CITATION : MATTHEWS -v- COOL OR COSY PTY LTD & ORS [2003] WASCA 136 CORAM : SCOTT J PARKER J PULLIN J HEARD : 3 JUNE 2003 DELIVERED : 23 JUNE 2003 FILE NO/S. : IAC 5 of 2003 BETWEEN : ANTHONY GEOFFREY MATTHEWS Appellant AND COOL OR COSY PTY LTD CEIL COMFORT HOME INSULATION PTY LTD CITIGROUP PTY LTD (IN LIQ) Respondents _________________________________________________________________________________________________________ Catchwords— Practice and procedure - Costs - Turns on own facts Legislation— Industrial Relations Act 1979, s 86(2) Result— Application dismissed Category: B Representation— Counsel— Appellant : Mr A L Drake-Brockman & Mr B R Jackson Respondents : Ms M G Saraceni 2750 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 83 W.A.I.G. Solicitors— Appellant : Gadens Lawyers Respondents : Jackson McDonald Case(s) referred to in judgment(s): Matthews v Citigroup Pty Ltd (in liq) [2003] WASC 87 Transport Workers Union of Australia Industrial Union of Workers, WA Branch v Tip Top Bakeries (1994) 58 IR 22 Case(s) also cited— Builders Labourers, Painters and Plasterers Union of Workers (Western Australia) v Clark (1995) 62 IR 334 _________________________________________________________________________________________________________ 1 JUDGMENT OF THE COURT: The appellant has been granted leave to discontinue the appeal, and the first and second respondents now apply for an order for costs and expenses against the appellant, pursuant to s 86(2) of the Industrial Relations Act 1979. 2 The background to the application is as follows. 3 The appellant was dismissed from his employment. He complained that his dismissal was unfair. It was not clear who his employer was, so he took action against all three respondents to this appeal. The third respondent (Citigroup) was in liquidation and played no part in the proceedings. The Commissioner held that the appellant was employed by Citigroup and dismissed the claims against the other two respondents. 4 The appellant then appealed to the Full Bench, with the object of establishing that one or other of the first or second respondents, and not Citigroup, was the employer. On this appeal to the Full Bench, the appellant applied to amend its grounds of appeal to exclude Citigroup as a party. The Full Bench decided that this application was a “civil proceeding” within the meaning of s 500(2) of the Corporations Act 2001, which provides that “no action or other civil proceeding is to be proceeded with or commenced” after a resolution to wind up a company. The Full Bench held that because no leave had been obtained to make such application, it could not be proceeded with and must be refused. This happened on 7 March 2003. The appellant’s appeal was adjourned for him to consider his position. 5 The appellant then appealed to this Court against that decision on grounds, inter alia, that— “The appeal before the Full Bench is not a proceeding … (and that) the application to amend the notice of appeal so as to exclude Citigroup Pty Ltd (In Liquidation) could only benefit Citigroup Pty Ltd (In Liquidation). Citigroup Pty Ltd’s interests are not directly affected by the outcome of the appeal. It will not be prejudiced indeed it can only benefit if the appeal is successful because the appellant will not be lodging a proof of debt in its liquidation.” 6 It was not necessary for the appellant to proceed with this appeal because on 30 April 2003 the appellant applied for, and obtained, an order nunc pro tunc from Master Newnes under s 500(2) of the Corporations Act to allow him to make the application to remove Citigroup as a party to the appeal before the Full Bench. As a result, the appellant then discontinued its appeal to this Court. 7 The first and second respondents argue that they should have their costs and expenses. The claimed costs are the legal costs charged by the solicitors for the first and second respondent. There are some minor “expenses” in the form of service fees and photocopying fees. 8 Section 86(2) of the Industrial Relations Act 1979 authorises this Court to make such orders as it thinks just as to the costs and expenses of proceedings before the Court, but the subsection continues— “ … costs shall not be given to any party to the proceedings for the services of any legal practitioner or agent of that party unless, in the opinion of the Court, the proceedings have been frivolously or vexatiously instituted or defended, as the case requires, by the other party.” 9 It is clear that the policy envisaged by s 86(2) is that it will be on very rare occasions that a costs order will be made. Proceedings will have been “frivolously or vexatiously” instituted where it can be said that the matter was “so obviously untenable that it cannot possibly succeed”; “manifestly groundless”; “so manifestly faulty that it does not admit of argument”; that it “discloses a case which the court is satisfied cannot succeed”; or that “under no possibility can there be a good cause of action”. See Transport Workers Union of Australia Industrial Union of Workers, WA Branch v Tip Top Bakeries (1994) 58 IR 22 at 26-27. 10 In our opinion, the appellant’s appeal was not frivolous or vexatious. It is not necessary to express any views about the merits of the appeal other than to note that the purpose of s 500(2) of the Corporations Act 2001 is to prevent a company in liquidation being subject to actions that are carried on unnecessarily at the expense of the creditors of the company. See the authorities referred to in Master Newnes’ reasons for decision in this matter in Matthews v Citigroup Pty Ltd (in liq) [2003] WASC 87. In our view, the appellant’s contention that the Full Bench erred was not untenable. On the contrary, it was strongly arguable that the application to the Full Bench was not an attempt to proceed with, or commence, proceedings against Citigroup. In consequence, the appeal to this Court was not frivolous or vexatious. 11 The first and second respondents also sought to recover the minor expenses referred to above. In relation to those minor expenses, we would exercise our discretion not to award them. 12 As a result, we dismiss the application for costs. _________ 83 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 2751 2003 WAIRC 08541 WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT PARTIES ANTHONY GEOFFREY MATTHEWS, APPELLANT v. COOL OR COSY PTY LTD; CEIL COMFORT HOME INSULATION PTY LIMITED, CITIGROUP PTY LTD (IN LIQ), RESPONDENTS CORAM SCOTT J (Presiding Judge) PARKER J PULLIN J DATE OF ORDER MONDAY, 23 JUNE 2003 FILE NO/S. IAC 5 OF 2003 CITATION NO. 2003 WAIRC 08541 _________________________________________________________________________________________________________ Result Appeal discontinued and application for costs dismissed. Representation Appellant Mr A L Drake-Brockman & Mr B R Jackson Respondents Ms M G Saraceni _________________________________________________________________________________________________________ Order HAVING heard Mr A L Drake-Brockman & Mr B R Jackson (both of Counsel) for the Appellant and Ms M G Saraceni (of Counsel) on behalf of the Respondent, THE COURT HEREBY ORDERS THAT— 1. Leave be granted to discontinue the appeal. 2. Application for costs be dismissed. (Sgd.) JOHN SPURLING, [L.S.] Clerk of the Court. FULL BENCH—Appeals against decision of Commission— 2003 WAIRC 08703 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES CARNARVON MEDICAL SERVICE ABORIGINAL CORPORATION, APPELLANT - and - NICHOLAS JONATHON STILES, RESPONDENT CORAM FULL BENCH HIS HONOUR THE PRESIDENT P J SHARKEY SENIOR COMMISSIONER A R BEECH COMMISSIONER S J KENNER DELIVERED MONDAY, 14 JULY 2003 FILE NO/S. FBA 11 OF 2003 CITATION NO. 2003 WAIRC 08703 _________________________________________________________________________________________________________ Decision Appeal dismissed Appearances Appellant Ms L S Gibbs (of Counsel) Respondent Mr N J Stiles, on his own behalf _________________________________________________________________________________________________________ 2752 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 83 W.A.I.G. Reasons for Decision THE PRESIDENT— INTRODUCTION 1 This is an appeal by the above-named employer, brought pursuant to s.49 of the Industrial Relations Act 1979 (as amended) (hereinafter called the “the Act”). 2 The appeal is against a decision of the Commission, constituted by a single Commissioner, delivered on 18 February 2003 in application No 1402 of 2002 and deposited in the Registry of the Commission on 19 February 2003. 3 By that decision, constituted by an order of the Commission (see page 30 of the appeal book), the Commission ordered that the time for filing application No 1402 of 2002, an application pursuant to s.29(1)(b)(i) and (ii) of the Act, be extended to and include 8 August 2002. 4 The appellant now appeals against that decision on the following grounds— “1. The Commissioner erred in law in extending the time for filing application 1402 of 2002. Particulars a) It was not disputed that the Applicant’s employment was terminated on 8 July 2002; b) The Commissioner found that the application made pursuant to s.29(1)(b)(i) was lodged on 8 August 2002 and was therefore three days out of time; c) The discretion to extend the time for lodging an application pursuant to s.29(1)(b)(i), by virtue of s.29(3), was not enacted until 1 August 2002; d) The parties were not requested to make submissions in relation to the retrospectivity of the Labour Relations Reform Act 2002, nor did they; e) The Commissioner of her own motion did not address the issue of retrospectivity; f) The decision is ultra vires the Industrial Relations Act 1979. Decision Sought in Lieu of that Appealed From 1. The Appeal be allowed. 2. The order of Commissioner Harrison be set aside, and in lieu therefore it be ordered that Application 1404 (sic) of 2002 be dismissed.” 5 The notice of appeal was filed herein on 17 April 2003, which is nearly two months after the date that the decision was perfected, namely 19 February 2003, the date when the decision was deposited in the office of the Registrar. PROCEDURE IN THE FULL BENCH 6 This was a matter where the respondent had departed to reside interstate and was not represented, nor did he seek to have the appeal heard by video link-up when this option was offered to him. 7 The appellant sought to have the matter heard by its counsel addressing the Full Bench in the normal way. However, this would have caused some disadvantage to the respondent who would not have been present in order to reply in open court. Since, in the opinion of the Full Bench, the matter could readily be dealt with by written submissions there being only one point of law involved, the Full Bench directed that the matter be dealt with on the written submissions and written submissions were filed on behalf of both parties, including written submissions in reply on behalf of the appellant. There was also evidence adduced on behalf of the appellant corporation by the affidavit (exhibit 1) of Fiona Maureen Mitchell, the chief executive officer of the appellant, which affidavit was, of course, not able to be cross-examined upon. FINDING 8 In s.7 of the Act, “finding” is defined as follows— ““finding” means a decision, determination or ruling made in the course of proceedings that does not finally decide, determine or dispose of the matter to which the proceedings relate;” 9 By s.49(2a), an appeal does not lie from a finding unless, in the opinion of the Full Bench, the matter is of such importance that, in the public interest, an appeal should lie. The question is whether the Full Bench should form such an opinion. 10 A question arises as to whether the decision appealed against is “a finding” as defined in s.7 of the Act (see Managing Director, South Metropolitan College of TAFE v CSA (1999) 79 WAIG 976 at 977 per Sharkey P). 11 It is perfectly clear that a decision that the Commission will accept a referral by an employee under s.29(1)(b)(i) of the Act which is out of time if the Commission considers that it would be unfair not to do so, is a “finding” as defined. 12 Such a decision does not and cannot finally decide, determine or dispose of the matter to which the proceedings relate. 13 It trite to observe that all such a decision does is to enable the applicant to pursue a claim by making the referral out of time. 14 That is clearly what happened here, and the decision which was sought to be appealed against was a “finding”. That is because the decision does not finally decide, determine or dispose of the matter to which the appeal relates. 15 A finding that a referral of a claim under s.29(1)(b)(i) which is out of time should not be accepted and should therefore be dismissed is clearly a decision which is not a finding, that is because it clearly determines or disposes finally of the claim, the referral and the application. That is a separate matter and the reasoning which applies obviously can have no effect on what I have observed in relation to the decision appealed against in the proceedings. Further, it can have no effect upon the fact that a decision to accept a claim under s.29(3) is a “finding” as defined in s.7 of the Act for the reasons which I have advanced. 83 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 2753 16 It was submitted to us, on behalf of the appellant, that, if the decision were a finding, then the matter of the appeal was of such importance that, in the public interest, an appeal should lie. 17 In my opinion, the appeal required the Full Bench to consider the operation of s.29(3) and the question of retrospectivity of its operation, that question not having been previously determined by the Full Bench. The matter raised was of such importance that, in the public interest, the appeal should lie. However, given what I say hereinafter, it is unnecessary to make such a finding. APPLICATION TO EXTEND TIME WITHIN WHICH TO APPEAL 18 The appellant corporation has filed an application to extend time within which to institute this appeal and that application was filed with the notice of appeal on 17 April 2003. 19 It is not clear, but it seems to be alleged that the question of retrospectivity of operation of the amendments to the statute was not dealt with by the Commissioner and that the advice given to the respondent, by its solicitor at first instance, was inadequate. 20 The respondent had apparently assumed that the application would be dismissed, and was not aware of the matter until it was listed for hearing. Further, it is alleged that the respondent has acted promptly on further advice in filing the appeal. There is no direct explanation of the delay. 21 It is also submitted that the appeal has merit because the Commissioner found that the application was lodged three days out of time and accepted the application. It is also alleged that s.29(3), which enables an application under s.29(1)(b)(i) to be accepted, was not in operation until 1 August 2002. 22 It was therefore submitted that the Commissioner applied the discretion to extend time retrospectively to a termination occurring before the date of enactment and thus the decision was ultra vires the Act. 23 Accordingly, the application to extend time to institute the appeal, it was submitted, had merit (see Ryan v Hazelby and Lester t/a Carnarvon Waste Disposals (1993) 73 WAIG 1752 (IAC), Gallo v Dawson (1990) 64 ALJR 458, Tip Top Bakeries v TWU (1994) 74 WAIG 1189 and Cousins v YMCA of Perth (2001) 82 WAIG 5 (IAC)). 24 The Full Bench summarised the principles relating to applications to extend time for appeals in Rosemist Holdings Pty Ltd v Khoury (1999) 79 WAIG 645 at 645-6 per Sharkey P. I refer to some of them hereinafter. 25 The grant of an extension of time is not automatic, the object of a rule or power to extend time being to ensure that a legislative provision or rules which fix times for doing acts do not become instruments of injustice. 26 Further, it is to be borne in mind that the respondent has the “judgement” vested in him until an application to extend time is granted. 27 The discretion to extend time can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon an applicant. 28 In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant or refusal of an extension of time. 29 The initial step in determining whether there would be an injustice to an applicant in refusing the application to extend time may often be to consider whether there is a real prospect of the appellant succeeding in the substantive appeal if an extension of time were to be granted. 30 In this case, there was almost two months delay before the appeal was instituted against the decision appealed against. The chief executive officer of the appellant, Fiona Maureen Mitchell was, as I accept the evidence, appointed to the position on 20 January 2003. On or around that date, she asked one Bruce Hill, the appellant’s business manager who had been acting as chief executive officer, what was occurring in relation to the application at first instance by the above-named respondent. 31 According to her he told her that the solicitor instructed by him, Mr R W Reading of Carnarvon, had said that the application “was being dismissed”. The application was not, of course, dismissed. 32 There was no communication from Mr Reading after that date and no evidence that the respondent made any enquiry about the matter, of Mr Reading, or of anyone else, until 26 March 2003. 33 On that date, Ms Mitchell telephoned Mr Reading. She then instructed him to forward the file to her so that she could instruct the Chamber of Commerce and Industry of Western Australia to act on behalf of the appellant. Ms Mitchell, having received the file on or about 28 or 31 March 2003 and having instructed Miss Linda Gibbs of the Chamber on 15 April 2003 to file the notice of appeal, the appeal was filed on 17 April 2003. 34 In my opinion, the length of the delay, nearly two months before the notice of the appeal was filed, was far too long. The fact is that the appellant is culpable in the matter because no steps were taken by or on its behalf to discover what had occurred in the matter until about six weeks after the order issued. Even given that its solicitor should have immediately apprised it of the decision of the Commission, the respondent’s obligation was to ascertain what had occurred with some promptness so that proceedings would not be unnecessarily delayed. This it failed to do. 35 Further, and relevant to the justice of the application, the respondent was three days out of time filing the substantive application, whilst the appellant was almost two months out of time filing an appeal against a “finding”. 36 Certainly, the appeal was arguable, but because of what I will say hereinafter, the strength of the appeal considered with other factors to which I have referred above, does not mean that sufficient material exists on which the Full Bench could find that to refuse the application would work an injustice upon the appellant. Further the delay of nearly two months was, in the circumstances of this case, too great a delay without a satisfactory explanation for it in relation to an appeal against a finding. 37 Apart from anything else, even if the application is refused, then the appellant can obviously oppose and have determined on the merits, the respondents claim. The prejudice to which the appellant is exposed having regard to the length of time which has passed, through the fault of the appellant itself, is negligible, comparatively. The prejudice to the respondent after this length of time is greater. 2754 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 83 W.A.I.G. BACKGROUND 38 The above-named respondent, Nicholas Jonathon Stiles (hereinafter called “Mr Stiles”), made application to the Commission by application filed on 8 August 2002, pursuant to s.29(1)(b)(i) and (ii) of the Act, whereby he alleged he had been unfairly dismissed from the employment of the appellant corporation, and claimed contractual benefits and compensation. 39 Mr Stiles alleged that his unfair dismissal occurred on 8 July 2002. 40 Mr Stiles did not claim reinstatement. 41 The application was opposed, an answer and counter-proposal being filed on 5 September 2002. 42 The matter was then listed for hearing by the Commission to determine whether the Commission should accept the referral of the claim of harsh, oppressive and unfair dismissal out of time, pursuant to s.29(3) of the Act. The application was heard and determined on written submissions and reasons for decision issued on 18 February 2003. 43 In the end, the Commissioner, applying Andrew v Metway Property Consultants and Auctioneers (2002) 82 WAIG 3260 found, for a number of expressed reasons, that she should accept the referral out of time and extended the time to permit this to occur accordingly. 44 It is unnecessary to comment further on that decision because the only attack on the decision in the grounds of appeal was on the basis that there was no jurisdiction or power in the Commission to make an order which had retrospective effect because the statute (s.29(3)) had no retrospective operation. 45 Thus, the issue to be decided was that there was no jurisdiction to accept the referral of the claim out of time because s.29(3) had no retrospective operation. STATUTORY PROVISIONS 46 S.29(1)(b)(i) and (ii) read as follows— “(b) in the case of a claim by an employee— (i) that he has been harshly, oppressively or unfairly dismissed from his employment; or (ii) that he has not been allowed by his employer a benefit, not being a benefit under an award or order, to which he is entitled under his contract of employment, by the employee.” 47 S.29(2) prescribes the time limit for the referral of a claim of harsh, oppressive and unfair dismissal under s.29(1)(b)(i), as follows— “Subject to subsection (3), a referral under subsection (1)(b)(i) is to be made not later than 28 days after the day on which the employee’s employment is terminated.” 48 S.29(3) which came into operation on 1 August 2002, reads as follows— “The Commission may accept a referral by an employee under subsection (1)(b)(i) that is out of time if the Commission considers that it would be unfair not to do so.” 49 S.139(2) of the Labour Relations Reform Act 2002, on 1 August 2002, repealed s.29(2) of the Act and inserted a new s.29(2) together with s.29(3) instead of the existing s.29(2) which read— “A referral by an employee under sub-section 1(b)(i) cannot be made more than 28 days after the day on which the employees employment terminated.” 50 S.29(3), therefore, confers power to accept a referral of a claim outside the time within which a referral is otherwise required to be made. 51 Thus this was a matter where the application was filed three days after the 28 day limitation period had expired and after s.29(3) had come into operation but, in respect of a dismissal which had occurred before the Act was amended and s.29(3) came into operation. Chronology 52 The chronology of the matter was as follows— (a) It was common ground that the termination of the respondent’s employment, occurred on 8 July 2002. (b) S.29(3) came into operation on 1 August 2002. (c) The 28 day limitation period within which the referral of the claim could be made expired on 5 August 2002. (d) The application by which the claim was sought to be referred was filed on 8 August 2002, the same date as applications to extend time were filed. 53 Thus, at the time when s.29(3), which was introduced into the Act on 1 August 2002 commenced to operate, the time within which the referral might be made had not expired, and did not expire until four days later. S.27(1)(n) OF THE ACT 54 First, although it was not argued in this matter, there is an argument open to be pressed that s.27(1)(n) applied in the past to enable the Commission to extend the “prescribed” time of 28 days referred to in s.29(2) given that the time of 28 days is, in my opinion, a prescribed time, the word “prescribed” being as it is defined in s.5 of the Interpretation Act 1984 (as amended). 55 That would mean that the statute by s.29(3) merely states in a similar form what it was already open to the Commission to do and remains open to the Commission to do under the Act. However, it was not necessary to decide that and I do not do so now. S.37 OF THE INTERPRETATION ACT 1984 (AS AMENDED) 56 I wish, first of all, to refer to s.37 of the Interpretation Act 1984. 