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 DELIVERED TUESDAY, 18 DECEMBER 2001 FILE NO. PSAC 20 OF 2001 CITATION NO. 2001 WAIRC 04454 _________________________________________________________________________________________________________ Result Recommendation issued ________________________________________________________________________________________________________ Recommendation WHEREAS this is an application pursuant to Section 44 of the Industrial Relations Act 1979 regarding the process of selection for promotions of 12 Senior Sergeant positions advertised in the Police Gazette on 20 September 2001; and WHEREAS on the 14th and 18th days of December 2001 the Public Service Arbitrator convened conferences for the purpose of conciliating between the parties; and WHEREAS at the conclusion of the conference on the 18th day of December 2001 the Public Service Arbitrator issued a Recommendation; NOW THEREFORE, the Public Service Arbitrator, pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby recommends— 1. THAT the process for the selection for promotions of 12 Senior Sergeant positions advertised in the Police Gazette on 20 September 2001 be ceased forthwith. 2. THAT the Respondent review its selection process and procedures. 3. THAT the 12 Senior Sergeant promotion positions be readvertised and a new panel be established for the purposes of undertaking the procedures in relation to those positions. (Sgd.) P. E. SCOTT, [L.S.] Commissioner. Public Service Arbitrator. INDUSTRIAL MAGISTRATE—Complaints before— IN THE INDUSTRIAL MAGISTRATES’ COURT OF WESTERN AUSTRALIA HELD AT PERTH Complaint No. 240 of 2000 Date Heard: 7 December 2000 Date Delivered : 11 January 2001 BEFORE: Mr G. Cicchini I.M. Between— Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers’ Union of Australia – Western Australian Branch Complainant and Reginald Leslie Kernaghan and Margreta Aline Kernaghan trading as Kernaghan’s Joinery and Cabinet Makers Defendants Appearances— Ms J. Harrison of the Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers’ Union of Australia – Western Australian Branch appeared on behalf of the Complainant. 110 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 82 W.A.I.G. Mr G. McCorry of Labourline- The Employment Law Specialists appeared as agent on behalf of the Defendants. Reasons for Decision The Parties The Complainant union is an industrial organisation registered pursuant to the provisions of the Industrial Relation Act 1979 as amended. The Defendants are partners in a firm, which at the material time traded as Kernaghan’s Joinery and Cabinet Makers. The Complaint and Issues The Complainant alleges that on 13 August 2000 at Perth the Defendants failed contrary to clause 28(6) of the Building Trades (Construction) Award 1987, No. R14 of 1978 (the award) to make available copies of the time and wage records relating to their employee Giuseppe Caruso. It is alleged that Mr Caruso was employed in the building construction industry as a carpenter and joiner being one of the callings set out in clause 8 of the award. The Defendants say that Mr Caruso was not employed on construction work as defined in the award and say further that he was not employed in any of the callings set out in clause 8 of the award. The Defendants maintain that at all material times Mr Caruso was employed as and performed the work of a cabinet-maker and was therefore subject to the provisions of the Furniture Trades Industry Award No. A6 of 1984. The Defendants also take the view that Mr Caruso was eligible to be a member of The Forest Products, Furnishing and Allied Industries Industrial Union of Workers, W.A. and therefore not eligible to be a member of the Complainant organisation. On 10 August 2000 the Complainant requested pursuant to clause 28(6) of the award that time and wage records relating to Mr Caruso be made available to the Complainant for inspection. On 13 August 2000 Graham McCorry on behalf of the Defendants declined to comply with the Complainant’s request. The Defendants’ refusal to comply with the request stemmed from their view that Mr Caruso was not covered by the award and that they therefore were not obliged to provide or make available to the Complainant any records relating to the employment of Mr Caruso. Alternatively the Defendants argue that they were not obliged to provide or make available their records relating to the employment of Mr Caruso because the person who on 10 August 2000 made the request for the provision of the records was not a duly accredited official under the rules of the organisation of employees bound by the award. The Defendants suggest that the condition precedent enabling the operation of clauses 28(5) and 28(6) (in the pleading (8)) of the Award was not therefore satisfied. Witnesses The Complainant called Giuseppe Caruso the subject of the complaint