tribunal on 12 December 2007; NOW THEREFORE the Tribunal pursuant to the powers of the Occupational Safety and Health Act 1984 hereby directs: That the Directions issued by the Tribunal on 12 December 2007 be cancelled. (Sgd.) S M MAYMAN, [L.S.] Commissioner.