83 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 2755 57 S.37 reads as follows in its relevant provisions— “(1) Where a written law repeals an enactment, the repeal does not, unless the contrary intention appears— (a) . . . (b) affect the previous operation of the enactment repealed or anything duly done or suffered under that enactment; (c) affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable or any status or capacity existing prior to the repeal; (d) . . . (e) . . . (f) affect any investigation, legal proceeding or remedy in respect of any such right, interest, title, power, privilege, status, capacity, duty, obligation, liability, burden of proof, penalty or forfeiture, and any such investigation, legal proceeding or remedy may be instituted, continued, or enforced, and any such penalty or forfeiture may be imposed and enforced as if the repealing written law had not been passed or made.” 58 It is, of course, noteworthy that s.29(3) did not exist before 1 August 2002 and that there was no express power in s.29 to accept a referral of an “unfair dismissal” claim out of time. (However, see s.27(1)(n) and my observations (supra)). 59 Further, s.29(2) as it previously existed purported to prohibit the referral of a claim for unfair dismissal out of time. The new s.29(2) does not. The sub-section expressly makes the time limit subject to the power in s.29(3) to accept referral out of time and further prescribes that a referral is to be made within 28 days, which was the prescribed period under the Act before its repeal. 60 The new s.29(2) does not prescribe that a referral cannot be made out of time as the old provision did. Rather, the new s.29(2) provides that the referral is to be made within time. 61 In this case, quite clearly, the right to make the referral was preserved and is so in any event, by the operation of s.37(1) of the Interpretation Act 1984 in its general terms and in particular under s.37(1)(b), (c) and (f). It is to be noted for example, that a legal proceeding may be “instituted” (ie) commenced, as if the repealing law had not been passed or made. 62 The right to refer the matter existed under the unamended Act and continued on after 1 August 2002 and proceedings could be instituted after that date. The right to refer always existed and since it was preserved as was the right to claim itself, then the right to apply to extend time attached to that preserved right after the Act was amended to provide for such an extension to occur by the accepting of a referral out of time (see Esber v Commonwealth of Australia and Another (1992) 106 ALR 577 at 583 (HC). 63 Further, “. . . a statutory right will be preserved too notwithstanding the repeal or amendment of the statute even though the right can only be implemented by a non-discretionary decision of an official or a court, provided that the statutory machinery for obtaining that decision has been set in force before the repeal or amendment.” (See New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685 (CA) at 686 per Hope JA. That authority supports the view which I have taken). 64 In this case, it is probable that the proceedings should have commenced (see Continental Liqueurs Pty Ltd v G F Heublein and Bro Inc [1960] 103 CLR 422 at 426, but having regard to the whole of s.37 as I have analysed it above, I do not see that principle, if it can be elevated to a principle, as negativing what I have otherwise said. I would also add that there is no provision in the Act in its transitional provisions which negatives the view which I have expressed above. Cogently, too, there is no express or implied intention in the Interpretation Act 1984 (see s.37 and see also the Act) to the contrary. For those reasons, I would find that power existed in the Commission to accept the referral of the claim out of time, the right to do so being preserved after the repeal of the Act. I would also find that there was jurisdiction in the Commission to make the order which it did for the reasons which I have expressed. RETROSPECTIVITY 65 It is not in issue between the parties, and it is the fact, that a referral of a claim by an employee that he/she had been harshly oppressively or unfairly dismissed from his employment, as this was, could not be made later than 28 days after the day on which the employee’s employment is terminated. That day it is common ground was in this case 8 July 2002. This application was lodged three days out of time (ie) 31 days after the day on which Mr Stiles’ employment was terminated. 66 (There is no time limit under s.29(1)(b)(ii) on a claim for contractual benefits). 67 It is also significant that this application, whilst made three days out of time, was made after s.29(3) came into operation and that the 28 day period which exists and existed under s.29(2) of the Act expired on 5 August 2002 which was after s.29(3) came into operation. In other words, and importantly, when the Act came into operation the right to claim unfair dismissal and refer the claim was not statute barred. 68 Since s.29(3) came into operation as part of the proclaimed amendments to the Act on 1 August 2002, the ability of the Commission to accept a referral under s.29(1)(b)(i) cannot pre-date 1 August 2002, so the submission went. That is because the enactment, it was submitted, did not have retrospective effect, there being a common law presumption against retrospectivity in the absence of a clear intention in the statute to the contrary (see Maxwell v Murphy [1957] 96 CLR 261 at 267, per Dixon CJ) – or, alternatively, if there is a necessary implication to the contrary from the statute (see Worrall v Commercial Banking Company of Sydney Ltd [1917] 24 CLR 28, and Zainal bin Hashim v Government of Malaysia [1979] 3 All ER 241 (PC)). 69 There is no express provision for retrospectivity of the operation of s.29(3), and no necessary implication from the statute, nor was it so submitted. 70 It is, of course, the law that the presumption of retrospectivity may be more easily dispensed with where the enactment is found to be procedural rather than substantive. 71 The question, therefore, is whether there was either jurisdiction or power to make the order made. That, in turn, depends on whether s.29(3) was required to be held to be retroactive and could, in addition, be so held. 72 It was submitted, on behalf of the appellant, that s.29(3) cannot be interpreted as applying retrospectively on the authority of Maxwell v Murphy (op cit) and Yrttiaho v The Public Curator of Queensland [1971] 125 CLR 228 per Gibbs J at 241. 2756 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 83 W.A.I.G. 73 The rule is— “The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law has defined by reference to the past events.” (See per Dixon CJ in Maxwell v Murphy (op cit) at page 267 and see also Fisher v Hebburn Ltd [1960] 105 CLR 188 at 194 per Fullagar J). 74 In Victrawl Pty Ltd v Telstra Corp Ltd (1995) 131 ALR 465 at 479, the High Court (Deane, Dawson, Toohey and Gaudron JJ) said too— “The relevant question for the purpose of determining whether it is to be presumed that a statutory provision was not intended to have retrospective operation in the sense of applying to past events is not, however, whether it can be broadly characterised as a procedural provision. It is whether the provision’s operation is merely procedural in the sense that it would not, if given unconfined operation, affect pre-existing substantive rights or liabilities. It is only if a statutory provision is merely procedural in that narrow sense that the ordinary presumption against retrospective operation is inapplicable”. (See also Rodway v R (1990) 92 ALR 385 at 387). 75 It is trite to observe that all legislation impinges on existing rights and obligations but legislation operates retrospectively if it provides that rights and obligations are changed with effect prior to the commencement of the legislation. The presumption against retrospectivity only arises where so to read the legislation would impinge on a person’s rights or duties (see Carr v Finance Corporation of Australia Ltd (1982) 42 ALR 29 at 38 per Mason, Murphy and Wilson JJ). 76 This Commission has held that s.29(3) does not operate retrospectively in a number of cases, including Azzolini v Perth Inflight Catering (2002) 82 WAIG 2992 at 2994 per Kenner C. 77 The general rule that statutes are not to be given retrospective operation does not apply to statutes that are concerned with matters of procedure only (see Maxwell v Murphy (op cit) per Dixon CJ at page 267 and also per Fullagar J at page 286). 78 The principle to be applied therefore is this— “. . . if a statute is concerned only with the way in which certain rights are to be enforced and is quite literally concerned with court procedure, it will operate retrospectively. This means it is applicable to all actions commenced after the passing of the procedural statute to enforce rights, whether those rights arose before or after the enactment of that statute. . . . a statute amending procedure extends to actions that are only part completed when the change in procedure is made.” (See Pearce and Geddes “Statutory Interpretation in Australia” (5th edition) page 262). 79 There are no clear guidelines that one can look to in determining whether a provision should be treated as procedural. To a large extent it is necessary for a court to make up its mind on a case by case basis. 80 Pearce and Geddes cite some interesting examples— (a) In Australian Iron and Steel Pty Ltd v Najdovska (1988) 12 NSWLR 587, an increase in the amount of damages that might be awarded under the Anti-Discrimination Act 1977 was procedural, it was held, and was therefore applicable to actions commenced before the amendment. (b) Extensions of time may be procedural (see Chang Jeeng v Nuffield (Australia) Pty Ltd [1959] 101 CLR 629; Australian Iron and Steel Pty Ltd v Hoogland [1962] 108 CLR 471). (c) Statutes of limitation are procedural in nature (but this presumption is rebuttable) (see Maxwell v Murphy (op cit)) per Fullagar J at pages 286-291. In a case where an act giving a certain right also provides the only remedy by which the right might be enforced, the act affecting the remedy might also affect the right and could not be held to be procedural. Thus, if a right is conditional upon an action being brought within the allotted time, upon the lapse of that time, the right is lost. (d) An act extending time could not be said to be procedural (see The Western Pastoral Co v Eyeington [1971] 125 CLR 342 and see also Maxwell v Murphy (op cit)). Chang Jeeng v Nuffield (Australia) Pty Ltd 81 In my opinion, this matter is best dealt with in terms of what Dixon CJ said in Chang Jeeng v Nuffield (Australia) Pty Ltd [1959] 101 CLR 629 at 636-639 (see also Australian Iron and Steel Pty Ltd v Hoogland (op cit)). That was a case which dealt with the right to sue at common law of an employee, preserved by the provisions of the Workers’ Compensation Act 1926- 51 (NSW) (hereinafter referred to as “the Workers’ Compensation Act). 82 In that case, a provision which enabled an employee to sue an employer independent of the Workers’ Compensation Act, provided the proceedings were commenced within a period of 12 months after the date of receipt of the first or only workers compensation payment received by the employee, was amended. There was a proviso which enabled the period to be extended by application to the court provided that the application to extend time was brought within a prescribed period of 12 months after the first prescribed period of 12 months. 83 On 20 November 1953, the prescribed period was amended from 12 months to three years, but the period after that within which one might apply to extend time within which to take proceedings independent of the Workers’ Compensation Act was left unchanged (ie) within 12 months of the new prescribed period of three years. 84 Thus, it was held by the High Court, in that case, that a worker who received his/her first payment of compensation within 12 months prior to 20 November 1953 is entitled to the benefit of the amending Act of 1953 and may bring proceedings independent of the Workers’ Compensation Act against an employer within the new prescribed period of three years from the date of his/her first or only receipt of compensation. Thus, the worker could then seek an extension of such prescribed period either within that period itself or within 12 months after the expiry of the prescribed period of three years. 85 As Dixon J said, cogently, at page 635— “At the time when the amendment was made substituting three years for twelve months the prescribed period of twelve months limited for suing had not expired and of course the further period of twelve months before the expiration of which it was necessary to make an application for an extension of time had not begun to run. It appears to me that, on the repeal of the limitation of twelve months and the substitution of that of three years, there was no limitation to govern the case unless it was the period of three years. The right to sue had not been barred and no question of reviving it arose. It was a common law right to put in suit a common law cause of action. It was enforceable and the statutory period of limitation then running against it ceased to exist and was replaced by another statutory period.” 83 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 2757 86 In this case, somewhat more strongly, the statutory period running against Mr Stiles of 28 days was replaced by a statutory period of 28 days which could be effectively extended by a referral being accepted outside the period without any prescribed temporal limit to that being done. 87 Further, His Honour held that s.8(a) of the NSW Interpretation Act 1897 which was in similar terms to s.37(1)(b) of the Interpretation Act (WA) did not affect the legal situation already existing. He distinguished Maxwell v Murphy (op cit) by the same reasoning he had used in that case because the question was the opposite one. The question in Chang Jeeng v Nuffield (Australia) Pty Ltd (op cit) was whether an actionable right was barred and gone and was removed by the repeal of the limitation of time and the substitution of a longer one (see page 636). 88 I also quote what Dixon CJ said at page 638 (op cit) where he said— “Now to my mind the considerations in the present case which are decisive are these— The right of action of Cheng Jeeng the appellant had not been barred at the date the amendment took effect; considered in relation to the right of action the amendment was, I think, truly procedural; there was no impairment or destruction of any substantive right belonging to the respondent; the amendment effectually removed the limitation of twelve months and replaced it by a period of three years and no provision of the Interpretation Act exists which would keep alive the limitation of twelve months in its application to the case.” (See also the dicta of Menzies J at pages 649-650 and Windeyer J at pages 650-651 which are in similar vein). 89 Whilst there are differences between this case and Chang Jeeng v Nuffield (Australia) Pty Ltd (op cit), the principles applicable are the same and I follow that authority and apply it for those reasons— (a) There is an unamended provision that a claim of “unfair dismissal” can be referred to the Commission by an employee. (b) At the time when the Act was amended the claim was not statute barred because the time prescribed for it had not expired and did not expire until some days after the amendment to the Act to insert s.29(3). (c) The effect of the amendment was to remove (putting aside the effect of s.27(1)(n)), a mandatory and prima facie non-extendable limitation period, and substituting a limitation period which might no longer be mandatory but which was, in any event, by an acceptance of a referral out of time by the Commission, extendable by the Commission by an act of acceptance out of time, for an unspecified period determinable only by the effect of the Commission’s order. (d) Since the time when he might avail himself of the rights given by the Act had not expired at the time the Act was amended, the respondent’s right under s.29(1)(b)(i) was not barred and he remained able to proceed within 28 days (ie) by 5 August 2003, when he would not be out of time. (e) Further, Mr Stiles was able to avail himself of the ability to extend the period of 28 days by having the referral without a prescribed temporal limitation, accepted out of time by the Commission. 90 Accordingly, the Act was able to operate to enable the referral of the claim to be validly accepted out of time as it was by the Commission and that acceptance of course, operated as an effective extension of time. I should also say that, whilst no submission was made to the Commission at first instance that there was no jurisdiction in the Commission to make the order appealed against, and it is unsatisfactory if such a question is left until an appeal is lodged, nonetheless it is open to entertain such a question on appeal (see SGS Australia Pty Ltd v Taylor 73 WAIG 1760). 91 For all those reasons it is quite clear and I find that the order made was entirely within power and that the appeal should fail in any event. FINALLY 92 I would therefore find as follows— (e) That an appeal should lie pursuant to s.49(2)(a). (f) That, however, the application for leave to extend time within which to appeal should be dismissed. (g) That even if that were wrong, the appeal is not made out there being no ground of appeal made out for the reasons which I have expressed. (h) That the appeal should be, therefore, for all of those reasons, dismissed. SENIOR COMMISSIONER A R BEECH— 93 An appeal lies to the Full Bench in the manner prescribed from any decision of the Commission but not from a finding unless, in the opinion of the Full Bench, the matter is of such importance that, in the public interest, an appeal should lie. Mr Stiles submits that the decision of the Commissioner at first instance made in the order of 18 February 2003 is a finding as that is defined. 94 On the broad view that the “proceedings” before the Commissioner at first instance related to the matter of Mr Stiles’ substantive claim of unfair dismissal and denied contractual benefits then the decision of the Commissioner did not “finally decide, determine or dispose of the matter” and is thus a finding as defined. In my view it is at least arguable that the proceeding before the Commissioner at first instance related to whether it would be unfair not to accept Mr Stiles’ claim of unfair dismissal which had been referred to the Commission out of time. While the order which issued did not finally dispose of the substantive claim, and the proceedings were not an interlocutory matter, it might be said perhaps that the order finally disposed of the threshold matter under s.29(3) of the standing of the application. On that view of the proceedings the order which issued finally determined the matter to which the proceedings related and an appeal lies against that decision as of right subject to compliance with the Act. 95 On this occasion I would hold that even if the decision is a finding as that is defined I consider the matter is of such importance that in the public interest an appeal should lie. The issue the appellant seeks to raise in its appeal if an extension of time is granted is a point of law. The respondent argues that the point of law goes to the jurisdiction of the Commission at first instance to hear Mr Stiles’ claim of unfair dismissal. The appellant argues that jurisdiction is a matter that may be raised at any time. If the Full Bench should not hear the appeal and the matter proceeds to a substantive hearing then a further appeal to the Full Bench on the issue of jurisdiction will lie and will necessarily incur costs for both parties in addition to the cost (which the appellant describes as considerable) in preparing for a substantive hearing in Carnarvon on 5 August 2003. The point raised by the appellant is sound. The issue of jurisdiction is one that is fundamental to the Commission in its operations. 2758 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 83 W.A.I.G. 96 The appeal in this matter was filed 35 days out of time and accordingly it is necessary to decide whether or not an extension of time should be permitted to the appellant to file the appeal. The discretion to extend time is given for the sole purpose of enabling the Full Bench to do justice between the parties and the discretion can only be exercised in favour of an appellant upon proof that strict compliance with the rules will work an injustice upon him (Rosemist Holdings Pty Ltd v Khoury (1999) 79 WAIG 615 citing Gallo v Dawson (1990) 64 ALJR 458; and see too Cousins v. YMCA (2001) 82 WAIG 5). 97 One of the relevant factors is what the consequences will be of the granting or refusal of the application for an extension of time. Another relevant factor for granting an extension of time is that the proposed appeal has some prospect of success. The Full Bench is to assess whether there is a real or reasonable prospect of the appellant succeeding in the substantive appeal (ibid.). 98 If there is a real or reasonable prospect of the appellant succeeding in the substantive appeal it wishes to bring before this Full Bench then that would count heavily in the scales counterbalancing the delay of 35 days in the filing of the appeal. I therefore turn to consider whether there is a real or reasonable prospect of the appellant succeeding in the substantive appeal. 99 The essential facts are that Mr Stiles was dismissed on 8 July 2002. Section 29(2) of the Act at that time, was as follows— “29(2) A referral by an employee under subsection (1)(b)(i) cannot be made more than 28 days after the day on which the employee’s employment terminated.” 100 Thus, the referral of Mr Stiles’ claim of unfair dismissal could not be made after 5 August 2002. His referral was in fact made on 8 August 2002. A matter is “referred” to the Commission when it is received by the Registry (STW Channel 9 v. Satie (1999) 79 WAIG 1863). Whether Mr Stiles completed and signed the Notice of Application on 5 August 2002 and posted it on 6 August 2002 (as he says he did) does not alter the fact that his application was received by the Registry on 8 August 2002. Thus, his application was made more than 28 days after the day on which his employment terminated and thus could not be made according to s.29(2) as it was in force at the time his employment terminated. The 28 day period prescribed in s.29(2) is an integral part of and conditions the right of a former employee to refer an application to the Commission alleging harsh, oppressive or unfair dismissal (Richardson v. Cecil Bros (1994) 74 WAIG 1017 at 1018). 101 On 1 August 2002 s.139 of the Labour Relations Reform Act 2002 commenced operation. Relevantly, from 1 August 2002 the Industrial Relations Act 1979 provided as follows— “ss.29(2) and (3) (2) Subject to subsection (3), a referral under subsection (1)(b)(i) is to be made not later than 28 days after the day on which the employee’s employment is terminated. (3) The Commission may accept a referral by an employee under subsection (1)(b)(i) that is out of time if the Commission considers that it would be unfair not to do so.” 102 Section 29(2) provides that the referral is to be made not later than 28 days after the day on which the employee’s employment is terminated. To that extent, the 28 day period for referring a claim of unfair dismissal to the Commission under s.29(1)(b)(i) remains, however the prescription that such a claim “cannot be made” more than 28 days after the day on which the employee’s employment terminated is modified to provide that the referral “is to be made” no later than that time and subject to s.29(3). 103 Section 29(3) provides a power to the Commission to accept a referral that is out of time if the Commission considers that it would be unfair not to do so. 104 On the facts, therefore, from 1 August 2002 the Commission had the power which it arguably did not previously have prior to 1 August 2002 to accept a referral under s.29(1)(b)(i) that is out of time. Mr Stiles’ claim is a referral that is out of time, and the point to be raised in the substantive appeal, is whether or not that power was available to the Commission to permit it to accept Mr Stiles’ referral given that his dismissal occurred prior to 1 August 2002. The appellant seeks to argue before the Full Bench that s.29(3) can only apply to referrals to the Commission where the day on which the employee’s employment is terminated is on or after 1 August 2002. The respondent would submit that to hold otherwise would be to make the amendments operate retrospectively. 