to give evidence. Mr Caruso testified that he was trained in Italy in the trade of cabinet making and joinery. He immigrated to Australia in 1965. Since his arrival in Australia he has worked in differing capacities. He has in the past worked variously as a furniture maker, cabinet-maker and joiner. However the issue to be determined in this matter is the nature of the calling carried out by Mr Caruso over the last 6 years whilst employed by the Defendants. The Complainant also called Mr David Simpson. Mr Simpson is a qualified carpenter and joiner. He has worked in that calling within the building construction industry over the last 18 years. He is a former organiser of the Complainant and is currently employed as a carpenter with Walter Constructions at Canning Dam. He holds the position of shop steward on that job. Construction Training of Australia also employs him as a Skills Assessor. His function in that capacity is to assess the competency of those persons seeking trade certificate accreditation. Mr Simpson was called as an expert witness to testify on the issue inter alia of whether the work carried out by Mr Caruso during the material time was that of a carpenter and joiner engaged within the building construction industry. The other witness called by the Complainant was Paul Joyce. He is an Industrial Officer with the Complainant union and other unions. It was Mr Joyce who on 10 August 2000 requested the Defendants to provide their time and wage records pursuant to clause 28(6) of the Award. The Defendants called two witnesses. They were the male Defendant namely Reginald Kernaghan and the Defendants’ former employee namely Peter Gersmanis. Mr Gersmanis’ company took over the Defendants’ business when they ceased trading on 3 August 2000. The Defendants’ business name of Kernaghan’s Joinery and Cabinet Makers was deregistered on that day pursuant to section 19(1)(a) of the Business Names Act. The Defendants’ business was taken over by Kernaghan’s Serene Interiors Pty Ltd of which Mr Gersmanis is a director. The Defendants had employed Mr Gersmanis in the capacity of apprentice cabinet-maker until he ultimately qualified as a tradesman in December of 1999. Thereafter he worked for the Defendants as a tradesman until August 2000. Whilst apprenticed to Mr Kernaghan, Mr Gersmanis was assigned to assist Mr Caruso in his duties. He considered Mr Caruso to be his supervisor. The Evidence The Defendants operated a joinery and cabinet making business. The business carried out work in manufacturing and installing kitchen cupboards, built in robes, bathroom units, wardrobes, office furniture and retail furniture. In the last ten years the Defendants also carried out what has been described as “maintenance work” for a major client namely Woolworths. Mr Caruso’s involvement with the Defendants commenced in about 1972 when Mr Kernaghan bought some of Mr Caruso’s machinery following his decision to cease operating as a self employed cabinet-maker and joiner. At that time Mr Kernaghan offered Mr Caruso employment as a cabinet-maker. That offer was accepted and thereafter Mr Caruso worked for the Defendants in that capacity. Notwithstanding that he was employed as a cabinet-maker Mr Caruso worked from time to time within the Defendants joinery shop. It is clear that Mr Caruso’s involvement in the joinery section of the Defendants’ business was minor. In the main Mr Caruso’s employment with the Defendants leading up to the Woolworths work was that of cabinet making. Indeed even in the early stages of the Woolworths engagement Mr Caruso was involved in the manufacture and installation of checkout counters. In that regard he was clearly engaged in cabinet making. Soon after obtaining the Woolworths work it became apparent that the Defendants could not cope with the demands made by Woolworths. Woolworths required the Defendants to manufacture up to nineteen checkout counters a week and then install them out of trade hours. In view of the Defendants’ inability to meet such demand it was arranged that checkout counters be manufactured in the eastern states and transported to Western Australia. The pre-packaged checkout counters from the eastern states were unpacked, assembled and fixed in Woolworth stores by the Defendants. If any damage were done to the checkout counters in the course of transportation then the Defendants would repair such damage. The Defendants also carried out any necessary modifications. The Defendants also provided Woolworths with “one off” pieces of furniture whether it be office or retail. In addition the Defendants were engaged to carry out “maintenance work” for Woolworths. Such work was varied and was of course dependent upon the needs of their client. As part of their duties the Defendants fixed jammed cash draws, fixed doors, hung signs, put up railings and did all work of a