105 The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to the facts or events that have already occurred in such a way as to affect rights or liabilities which the law had defined by reference to past events (Rodway v. The Queen (1990) 169 CLR 515). The application of the rule thus requires an examination of the rights or liabilities which the law had defined by reference to past events. 106 On the facts in this matter, when the amending statute took effect on 1 August 2002 Mr Stiles’ right to refer a claim to the Commission had not become barred by lapse of time. Had the 28 days after the day on which his employment terminated passed prior to 1 August 2002 then the presumption against retrospectivity would mean that the amending statute could not revive his cause of action which by then would have become barred. As the High Court stated— “Where a period is limited by statute for the taking of proceedings and the period is subsequently abridged or extended by an amending statute, the amending statute should not, unless it is clearly intended, be given a retrospective operation to revive a cause of action which has become barred or to deprive a person of the opportunity of instituting an action which is within time. If it were given a retrospective operation, the amending legislation would operate so as to impair existing, substantive rights - either the right to be free of a claim or the right to bring a claim – and such an operation could not be said to be merely procedural. (supra at 519) 107 Indeed, that was the conclusion reached by my colleague Kenner C in Azzalini v. Perth Inflight Catering (2002) 82 WAIG 2992 with which I respectfully agree. On the facts in that matter, the time for the applicant to refer a claim of unfair dismissal to the Commission under s.29(1)(b)(i) had passed and could not be revived (as was also the fact in the cases of Rogers v DMW Constructions Pty Ltd (2003) 83 WAIG 606; Thomson v St Barbara Mines Limited (2003) 83 WAIG 616 and Alberghini v Dr Geoffrey Bower, Isotope Imaging Hollywood Hospital (2003) 83 WAIG 326 to which the appellant has referred). 108 In this case had Mr Stiles’ right to refer his claim of unfair dismissal expired prior to 1 August 2002, the respondent would have had a “right to be free of any claim” in the sense referred to in Rodway v The Queen. For the Commission to exercise the power in s.29(3) to allow such a claim to be revived would be to “affect rights or liabilities which the law had defined by reference to past events”. 109 Whilst the issue appears settled in respect of cases where the time allowed for referring a claim of unfair dismissal to the Commission under s.29(1)(b)(i) has already expired, is the position any different where, as in this case, the time allowed for Mr Stiles to institute his claim of unfair dismissal had not expired when the amending statute came into effect? There is no presumption against retrospectivity in the case of statutes which affect mere matters of procedure but as the High Court 83 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 2759 observed the difference between substantive law and procedural law is often difficult to draw (Rodway v. The Queen op. cit. at 519). The imprecision inherent in deciding whether or not the amending legislation is “procedural” or “substantive” causes many differences of opinion as Kirby P observed in Byrnes v. Groote Eylandt Mining (1990) 19 NSWLR at 24; and see too Keith McLaren v. The Corporation of the City of Adelaide (1991) 58 SAIR 557 and Henningson v. Bishop Collections Pty Ltd and Others (1992) 59 SAIR 230 as cited in Westrail v Trevor Durham (1994) 74 WAIG 1882). 110 Reference to what have been described as “the limitation cases” may give some indication to the answer. These are Maxwell v. Murphy (1957) 96 CLR 261; Chang Jeeng v. Nuffield (Australia) Pty Ltd (1959) 101 CLR 629; Yrttiaho v. Public Curator (Qld) (1971) 125 CLR 228. 111 In Maxwell v. Murphy the time within which to bring the legal action had passed prior to the passing of a legislative amendment which deleted the time period of 12 months and inserted the period of 6 years. The question before the High Court, as posed by Gibbs J at p.266, was whether the amendment did or did not operate to revive the right to maintain the action. If the amendment revived that right it would revive a right that had ceased to exist and re-imposed a liability on the respondent from which he had been discharged. It would impose anew a liability which had ceased to exist and the presumptive interpretation is against such an operation (at pp.269/269). 112 In Chang Jeeng v. Nuffield the legislation was amended from requiring that proceedings were to be instituted within 12 months of the date of a certain payment to a requirement that proceedings were to be instituted within 3 years of the date. Chang Jeeng made an application at a date that in fact was more than the 12 months and was even more than 3 years from the date of the certain payment but within a following period when a judge could extend time. A majority of the High Court held that the amended legislation governed the case because of the fact that when the amendment came into force the prescribed period of 12 months limited for suing had not expired. Dixon CJ held— “It appears to me that, on the repeal of the limitation of 12 months and the substitution of that of three years, there was no limitation to govern the case unless it was the period of three years.” (op. cit. at 635) 113 Dixon J observed that in that case, and unlike the position in the matter raised before this Full Bench, it was a common law right to put in suit a common law cause of action. However, and relevantly, that observation does not appear to me to be material to his conclusion that the effect of the amendment was that the statutory period of limitation then running against it ceased to exist and was replaced by another statutory period. 114 It is also relevant to observe that Williams J in Maxwell v. Murphy (op.cit at 277) refers to two classes of case which can be considered— “An existing statute of limitation may be altered by enlarging or abridging the time within which proceedings may be instituted. If the time is enlarged whilst a person is still within time under the existing law to institute a cause of action the statute might well be classed as procedural. Similarly if the time is abridged whilst such person is still left with time within which to institute a cause of action, the abridgement might again be classed as procedural. But if the time is enlarged when a person is out of time to institute a cause of action so as to enable the action to be brought within the new time or is abridged so as to deprive him of time within which to institute it whilst he still has time to do so, very different considerations could arise. A cause of action which can be enforced is a very different thing to a cause of action the remedy for which is barred by lapse of time.” 115 In Yrttiaho v. Public Curator (Qld) Gibbs J observed (at 242)— “The authorities support the view that an amendment to a Statute of Limitations may be regarded as being only of a procedural nature and, therefore, unless a contrary intention appears, retrospective in operation, if, being an amendment enlarging time, it took effect before the right sought to be enforced had become finally barred by lapse of time, and if, being an amendment reducing time, it left time after its commencement within which an action might be brought. In these circumstances the substantive rights of the parties are not affected by the alteration of the limitation period.” 116 These cases were referred to by the High Court in Carr v. Finance Corporation of Australia Limited (1982) 42 ALR 29 at 37 as providing clear illustrations of the operation of the rule— “If the time allowed for instituting an action has already expired when an amending act extends the time, that amendment will not operate to revive the extinguished cause of action or render it capable of enforcement. Conversely, if the time within which an action may be taken, or a step taken in proceedings, is abridged, the amending law will not apply so as to place a party out of time. On the other hand so long as there is yet time for the action to be instituted or the step taken, an abridgment of time will apply; it is then no more than a procedural statute affecting the future conduct of the proceedings. It seems to us that this line of cases reflects the care of the common law for vested rights and its concern to avoid injustice.” 117 If it is appropriate to regard ss.29(2) and 29(3) which came into effect on 1 August 2002 as an amendment which enlarges the time within which to bring a claim of unfair dismissal, the fact that the amendment came into effect when the period for Mr Stiles to bring his claim was still open, and his right to refer the claim to the Commission was not yet barred, suggests on the above High Court authorities that the power in s.29(3) would apply in Mr Stiles’ case. 118 However, and significantly, the amendment made by s.139 of the Labour Relations Reform Act 2002 is not an amendment which enlarges (or abridges) the time within which to bring a claim as was considered in the limitation cases I have referred to above. In its terms s.139 repealed s.29(2) and inserted instead ss.29(2) and 29(3). The question whether an Act has been repealed or amended is a matter of substance and not one of form only (Beaumont v Yeomans (1934) 34 SR (NSW) 562 at 569 as cited in Statutory Interpretation in Australia, Pearce and Geddes, Butterworths 5th ed., p.200). 119 Applying the words of Dixon J in Chang Jeeng (supra) the effect of the repeal of the previous s.29(2) is that it ceased to exist and was replaced by ss.29(2) and 29(3). The effect of the inserted s.29(2) is to re-enact the then repealed s.29(2) with modifying words to recognise the new s.29(3). The 28 day limitation which is integral to the right to claim unfair dismissal under s.29(1)(b)(i) remains but is made subject to s.29(3). Significantly, s.29(3) does not enlarge or abridge any time of limitation. It confers a power on the Commission. 120 The facts are thus different from the facts before the Full Bench in Westrail v Trevor Durham (op. cit). That Full Bench decided that s.29(2) (as it was when it came into effect on 1 December 1993) fixed the datum point for the 28 day limit at the date of dismissal. The effect of inserting s.29(2) into the Act was to insert a limitation which had not previously existed. The Full Bench in that case correctly identified s.29(2) as a statute of limitation which might ordinarily be classified as procedural. If however it operated in a way which adversely affected existing vested rights it was not merely procedural and would fall within the presumption against retrospectivity. In that case Mr Durham had a substantive right under the Act prior to 1 December 1993 which would have been extinguished, namely the right not merely to lodge a claim in respect of his alleged 2760 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 83 W.A.I.G. unfair dismissal on 8 July 1993 but to lodge it at any time thereafter. To have applied the new s.29(2) to his case would have adversely affected an existing vested right. The Full Bench held that s.29(2) had only prospective operation and did not apply to dismissals effected before 1 December 1993. 121 It is on the basis of the above High Court authorities that, regretfully and with respect, I depart from the reasoning in McEwan v Australasian Correctional Management Pty Ltd (2002) 83 WAIG 360. For the Commission to exercise its power under s.29(3) upon Mr Stiles’ claim will not give that power retrospective operation because it will operate in relation to a right which was still existing on and after that date. It will not apply to “the facts or events that have already occurred in such a way as to affect rights or liabilities which the law had defined by reference to past events” (to quote the words from Rodway v. The Queen op.cit.). The use of the Commission’s power would not revive a right which had ceased to exist. Nor would it re-impose a liability on the respondent from which he had been discharged. No discharge had occurred at 1 August 2002 and on the authority of Chang Jeeng (op.cit.) the effect of the repeal of s.29(2) was that it did not occur on 5 August 2002. 122 In the words used in Carr v. Finance Corporation of Australia Limited (supra) so long as there was yet time for the action to be instituted at 1 August 2002, the amendment is then no more than a procedural statute affecting the future conduct of the proceedings. Where a statute operates in the future by reference to past events it may be better to regard the operation of such a statute as prospective and not as having a retrospective operation (Rodway v. The Queen (op.cit.) at 524). Where, as here, there was yet time for Mr Stiles to refer his claim of unfair dismissal to the Commission, 29(3) does not operate retrospectively. If that is the case, the issue of s.29(3) operating retrospectively does not arise. I therefore do not accept, with respect, the submission of the appellant to the contrary in its submissions at paragraph 1(c)(iv). For that reason also s.37 of the Interpretation Act 1984 referred to by the appellant does not advance its position. It is in this respect that the operation of the rule alluded to by their Honours in Carr v. Finance Corporation of Australia Limited (supra) is directly relevant. 123 Once that is seen in this case, I suspect the better view is that the application of s.29(3) to Mr Stiles’ claim does not involve the retrospective operation of legislation which is at the heart of the general rule of the common law that a statute changing the law ought not to be understood as applying to facts or events that already occurred as to affect rights or liabilities which the law had defined by reference to past events. On that reading, s.29(3) does not operate retrospectively but rather it governs the way in which the right which Mr Stiles had at 1 August 2002 is to be applied from that point forward. The effect of the amendment therefore is that Mr Stiles’ referral to the Commission is to be made not later than 28 days after the day upon which his employment is terminated however the Commission may accept the referral out of time if the Commission considers that it would be unfair not to do so. 124 I am therefore not of the view that the appellant has a real or reasonable prospect of succeeding in the substantive appeal. 125 I return therefore to the consideration of whether or not an extension of time should be permitted to the appellant to file the appeal. The respondent submits that the delay in filing the appeal should not be visited upon the appellant as the delay arises due to the error in the legal advice received by the appellant prior to the appellant contacting the CCI. The submission is that the general principle is that the client of a solicitor or agent should not ordinarily be penalised for any errors or omissions by their agent or solicitor unless actively contributed to by the client. 126 I consider the length of the delay as considerable, being almost three times the prescribed period of 21 days. Where the reason for the delay is due to the fault of the appellant’s legal representative or agent, that fact is of itself only one issue to be considered. Otherwise, the mere fact, once it is established, of the delay being caused by the legal representative or agent would be sufficient to grant the extension of time and that, of course, is not the case. While the delay was caused by the fault of the appellant’s then legal practitioner, and not at all by the appellant’s present legal practitioner, I regard the delay as too long in this case to be excused merely for that reason. 127 In Jackamarra v. Krakouer and Another (1998) 195 CLR 516 relied upon by the appellant in these proceedings, the relevant Notice of Appeal was made within time. However, it was not entered for hearing within the time required by the relevant rules of the Supreme Court. The Full Court of the Supreme Court dismissed an application for an extension of that time and dismissed the appeal for want of prosecution. The difference between a circumstance where a party knows an appeal has been made, as in that case, and a circumstance where, as here, Mr Stiles was unaware of the appeal until it was lodged 35 days out of time is significant. The prejudice to Mr Stiles is not a delay in an appeal he already knew had been made. The prejudice to Mr Stiles is the loss to him of the “right” he had acquired after the expiry of the period 21 days from the date of the decision at first instance to regard his position thus far as secure and take whatever steps were open to him in consideration of that to progress his claim before this Commission. 128 Whilst I appreciate the fundamental issue the appellant seeks to raise on this appeal, given my finding that the appellant does not have a real or reasonable prospect of succeeding in the substantive appeal, I would not grant an extension of time. 129 I would therefore dismiss the appeal. COMMISSIONER S J KENNER— 130 The appellant appeals against a decision of the Commission at first instance to accept the respondent’s application alleging he was harshly, oppressively and unfairly dismissed, out of time pursuant to s 29(3) of the Industrial Relations Act 1979 (“the Act”). There was no dispute at first instance, that the applicant’s employment was terminated on 8 July 2002. The appellant complains that the Commissioner wrongly accepted the respondent’s referral out of time, because she purported to exercise the discretion conferred on the Commission pursuant to s 29(3) of the Act, in circumstances where that section had no application. Accordingly, the appellant says the decision of the Commission at first instance is ultra vires the Act. 131 Because the appeal pursuant to s 49 of the Act was filed some 35 days out of time, it is necessary for the appellant to persuade the Full Bench that it ought to grant an extension of time to enable the appeal to be heard. Furthermore, if the decision in relation to which this appeal is brought, is a “finding” for the purposes of s 49(2a) of the Act, the appellant must satisfy the Full Bench, such that it is able to form an opinion, that the subject of the appeal is of such importance that, in the public interest, the appeal should lie. Extension of Time to Appeal 132 The appellant carries the burden of persuading the Full Bench, that it should grant an extension of time to bring the appeal. The relevant principles in relation to deciding applications to extend time are well settled in this jurisdiction: Ryan v K N Hazelby and Jack Lester t/a Carnarvon Waste Disposals (1993) 73 WAIG 1752; Gallow v Dawson (1990) 64 ALJR 458 (cited and followed in Khoury v Rosemist Holdings Pty Ltd (1999) 79 WAIG 645). In essence, consideration is to be given to the length of the delay; the reason for the delay; whether there exists an arguable case; and the extent of any prejudice that may be suffered by the respondent to the appeal: Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196. 133 In this case, the length of the delay in instituting the appeal was 35 days. In my opinion, the length of the delay is not inconsequential and should be regarded as substantial. 83 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 2761 134 In terms of the reason for the delay, the appellant, accompanying its written submissions on the appeal, filed an affidavit of Ms Fiona Mitchell, the chief executive officer of the appellant. There was no other evidence before the Full Bench. Ms Mitchell deposed to the fact that she was appointed to the position of chief executive officer of the appellant on 20 January 2003. She said that the previous acting chief executive officer, a Mr Hill, had instructed a Carnarvon solicitor, Mr Reading, to act on behalf of the appellant in the respondent’s unfair dismissal claim. At about the time of her appointment, she informed the Full Bench that she enquired of Mr Hill what the status of the respondent’s application was. Apparently although clearly hearsay Mr Hill informed her that he had been informed by Mr Reading, that the matter “was being dismissed”. 135 Subsequently, on about 25 March 2003, Mr Reading sent the appellant a notice of hearing, listing the respondent’s unfair dismissal application for hearing in August 2003. Ms Mitchell deposed that until that time, a period of about two months, she had heard nothing from Mr Reading. Furthermore, Ms Mitchell deposed to the effect that she had seen no orders or decisions from the Commission, in relation to the respondent’s application. 136 Immediately thereafter, on 26 March 2003, Ms Mitchell contacted the appellant’s solicitor Mr Reading, and requested that he send the papers to the Chamber of Commerce and Industry of Western Australia, who were then to act on the appellant’s behalf. This occurred. The files were apparently received by the solicitor now acting for the appellant from the Chamber, on or about 10 April 2003 following which on 17 April 2003 the appeal was filed, together with an extension of time within which to bring it. 137 The appellant submitted that in light of this evidence, the delay in instituting the appeal was as a result of the appellant’s solicitor’s conduct, and not that of the appellant itself. It was submitted that the appellant did not become aware of the listing for the hearing of the substantive matter, until about 25 March 2003. It was also submitted that on 26 March 2003, Ms Mitchell contacted Mr Reading, who informed her of the existence of the order of the Commission at first instance, accepting the respondent’s referral out of time. I pause to note however, that there is no reference to this in Ms Mitchell’s affidavit. She refers to contacting Mr Reading and instructing him to send the file to the Chamber, but deposes to the effect that she was not aware of and had never seen any order. It was the general submission of the appellant, that thereafter, it acted promptly and instituted the appeal proceedings. 138 The Full Bench has not had the benefit of hearing from Mr Reading, the appellant’s solicitor, in relation to the delay question. Consideration of the extent to which a party’s legal adviser has been responsible for delay in bringing appeal proceedings, is recognised as a factor. It has been said, that “it is very hard that a party should suffer because of the blunder of a solicitor”: Christie v Harvey and Hayward (1900) 2 WAR 146 at 150 per Hensman J. It has also been held, that the fact that any delay or fault lay at the feet of a party’s solicitor and not the party, is a material factor in determining whether the discretion to extend time ought be exercised: Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 at 199. This latter proposition was also adverted to by Kirby J in Jackamara v Krakouer (1998) 195 CLR 516 at 543-544. This principle is not as applicable however, where the party has also contributed to the default. 139 In this case, it seems to me that the appellant is not entirely free from fault in relation to the delay. On the evidence, the appellant took no steps for some two months, between about mid January and mid March 2003, to make any inquiries as to the status of the respondent’s claim. Whilst the appellant’s solicitor should no doubt, have immediately informed his client of the reasons for decision and order of the Commissioner at first instance when they were published on 18 February 2003, the delay in bringing the appeal proceedings is not in my opinion, attributable to the appellant’s solicitor alone. 140 The next issue to consider in whether to grant leave to extend the time within which the appeal can be brought, is whether there is an arguable case on appeal. It is in relation to this issue that regrettably, I part company with the views expressed by my colleagues. In my opinion, the appellant’s grounds of appeal are strong and for the following reasons in my view, the grounds of appeal should succeed. 141 The central contention of the appellant is that the Commissioner at first instance erred and exceeded her jurisdiction, by accepting the respondent’s referral out of time, in purported reliance on s 29(3) of the Act. The appellant’s submission was that s 139 of the Labour Relations Reform Act 2002 (“the LRRA”) repealed the former s 29(2) of the Act, and inserted a new s 29(2) and s 29(3), which came into effect on 1 August 2002. It was submitted that the terms of s 29(2) and s 29(3) cannot be regarded as operating retrospectively, and therefore, had no application to the respondent’s dismissal, which occurred on 8 July 2002. It was the submission of the appellant that the datum point for termination of employment is on and from 1 August 2002, for the purposes of applying the 28 day time limit as provided in these sections of the Act: Durham v Western Australian Government Railways Commission trading as Westrail (1994) 74 WAIG 1882; Azzalini v Perth In-flight Catering (2002) 82 WAIG 2992 at 2994; McEwan v Australasian Correctional Management Pty Ltd (2003) 83 WAIG 360 at 361. 