carpentry nature that was required by Woolworths. The Defendants also assembled and installed metal shelving in Woolworths Liquor Stores. The various aspects of the Woolworths work could take anything between a few minutes to a few hours or could take days. The Defendants in the main provided their services to Woolworth’s metropolitan 82 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 111 stores and its head office. There was from time to time some country work but the mainstay of the Defendants’ work for Woolworths remained within the metropolitan area. Mr Kernaghan testified that a few years ago Mr Caruso advised him that his eyesight was failing and that he accordingly found it difficult to work with cupboard plans and to mark out cupboards for manufacture. Mr Caruso told Mr Kernaghan that he preferred to work installing cabinets rather than manufacturing them. In consequence Mr Caruso’s duties changed. Thereafter his involvement in cabinet manufacturing reduced. In the mornings he would turn up to the workshop and take the loaded truck out on the road and attend to the installation of cabinets. On some occasions if the truck was not ready he would assist in the loading of the truck. Following the installation of the cabinets Mr Caruso would return to the workshop and assist in the cabinet making. In some instances he would help out in the joinery shop. Mr Caruso also carried out all the Woolworths maintenance work. Mr Kernaghan conceded that during the last four years of his employment Mr Caruso, by reason of his failing eyesight, spent much more of his time on site. He went on to say that Mr Caruso could be on site three and half to four days a week. He would arrive at the factory in the morning and if the job was not ready to go out at 7.00 a.m. he would assist in getting the job ready to go out. Thereafter with the assistance of an apprentice he would go out and install cabinets or do maintenance work. If he arrived back at the factory at two or three in the afternoon following installation or maintenance work he would join in and help the cabinet-makers in their work. Mr Kernaghan conceded that the maintenance component of the Woolworths work amounted to about eighty percent of the entire Woolworths contract and that he considered such maintenance to be a subset of the cabinet making division of his business. He told the Court that the cabinet making division of his business generates about seventy five percent of the business’ revenue. Mr Caruso’s evidence concerning the work that he performed for the Defendants is not dissimilar to Mr Kernaghan’s evidence. Mr Caruso testified that the Woolworths work formed the main part of his duties and indeed accounted for a major part of the Defendants’ work. Mr Caruso said that there were a total of fifty-four Woolworths shops in respect to which the Defendants provided maintenance services. He explained that other than the task of installing new checkout counters, his duties included replacing doors, fixing hinges, constructing shelves, hanging signs, erecting prefabricated aluminium “fencing” and sometimes building timber walls. Apart from the Woolworths work he installed furniture at schools. Such furniture sometimes consisted of kitchen furniture, cupboards and/or shelving for libraries and the like. He also installed cupboards and built shelves at Brightwater Retirement Homes. Mr Caruso testified that given the nature of the work he carried out, only short periods of his workday was usually spent in the factory. He spent a whole day in the factory only once in a blue moon. Mr Gersmanis’ evidence concerning how much time Mr Caruso worked on site varied considerably. Indeed he was reluctant to be drawn precisely on the issue claiming that it was difficult to assess and remember. He maintained that Mr Caruso worked considerable periods within the factory premises. He maintained that he could recall building a kitchen with Mr Caruso and that took a week. I gained the impression that for reasons best known to Mr Gersmanis that he down played the extent to which Mr Caruso worked on site. In other respects Mr Gersmanis’ evidence corroborates that of Mr Caruso. In particular he confirmed that Mr Caruso measured up jobs, read plans for installations and that he carried out maintenance duties as described by Mr Caruso. Accordingly on the testimony of Mr Caruso, Mr Gersmanis and Mr Kernaghan it is possible to conclude, and I do conclude, that over the last few years and in particular in the last four years of his employment with the Defendants Mr Caruso worked mainly on site. He would rarely spend a whole day working in the capacity of cabinet-maker in the Defendants’ factory. Mr Caruso’s attendances at the factory were only for a few hours on any given day. On the limited occasions he was at the Defendants’ factory he carried out cabinet making and