142 The appellant said that, in applying the principles in Maxwell v Murphy (1957) 96 CLR 261, the common law presumption against retrospectivity, in the absence of a clear intention to the contrary, has application in this case. 143 The respondent, appearing in person, in a careful and detailed written submission, submitted that in effect, the amendments introduced by s 139 of the LRRA, were matters of procedure, and therefore did not offend the presumption against retrospectivity, thus having application to all claims existing on 1 August 2002. The respondent submitted that the effect of s 29(2) and s 29(3) prospectively modified the procedure applicable to enforcing an unfair dismissal claim that existed on 1 August 2002. 144 In Azzalini and to a lesser extent in McEwan, I had occasion to consider some of the issues raised by the present appeal. I do not repeat what I said in those two decisions, but simply adopt and apply them for the purposes of determining this appeal. Despite the submission of the respondent, I am not persuaded to take a view different to that which I expressed in those decisions. 145 The relevant statutory provisions are as follows. The former s 29(2) was in the following terms— “29. By whom matters may be referred (2) A referral by an employee under subsection (1)(b)(i) cannot be made more than 28 days after the day on which the employee’s employment terminated.” 146 I will refer to this as the “former scheme”. By s 139 of the LRRA, a new s 29(2) and s 29(3) were inserted into the Act in the following terms— “29. By whom matters may be referred (2) Subject to subsection (3), a referral under subsection (1)(b)(i) is to be made not later than 28 days after the day on which the employee’s employment is terminated. (3) The Commission may accept a referral by an employee under subsection (1)(b)(i) that is out of time if the Commission considers that it would be unfair not to do so.” 147 I will refer to this as the “new scheme”. 2762 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 83 W.A.I.G. 148 In my view, under the former scheme, an applicant referring a claim of unfair dismissal to the Commission must have referred such a claim not more than 28 days after the day on which the employee’s employment terminated. The language of the former scheme, expressed in mandatory terms, did not permit, in my opinion, that time to be extended, such that on the lapsing of the 28 day time limit, no such claim could be brought. Considering the former scheme from the language used in the section, it is strongly arguable that the former 28 day time limit, was not in the nature of a time limit attaching to a right or “cause of action”, but rather, was an essential ingredient of the claim itself, compliance with which limit was mandatory and unable to be extended: SECWA Salary Officers Association v Western Australian Industrial Commission (1975) 55 WAIG 747 per Burt J at 748; Durham. 149 It was common ground, that the respondent was dismissed on 8 July 2002, which was at a time while the former scheme remained in effect. That is, it was open for the respondent to bring his unfair dismissal claim, under the former scheme, on and after that date. Of course, in the intervening period, between the respondent’s date of dismissal and the expiration of the 28 day time limit under the former scheme, that being 5 August 2002, the new scheme came into operation on 1 August 2002. The respondent filed his unfair dismissal claim on 8 August 2002. 150 It seems plain enough from the language of the new scheme contained in s 29(2) and s 29(3), that both sections are intended to operate in conjunction with one another. Significantly also, s 29(2) in the new scheme contains a substantial change to the drafting of the section, by removing reference to the prohibition on a referral being made later than 28 days after employment terminated, and substituting therefore, a requirement that a referral “is to be made not later than...”. 151 The new scheme constituted a significant change to the law in this jurisdiction, which introduced for the first time, in its present form, a discretionary power in the Commission to accept a referral out of time, based upon the test of fairness. As an aside, it seems to me also, that the new scheme does not introduce an extension of time provision as such. What is does seem to do is enable, by s 29(3) of the Act, the Commission’s jurisdiction to be re-enlivened for the purposes of accepting the referral of an unfair dismissal claim outside of the 28 day time limit prescribed in s 29(2) of the Act. It would seem to be the case from the language used in these sections, that unless and until the Commission does so, the application cannot be regarded as within jurisdiction or power. In this regard, I note the terms of s 24 of the Act that give the Commission jurisdiction to determine whether a matter is an industrial matter for the purposes of the Act. This would not seem to have application to the present circumstances however. 152 Despite the repeal of the former scheme and the introduction of the new scheme, as at 1 August 2002, the respondent, prior to that time, and despite the repeal of the former s 29(2) of the Act, would it seems, have a preserved right to commence proceedings under the former scheme, in accordance with the general savings on repeal provisions contained in s 37(1) of the Interpretation Act 1984, specifically, it would seem, s 37(1)(c), (d) and (f) of that Act. In particular, s 37(1)(c) of this legislation speaks of not just any right etc “created, acquired or accrued” but also refers to one that is “established or exercisable”. To this extent, it would seem that s 37(1)(c) of the Interpretation Act 1984 in this State is somewhat wider than its counterpart in the Commonwealth, the Acts Interpretation Act 1901 (Cth), which in s 8(c) refers only to rights etc “acquired, accrued or incurred”: Mathieson v Burton (1970-1971) 124 CLR 1 at 23 per Gibbs J; Esber v The Commonwealth (1991-1992) 174 CLR 430; Attorney-General (Queensland) and Anor v Australian Industrial Relations Commission and Ors (2002) 117 IR 52. 153 In relation to s 37(1)(f), it would seem strongly arguable therefore, if this view is correct, that the institution of an unfair dismissal claim, under the repealed s 29(2), would constitute any “legal proceeding or remedy” for the purposes of that section. Thus in my opinion, up until 5 August 2002, the respondent would have had a preserved right to commence his unfair dismissal claim, as if the former scheme was still in existence. It would appear from that proposition, if correct, that the preservation of that provision for those purposes, would involve not just the benefit i.e. the availability of commencing such a proceeding, but also the burden of the former scheme, that being to commence it no later than 28 days after the date of termination of employment, with that period not being able to be extended. 154 The next question is what is the relationship then, between the former scheme and the new scheme, given that the period of 28 days was still on foot, as at 1 August 2002, in the respondent’s circumstances? Furthermore, when is time taken to begin running, for the purposes of commencing his unfair dismissal claim, in the respondent’s circumstances? 155 In my view, I have no doubt that generally time begins to run, for the purposes of determining the 28 day time limit in s 29(2), on and from 1 August 2002, the date of operation of the amendments, consistent with the relevant principles of interpretation. That is, given that s 29(2), when read with section 23A of the Act, deals with a substantive right to bring proceedings, with the time limit specified as conditioning that right such that it is part of the right itself, then the 28 day time limit, in terms of its datum point of commencement, should not be regarded as operating retrospectively prior to 1 August 2002. This conclusion would appear to be consistent with the long line of authority, dealing with the prospective or retrospective operation of legislation: Maxwell etc. Of course, those statutory provisions which affect only matters of procedure have been held to be able to operate retrospectively, as long as they do not interfere with accrued or vested rights or obligations. 156 There have been a number of decisions of the High Court, dealing with limitation periods in statutes. Examples of these include Maxwell; Chang Jeeng v Nuffield (Australia) Pty Ltd (1959) 101 CLR 629; Australian Iron & Steel Ltd v Hoogland (1962) 108 CLR 471; Yrttiaho v Curator (Qld) (1971) 125 CLR 228. 157 In the main, as I apprehend them, these cases dealt with circumstances where a power to extend time already existed in the relevant statute or rule, and an amendment had the effect of either extending or abridging this time limit. Either expressly stated or implicitly, these cases seem to turn on the principle that the legislative amendments made, went to matters of procedure only, and therefore so characterised, did not affect substantive or vested rights. 158 In my opinion, the circumstances arising in the “limitation cases”, of the kind referred to immediately above, are distinguishable from the circumstances under consideration in this appeal. That class of cases seems in the main, to involve either an extension or abridgement of an existing limitation period, whilst that existing limitation period remained on foot. For example, in Cheng, a period of three years was substituted for 12 months, in terms of time allowed to commence common law proceedings under the Workers Compensation Act (NSW) 1926 - 1954. There were no other changes made to that Act, apart from the substitution of the longer limitation period. Furthermore, the amendment to the relevant time period, in the legislation under consideration in that case, did not involve an amendment that repealed a provision containing a mandatory prohibition on commencing proceedings after a certain time, and introducing provisions conferring a discretion to extend time. Additionally, it would appear that at that time at least, in New South Wales, no equivalent of s 37(1) of the Interpretation Act 1984 (WA), was in operation. 159 In the present case, there was nothing at all to prevent the institution of a claim by the respondent alleging he was unfairly dismissed, up until 5 August 2002, under the former scheme, as preserved by s 37(1) of the Interpretation Act 1984. After 5 August 2002 however, the respondent’s claim under the former scheme was time barred. 83 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 2763 160 If that be the case, then in my opinion, the new scheme did not apply to the respondent, because his dismissal was effected prior to 1 August 2002, for the purposes of the datum point for time to run. Also, I do not think it could have been intended by parliament, that s 29(3), in the new scheme, linked as it clearly is to s 29(2), could permit the Commission, by the exercise of a discretion, to do that which parliament said could not be done, under the former scheme, which scheme applied to the circumstance of the dismissal of the respondent. 161 Furthermore, in the respondent’s case, s 29(2) in the new scheme, could not attach itself to his claim, because to do so, in terms of the datum point for the purposes of the 28 day time limit specified in that section, would have to be regarded as retrospective, to apply to his circumstances. 162 In my opinion therefore, having regard to all of these matters, the merits of the appellant’s appeal are strong. Finding 163 By s 7 of the Act, a “finding”, is defined as “a decision, determination, or ruling made in the course of proceedings that does not finally decide, determine or dispose of the matter to which the proceedings relate.” In my view the decision the subject of the appeal, is a “finding” for the purposes of s 7 and s 49(2a) of the Act, and must be of such importance in the public interest an appeal should lie. In terms of what is a finding, I refer to the decision of the Commission in Managing Director, South Metropolitan College of TAFE v CSA (1999) 79 WAIG 976 that 977 per Sharkey P. 164 The decision of the Commissioner did not finally decide, determine or dispose of the matter. It was a decision to accept the referral out of time, of the respondent’s unfair dismissal claim, as a part of the ultimate disposition of the proceedings. 165 Given that the decision of the Commission, being a finding, raises matters concerning the limitations of the jurisdiction of the Commission, which may affect other proceedings before the Commission, then in my view, the matter ought be regarded as being of such importance, that in the public interest, an appeal should lie. Conclusion 166 Whilst I have considerable concerns as to the delay in bringing the appeal, on balance, having regard to the strength of the appeal, I consider that— (a) an extension of time within which to bring the appeal should be granted; (b) the appeal, against a decision that is a finding, should be regarded as involving a matter of such importance that in the public interest an appeal should lie; and (c) the appeal should be upheld and the decision of the Commissioner at first instance quashed. THE PRESIDENT— 167 For those reasons, the appeal is dismissed. Order accordingly _________ 2003 WAIRC 08701 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES CARNARVON MEDICAL SERVICE ABORIGINAL CORPORATION, APPELLANT - and - NICHOLAS JONATHON STILES, RESPONDENT CORAM FULL BENCH HIS HONOUR THE PRESIDENT P J SHARKEY SENIOR COMMISSIONER A R BEECH COMMISSIONER S J KENNER DELIVERED MONDAY, 14 JULY 2003 FILE NO/S. FBA 11 OF 2003 CITATION NO. 2003 WAIRC 08701 _________________________________________________________________________________________________________ Decision Appeal dismissed Appearances Appellant Ms L S Gibbs (of Counsel) Respondent Mr N J Stiles, on his own behalf _________________________________________________________________________________________________________ Order This appeal having come on for hearing before the Full Bench on the 23rd day of June 2003, and the Full Bench having determined at an earlier date that the appeal should be determined on the basis of written submissions, and Ms L S Gibbs (of Counsel), having filed written submissions on behalf of the appellant at the direction of the Full Bench, and Mr N J Stiles, having filed written submissions on his own behalf at the direction of the Full Bench, and the Full Bench having reserved its decision in the matter, and reasons for decision being delivered on the 14th day of July 2003, it is this day, the 14th day of July 2003, ordered that appeal No. FBA 11 of 2003 be and is hereby dismissed. By the Full Bench (Sgd.) P. J. SHARKEY, [L.S.] President. 2764 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 83 W.A.I.G. COMMISSION IN COURT SESSION—Matters dealt with— 2003 WAIRC 08969 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES WESTERN AUSTRALIAN HOTELS AND HOSPITALITY ASSOCIATION INCORPORATED (UNION OF EMPLOYERS), APPLICANT v. AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION, WESTERN AUSTRALIAN BRANCH & OTHERS, RESPONDENTS CORAM COMMISSION IN COURT SESSION CHIEF COMMISSIONER W S COLEMAN SENIOR COMMISSIONER A R BEECH COMMISSIONER J L HARRISON DATE THURSDAY, 7 AUGUST 2003 FILE NO/S. APPLICATION 880 OF 2003 CITATION NO. 2003 WAIRC 08969 _________________________________________________________________________________________________________ Result Application discontinued by leave Representation Applicant No appearance Respondent No appearance _________________________________________________________________________________________________________ Order WHEREAS on 9th June 2003 the applicant lodged a claim in the Western Australian Industrial Relations Commission to vary the General Order issued in application 569 of 2003; AND WHEREAS the Commission in Court Session convened a conference on 10th July 2003 to allow parties to discuss the relevant issues; AND WHEREAS the Commission in Court Session issued a statement following the conference held on 10th July 2003; AND WHEREAS the Commission in Court Session convened a further conference on 15th July 2003 to allow parties to discuss the relevant issues; AND WHEREAS a Notice of Discontinuance was filed in the Commission on 23rd July 2003; NOW THEREFORE the Commission, pursuant to the powers conferred on it under the Industrial Relations Act, 1979 and by consent, hereby orders— THAT the application be and is hereby discontinued by leave. (Sgd.) W. S. COLEMAN, [L.S.] Commission in Court Session. ____________________ 2003 WAIRC 08970 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES WESTERN AUSTRALIAN HOTELS AND HOSPITALITY ASSOCIATION INCORPORATED (UNION OF EMPLOYERS), APPLICANT v. AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION, WESTERN AUSTRALIAN BRANCH & OTHERS, RESPONDENTS CORAM COMMISSION IN COURT SESSION CHIEF COMMISSIONER W S COLEMAN SENIOR COMMISSIONER A R BEECH COMMISSIONER J L HARRISON DATE THURSDAY, 7 AUGUST 2003 FILE NO/S. APPLICATION 881 OF 2003 CITATION NO. 2003 WAIRC 08970 _________________________________________________________________________________________________________ Result Application discontinued by leave Representation Applicant No appearance Respondent No appearance _________________________________________________________________________________________________________ 83 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 2765 Order WHEREAS on 9th June 2003 the applicant lodged a claim in the Western Australian Industrial Relations Commission to vary the General Order issued in application 569 of 2003; AND WHEREAS the Commission in Court Session convened a conference on 10th July 2003 to allow parties to discuss the relevant issues; AND WHEREAS the Commission in Court Session issued a statement following the conference held on 10th July 2003; AND WHEREAS the Commission in Court Session convened a further conference on 15th July 2003 to allow parties to discuss the relevant issues; AND WHEREAS a Notice of Discontinuance was filed in the Commission on 23rd July 2003; NOW THEREFORE the Commission, pursuant to the powers conferred on it under the Industrial Relations Act, 1979 and by consent, hereby orders— THAT the application be and is hereby discontinued by leave. (Sgd.) W. S. COLEMAN, [L.S.] Commission in Court Session. ____________________ 2003 WAIRC 08972 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES WESTERN AUSTRALIAN HOTELS AND HOSPITALITY ASSOCIATION INCORPORATED (UNION OF EMPLOYERS), APPLICANT v. AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION, WESTERN AUSTRALIAN BRANCH & OTHERS, RESPONDENTS CORAM COMMISSION IN COURT SESSION CHIEF COMMISSIONER W S COLEMAN SENIOR COMMISSIONER A R BEECH COMMISSIONER J L HARRISON DATE THURSDAY, 7 AUGUST 2003 FILE NO/S. APPLICATION 882 OF 2003 CITATION NO. 2003 WAIRC 08972 _________________________________________________________________________________________________________ Result Application discontinued by leave Representation Applicant No appearance Respondent No appearance _________________________________________________________________________________________________________ Order WHEREAS on 9th June 2003 the applicant lodged a claim in the Western Australian Industrial Relations Commission to vary the General Order issued in application 569 of 2003; AND WHEREAS the Commission in Court Session convened a conference on 10th July 2003 to allow parties to discuss the relevant issues; AND WHEREAS the Commission in Court Session issued a statement following the conference held on 10th July 2003; AND WHEREAS the Commission in Court Session convened a further conference on 15th July 2003 to allow parties to discuss the relevant issues; AND WHEREAS a Notice of Discontinuance was filed in the Commission on 23rd July 2003; NOW THEREFORE the Commission, pursuant to the powers conferred on it under the Industrial Relations Act, 1979 and by consent, hereby orders— THAT the application be and is hereby discontinued by leave. (Sgd.) W. S. COLEMAN, [L.S.] Commission in Court Session. ____________________ 2766 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 83 W.A.I.G. 2003 WAIRC 08973 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES WESTERN AUSTRALIAN HOTELS AND HOSPITALITY ASSOCIATION INCORPORATED (UNION OF EMPLOYERS), APPLICANT v. AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION, WESTERN AUSTRALIAN BRANCH & OTHERS, RESPONDENTS CORAM COMMISSION IN COURT SESSION CHIEF COMMISSIONER W S COLEMAN SENIOR COMMISSIONER A R BEECH COMMISSIONER J L HARRISON DATE THURSDAY, 7 AUGUST 2003 FILE NO/S. APPLICATION 883 OF 2003 CITATION NO. 2003 WAIRC 08973 _________________________________________________________________________________________________________ Result Application discontinued by leave Representation Applicant No appearance Respondent No appearance _________________________________________________________________________________________________________ Order WHEREAS on 9th June 2003 the applicant lodged a claim in the Western Australian Industrial Relations Commission to vary the General Order issued in application 569 of 2003; AND WHEREAS the Commission in Court Session convened a conference on 10th July 2003 to allow parties to discuss the relevant issues; AND WHEREAS the Commission in Court Session issued a statement following the conference held on 10th July 2003; AND WHEREAS the Commission in Court Session convened a further conference on 15th July 2003 to allow parties to discuss the relevant issues; AND WHEREAS a Notice of Discontinuance was filed in the Commission on 23rd July 2003; NOW THEREFORE the Commission, pursuant to the powers conferred on it under the Industrial Relations Act, 1979 and by consent, hereby orders— THAT the application be and is hereby discontinued by leave. (Sgd.) W. S. COLEMAN, [L.S.] Commission in Court Session. ____________________ 2003 WAIRC 09031 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION, WESTERN AUSTRALIAN BRANCH, APPLICANT v. BURSWOOD RESORT (MANAGEMENT) LTD AND BURSWOOD CATERING AND ENTERTAINMENT LIMITED, RESPONDENTS CORAM COMMISSION IN COURT SESSION SENIOR COMMISSIONER A R BEECH COMMISSIONER S WOOD COMMISSIONER J L HARRISON DATE THURSDAY, 14 AUGUST 2003 FILE NO/S. APPLICATIONS 2085 OF 2002 AND 2086 OF 2002 CITATION NO. 2003 WAIRC 09031 _________________________________________________________________________________________________________ Result Applications dismissed. Representation Applicant Mr J. Winters Respondents Mr G. Blyth (as agent) _________________________________________________________________________________________________________ 83 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 2767 Reasons for Decision 1 By these two applications the applicant union seeks to vary the Burswood International Resort Casino Employees’ Award 2002 and the Burswood Catering and Entertainment Pty Ltd Employees Award 2001 by inserting entitlements to paid parental leave, salary sacrifice and redundancy benefits which the respondent has offered as part of an Australian Workplace Agreement. The applications are opposed on a number of grounds. As the application seeks to vary the award conditions above the safety net it was referred to the Chief Commissioner pursuant to Principle 10 of the State Wage Principles and allocated to a Commission in Court Session. Refrain from hearing 2 The Commission in Court Session convened three conferences in order to ensure that any prospect of the parties reaching an agreement was exhausted. At the conclusion of the conference held on 19 June 2003, the Commission in Court Session pointed out to the parties the desirability of concluding an agreement and requested the parties to reconsider their respective positions from a more global perspective. The Commission in Court Session requested the parties to advise it in writing by 26 June 2003 whether or not they believed that an agreement would be a likely outcome. 