assisted others in that regard. Such factory work when added together amounted only to a total of about one to one and half days work per week. I find that the rest of the time was spent on site. Whilst on site Mr Caruso fixed cabinets be they kitchen cupboards or other cabinets manufactured by the Defendants. He also assembled and fixed checkout counters manufactured in the Eastern States for Woolworths. I find that Mr Kernaghan generally set out the counters when a whole bank of counters had to be installed. On other occasions Mr Caruso read the plans and installed furniture with the assistance of another or other employees. I further find that in the course of carrying out maintenance work Mr Caruso was engaged in repairing and fixing doors, erecting signs, erecting balustrading (which Mr Caruso called “fences”), erecting metal shelving and even on the odd occasion building walls. He also installed one-off pieces of furniture for Woolworths whether it be office or retail. Furthermore he installed cupboards at Brightwater and at schools. Much of the evidence given by Mr Caruso and Mr Kernaghan concerning Mr Caruso’s duties is not in dispute. The greatest aspect of dispute arises in the evidence of Mr Gersmanis. Where there is a conflict between the evidence of Mr Germanis and that of Mr Caruso I prefer the evidence of Mr Caruso. I now turn to consider the evidence of the other witnesses. I deal firstly with Mr Joyce’s evidence. I can be satisfied on his testimony that he was at the material time a duly accredited representative of the Complainant. Mr Joyce’s evidence is otherwise unremarkable and I find no difficulty with it. I need not comment further with respect to his evidence. Mr Simpson’s evidence was of some but limited use. He made an assessment of Mr Caruso’s calling by listening to Mr Caruso’s evidence and then relating that to competency check list he uses for evaluating competency for those seeking a trade certificate in General Construction (Carpentry–Framework/Formwork/Finishing). There can be no doubt that such an assessment was cursory at best. Furthermore it was obvious that on Mr Simpson’s evaluation Mr Caruso did not meet a number of competency standard criteria. Mr Simpson said that was not critical in itself because although a person may not meet the certification criteria that of itself does not mean that such a person is not a carpenter and joiner. Mr Simpson gave evidence concerning the work he carried out whilst working at Myers at the Morley Galleria Shopping Centre. The work he carried out at that place was the same as or similar to the type of work carried out by Caruso. Nevertheless it was evident from his testimony that such work carried out by him comprised only a relatively small portion of his work. Accordingly such evidence although limited is useful in its application in establishing that Mr Caruso worked in the building construction industry in the calling of carpenter and joiner. Finally Mr Simpson’s evidence concerning the type of work carried out by certain named respondents to the award was not from his own knowledge but rather based on hearsay. It is accordingly obvious that such evidence is of very little assistance (if any). Does the Building Trades (Construction) Award bind the Defendants? The critical issue in this case is whether the Defendants, not being a named party to the award, are bound by it and so subject to penalty for non-compliance with its provisions. Having regard to section 37 of the Industrial Relations Act 1979 (the Act) that issue is to be decided by determining whether on its proper construction Mr Caruso was, at the relevant time, one to whom the “scope” clause of the award applies. Relevantly clause 3(1) provides— “3. - SCOPE This award shall apply— (1) to all employees usually employed on or employed as casual employees on construction work as defined in Clause 7. - Definitions of this award in any of the callings set out in Clause 8. - Rates of Pay of this award and who are employed in the building construction industry; and” 112 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 82 W.A.I.G. “Construction Work” is defined in clause 7(3) of the award. “(3) ‘Construction Work’ means— (a) all work ‘on-site’ in connection with the erection, repair, renovation, maintenance, ornamentation or demolition of buildings or other structures of any kind whatsoever; or (b) all work which the union and the employer concerned agree is construction work but only if the agreement is approved by the Board of Reference; or (c) all work which, in default of an agreement as aforesaid, is declared by the Board of Reference to be construction work.” The callings set out in clause 8 of the award include at clause 8 (2)(a)(i) “carpenters” and “joiners”. The meaning of “Carpenter and Joiner” is defined in clause 7(8)(a) of the award under the heading “Carpentry and Joinery”. The term is defined as follows— “(8) Carpentry and Joinery (a) ‘Carpenter and Joiner’ means an employee engaged upon work ordinarily performed by a carpenter and joiner in any workshop establishment, yard or depot, or on site (including dams, bridges, jetties or wharves). Without limiting the generality of the foregoing, such work may include— (i) The erection and/or fixing work in metal. (ii) (aa) The marking out, lining, plumbing and levelling of prefabricated form work and supports thereto; (bb) The erection and dismantling of such form work but without preventing builders’ labourers from being employed on such work. (iii) the fixing of asbestos products, dry fixing of fibre plaster materials and the fixing of building panels, wall board and plastic material; (iv) the erection of curtain walling; (v) the setting out and laying of wood blocks or parquetry or wooden mosaic flooring; and (vi) the erecting of prefabricated buildings or section of buildings constructed in wood, prepared in factories, yards or on site. (b) ‘Detail Employee’ means a carpenter and joiner who sets out and works upon staircases, bar, kitchen or office fittings or any similar detail work from architects plans or blue prints.” Section 37(1) of the Act provides— “37. (1) An award has effect according to its terms, but unless and to the extent that those terms expressly provide otherwise it shall, subject to this section— (a) extend to and bind— (i) all employees employed in any calling mentioned therein in the industry or industries to which the award applies; and (ii) all employers employing those employees and (b) operate throughout the State, other than in the areas to which section 3(1) applies.” In order to establish award coverage the Complainant must prove the following— 1. The existence of an award; 2. That the award binds the employer. This may be proved by establishing that the employer was operating a business or undertaking in the relevant industry at the time of the alleged breach; 3. That the person in relation to whom the complaint is made was employed in a classification under the award; and 4. That the person in relation to whom the complainant is made is an employee within the definition in s.7 (1) of the Act. The matters outlined in 1 and 4 above are not in dispute. However the Complainant is put to the proof in establishing that the Defendants were operating a business or undertaking in the relevant industry at the relevant time. Also in issue is whether Mr Caruso was employed in a classification under the award. It has long been held that the award has effect “according to its terms”. The scope clause must be carefully scrutinised in order to discover who is covered by it. In The Western Australian Carpenters and Joiners, Bricklayers and Stoneworkers Industrial Union of Workers v. Terry Glover Pty Ltd, 50 WAIG 704 Burt J (as he then was) said at 705— “Each and every award must relate to an industry and what the industry is, is in every case primarily a question of construction of the particular award. It may be that the question is not only primarily but finally a question of construction, and it may be that the award as a matter of construction fails to give the final answer and requires for that purpose that findings of fact be made. An award if made in terms “to relate to the ship building industry” would be of the first-mentioned kind. An award expressed to relate, as the one under construction here is expressed to relate, to “the industries carried on by the respondents set out in the schedule attached (sic) to this award” is of the other kind. In such a case the industry to which the award relates cannot be made known without definition of the industries carried on by the respondents. And this is necessarily a question of fact.” The industry to which the award applies may be clearly specified. In other cases there are three well-known tests which have been used to identify an industry. They are the tests in Parker’s case, W. Parker and Son v. Amalgamated Society of Engineers (1927) 6 WAIG 377, Glover’s case (supra), and Donovan’s case, RJ Donovan and Associates Pty Ltd v. Federated Clerks Union of Australia WA Branch (1977) 57 WAIG 1317. In considering the scope clause the ordinary meaning of the words of the award must be used (See Norwest Beef Industries Limited v. WA Branch Australian Meat Industries Employees’ Union (1984) 64 WAIG 2124 at 2129). The award applies to all employees specified in clause 8 usually employed in construction work defined to mean inter alia— “all work ‘on site’ in connection with the erection repair, renovation, maintenance, ornamentation or demolition of buildings or other structures of any kind whatsoever;” 82 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 113 Accordingly a fact-finding exercise is not necessary to determine the