3 Both the union and the respondents subsequently advised the Commission in Court Session that no agreement was likely. It is noteworthy that the respondents blamed this state of affairs on the union’s negotiating position. The respondents submitted that the union introduced what the union described as a core condition at a late stage of the negotiations in order to frustrate the negotiations and thus provide a trigger for arbitration to commence. The respondents strongly submitted that the Commission should refrain from arbitrating the union’s claims. At the commencement of the hearing, the Commission in Court Session dismissed the respondents’ application that we refrain from hearing the application and what follows are our reasons for so doing. 4 The Commission in Court Session is satisfied that it has provided the framework for the parties to meet as frequently as necessary in order for them to discuss the issues in dispute. While the Commission in Court Session is able to direct that parties meet and confer, there is a difference between directing parties to meet and confer and requiring them to negotiate (Asahi Diamond Industrial Australia Pty Limited v. AFMEU (1995) 59 IR 385; 37 AILR ¶3-040). The position adopted by a party when meeting with another party in negotiations is entirely a matter for that party. There is no role for the Commission in Court Session in telling the union what it may or may not put forward as part of its negotiating position anymore than it is for the Commission in Court Session to tell the respondents what their positions in negotiations should be. 5 Therefore, once the Commission in Court Session is satisfied that it has provided the framework for those negotiations to occur, and that the reported respective positions of the parties provides sufficient detail for the Commission in Court Session to conclude that further conciliation is unlikely to assist the parties to resolve their differences, then the Commission in Court Session is entitled to conclude that conciliation is at an end. In that regard, it is the positions of the parties, that leads to the conclusion by the Commission in Court Session that conciliation is at an end. 6 In a wages system which provides for awards to prescribe a safety net of fair working conditions there is an obvious role in the arbitration of conditions where they are not agreed between the parties. Whilst the Commission in Court Session has a discretion to exercise in deciding whether to arbitrate, and in the manner of the arbitration, we were not persuaded on this occasion that the respondents’ view of the union’s negotiating position provided a reason for us to exercise our discretion and postpone the exercise of the Commission in Court Session’s arbitration function requested by the applicant union. It should be noted that at all times the actual position of the parties were put on a “without prejudice” basis and hence the detail of those positions was unknown to the Commission in Court Session. The evidence 7 We turn to consider the evidence before us. It is convenient to consider first the evidence brought in Application 2085 where the respondent is Burswood Resort (Management) Ltd (BRML). 8 The union called evidence from a number of witnesses. Mr Shanti De Silva is a games inspector who has worked in BRML’s gaming department for 18 years. He feels that he is disadvantaged because of his preference to be employed pursuant to working conditions that are negotiated collectively and which result in an award. He stated that he wished to have access through the union to this Commission in the event that there is an issue at his workplace. He is of the view that the three conditions claimed which are found within the respondent’s latest offer of an Australian Workplace Agreement (referred to by the parties as “AWA 3” (MWU 1)) are offered to entice people to sign the AWA and thus to entice people away from a collective bargaining approach. He considers this causes a huge division in the workforce even though the employees with whom he works work exactly the same hours, rosters, meal breaks and annual leave roster arrangements. The job is the same and the job description is the same yet there are now these differences in their conditions of employment. He is concerned that some employees are treated more favourably than others. 9 In cross-examination, Mr De Silva accepted that the employees of BRML are free to accept or reject AWA 3. He also acknowledged that AWA 3 contains other differences to the award. Those differences, including the issue of union access and rights of entry, include a performance based bonus, provision for probationary periods to be extended by three months, for a difference to be agreed in the arrangement of meal breaks within working hours and a change in the shift arrangements per fortnight by agreement between the parties. 10 He acknowledged that some of these changes are of benefit to the employer if the employee is given a proper opportunity to agree to the individual changes to that employee’s arrangements. He also acknowledged that the claims the subject of this application are benefits to the employees who sign AWA 3 although he also stated that the bonus arrangements have not yet resulted in a bonus payment being made to any employee. He acknowledged that it is therefore not unusual for employees at BRML to have different employment arrangements and that it is a value judgement for an individual employee whether or not to accept AWA 3 with its attendant employee benefits. 11 Leah Smith is a dealer/croupier of approximately 4 years’ service. She works part-time and recently her hours were reduced from 72 hours per fortnight to 40 hours per fortnight. She now works an average 60-65 hours per fortnight, but has to telephone the respondent at short notice to ascertain whether additional hours are available. She prefers to be employed pursuant to an award but feels disadvantaged because in particular there is no paid parental leave provided in the award. Nevertheless, she performs exactly the same job and has the same responsibilities as other dealers or croupiers who do have paid parental leave. She considers it would be to her advantage to have the opportunity to salary sacrifice. She acknowledges that award employees are subject to the same performance appraisal system but that only employees who have agreed to AWA 3 are able to receive the bonus. 12 Ms Smith acknowledged that there is some balancing by individual employees of the benefits or costs of AWA 3 and that a different weight would be given by some employees to the various components of AWA 3 compared to other employees. 2768 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 83 W.A.I.G. 13 Rory Lambert is a gaming inspector who has been employed currently for 8½ years and on an earlier occasion for 5 years with BRML. He considers it unfair if he does exactly the same job as other gaming inspectors but receives different conditions of employment. He considers that BRML is offering AWA 3 in order to remove employee access to the Commission. He considers the bonus payable to employees is designed to influence persons to sign the AWA although no bonus payment has yet resulted. 14 In cross-examination Mr Lambert acknowledged that the rates of pay of employees on AWA 1 (BRM 9) are different from the rates of pay in AWA 3. He stated that the grading for assessment for the bonus would make it difficult for employees to get the top marks necessary to receive a bonus. He acknowledged that it was an individual employee’s own judgment whether to accept or reject AWA 3 and that the judgment involved some balancing by the individual employee. He acknowledged that AWA 3 provided some aspects beneficial to the employer because of the way in which hours can be worked and also to shorten the breaks between shifts by agreement. He maintained his view however that all employees should be employed pursuant to the same conditions of employment. He acknowledged that AWA 3 did constitute a package but that elements of that package should be available by negotiation elsewhere. 15 Dr Margaret Henderson has been an organiser with the union since April 2002. In her view, BRML has offered AWA 3 because of the award no-disadvantage-test at a time when workplace agreements were to be renewed. In her view, BRML seeks to continue with the division of the workforce it has enjoyed in the past. She recognised in her evidence that the employees of BRML work pursuant to either the award, AWA 1, AWA 2 or AWA 3. Her evidence is that employees will be forced to sign AWA 3 simply because they would wish to receive parental leave and they are therefore disadvantaged in that respect. Dr Henderson sees the Burswood Group of Companies as one company and referred to a document circulated to staff regarding the link to be established with the Intercontinental Hotel Group (MWU 2). 16 In Dr Henderson’s opinion the differences between the award and AWA 3 are significant in respect to parental leave, salary sacrifice and redundancy entitlements, whilst other matters such as the ability to alter breaks between shifts and to alter meal breaks in areas other than gaming are not as significant in scale as the first three matters. Her evidence is that if this application is granted the Commission should give an operative date closest to the date AWA 3 issued. 17 In cross-examination she identified the union’s objective as being to prefer one collective and fair agreement for all employees, including those employed by Burswood Hotel Pty Ltd, (BH(PL)). She recognised that there were however four different sets of conditions of employment applicable in BRML’s operations. She recognised that AWA 3 also contains the ability for the probationary period to be extended, the ability to change shifts worked per fortnight, the ability to reduce the break between shifts after overtime is worked, the ability to change meal break times, to cash out a percentage of annual leave, the ability to take 24 hours sick leave for the care of a family member, training of casuals at ordinary rates and payment of higher duties allowances only for hours actually worked. Dr Henderson acknowledged that some of these items would be of benefit to the employer, although not perhaps significant in some aspects. She agreed that an assessment of AWA 3 necessarily involved a balancing act of the benefits to employers and benefits to employees. 18 Dr Henderson stated that although the union had criticised the parental leave clause in AWA 3, the union’s position is that the clause should be open to everyone as a matter of fairness and equity. Her evidence is that the union would like to see the parties reach an agreement but did not believe that making the claim for these three conditions would change the circumstances permitting that to occur. 19 The union’s case then closed. 20 On behalf of BRML, Mr Blyth outlined the opposition to the union’s claim on the basis that BRML’s policy is a preference for individual employee agreements and that the employment of new employees was subject to them being prepared to sign an individual employee agreement. 21 Consistent with that objective, BRML offered AWA 3 to all employees to allow them to make their own individual choices, and that the conditions offered in AWA 3 were the result of the input from a focus group which had been established for the purpose. BRML objected to the union “cherry picking” the best parts of a package deal. BRML relies on the requirement on the Commission to act according to equity in submitting that “fairness” means the whole package and not just the good parts of it. 22 BRML called evidence from Kathleen Drimatis, the manager of Employee and Workplace Relations. Ms Drimatis gave extensive and detailed history of the differences between the various individual employee agreements. She stated that the workforce of BRML is presently employed as follows— AWA 1: 350 employees; AWA 2: 3 employees; AWA 3: 400 employees; The award: 380 employees. 23 Ms Drimatis’ evidence covered the process arising out of BRML’s decision to form a focus group to develop AWA 3. The various items of correspondence creating the focus group and the manner of its meeting were presented to the Commission. Ms Drimatis presented documents to show that the employees were given access to all of the information concerning AWA 3 in order to allow them to make an informed decision. 24 Ms Drimatis also stated that she was very surprised when the union lodged an application to include these three conditions in the award without having had discussions with BRML about them first. Ms Drimatis presented a number of letters being correspondence between the parties indicating BRML’s preparedness to meet in order to negotiate a settlement. Ms Drimatis spoke of a decision of the executive committee of Burswood to introduce a “customer first” strategic objective. This presented an opportunity to enter into an industrial agreement with the union on the basis that Burswood’s time and resources were better spent in trying to reach an agreement with the union than in this Commission. However, it was not possible to achieve the union’s stated objective of having one set of conditions for all of the employees at Burswood because of the question of costs differentials. Ms Drimatis gave examples of the use by BRML of the increased flexibilities introduced by AWA 3. 25 In cross-examination Ms Drimatis denied that BRML had a policy of cutting the hours of part-time employees on the gaming floor in lieu of redundancies because the positions involved were not redundant. Ms Drimatis was unaware of any plans to make employees redundant over the next 18 month period. Her evidence was that any cost increase from offering the three conditions claimed in this application as part of AWA 3 were offset by the benefits to BRML from the other elements of the package. 83 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 2769 26 That completed the evidence brought to the Commission in Court Session in relation to application 2085 of 2002. The Commission then heard evidence in application 2086 of 2002. 27 In application 2086 of 2002 both the union and the respondent, Burswood Catering and Entertainment Pty Ltd (BC & E), relied upon evidence given in application 2085 of 2002. At the respondent’s request, Dr Henderson returned to the witness box to be cross-examined in relation to this application. Dr Henderson’s evidence confirmed that there are wage differences between the awards applicable to Burswood Resort Management Limited (BRML) and to BC & E. The Burswood International Resort Casino Employees’ Award 2002 contains journey cover but the Burswood Catering and Entertainment Pty Ltd Employees Award 2001 does not. Further, AWA 3 was not offered to BC & E employees. 28 Dr Henderson confirmed that there were no negotiations between the parties prior to the union lodging this application. Dr Henderson confirmed that while the union’s preferred position would be to negotiate common employment conditions across the Burswood Resort, historically the union has negotiated with separate companies and the union would be prepared to “strike a deal” with any one company. She confirmed that BC & E did say it would like to continue negotiations notwithstanding that they had stalled. 29 BC & E then called Ms Drimatis to give evidence in relation to its operations. Ms Drimatis stated that BC & E offers employment on the basis of either the award or an AWA. In the case of BC & E, there are two AWA’s which have been offered. AWA 1 (BCE 1) was based upon a no disadvantage test with the Restaurant, Tearoom and Catering Workers’ Award, 1979. AWA 2 (BCE 2) is based upon a no disadvantage test with the Burswood Catering and Entertainment Pty Ltd Employees Award 2001. 30 Ms Drimatis also gave evidence of a change in the management structure of BC & E. On 22 April 2002 BC & E took over the rest of the catering and entertainment departments of the Burswood Resort Casino. The managing director of BC & E became an employee of BC & E. Ms Drimatis stated that there are 200 BC & E employees who are employed under AWA 1, 200 under AWA 2 and 300 employees who are covered by the Burswood Catering and Entertainment Pty Ltd Employees Award 2001. 31 Evidence of correspondence between the union and BC & E which occurred after the filing of the application was tendered in evidence. Ms Drimatis’ evidence is that BC & E was prepared to continue to negotiate for an industrial agreement. 32 Ms Drimatis’ evidence is that BC & E has a variety of terms and conditions within its own workforce. There are differences in conditions of employment between AWA 1 and AWA 2 as well as between both of those AWA’s and the Burswood Catering and Entertainment Pty Ltd Employees Award 2001. These differences included issues to do with accumulating sick leave, penalty rates and the classification structure. 33 That concluded the additional evidence brought in application 2086 of 2002. Submissions 34 The union made a brief closing submission at the conclusion of its evidence. The respondents made closing submissions at the conclusion of the evidence of both respondents. The union’s reply was forwarded in writing due to time constraints. The Commission in Court Session has considered the submissions, together with the reply and the comments upon the reply from the respondents and the further letter from the union in response to those comments. 35 What follows is a summary of the points referred to in the closing submissions. BRML submitted there could be no prejudice to it for preferring to offer AWA’s to new employees. The role of the focus group was to develop a viable longer term AWA, which was developed well prior to the delivery of the Burswood International Resort Casino Employees’ Award 2002. 36 BRML was critical of the union having filed its claim to amend the Burswood International Resort Casino Employees’ Award 2002 prior to having negotiations with BRML. It was submitted that this meant the union’s application could not succeed under Principle 10. It is not a reasonable approach for the union to file an application merely to preserve an operative date argument under s.39 of the Act. The public interest requires exhausting negotiations prior to coming to the Commission. In this case the award was still in term until 30 June 2003 and the Commission was urged to regard the award as still being limited in its duration such that the union would still need to demonstrate changed circumstances to show that it was inequitable and unjust not to vary the award. 37 The respondent also criticised the union for what it described as “cherry picking” those parts of AWA 3 that may be of benefit to employees without balancing those benefits against the offsets in AWA 3. BRML referred to the Weipa case (Australian Manufacturing Workers’ Union v Alcoa of Australia Ltd (1996) 63 IR 138) in support of its argument that the differences between AWA 1 and AWA 3 are substantial and it is no longer open to the union to argue that the only difference in working conditions related to union provisions. AWA 3 gives flexibility to the employer and these flexibilities have not been challenged in any serious way even if Ms Drimatis was not able to quantify the dollar returns to BRML. BRML stresses that employees under AWA 3 work in a different way to the employees under the award, and that the union originally objected to the parental leave clause in AWA 3, which they now seek to apply in the award. 38 Further, BRML submits that the union fails to accept that a range of conditions may apply at the one workplace because of statutory changes. BRML referred to the objects of the Act and to the provisions of s.26. 39 BC & E adopted BRML’s submissions and noted the changes to BC & E now compared to when it was considered in the making of the Burswood Catering and Entertainment Pty Ltd Employees Award 2001. BC & E emphasises that it is not involved at all in BRML’s AWA 3. It has different rates of wages and different wage increases applying to its employees than BRML employees. 40 The union filed a document in reply to the respondents’ closing submissions which itself is described as “closing submissions”. However, the parties themselves agreed to a procedure to be followed before the Commission and the union’s closing submissions to its case were presented at the conclusion of the evidence brought by the union. Accordingly, the Commission in Court Session regards the document received from the union under the letter of 31 July 2003 as being restricted to the reply to the respondents’ closing submissions. 41 The union submits that the respondents’ submission regarding the development of AWA 3 merely shows that it was developed for the purpose of enticing employees away from collective agreements in order to achieve the benefit of clauses such as paid parental leave, redundancy entitlements and salary sacrifice. The union refers to the objects of the Act and cites them to support its view. 42 The union stresses that the failure of BRML’s evidence to provide details of the savings achieved by it under AWA 3 reveal the AWA 3 as providing little if any savings. Rather, AWA 3 simply provides extra incentives for employees in order to entice them to sign the AWA. It urges the Commission to follow the decision reached in the delivery of the Burswood International Resort Casino Employees’ Award 2002 at paragraphs 85 to 92. The union submits that BC & E is the same entity now as it was 2770 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 83 W.A.I.G. when the Commission in Court Session pierced the corporate veil and corrected the inequity in terms and conditions to make the Burswood Entertainment and Catering Pty Ltd Employees Award 2001. 43 The union submitted that the Commission should reject any suggestion from the respondents that the awards should also be amended to include the other changes to conditions provided in AWA 3 as they are substantial amendments “none of which have been justified on their merits by the respondents”. The union also rejected the submission that it had not satisfied the requirements under Principle 10. Conclusions 44 The consideration of the Commission in Court Session is as follows. 45 The respondents were quite critical of the union in having made these applications to vary the awards without having had discussions with the respondents regarding the subject matter of the applications. We consider that the submission is to be considered in light of the circumstances. In this case, the circumstances show that at the time the applications were made, the more recent history between the parties is not a history which would provide optimism that negotiations between the parties at that time would have been fruitful. The proceedings which led to the making of the awards now before the Commission in Court Session were themselves strongly contested by both parties. They were proceedings that were lengthy and which were, ultimately, taken to the Industrial Appeal Court. We do not believe any criticism is able to be levelled validly at the union for having made these applications when it did prior to discussing them with the respondents. We do not consider there is anything inherently incorrect in an application to vary an award being filed pending negotiations to be held. Much will depend upon the circumstances. 46 In application 2085 of 2002 the detailed history given by Ms Drimatis of the development of AWA 3 has demonstrated to our satisfaction that it was developed as a package. The formation of a focus group of AWA employees resulted in suggestions from those employees of at least the three matters now the subject of these applications. The package resulted from management considering the focus group’s suggestions which resulted in the inclusion of changes which are of benefit to BRML. Thus, as each of the union’s witnesses acknowledged, a consideration by an employee of whether or not to sign AWA 3 necessarily involves some balancing of the advantages and disadvantages to the employee. 47 We also find from the evidence of Ms Drimatis that several, if not all of the changes in AWA 3 that are of benefit to management have been utilised, even if the exact frequency of their utilisation or the precise cost saving is not given. It cannot be said that those parts of AWA 3 that are of benefit to management have not been utilised. It cannot also be said that those parts of the AWA 3 are not available to be utilised by BRML, subject to agreement with the employee. 48 BRML has a preference for employing employees pursuant to individual agreements. We find it is consistent with that policy for BRML to have developed AWA 3. Indeed, we conclude that the development of AWA 3 is simply an application of BRML’s policy of preferring employment pursuant to individual agreements. In the decision which issued the Burswood International Resort Casino Employees’ Award 2002, the Commission in Court Session noted the summary of conclusions reached in the Weipa case (op. cit.) and referred to the objects of the Act in s.6(ab) and (ad). The Commission in Court Session stated— “Whilst it may be appropriate to offer individual agreements which provide for different terms and conditions of work within a workplace, it is our view that to simply offer a different legal instrument based solely on the grounds that employees have chosen to remain part of a collective, represented by the respective union, is unfair to employees in the enterprise and this policy is inconsistent with objects 6(ab), (ad) and (ca).” (at [92]) 49 We endorse and apply those comments. 50 The evidence before the Commission on this occasion differs however from the evidence on that occasion. On the evidence before the Commission in Court Session on this occasion, AWA 3 was offered to all employees. The result of the offer is that approximately one third of the workforce of BRML has a right to the three conditions claimed by the union in these applications. They do so as part of the package that is AWA 3. However, a further third (approximately) of employees are not entitled to those conditions because they have remained on AWA 1. Therefore, the union is not able to say on this occasion that the only employees of BRML who are not entitled to paid parental leave, salary sacrifice or a redundancy entitlement are employees who have chosen to remain part of a collective represented by their union. 51 This difference is greater in respect to BC & E employees, none of whom are entitled to these three conditions. Yet the union has argued for the inclusion of these provisions in that award on exactly the same basis, namely to correctly an inequity. 52 The union’s case also may be seen as having been presented on the basis that the union merely seeks to have these clauses inserted in the award in the same form as they are offered in AWA 3 to ensure uniformity of conditions of employment. For the reasons given in the preceding paragraph, to grant the union’s claims will not result in uniform conditions of employment for all BRML employees. Neither will it result in uniform conditions of employment for all BC & E employees. 53 In the context of a package of conditions there is an inherent difficulty in arguing that only some conditions of that package should be included in the award. If the only reason submitted is that the conditions claimed are only available if the package is accepted, then the response that the conditions should not be included unless award employees are prepared to work on the same basis as an AWA 3 employee in every respect (see the Weipa case at p.192) is irresistible. This is of course leaving aside the provisions which relate to union involvement which are differences between a collective agreement and an individual agreement. The Act has been amended in a manner that is most significant in this context. Section 6(af) provides that a principal object of the Act is— (af) to facilitate the efficient organisation and performance of work according to the needs of an industry and enterprises within it, balanced with fairness to the employees in the industry and enterprises; 54 Section 26(1)(d)(vi) of the Act requires the Commission to take into consideration to the extent that it is relevant— (vi) the need to facilitate the efficient organisation and performance of work according to the needs of an industry and enterprises within it, balanced with fairness to the employees in the industry and enterprises. 55 The Burswood International Resort Casino Employees’ Award 2002 and the Burswood Catering and Entertainment Pty Ltd Employees Award 2001 in 2086 of 2002 are both industry awards which, in the absence of an enterprise bargaining agreement, serve both as the safety net and also the instrument containing the terms and conditions of employment of the businesses they cover. They provide the standard for the application of the no disadvantage test. In the context of claims for particular conditions of employment which are claimed only because they are offered as part of an AWA, the Commission in Court Session cannot ignore the package from which the claims originate. To consider the claims on the narrow basis advanced by the union must necessarily oblige the Commission in Court Session to consider both the need to facilitate the efficient organisation and performance of work according to the needs of an enterprises and fairness to the employees in the enterprise. 83 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 2771 However, the material before the Commission does not provide sufficient for us to do so. No other merit argument is advanced by the union to support the inclusion of these provisions in the award, or to substantiate the precise clause claimed in each case. 56 We are conscious of the evidence that employees, or some of them, would benefit from the introduction of salary sacrifice, from paid paternity leave and in the event of redundancies, a redundancy entitlement. Employees who have chosen to remain part of a collective, and to be represented by the union should not be excluded from having these conditions of employment solely for that reason. However, apart from these general statements we were not taken to any other supporting material. In fact we are in the somewhat remarkable situation of being asked as a matter of equity, good conscience and substantial merit to award a paid parental leave clause which the union itself has strongly criticised (exhibit BRM 1) as not having merit. It does not seem appropriate for the Commission in Court Session to be told by the union that the Commission should approve this clause “because it is better than nothing”. A consideration of a parental leave clause on its merits may, depending upon the evidence, result in provisions different from those in AWA 3. In making this observation, we do not pass comment or criticism upon the clause offered in AWA 3. We were not taken to the detail of that clause. Indeed, the union did not take us to the detail of any of the clauses it seeks in these applications. 57 Nevertheless we are conscious that there may be merit in the claims because on the evidence of Mr de Silva and Ms Smith, to which we have referred. Indeed, in relation to salary sacrifice, there is persuasive authority for the insertion into the award of a clause permitting salary sacrifice. There is the recent and authoritative comment of the Industrial Appeal Court that salary packaging is popular and widespread in Australia (Commissioner, Public Service Commission & Ors v. Civil Service Association of Western Australia Inc; Albany Port Authority & Ors v. Civil Service Association of Western Australia Inc; Royal Perth Hospital & Ors v. Hospital Salaried Officers Association of Western Australia (Union of Workers) (1998) 78 WAIG 3629) (the CSA case). The respondent submits that the circumstances of those matters differ from the circumstances at Burswood. This may well be the case but it does not detract from the view of the Industrial Appeal Court that salary packaging is popular and widespread in Australia. 58 A Commission in Court Session in ALHMWU and Another v. Activ Foundation (Inc) stated— “Following the decision of the Commission in Court Session in the Salary Packaging Case, (1998) 78 WAIG at 2346, salary packaging as a concept has been recognised as a fact of life in the Australian community. Although Activ Foundation seeks to distinguish the circumstances of the salary packaging case from the circumstances of this case, it cannot escape that recognition. As Anderson J notes— “The plain fact of the matter is that salary packaging is popular and commonplace amongst Australian salary earners and accepted as a legitimate form of remuneration. I do not see why it is not a legitimate industrial objective, speaking generally, for the parties to industrial awards to seek to clear the way for salary packaging within the award system, by the introduction into the particular award of a provision to facilitate salary packaging, whatever the benefits might happen to be in any particular case and however illusory the benefits of salary packaging may turn out to be in any particular case.” (1998) 78 WAIG 3629 at 3632” 59 Accordingly, given the provisions of s.26(1)(b), (c), and (2), the Commission in Court Session recognises that there is inherent merit in at least the claim regarding salary packaging. However, that inherent merit was not put to us at all by the union. Indeed, it is somewhat ironic that it was not until a question was asked by the Commission of the respondents regarding the CSA case, that the issue of any wider merit was raised in the proceedings. Reference to the detail of that case, and to the Activ Industries case, was not made by the union but only by the respondents and only for the purpose of distinguishing those cases from the case presented to us. 60 That is not to say that there may not also be inherent merit in providing for paid parental leave or for a redundancy entitlement as the evidence of Mr De Silva and Ms Smith indicates. However, we are conscious that this has not been the basis upon which the union has argued its case nor the case to which the respondents have replied, or had an opportunity to reply. We have likewise not been taken to the merits of the substantive provisions that might apply, except that the evidence in effect is that it would be good to have them. 61 In relation to application 2086 of 2002 the narrow basis upon which the union has advanced its case is not as strong for the simple reason that AWA 3, the source of the claims sought by the union and the sole argument submitted in support of the claims, does not apply to employees of BC & E. The union’s argument regarding equity is therefore less compelling. 62 We also acknowledge the changes in the company structure to BC & E since its structure was last considered by this Commission in the case which led to the making of Burswood Catering and Entertainment Pty Ltd Employees Award 2001. It is not necessary for the purposes of the conclusions reached in this matter to deal comprehensively with the submission of BC & E that its position is now fundamentally different. There may, depending on the circumstances of any particular case, be a reason to consider the new company structure of BC & E in relation to the Burswood group of companies (exhibit BRM 8). It is sufficient on this occasion to note that the conditions of employment as between employees of BC & E and BRML will not be brought into uniformity by the granting of the union’s claim. 63 Nevertheless, the comments we have made regarding the possible intrinsic merit of the claims made applies equally to the application to vary the Burswood Catering and Entertainment Pty Ltd Employees Award 2001. For example, if there is merit in inserting a clause regarding salary sacrifice because of the widespread acceptance of salary sacrifice arrangements in the wider community then the merit may well exist in relation to BC & E. However, that was not the case presented by the union. 64 We have considered the union’s submission, made in response to a specific request from the Commission to comment on the CSA case, that “it is open to the Commission in Court Session to grant the salary sacrifice part of the applications using the same rationale as the Commission in the CSA matters”. We conclude however that to do so would be to decide these applications on a basis that was not put by the applicant. More significantly, it would be to decide these applications on a basis upon which the respondents have not had a proper opportunity to put submissions nor call evidence. We conclude that it would be an error of law to do so. 65 Whilst we appreciate that the union may well make further applications to vary these awards based upon these Reasons for Decision we consider that the present applications have run their course. For those reasons we are left with little alternative other than to dismiss them. In the context of an Industrial Relations Act which has as an object to provide a system of fair wages and conditions of employment, and the role of awards providing entitlements for the employees covered by them where agreement has not been reached, the dismissals of the applications do not preclude further applications being made to enable the Commission to consider salary sacrifice, paid parental leave and a redundancy entitlement on their merits. 66 An order of dismissal now issues. _________ 2772 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 83 W.A.I.G. 2003 WAIRC 09028 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION, WESTERN AUSTRALIAN BRANCH, APPLICANT v. BURSWOOD RESORT (MANAGEMENT) LTD, RESPONDENT CORAM COMMISSION IN COURT SESSION SENIOR COMMISSIONER A R BEECH COMMISSIONER S WOOD COMMISSIONER J L HARRISON DATE THURSDAY, 14 AUGUST 2003 FILE NO. APPLICATION 2085 OF 2002 CITATION NO. 2003 WAIRC 09028 _________________________________________________________________________________________________________ Result Application dismissed. Representation Applicant Mr J. Winters Respondents Mr G. Blyth (as agent) _________________________________________________________________________________________________________ Order HAVING HEARD Mr J. Winters on behalf of the applicant and Mr G. Blyth (as agent) on behalf of the respondent, the Commission in Court Session, pursuant to the powers conferred on it under the Industrial Relations Act 1979 hereby orders— THAT the application be hereby dismissed. (Sgd.) A. R. BEECH, [L.S.] Commission in Court Session. _________ 2003 WAIRC 09029 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION, WESTERN AUSTRALIAN BRANCH, APPLICANT v. BURSWOOD CATERING AND ENTERTAINMENT LIMITED, RESPONDENT CORAM COMMISSION IN COURT SESSION SENIOR COMMISSIONER A R BEECH COMMISSIONER S WOOD COMMISSIONER J L HARRISON DATE THURSDAY, 14 AUGUST 2003 FILE NO. APPLICATION 2086 OF 2002 CITATION NO. 2003 WAIRC 09029 _________________________________________________________________________________________________________ Result Application dismissed. Representation Applicant Mr J. Winters Respondents Mr G. Blyth (as agent) _________________________________________________________________________________________________________ Order HAVING HEARD Mr J. Winters on behalf of the applicant and Mr G. Blyth (as agent) on behalf of the respondent, the Commission in Court Session, pursuant to the powers conferred on it under the Industrial Relations Act 1979 hereby orders— THAT the application be hereby dismissed. (Sgd.) A. R. BEECH, [L.S.] Commission in Court Session. 83 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 2773 DECLARATIONS— 2003 WAIRC 08951 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES THE SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES’ ASSOCIATION OF WESTERN AUSTRALIA, THE FOOD PRESERVERS’ UNION OF WESTERN AUSTRALIA, UNION OF WORKERS , TRANSPORT WORKERS’ UNION OF AUSTRALIA, WA BRANCH, APPLICANT v. SEALANES (1985) PTY LTD, RESPONDENT CORAM COMMISSIONER J L HARRISON DATE WEDNESDAY, 6 AUGUST 2003 FILE NO/S. APPLICATION 1117 OF 2003 CITATION NO. 2003 WAIRC 08951 _________________________________________________________________________________________________________ Result Declaration issued _________________________________________________________________________________________________________ Declaration WHEREAS on 6 June 2003 the applicants lodged and served a Notice of Initiation of Bargaining for an industrial agreement under s42 of the Industrial Relations Act, 1979 (the Act) on the respondent; and WHEREAS on 21 July 2003 the applicants lodged an application seeking a declaration pursuant to s42H of the Act that the bargaining period had ended; and WHEREAS on 5 August 2003 the Commission convened a conference for the purpose of hearing from the negotiating parties in relation to the declaration sought; and WHEREAS the Commission, having reached the conclusion that the applicants have bargained in good faith, that bargaining between the applicants and the respondent has failed and there is no reasonable prospect of the negotiating parties reaching an agreement, will declare that bargaining between the parties has ended. NOW THEREFORE the Commission pursuant to the powers vested in it under Section 42H of the Industrial Relations Act, 1979 hereby declares— THAT the bargaining between the negotiating parties has ended. (Sgd.) J. L. HARRISON, [L.S.] Commissioner. AWARDS/AGREEMENTS—Application for— 2003 WAIRC 08728 THE HOSPITAL SALARIED OFFICERS (AGED CARE FACILITY) AWARD 2003 No. A5 of 2003 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES THE HOSPITAL & SALARIED OFFICERS ASSOCIATION, APPLICANT v. BRIGHT WATER CARE GROUP INC, CHURCHES OF CHRIST HOMES INCORPORATED, BASSENDEAN NURSING HOME, RESPONDENT CORAM CHIEF COMMISSIONER W S COLEMAN DATE OF ORDER THURSDAY, 17 JULY 2003 FILE NO. A 5 OF 2003 CITATION NO. 2003 WAIRC 08728 _________________________________________________________________________________________________________ Result Application discontinued Representation Applicant No appearance Respondent No appearance _________________________________________________________________________________________________________ Order WHEREAS on 17th June 2003 the applicant lodged an application in the Western Australian Industrial Relations Commission to register a new Award; AND WHEREAS a Notice of Discontinuance was filed in the Commission on 24th June 2003; 2774 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 83 W.A.I.G. 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 by leave. (Sgd.) W. S. COLEMAN, [L.S.] Chief Commissioner. AWARDS/AGREEMENTS—Variation of— 2003 WAIRC 08975 BUILDING TRADES (CONSTRUCTION) AWARD 1987, NO. R 14 OF 1978 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES TAYLOR WOODROW (AUSTRALIA) PTY LTD, APPLICANT v. CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION, COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED WORKERS UNION OF AUSTRALIA, ENGINEERING & ELECTRICAL DIVISION, WA BRANCH, RESPONDENTS CORAM COMMISSIONER J F GREGOR DATE FRIDAY, 8 AUGUST 2003 FILE NO. APPLICATION 1310 OF 2002 CITATION NO. 2003 WAIRC 08975 _________________________________________________________________________________________________________ Result Award varied _________________________________________________________________________________________________________ Order HAVING heard Ms S. O’Brien (of Counsel) who appeared on behalf of the Applicant and Ms K. Scoble (of Counsel) and Mr C. Young who appeared on behalf of the Respondents, and by consent, the Commission pursuant to the powers conferred on it under the Industrial Relations Act, 1979, hereby orders— THAT the Building Trades (Construction) Award 1987, No. R 14 of 1978 be amended in accordance with the following schedule on and from 7th August 2003. (Sgd.) J. F. GREGOR, [L.S.] Commissioner. SCHEDULE Schedule B – Respondents: Delete Taylor Woodrow (Australia) Pty Ltd from this clause. ___________________ 2003 WAIRC 08965 GOLD MINING ENGINEERING AND MAINTENANCE AWARD No. 26 of 1947 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING, AND ALLIED WORKERS UNION OF AUSTRALIA, ENGINEERING & ELECTRICAL DIVISION, WA BRANCH, APPLICANT v. WESTERN MINING CORPORATION RESOURCES LIMITED & OTHERS, RESPONDENTS CORAM COMMISSIONER S J KENNER DATE THURSDAY, 7 AUGUST 2003 FILE NO/S. APPLICATION 1968 OF 2002 CITATION NO. 2003 WAIRC 08965 _________________________________________________________________________________________________________ Result Order issued Representation Applicant Mr C Young Respondents Ms K Taylor as agent and no appearance on behalf of the AFMEPKIU _________________________________________________________________________________________________________ 83 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 2775 Order HAVING heard Mr C Young on behalf of the applicant and Ms K Taylor as agent on behalf of the respondents the Commission, pursuant to the powers conferred on it under the Industrial Relations Act, 1979 and by consent hereby orders— 1. That the Gold Mining Engineering and Maintenance Award No. 26 of 1947 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 date of this order. 2. Furthermore, the Commission by consent of the parties, records the following— (a) The allowances at Clause 5. – Classification Structure and Rates of Pay, Clause 8. – Overtime (Other Than Continuous Shift Employees), Clause 9. – Continuous Shift Employees, Clause 14. – Shifts, Clause 19. – Special Rates & Provisions, Schedule I – District Allowances, Appendix 1 – Kalgoorlie Consolidated Gold Mines Pty. Ltd. of the award have been adjusted by consent for arbitrated safety net increases totalling $35.00 arising from the 2002 and 2003 State Wage Case decisions. The key classification award rate used was that for a ‘Maintenance Tradesperson Level 1’ prior to the awarding of the arbitrated safety net increases - $453.10. (Sgd.) S. J. KENNER, [L.S.] Commissioner. SCHEDULE 1. Clause 5. - Classification Structure and Rates Of Pay: A. Delete paragraph (a) of subclause (1) of this clause and insert in lieu thereof the following— Classification Rate Per Week $ Arbitrated Safety Net Adjustment $ Total Rate Per Week $ Maintenance Employee Level 1 314.60 123.00 437.60 Maintenance Employee Level 2 329.00 123.00 452.00 Maintenance Employee Level 3 345.00 123.00 468.00 Maintenance Tradesperson Level 1 363.10 123.00 486.10 Maintenance Tradesperson Level 2 381.30 123.00 504.30 Maintenance Tradesperson Level 3 399.50 123.00 522.50 Maintenance Tradesperson Level 4 417.60 125.00 542.60 B. Delete subclauses (3), (4) and (7) of this clause and insert in lieu thereof the following— (3) Industry Allowance— (a) Each employee shall be paid an allowance of $87.30 per week. (b) The allowance recognises, and is in payment for, all aspects of work in the industry including the location and nature of individual operation within it. (c) The allowance shall be paid in addition to the weekly wage rates contained in subclause (1) of this clause and shall be paid for all purposes of the award. (4) Leading Hands— In addition to the weekly wage prescribed for an employee’s classification, a Leading Hand shall be paid the following— $ (a) If in charge of not less than three and not more than ten other employees 19.00 (b) If in charge of more than ten and not more than 20 employees 28.50 (c) If in charge of more than 20 employees 37.00 (7) Tool Allowance— (a) Where an employer does not provide a tradesperson or an apprentice with the tools ordinarily required by that tradesperson or apprentice in the performance of work as a tradesperson or as an apprentice the employer shall pay a tool allowance of— (i) $11.40 per week to such tradesperson; or (ii) in the case of an apprentice a percentage of $11.40, being the percentage which appears against the year of apprenticeship in subclause (5) of this clause, for the purpose of such tradesperson or apprentice supplying and maintaining tools ordinarily required in the performance of work as a tradesperson or as an apprentice. (b) Any tool allowance paid pursuant to paragraph (a) of this subclause shall be included in, and form part of, the ordinary weekly wage prescribed in this clause. (c) An employer shall provide for the use of tradespersons or apprentices all necessary power tools, special purpose tools and precision measuring instruments. (d) A tradesperson or apprentice shall replace or pay for any tools supplied by his employer if lost through the employees negligence. 2776 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 83 W.A.I.G. 2. Clause 8. – Overtime (Other Than Continuous Shift Employees): Delete subclause (6) of this clause and insert in lieu thereof the following— (6) When an employee without being notifed on the previous day, is required to continue working after the usual knock-off time for more than one hour, or (in the case of a day employee) after 5.30pm, whichever is the later, such employee shall be provided with any meal required or be paid $6.45 in lieu thereof. 3. Clause 9. – Continuous Shift Employees: Delete subclause (6) of this clause and insert in lieu thereof the following— (6) When an employee without being notifed on the previous day, is required to continue working after the usual knock-off time for more than one hour, or (in the case of a day employee) after 5.30pm, whichever is the later, such employee shall be provided with any meal required or be paid $6.45 in lieu thereof. 