industry. However a fact-finding exercise is necessary in order to resolve the issues as to whether the Defendants operated within the industry as defined and if so whether Mr Caruso was employed within the calling of carpenter and joiner as defined by clause 7 of the award. In determining the issues it must be recognised that the nature of Mr Caruso’s work was of such a nature that on occasions he performed the work of a cabinet-maker and that on other occasions he performed the type of work that would bring him within a classification contained in the award. The fact that Mr Kernaghan originally employed Mr Caruso as a cabinet-maker is, in my view, only of limited importance. I say that because it is obvious from the evidence that the nature of his work changed over the years. It changed to a large extent by reason of the dynamics of commercial reality in needing to provide a service to the Defendants’ main client namely Woolworths. The service provided was not that which would normally be provided by a cabinet- maker but rather encompassed the type of service which would have normally been performed by a carpenter. Mr Simpson’s evidence is indicative of the fact that carpenters in the construction industry carry out the type of work carried out by Mr Caruso. It is obvious that certain work performed by Mr Caruso when providing a service to Woolworths was not that of a cabinet-maker but rather that which is usually provided by a carpenter, such as Mr Simpson, working in the construction industry. In that regard there is evidence before the Court to establish that Mr Caruso was engaged in the repairing and hanging of doors, the erection of signs, the erection of metal shelving, the erection of wooden shelves, the erection of prefabricated aluminium fence (which I take to be balustrading) such work being the type of work carried out by a carpenter and joiner covered by the award. Such maintenance work which on Mr Kernaghan’s admission consisted of eighty percent of the Woolworths contract was clearly on site work in the nature of work ordinarily performed by a carpenter and joiner. In my view the evidence dictates that the Defendants operated within the building and construction industry by performing such work in connection with the erection, repair, renovation and maintenance of retail premises. The evidence also dictates that Mr Caruso read plans in the installation of cabinets and that to such extent it could be said that he was engaged in “detail work” as defined by the award. Having determined that Mr Caruso performed some work that falls into the classification of carpenter and joiner as defined by the award it is nevertheless the case that the evidence dictates that he was also engaged in cabinet making. It is clear that Mr Caruso, when at the factory, involved himself with and carried out work in the manufacture of cabinets. Furthermore he, as part of his on- site work, installed kitchens and other furniture manufactured by the Defendants at their factory workshop. In that regard the work carried out by Mr Caruso on those occasions was of the type performed by employees working for employers bound by the Furniture Trades Industry Award. There can be no doubt that the fitting within buildings of furniture manufactured by cabinet- makers as the final process of their operation does not of itself make cabinet-makers into carpenters and joiners. In United Furniture Trades Industrial Union of Workers W.A. v. Western Australian Carpenters and Joiners, Bricklayers and Stoneworkers Industrial Union of Workers (1985) 65 WAIG 2300 Salmon C. said at 2305— “Having regard for all of the foregoing it is my decision that persons whose major and substantial employment is cabinet-maker do not become joiners by reason of the fact that they do some work on building sites, for example wall panelling, which is, technically speaking, joiners’ work. Such work is done by these persons precisely because they are cabinet-makers. Furthermore, I do not think it can be seriously argued that cabinet-makers who are engaged in the work of their trade in the final stage of furniture manufacture by fitting furniture in buildings are joiners merely because joiners also fit furniture in buildings. To hold that cabinet-makers become joiners in these circumstances and to further hold that they are employed as joiners in factories for similar reasons would be to ignore the history of separate development of the two trades and the reasons for it. I have nothing before me of such cogency as would permit me to do that and I accept the applicant’s qualitative difference argument as sound.” As stated previously it appears to me that there is no doubt that Mr Caruso did the work of a cabinet-maker as part of his employment with the Defendants and that for the other part he carried out the work of a carpenter and joiner. Accordingly in the