4. Clause 14. - Shifts: Delete subclauses (2) of this clause and insert in lieu thereof the following— (2) In addition to his/her ordinary rate, a shift employee shall be paid per shift of eight hours at the rate of $10.50 when on afternoon or night shift. 5. Clause 19. - Special Rates & Provisions: Delete subclauses (1), (3), (4), (6), (7), (8), (10) and (11) and insert in lieu thereof the following— (1) Height Money— Tradespersons and welders engaged on the surface in the erection, repair and/or maintenance of steel frame buildings, smoke stacks, bridges or similar structures at a height of 15.5 metres or more above the nearest horizontal plane, shall be paid at the rate of $2.05 per shift extra. (3) Dirt Money— Employees employed on dirty work or in wet places shall be paid 42 cents per hour extra. (4) A fitter or other tradesperson, not specially employed as a welder, who, in addition to being employed in the employees classification is also required to do welding, shall be entitled to receive 32 cents per day extra whilst so engaged. (6) Heat Money— (a) Employees employed for more than one hour in the shade where the artificial temperature is between 46.1° and 51.6° Celsius shall be paid 42 cents per hour extra. (b) Employees employed for more than one hour where the artificial temperature exceeds 51.6° Celsius shall be paid 51 cents per hour extra. Where work continues for more than two hours in temperatures exceeding 51.6° Celsius, employees shall be entitled to 20 minutes rest after every two hours, without deduction of pay. (7) Confined Space— Employees employed in confined spaces as hereinafter defined shall be paid 51 cents per hour extra. “Confined Space” means a working space, the dimensions of which necessitate working continuously in a stooped or otherwise cramped position, or without proper ventilation, or where confinement within a limited space is productive of unusual discomfort. (8) Fumes— Employees engaged on repair work to the roasters under circumstances subjecting them to serious inconvenience from fumes shall be entitled to payment of 26 cents per hour extra, with a minimum of 52 cents, while so engaged. (10) Any person appointed by the employer to perform first aid duties shall be paid an allowance of $1.90 per day or shift (flat). (11) A tradesperson who holds and, in the course of employment may be required to use a current “A” or “B” Grade licence issued pursuant to the relevant regulation in force on the 28th day of February 1978 under the Electricity Act 1945, shall be paid an allowance of $17.40 per week. 6. Schedule I - District Allowances: Delete this clause and insert in lieu thereof the following— SCHEDULE I - DISTRICT ALLOWANCES (1) In addition to the wages prescribed in clause 5. - Classification Structure and Rates of Pay of this award, the following allowances shall be paid for five days per week to employees employed in the districts which are hereinafter respectively described, with the exception of districts contained therein which are situated within a radius of ten miles of Kalgoorlie, Coolgardie and Southern Cross, viz— (a) First District— Lying south of Kalgoorlie and comprised within lines starting from Kalgoorlie, then West-South-West to Woolgangie, thence South-East to Dundas, thence North-East to a point ten miles east of Karonie on the Trans-Australian line, and thence back to Kalgoorlie, at the rate of 70 cents per week extra for those mines within ten miles of the railway and 98 cents per week for those outside. (b) Second District— Starting from Kalgoorlie West-South-West to Woolgangie, thence North-Nor-West to the intersection of the 120 E. meridian with the 30 S. parallel of latitude, thence North-East by East to Kookynie, thence back to the point 10 miles East of Karonie on the Trans-Australian line, and thence back to Kalgoorlie; at the rate of 95 cents per week extra for those mines within ten miles of the railway and $1.11 per week for those outside. (c) Third District— Starting from and including Kookynie, then North by West to Kurrajong thence North-East to Stone’s Soak, thence South-East to and including Burtville, thence South-West through Pindinnie to Kookynie, at the rate of 93 cents per week extra for those mines within ten miles of the railway and $1.13 per week for those outside. (d) Fourth District— Surrounding Southern Cross within a radius of thirty miles - for those mines outside a radius of ten miles from Southern Cross, including Westonia and Bullfinch, at the rate of 34 cents per week. (e) Fifth District— Comprising all mines not specifically defined in the foregoing boundaries, but within the area comprised within the 24th and 26th parallels of latitude at the rate of $1.63 per week. 83 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 2777 (2) Notwithstanding anything herein contained, the following allowances shall be paid in the districts or mines mentioned hereunder:- Per Week $ Ora Banda and Waverley Districts 0.95 Yalgoo District 0.95 Meekatharra, Mt. Magnet and Cue Districts 1.14 Wiluna District 1.36 Youanmi District 1.36 Cox’s Find Gold Mine 1.21 Per Week $ Corduroy Gold Mine and Mines within ten miles radius therefrom 1.63 Lallah Rooke Gold Mine, Halley’s Comet Gold Mine, Prophecy Gold Mine, and mines within ten miles radius therefrom 2.03 Mayfield District 0.95 Evanston District 1.36 With regard to the Meekatharra, Mt. Magnet, Cue, Yalgoo and Wiluna Districts, an additional allowance at the rate of 20 cents per week shall be paid to employees employed at mines situated five miles from a Government railway. With regard to the Big Bell Gold Mine, the Triton Gold Mine, and Cox’s Find Gold Mine, the sum of 20 cents per week may be deducted from the district allowance which would otherwise be paid. (3) In the case of any mine or district within the area to which this award applies which is not dealt with under the provisions of this Schedule, the union may apply to the Court at any time for the purpose of having an allowance prescribed upon serving upon the employer concerned fourteen days’ notice thereof prior to the date of such application, the service of such notice shall be made pursuant to the provisions relating thereto prescribed by the regulations under the Industrial Arbitration Act, 1979. 7. APPENDIX 1 - Kalgoorlie Consolidated Gold Mines Pty. Ltd.: A. Clause 5. – Wages: Delete paragraph (a) of subclause (1) of this clause and insert in lieu thereof the following— (1) (a) Until the transitional arrangements outlined in subclause (4) of Clause 3. - Classification Structures and Definitions of this Appendix have been complied with, the minimum rates of wages payable per week to employees covered by this Appendix shall be as follows— Occupation Rate Per Week $ Arbitrated Safety Net Adjustment $ Total Rate Per Week $ Driller and/or Screwer 314.60 123.00 437.60 Motor Attendant 314.60 123.00 437.60 Electrical Installer 363.20 123.00 486.20 Linesperson - Grade 1 - i.e. with not less than three years’ experience as a linesperson 363.20 123.00 486.20 Grade 2 - i.e. with less than three years’ experience as a linesperson 345.00 123.00 468.00 Pipe Fitter 329.00 123.00 452.00 Coppersmith 363.20 123.00 486.20 Blacksmith 363.20 123.00 486.20 Electrical Fitter 363.20 123.00 486.20 Fitter 363.20 123.00 486.20 Motor Mechanic 363.20 123.00 486.20 Turner and/or Machinist 363.20 123.00 486.20 Oxy-acetylene and Electrical Welder 363.20 123.00 486.20 Pattern Maker 374.30 123.00 497.30 Drill Doctor 327.40 123.00 450.40 Boilermaker 363.20 123.00 486.20 B. Clause 6. - Allowances: Delete this clause and insert in lieu thereof the following— 6. - ALLOWANCES In lieu of the allowances otherwise expressed in Clause 5. - Wages, Clause 8. - Overtime, Clause 9. - Continuous Shift Employees, Clause 14. - Shifts, Clause 20. - Special Rates and Provisions, the following allowances shall be paid— $ Clause 5. - Wages: Subclause (2) - Leading Hand Allowance (i) 19.00 (ii) 28.50 (iii) 37.00 2778 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 83 W.A.I.G. $ Subclause (5)(a) - Tool Allowance (i) 11.40 (ii) 11.40 Clause 8. - Overtime— Subclause (6) - Meal Allowance 6.45 Clause 9. - Continuous Shift Employees— Subclause (6) - Meal Allowance 6.45 $ Clause 14. - Shifts— Subclause (2) - Shift Allowance 10.50 Clause 19. - Special Rates and Provisions Subclause (1) - Height Money 2.05 Subclause (3) - Dirt Money 0.42 Subclause (4) - Welding Money 0.32 Subclause (6) - Heat Money (a) 0.42 (b) 0.51 Subclause (7) - Confined Space Money 0.51 Subclause (8) - Fumes Money 0.52 B. Clause 7. - Additional Payment: Delete this clause and insert in lieu thereof the following— 7. - ADDITIONAL PAYMENT In addition to the wage rates set out in Clause 5 hereof, an amount of $87.30 per week shall be payable for all purposes of the award. 8. Schedule IV – Parties to the Award: Delete this clause and insert in lieu thereof the following— SCHEDULE IV - PARTIES TO THE AWARD Unions Party to the Award Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Workers Union of Australia U24/257 Balcatta Road BALCATTA WA 6021 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers Western Australian Branch 121 Royal Street EAST PERTH W.A. 6004 Employer Parties to the Award Western Mining Corporation Resources Limited P.O. Box 7001 Cloisters Square PERTH WA 6850 Central Norseman Gold Corporation Ltd PO Box 56 NORSEMAN WA 6443 Hill 50 Gold Mine NL MOUNT MAGNET WA 6338 ____________________ 2003 WAIRC 08717 MASTERS AND DECKHANDS (PASSENGER FERRIES, LAUNCHES AND BARGES) (FREMANTLE LAUNCH AND TUG COMPANY PTY LTD) AWARD 1993. No. A7 of 1993 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES THE AUSTRALIAN MARITIME OFFICERS UNION - WESTERN AREA UNION OF EMPLOYEES, APPLICANT v. FREMANTLE TUG AND LAUNCH COMPANY PTY LTD, TOTAL HARBOUR SERVICES PTY LTD AND SEAMEN’S UNION OF AUSTRALIA, WEST AUSTRALIAN BRANCH , RESPONDENTS CORAM SENIOR COMMISSIONER A R BEECH DATE WEDNESDAY, 16 JULY 2003 FILE NO. APPLICATION 1546 OF 2002 CITATION NO. 2003 WAIRC 08717 _________________________________________________________________________________________________________ 83 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 2779 Result Award varied Representation Applicant Mr B.M. George Respondents Mr I. Bray on behalf of the Seamen’s Union of Australia, West Australian Branch No appearance on behalf of the Fremantle Launch and Tug Company Pty Ltd, and on behalf of Total Harbour Services Pty Ltd _________________________________________________________________________________________________________ Order HAVING HEARD Mr B. M. George on behalf of the applicant, Mr I. Bray on behalf of the Seamen’s Union of Australia, West Australian Branch and there being no appearance on behalf of the Fremantle Launch and Tug Company Pty Ltd, and on behalf of Total Harbour Services Pty Ltd, and by consent, the Commission pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby orders— THAT the Masters and Deckhands (Passenger Ferries, Launches and Barges) (Fremantle Launch and Tug Company Pty Ltd) Award 1993 be varied in accordance with the following schedule and that such variation shall have effect from the beginning of the first pay period on or after the 16th day of July 2003. (Sgd.) A. R. BEECH, [L.S.] Senior Commissioner. _________ SCHEDULE 1. Clause 1. - Title: Delete this clause and insert in lieu thereof the following— 1. - TITLE This award shall be known as the “Masters and Deckhands Total Harbour Services Pty Ltd Award”. 2. Schedule of Respondents: Delete this schedule and insert in lieu thereof the following— SCHEDULE OF RESPONDENTS Employer Total Harbour Services Pty Ltd 4 Rous Head Road NORTH FREMANTLE WA 6159 Unions Australian Maritime Officers Union Western Area Union of Employees 28 Mouat Street FREMANTLE WA 6160 Seamen’s Union of Australia, West Australian Branch 2 Kwong Alley NORTH FREMANTLE WA 6159 ____________________ 2003 WAIRC 08624 TIMBER WORKERS AWARD NO 36 OF 1950. WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES THE FOREST PRODUCTS, FURNISHING AND ALLIED INDUSTRIES INDUSTRIAL UNION OF WORKERS, W.A. BRANCH, APPLICANT v. AG & AM BROOKS, ADELAIDE TIMBER COMPANY PTY LTD, BROWNS LOGGING, RESPONDENTS CORAM COMMISSIONER J F GREGOR DATE THURSDAY, 3 JULY 2003 FILE NO. APPLICATION 1955 OF 2002 CITATION NO. 2003 WAIRC 08624 _________________________________________________________________________________________________________ Result Award varied _________________________________________________________________________________________________________ Order HAVING heard Mr T.P. Daly on behalf of the Applicant and Mr K.J. Dwyer for the Respondents, and by consent, the Commission pursuant to the powers conferred on it under the Industrial Relations Act, 1979, hereby orders: THAT the Timber Workers Award No. 36 of 1950 be varied in accordance with the following Schedule and that such variation shall have effect from the first pay period commencing on or after 3 July 2003. (Sgd.) J. F. GREGOR, [L.S.] Commissioner. _________ 2780 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 83 W.A.I.G. SCHEDULE 1. Clause 11. – Holidays and Annual Leave: At the end of this clause insert the following new subclause— (14) Seven-Day shift Employees— In addition to the leave hereinafter prescribed in subclause (2) of this clause seven-day shift employees, that is shift employees who are rostered to work regularly on shifts covering all the twenty four hours of Sundays and holidays, shall be allowed an additional seven consecutive days’ leave including non working days. Where an employee within twelve months’ continuous service is engaged for part of the twelve monthly period as a seven- day shift employee, he/she shall be entitled to have the period of annual leave prescribed in subclause (2) hereof increased by one twelfth of a week for each month he/she is continuously engaged as aforesaid. 2. Clause 18. – Shift Work: Delete this clause and insert in lieu thereof the following— (1) Notwithstanding the provisions of Clause 14. – Hours of Work and Clause 16. – Overtime, the provisions of this clause apply to shift work whether continuous or otherwise. Ordinary hours as set out in Clause 14. - Hours of Work may be worked on any day of the week Monday to Sunday. (2) An employer may work his/her establishment on shifts but before doing so shall give notice of his/her intention to the union or unions concerned and of the intended starting and finishing times of ordinary working hours of the respective shifts. (3) Where three shifts are instituted on continuous shiftwork a paid meal break of twenty minutes shall be allowed in each of such shifts. (4) Definitions For the purpose of this clause— (a) AFTERNOON SHIFT means any shift finishing between 6.00pm and midnight. (b) NIGHT SHIFT means any shift finishing between midnight and 8.00am. (c) CONTINUOUS SHIFT means work carried on with consecutive shifts of men/women throughout the twenty four hours of at least six consecutive days without interruption except during breakdown or meal breaks or due to unavoidable delays beyond the control of the employer. (d) CONTINUOUS SHIFT EMPLOYEE means an employee who normally works on Sundays and Holidays when so rostered. (e) NON CONTINUOUS SHIFT EMPLOYEE means an employee who works at least five consecutive days of eight hours per shift exclusive of meal breaks and who does not normally work on Sundays or holidays. (5) (a) where any particular process is carried out on shifts other than day shift, and less than five consecutive afternoon or five consecutive night shifts are worked on that process, then employees employed on such afternoon or night shift shall be paid at overtime rates. Provided that where the ordinary hours of work normally worked in an establishment are worked on less than five days then the provisions of paragraph (a) shall be as if four consecutive shifts were substituted for five consecutive shifts. (b) The sequence of work shall not be deemed to be broken under the preceding paragraph by reason of the fact that work on the process is not carried out on a Saturday or Sunday or any other day that the employer observes a shut down for the purpose of allowing a 38 hour week or on any holiday. (6) Where a shift commences at or after 11.00pm on any day, with the exception of shift work commencing at or after 11.00pm on Friday and finishing on Saturday, the whole of that shift shall be deemed, for the purposes of this award, to have been worked on the following day. (7) A shift employee when on afternoon or night shift shall be paid, for such shift fifteen per cent more than his/her ordinary rate prescribed by this award. (8) (a) All work performed on a rostered shift, when the major portion of such shift falls on a Saturday, Sunday or a holiday, shall be paid for as follows— Saturday - at the rate of time and one half Sunday - at the rate of time and three quarters Holidays - at the rate of double time. These rates shall be paid in lieu of the shift allowances prescribed in subclause (7) of this clause. (b) These rates shall be paid in lieu of the shift allowances prescribed in subclause (7) of this clause. (9) A continuous shift employee who is not required to work on a holiday which falls on his/her rostered day off shall be allowed a day’s leave with pay to be added to annual leave or taken at some other time if the employee so agrees. AWARDS/AGREEMENTS—Application for variation of— No variation resulting— 2003 WAIRC 08706 ELECTRICAL CONTRACTING INDUSTRY AWARD NO. R 22 OF 1978 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES ELECTRICAL GROUP TRAINING LIMITED, APPLICANT v. COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING, AND ALLIED WORKERS UNION OF AUSTRALIA, ENGINEERING & ELECTRICAL DIVISION, WA BRANCH AND OTHERS, RESPONDENTS CORAM COMMISSIONER J F GREGOR DATE TUESDAY, 15 JULY 2003 FILE NO. APPLICATION 413 OF 2003 CITATION NO. 2003 WAIRC 08706 83 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 2781 _________________________________________________________________________________________________________ Result Discontinued by leave _________________________________________________________________________________________________________ Order WHEREAS on 31st March 2003 the Electrical Group Training Limited applied to the Commission for an order pursuant to the Industrial Relations Act, 1979 to vary the Electrical Contracting Industry Award R22 of 1978; and WHEREAS the matter was listed for hearing and determination on 15th July 2003; and WHEREAS the Commission heard from Mr C. Martin (of Counsel) for the Applicant and Mr C. Young for the Respondent Union, Mr Martin sought leave that the matter be discontinued; and leave was granted. NOW THEREFORE pursuant to the powers vested in it by the Industrial Relations Act, 1979, the Commission, hereby orders— THAT the application be, and is hereby, discontinued by leave. (Sgd.) J. F. GREGOR, [L.S.] Commissioner. ____________________ 2003 WAIRC 08843 SHOP AND WAREHOUSE (WHOLESALE AND RETAIL ESTABLIISHMENTS) STATE AWARD 1977 NO. R32 OF 1976 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES THE SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES’ ASSOCIATION OF WESTERN AUSTRALIA, APPLICANT v. MYER STORES LIMITED, RESPONDENT CORAM COMMISSIONER J L HARRISON DATE OF ORDER FRIDAY, 25 JULY 2003 FILE NO/S. APPL 1408A OF 2002 CITATION NO. 2003 WAIRC 08843 _________________________________________________________________________________________________________ Result Discontinued _________________________________________________________________________________________________________ Order WHEREAS on 18 November 2002 the Applicant applied to the Commission for an order pursuant to the Industrial Relations Act, 1979; and WHEREAS on 29 May 2003 the Applicant lodged a Notice of Discontinuance and the Commission decided to discontinue the proceedings. NOW THEREFORE pursuant to the powers vested in it by the Industrial Relations Act, 1979, the Commission, hereby orders— THAT the application be, and is hereby, discontinued. (Sgd.) J. L. HARRISON, [L.S.] Commissioner. AWARDS/AGREEMENTS—Interpretation of— 2003 WAIRC 08634 WESTERN AUSTRALIAN POLICE SERVICE ENTERPRISE AGREEMENT FOR POLICE ACT EMPLOYEES. No. PSA AG8 of 2001 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES THE WESTERN AUSTRALIAN POLICE UNION OF WORKERS, APPLICANT v. COMMISSIONER OF POLICE, RESPONDENT CORAM COMMISSIONER P E SCOTT PUBLIC SERVICE ARBITRATOR DATE OF ORDER FRIDAY, 4 JULY 2003 FILE NO. P 7 OF 2002 CITATION NO. 2003 WAIRC 08634 _________________________________________________________________________________________________________ Result Application Dismissed _________________________________________________________________________________________________________ 2782 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 83 W.A.I.G. Order WHEREAS this is an application pursuant to Section 46 of the Industrial Relations Act 1979; and WHEREAS on the 2nd day of July 2003 the Applicant advised the Arbitrator that it wished to discontinue the application and an order of dismissal could issue; NOW THEREFORE, the Arbitrator, 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. Public Service Arbitrator. CANCELLATION OF AWARDS/AGREEMENTS/ RESPONDENTS— 2002 WAIRC 04831 CSR BUILDING MATERIALS (WA) ENTERPRISE AGREEMENT 1999 AG 154 of 1999 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION, WESTERN AUSTRALIAN BRANCH, APPLICANT v. CSR BUILDING MATERIALS (WA) & THE TRANSPORT WORKERS’ UNION OF AUSTRALIA, INDUSTRIAL UNION OF WORKERS, WESTERN AUSTRALIAN BRANCH, RESPONDENTS CORAM CHIEF COMMISSIONER W S COLEMAN DELIVERED WEDNESDAY, 14 FEBRUARY 2002 FILE NO/S. AG 248 OF 2001 CITATION NO. 2002 WAIRC 04831 _________________________________________________________________________________________________________ Result Agreement cancelled Representation Applicant Ms D MacTiernan Respondent Mr M Riordan _________________________________________________________________________________________________________ Order HAVING HEARD Ms D MacTiernan on behalf of the applicant and Mr M Riordan on behalf of the respondent, the Commission with the consent of the parties, pursuant to the powers conferred on it under the Industrial Relations Act 1979 hereby orders— THAT the CSR Building Materials (WA) Enterprise Agreement 1999 AG 154 of 1999 be and is hereby cancelled. (Sgd.) W. S. COLEMAN, [L.S.] Chief Commissioner. ____________________ 2002 WAIRC 04800 HALE SCHOOL (ENTERPRISE BARGAINING) AGREEMENT 2002 No. AG 187 of 1999 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES THE INDEPENDENT SCHOOLS SALARIED OFFICERS’ ASSOCIATION OF WESTERN AUSTRALIA, INDUSTRIAL UNION OF WORKERS , HALE SCHOOL, APPLICANTS v. (NOT APPLICABLE), RESPONDENT CORAM CHIEF COMMISSIONER W S COLEMAN DELIVERED THURSDAY, 14 FEBRUARY 2002 FILE NO/S. AG 265 OF 2001 CITATION NO. 2002 WAIRC 04800 _________________________________________________________________________________________________________ Result Agreement Cancellation Representation Applicant Mr N Briggs Respondent No appearance _________________________________________________________________________________________________________ 83 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 2783 Order HAVING HEARD Mr N Briggs on behalf of the applicants the Commission with the consent of the parties, pursuant to the powers conferred on it under the Industrial Relations Act 1979 hereby orders— THAT the Hale School (Enterprise Bargaining) Agreement 2000 AG 187 of 1999 be and is hereby cancelled. (Sgd.) W. S. COLEMAN, [L.S.] Chief Commissioner. ____________________ 2003 WAIRC 07671 J & K HOPKINS ENTERPRISE BARGAINING AGREEMENT 2001 No. AG 165 of 2001 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES RUBYLAKE HOLDINGS PTY LTD T/AS J & K HOPKINS, APPLICANT v. TRANSPORT WORKERS’ UNION OF AUSTRALIA, INDUSTRIAL UNION OF WORKERS, WESTERN AUSTRALIAN BRANCH, RESPONDENT CORAM CHIEF COMMISSIONER W S COLEMAN DATE OF ORDER FRIDAY, 7 FEBRUARY 2003 FILE NO/S. AG 235 OF 2002 CITATION NO. 2003 WAIRC 07671 _________________________________________________________________________________________________________ Result Agreement Cancelled Representation Applicant Mr J Uphill on behalf of the applicant Respondent Mr N Hodgson on behalf of the respondent _________________________________________________________________________________________________________ Order HAVING HEARD Mr J Uphill on behalf of the applicant and Mr N Hodgson on behalf of the respondent, and with the consent of the parties, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979 hereby orders— THAT the J & K Hopkins Enterprise Bargaining Agreement 2001, AG 165 of 2001 be and is hereby cancelled. (Sgd.) W. S. COLEMAN, [L.S.] Chief Commissioner. ____________________ 2003 WAIRC 07394 LINENCARE AUSTRALIA TRANSPORT ENTERPRISE AGREEMENT 2001 No. AG 185 of 2001 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES TRANSPORT WORKERS’ UNION OF AUSTRALIA, INDUSTRIAL UNION OF WORKERS, WESTERN AUSTRALIAN BRANCH, APPLICANT v. HEALTHCARE LINEN PTY LTD (ACN 90075 504 746), RESPONDENT CORAM COMMISSIONER J H SMITH DATE OF ORDER FRIDAY, 17 JANUARY 2003 FILE NO. AG 185 OF 2001 CITATION NO. 2003 WAIRC 07394 _________________________________________________________________________________________________________ Result Agreement cancelled and application discontinued by leave. Representation Applicant Mr N Hodgson (as Agent) Respondent No appearance _________________________________________________________________________________________________________ Order WHEREAS on 13 September 2001 the Applicant filed an application pursuant to s.41 of the Industrial Relations Act 1979 (“the Act”) to register an industrial agreement to replace the Linencare Australia Transport Enterprise Agreement AG 131 of 1999 (“the Agreement”); and WHEREAS the matter was listed for hearing on 30 November 2001 at which a request was made to adjourn the matter as the company was close to being sold; and WHEREAS the Applicant filed a Notice of Discontinuance of Application on 28 August 2002; and WHEREAS the Applicant wrote a letter to the Commission on 30 August 2002 and requested that as the company had been sold that the Agreement be cancelled; and WHEREAS the Commission wrote to the Respondent on 16 September 2002, advising that the Commission intended to cancel the Agreement unless a representative contacted the Commission within 28 days; and 2784 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 83 W.A.I.G. WHEREAS by close of business 2 December 2002, no response has been received from the Respondent; NOW THEREFORE pursuant to the powers conferred on it under the Act, the Commission hereby orders— THAT the Linencare Australia Transport Enterprise Agreement 1999 AG 131 of 1999 be and is hereby cancelled; and THAT the application be and is hereby discontinued by leave. (Sgd.) J. H. SMITH, [L.S.] Commissioner. ____________________ 2003 WAIRC 06186 IN THE MATTER OF: GARDENERS (GOVERNMENT) GENERAL AGREEMENT 2002, CLEANERS AND CARETAKERS (GOVERNMENT) GENERAL AGREEMENT 2002 & CATERING EMPLOYEES AND TEA ATTENDANTS (GOVERNMENT) GENERAL AGREEMENT 2002 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES MINISTER FOR AGRICULTURE & OTHERS, APPLICANT v. AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION, WESTERN AUSTRALIAN BRANCH, RESPONDENT MINISTER FOR AGRICULTURE & OTHERS, APPLICANT v. AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION, WESTERN AUSTRALIAN BRANCH, RESPONDENT MINISTER FOR JUSTICE & LEGAL AFFAIRS & OTHERS, APPLICANT v. AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION, WESTERN AUSTRALIAN BRANCH, RESPONDENT CORAM COMMISSIONER J H SMITH DATE OF ORDER TUESDAY, 13 AUGUST 2002 FILE NOS. AG 100 OF 2002, AG 101 OF 2002, AG 106 OF 2002 CITATION NO. 2002 WAIRC 06186 _________________________________________________________________________________________________________ Result Agreements cancelled Representation Applicant Mr J Lange Respondent Ms D MacTiernan _________________________________________________________________________________________________________ Order HAVING heard Mr J Lange on behalf of the Applicant and Ms D MacTiernan on behalf of the Respondent and by consent, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby orders— (1) THAT the following industrial agreements be and are hereby cancelled from the date of this order— (a) Ministry of Justice (Miscellaneous) Enterprise Agreement 1999 No AG 150 of 1999; (b) C.Y. O’Connor College Miscellaneous Workers’ Agreement 1997 No AG 276 of 1997; (c) Department of Conservation and Land Management – Australian Liquor, Hospitality and Miscellaneous Workers’ Union Enterprise Agreement 1999 No AG 182 of 1999; (d) State Housing Commission (Homeswest) 1999 Caretakers Enterprise Bargaining Agreement No AG 108 of 1999; (e) Geraldton Regional College Miscellaneous Workers’ Agreement 1997 No AG 278 of 1997; (f) Karratha College Enterprise Agreement 1996 No PSGAG 15 of 1996; (g) Department of Minerals and Energy and Chemistry Centre of WA Enterprise Agreement 2000 – 2002 No PSG AG 4 of 2000; (h) State Revenue Department Enterprise Bargaining Agreement 2000 No PSG AG 5 of 2000; (i) North Metropolitan College Miscellaneous Workers’ Agreement 1997 No AG 281 of 1997; and (j) Great Southern Regional College Miscellaneous Workers’ Agreement 1997 No AG 277 of 1997. (2) THAT the following industrial agreements be cancelled from 31 December 2002— (a) Family & Children’s Services Enterprise Agreement 2000 No PSGA AG 2 of 2000; and (b) Valuer General’s Office Enterprise Bargaining Agreement 1999 No PSG AG 3 of 1999. (c) Education Department of Western Australia Miscellaneous Employees Enterprise Bargaining Agreement 2000 AG 1 of 2001; and (d) Agriculture Western Australia Enterprise Agreement 2000 No PSG AG 3 of 2001. (Sgd.) J. H. SMITH, [L.S.] Commissioner. ____________________ 83 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 2785 2003 WAIRC 08445 PENRHOS COLLEGE NON-TEACHING STAFF (ENTERPRISE BARGAINING) AGREEMENT 1999 AG 212 of 1999 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES PENRHOS COLLEGE & OTHERS, APPLICANTS v. (NOT APPLICABLE), RESPONDENT CORAM CHIEF COMMISSIONER W S COLEMAN DATE OF ORDER FRIDAY, 6 JUNE 2003 FILE NO/S. AG 250 OF 2002 CITATION NO. 2003 WAIRC 08445 _________________________________________________________________________________________________________ Result Agreement cancelled Representation Applicants Mr N Briggs on behalf of the applicants Ms L Dowden on behalf of the CFMEUW _________________________________________________________________________________________________________ Order HAVING HEARD Mr N Briggs and Ms L Dowden on behalf of the applicants, and with the consent of the parties, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979 hereby orders— THAT the Penrhos College Non-Teaching Staff (Enterprise Bargaining) Agreement 1999, AG 212 of 1999 be and is hereby cancelled. (Sgd.) W. S. COLEMAN, [L.S.] Chief Commissioner. ____________________ 2001 WAIRC 04329 RIVER ROOSTER AUSTRALIA, SDA ENTERPRISE AGREEMENT 2001 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES THE SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES’ ASSOCIATION OF WESTERN AUSTRALIA, APPLICANT v. RIVER ROOSTER AUSTRALIA PTY LTD T/A RIVER ROOSTER, RESPONDENT CORAM CHIEF COMMISSIONER W S COLEMAN DELIVERED MONDAY, 3 DECEMBER 2001 FILE NO/S. AG 228 OF 2001 CITATION NO. 2001 WAIRC 04329 _________________________________________________________________________________________________________ Result Agreements Cancelled Representation Applicant Mr T Pope Respondent Mr S Hansen _________________________________________________________________________________________________________ Order HAVING HEARD Mr T Pope on behalf of the applicant and Mr S Hansen on behalf of the respondent, the Commission with the consent of the parties, pursuant to the powers conferred on it under the Industrial Relations Act 1979 hereby orders— THAT the River Rooster Australia Agreement AG 266 of 1996 and the River Rooster SDA Enterprise Agreement 1998 AG 109 of 1998 be and are hereby cancelled. (Sgd.) W. S. COLEMAN, [L.S.] Chief Commissioner. ____________________ 2786 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 83 W.A.I.G. 2001 WAIRC 04319 RIVER ROOSTER BRIDGETOWN, SDA ENTERPRISE AGREEMENT 2001 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES THE SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES’ ASSOCIATION OF WESTERN AUSTRALIA, APPLICANT v. PETER SZOLKOWSKI AND VIVIENNE HAYNES ON BEHALF OF THE SZOLHAY FAMILY TRUST T/A RIVER ROOSTER BRIDGETOWN, RESPONDENT CORAM CHIEF COMMISSIONER W S COLEMAN DELIVERED MONDAY, 3 DECEMBER 2001 FILE NO/S. AG 244 OF 2001 CITATION NO. 2001 WAIRC 04319 _________________________________________________________________________________________________________ Result Agreement Cancelled Representation Applicant Mr T Pope Respondent Mr S Hansen _________________________________________________________________________________________________________ Order HAVING HEARD Mr T Pope on behalf of the applicant and Mr S Hansen on behalf of the respondent, the Commission with the consent of the parties, pursuant to the powers conferred on it under the Industrial Relations Act 1979 hereby orders— THAT the River Rooster Bridgetown Agreement AG 272 of 1996 be and is hereby cancelled. (Sgd.) W. S. COLEMAN, [L.S.] Chief Commissioner. ____________________ 2001 WAIRC 04332 RIVER ROOSTER BOULDER, SDA ENTERPRISE AGREEMENT 2001 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES THE SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES’ ASSOCIATION OF WESTERN AUSTRALIA, APPLICANT v. HALL HOLDINGS PTY LTD T/A RIVER ROOSTER BOULDER, RESPONDENT CORAM CHIEF COMMISSIONER W S COLEMAN DELIVERED MONDAY, 3 DECEMBER 2001 FILE NO/S. AG 230 OF 2001 CITATION NO. 2001 WAIRC 04332 _________________________________________________________________________________________________________ Result Agreement Cancelled Representation Applicant Mr T Pope Respondent Mr S Hansen _________________________________________________________________________________________________________ Order HAVING HEARD Mr T Pope on behalf of the applicant and Mr S Hansen on behalf of the respondent, the Commission with the consent of the parties, pursuant to the powers conferred on it under the Industrial Relations Act 1979 hereby orders— THAT the River Rooster Boulder SDA Enterprise Agreement 1998 AG 86 of 1999 be and is hereby cancelled. (Sgd.) W. S. COLEMAN, [L.S.] Chief Commissioner. ____________________ 2001 WAIRC 04333 RIVER ROOSTER COOLBELLUP, SDA ENTERPRISE AGREEMENT 2001 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES THE SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES’ ASSOCIATION OF WESTERN AUSTRALIA, APPLICANT v. LR CROOKES AND C CORNWALL T/A RIVER ROOSTER COOLBELLUP, RESPONDENT CORAM CHIEF COMMISSIONER W S COLEMAN DELIVERED MONDAY, 3 DECEMBER 2001 FILE NO/S. AG 225 OF 2001 CITATION NO. 2001 WAIRC 04333 _________________________________________________________________________________________________________ 83 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 2787 Result Agreement Cancelled Representation Applicant Mr T Pope Respondent Mr S Hansen _________________________________________________________________________________________________________ Order HAVING HEARD Mr T Pope on behalf of the applicant and Mr S Hansen on behalf of the respondent, the Commission with the consent of the parties, pursuant to the powers conferred on it under the Industrial Relations Act 1979 hereby orders— THAT the River Rooster Coolbellup SDA Enterprise Agreement 1998 AG 110 of 1998 be and is hereby cancelled. (Sgd.) W. S. COLEMAN, [L.S.] Chief Commissioner. ____________________ 2001 WAIRC 04328 RIVER ROOSTER HARVEY, SDA ENTERPRISE AGREEMENT 2001 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES THE SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES’ ASSOCIATION OF WESTERN AUSTRALIA, APPLICANT v. D PANETTA AND VA PANETTA T/A RIVER ROOSTER HARVEY, RESPONDENT CORAM CHIEF COMMISSIONER W S COLEMAN DELIVERED MONDAY, 3 DECEMBER 2001 FILE NO/S. AG 229 OF 2001 CITATION NO. 2001 WAIRC 04328 _________________________________________________________________________________________________________ Result Agreement Cancelled Representation Applicant Mr T Pope Respondent Mr S Hansen _________________________________________________________________________________________________________ Order HAVING HEARD Mr T Pope on behalf of the applicant and Mr S Hansen on behalf of the respondent, the Commission with the consent of the parties, pursuant to the powers conferred on it under the Industrial Relations Act 1979 hereby orders— THAT the River Rooster Harvey SDA Enterprise Agreement 1998 AG 111 of 1998 be and is hereby cancelled. (Sgd.) W. S. COLEMAN, [L.S.] Chief Commissioner. ____________________ 2001 WAIRC 04330 RIVER ROOSTER MANDURAH, SDA ENTERPRISE AGREEMENT 2001 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES THE SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES’ ASSOCIATION OF WESTERN AUSTRALIA, APPLICANT v. SHANE CROOKES T/A RIVER ROOSTER MANDURAH, RESPONDENT CORAM CHIEF COMMISSIONER W S COLEMAN DELIVERED MONDAY, 3 DECEMBER 2001 FILE NO/S. AG 227 OF 2001 CITATION NO. 2001 WAIRC 04330 _________________________________________________________________________________________________________ Result Agreement Cancelled Representation Applicant Mr T Pope Respondent Mr S Hansen _________________________________________________________________________________________________________ Order HAVING HEARD Mr T Pope on behalf of the applicant and Mr S Hansen on behalf of the respondent, the Commission with the consent of the parties, pursuant to the powers conferred on it under the Industrial Relations Act 1979 hereby orders— THAT the River Rooster Mandurah SDA Enterprise Agreement 1998 AG 113 of 1998 be and is hereby cancelled. (Sgd.) W. S. COLEMAN, [L.S.] Chief Commissioner. ____________________ 2788 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 83 W.A.I.G. 2001 WAIRC 04331 RIVER ROOSTER MARGARET RIVER, SDA ENTERPRISE AGREEMENT 2001 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES THE SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES’ ASSOCIATION OF WESTERN AUSTRALIA, APPLICANT v. JW PETHER, R PETHER, GW PETHER PTY LTD T/A RIVER ROOSTER MARGARET RIVER, RESPONDENT CORAM CHIEF COMMISSIONER W S COLEMAN DELIVERED MONDAY, 3 DECEMBER 2001 FILE NO/S. AG 232 OF 2001 CITATION NO. 2001 WAIRC 04331 _________________________________________________________________________________________________________ Result Agreements Cancelled Representation Applicant Mr T Pope Respondent Mr S Hansen _________________________________________________________________________________________________________ Order HAVING HEARD Mr T Pope on behalf of the applicant and Mr S Hansen on behalf of the respondent, the Commission with the consent of the parties, pursuant to the powers conferred on it under the Industrial Relations Act 1979 hereby orders— THAT the River Rooster Margaret River SDA Enterprise Agreement 1998 AG 114 of 1998 and the River Rooster Margaret River Agreement AG 269 of 1996 be and are hereby cancelled. (Sgd.) W. S. COLEMAN, [L.S.] Chief Commissioner. ____________________ 2001 WAIRC 04324 RIVER ROOSTER PINJARRA, SDA ENTERPRISE AGREEMENT 2001 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES THE SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES’ ASSOCIATION OF WESTERN AUSTRALIA, APPLICANT v. PAGOTE PTY LTD T/A RIVER ROOSTER PINJARRA, RESPONDENT CORAM CHIEF COMMISSIONER W S COLEMAN DELIVERED MONDAY, 3 DECEMBER 2001 FILE NO/S. AG 233 OF 2001 CITATION NO. 2001 WAIRC 04324 _________________________________________________________________________________________________________ Result Agreements Cancelled Representation Applicant Mr T Pope Respondent Mr S Hansen _________________________________________________________________________________________________________ Order HAVING HEARD Mr T Pope on behalf of the applicant and Mr S Hansen on behalf of the respondent, the Commission with the consent of the parties, pursuant to the powers conferred on it under the Industrial Relations Act 1979 hereby orders— THAT the River Rooster Pinjarra Agreement AG 267 of 1996 and the River Rooster Pinjarra SDA Enterprise Agreement 1998 AG 112 of 1998 be and are hereby cancelled. (Sgd.) W. S. COLEMAN, [L.S.] Chief Commissioner. ____________________ 83 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 2789 2001 WAIRC 04334 RIVER ROOSTER STRATTON, SDA ENTERPRISE AGREEMENT 2001 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES THE SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES’ ASSOCIATION OF WESTERN AUSTRALIA, APPLICANT v. SP WHITELAW AND LG WHITELAW FOR WHITELAW FAMILY TRUST T/A RIVER ROOSTER STRATTON, RESPONDENT CORAM CHIEF COMMISSIONER W S COLEMAN DELIVERED MONDAY, 3 DECEMBER 2001 FILE NO/S. AG 224 OF 2001 CITATION NO. 2001 WAIRC 04334 _________________________________________________________________________________________________________ Result Agreement Cancelled Representation Applicant Mr T Pope Respondent Mr S Hansen _________________________________________________________________________________________________________ Order HAVING HEARD Mr T Pope on behalf of the applicant and Mr S Hansen on behalf of the respondent, the Commission with the consent of the parties, pursuant to the powers conferred on it under the Industrial Relations Act 1979 hereby orders— THAT the River Rooster Stratton SDA Enterprise Agreement 1998 AG 115 of 1998 be and is hereby cancelled. (Sgd.) W. S. COLEMAN, [L.S.] Chief Commissioner. ____________________ 2002 WAIRC 04797 SWAN CHRISTIAN EDUCATION ASSOCIATION INC (ENTERPRISE BARGAINING) AGREEMENT 2002 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES THE INDEPENDENT SCHOOLS SALARIED OFFICERS’ ASSOCIATION OF WESTERN AUSTRALIA, INDUSTRIAL UNION OF WORKERS , SWAN CHRISTIAN EDUCATION ASSOCIATION INC, APPLICANTS v. (NOT APPLICABLE), RESPONDENT CORAM CHIEF COMMISSIONER W S COLEMAN DELIVERED THURSDAY, 14 FEBRUARY 2002 FILE NO/S. AG 264 OF 2001 CITATION NO. 2002 WAIRC 04797 _________________________________________________________________________________________________________ Result Agreement cancelled Representation Applicant Mr N Briggs, ISSOA and Mr A Campbell, Swan Christian Education Assn. Respondent No appearance _________________________________________________________________________________________________________ Order HAVING HEARD Mr N Briggs and Mr A Campbell on behalf of the applicants the Commission with the consent of the parties, pursuant to the powers conferred on it under the Industrial Relations Act 1979 hereby orders— THAT the Swan Christian Education Association Inc. (Enterprise Bargaining) Agreement 2000 AG 254 of 2000 be and is hereby cancelled. (Sgd.) W. S. COLEMAN, [L.S.] Chief Commissioner. 2790 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 83 W.A.I.G. NOTICES—Award/Agreement matters— WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION APPLICATION NO. A6 OF 2003 APPLICATION FOR REGISTRATION OF AN AWARD ENTITLED “AEROSPACE ENGINEERING SERVICES (MAINTENANCE SUPPORT) ENTERPRISE AWARD 2003” NOTICE is given that an application has been made to the Commission by The Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union of Workers—Western Australian Branch and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Workers Union of Australia, Engineering and Electrical Division, WA Branch under the Industrial Relations Act 1979 for the above Award. As far as relevant, those parts of the Award which relate to area of operation or scope are published hereunder. 3.—AREA AND SCOPE This Award shall apply to the operations of Aerospace Engineering Services Pty Ltd and to employees of the company covered in the classifications of this Award engaged on work in connection with or incidental to the maintenance support of aircraft contracts at the RAAF Pearce Airbase and Gingin Airfield and/or any other future location within the State of Western Australia. 8.—CLASSIFICATIONS Due to the length of this clause within the application the clause can be inspected at my office or examined on the Commission’s/Department’s website at www.wairc.wa.gov.au A copy of the proposed Award may be inspected at my office at 111 St George’s Terrace, Perth. (Sgd) J. A. SPURLING, Registrar. 14 July 2003. WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION APPLICATION NO. P 19 OF 2003 APPLICATION FOR VARIATION OF AWARD ENTITLED “GOVERNMENT OFFICERS SALARIES, ALLOWANCES AND CONDITIONS AWARD 1989” NOTICE is given that an application has been made to the Commission by The Civil Service Association of Western Australia Incorporated under the Industrial Relations Act 1979 for a variation of the above Award. As far as relevant, those parts of the variation which relate to area of operation or scope are published hereunder:- SCHEDULE B - Government Officers not Covered by the Scope of this Award Schedule B Paragraph 5 delete— Salaried Officers of any Public Authority covered by an Award to which the Federated Clerks Union of Australia, W.A. Branch is a party as at March 1, 1985 And Add in lieu— Salaried Officers of any Public Authority, excluding the Lotteries Commission of Western Australia or however so named, covered by an Award to which the Federated Clerks Union of Australia, W.A. Branch is a party as at March 1, 1985 A copy of the proposed variation may be inspected at my office at 111 St George’s Terrace, Perth. (Sgd) J. A. SPURLING, Registrar. 14 August 2003 ____________________ WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION APPLICATION NO. 1230 OF 2003 APPLICATION FOR VARIATION OF AWARD ENTITLED “IRON ORE PRODUCTION AND PROCESSING (HAMERSLEY IRON PTY LIMITED) AWARD 1987” NOTICE is given that an application has been made to the Commission by The Construction, Forestry, Mining and Energy Union of Workers under the Industrial Relations Act 1979 for a variation of the above Award. As far as relevant, those parts of the variation which relate to area of operation or scope are published hereunder:- Clause 4. – AREA AND SCOPE Add “and Robe River Iron Associates” after the word “Limited” in subparagraph (1)(a). A copy of the proposed variation may be inspected at my office at 111 St George's Terrace, Perth. (Sgd) J. A. SPURLING, Registrar. 13 August 2003. 83 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 2791 IN THE WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Application No. AG 192 of 2003 APPLICATION FOR REGISTRATION OF AN INDUSTRIAL AGREEMENT TITLED “TAB RACING RADIO EMPLOYEES GENERAL AGREEMENT 2003” NOTICE is given that an application has been made to the Commission by The Totalisator Agency Board of Western Australia under the Industrial Relations Act 1979 for registration of the above Agreement. As far as relevant, those parts of the Agreement that relate to area of operation or scope are published hereunder. 3. AREA AND SCOPE 3.1 This Agreement shall apply to the operation of the Totalisator Agency Board of WA or its successor (“the Employer”) and The Media, Entertainment and Arts Alliance of Western Australia (Union of Employees) (“the Union”) and those employees who are employed by the Totalisator Agency Board of Western Australia (Racing Radio Station) in the classifications contained in Clause 11 – Wages of this Agreement. 3.2 This Agreement supersedes and replaces any other industrial agreements or arrangements between the parties to this agreement. 3.2 The parties estimate that approximately 10 employees will be bound by this Agreement upon registration. 11. WAGES & PENALTIES The classifications contained in this clause are as follows: Announcer Announcer/Supervisor/Administration Production Assistant Tote Caller A copy of the Agreement may be inspected at my office at 111 St George’s Terrace, Perth. J. A. SPURLING, Registrar. 9 June 2003. PUBLIC SERVICE ARBITRATOR—Matters Dealt With— 2003 WAIRC 08670 TRANSFER OF ALLAN JONES WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES CIVIL SERVICE ASSOCIATION OF WESTERN AUSTRALIA INCORPORATED, APPLICANT v. THE CHAIRMAN, ANTI CORRUPTION COMMISSION, RESPONDENT CORAM COMMISSIONER P E SCOTT PUBLIC SERVICE ARBITRATOR DATE OF ORDER WEDNESDAY, 9 JULY 2003 FILE NO. P 50 OF 2002 CITATION NO. 2003 WAIRC 08670 _________________________________________________________________________________________________________ Result Interim Order Rescinded _________________________________________________________________________________________________________ Order HAVING heard Mr J Dasey on behalf of the applicant and Mr D Matthews of counsel on behalf of the respondent, the Commission, pursuant to the powers conferred under the Industrial Relations Act 1979 and by consent, hereby orders— THAT the interim order in this matter issued on 12 December 2002 be, and is hereby rescinded. (Sgd.) P. E. SCOTT, [L.S.] Commissioner. Public Service Arbitrator. ____________________ 2792 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 83 W.A.I.G. 2003 WAIRC 08890 ALLEGED BREACHES OF DISCIPLINE WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES THE CIVIL SERVICE ASSOCIATION OF WESTERN AUSTRALIA INCORPORATED, APPLICANT v. CHIEF EXECUTIVE OFFICER, DEPARTMENT OF LAND ADMINISTRATION, RESPONDENT CORAM COMMISSIONER P E SCOTT PUBLIC SERVICE ARBITRATOR DATE WEDNESDAY, 30 JULY 2003 FILE NO. PSACR 7 OF 2003 CITATION N