light of such findings I must move to consider whether Mr Caruso’s major and substantial employment was that of cabinet-maker or whether it was that of a carpenter and joiner. In that regard it is important to reflect on what Burt J. (as he then was) said, in Federated Clerks’ Union of Australia, WA Branch v. Cary (1977) 57 WAIG 585 at 586, in relation to the issue of whether an employee was a “clerk” for the purpose of the particular award under consideration— “… one judges the question as it may arise in any particular case simply by finding as a fact what it is that the worker was employed to do and then deciding whether upon the facts so found he was employed to ‘make written entries, keep accounts’ and other work of that character. Of course one has regard to the substantial nature of the employment in terms of the purpose to be achieved by it, the question being, I think, very much controlled by the difference, which is not always accepted by philosophers but which serves the purpose of practical men, between ends and means. If in substance the worker’s job is to write and the job is done when the writing has been done he is a clerk, but if in substance the writing done by the worker is but a step taken in doing by him of something extending beyond it then he is not. The ‘substance’ of the work identifies the question as being one of degree and it indicates the answer to it will be, or may be, very much the product of a value judgment.” In Doropoulos v. Transport Workers’ Union of Australia, WA Branch (1989) 69 WAIG 1290 the Full Bench referred to the test of “major and substantial employment” and the history of the test. At page 1293 it summarised the elements enunciated in Cary’s case as follows— “Thus, incorporated in the consideration of major and substantial employment on that authority, are questions of substantial nature of the employment, the substance of it, and the purpose to be achieved by it. One has to look at the contract or evidence of it, and obtain a comprehensive picture of the whole of the employment to enable one to apply Burt J’s test.” Where in a case such as this an employee is covered by dual awards the question becomes which one applies. In that regard the most important factor is that of the work done by the employee rather than a consideration of the operation of the Defendants. In Harrison v. Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1983) 63 WAIG 1399 His Honour the President, in delivering a joint decision with the Senior Commissioner, said that the doctrine of major or substantial employment was well established, although it had not so far attracted the attention of the Industrial Appeal Court. His Honour referred to a decision of the President of the Court of Arbitration in the matter of an interpretation of the Ticket Writers’ Award in John Wills & Co Ltd v. Operative Painters and Decorators’ Industrial Union (1940) 19 WAIG 500 (and the authorities therein). Fielding C (as he then was) explained that where two or more awards prima facie apply to the work of an employee, it is well established that the nature of the major and substantial part of the work done by the employee is the key factor in determining which award governs the work in question. It thus becomes necessary to examine the nature of the major and substantial part of the employee’s work rather than the total operation of the employer’s business. The evidence given by Mr Caruso was that the major and substantial part of his employment was that of carrying out maintenance for Woolworths. I accept Mr Caruso’s evidence. To some extent Mr Kernaghan’s own testimony confirms Mr Caruso’s evidence in that regard. I am satisfied that Mr Caruso only spent minimal periods within the factory manufacturing cabinets for the six years leading to August of 2000. Furthermore I am satisfied that whilst on site the substantial part of Mr Caruso’s work did not involve 114 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 82 W.A.I.G. the installation of cabinets or other furniture manufactured by the Defendants. I am satisfied that by far the greater portion of the work carried out by him during the relevant period was that of a carpenter and joiner. His duties were the same as those carried out by Mr Simpson in his calling. Mr Gersmanis’ evidence to the contrary is rejected. As stated previously I found Mr Gersmanis’ evidence to be quite unsatisfactory particularly when subjected to cross-examination. Accordingly it follows that I find that the award binds the Defendants. Having so found I now turn to consider whether there has been a breach of the award as alleged. The elements to be satisfied in proving a failure to make available time and wage records. There is no contest in the fact that the Defendants failed to make available to the Complainant copies of the time and wage records appertaining to Mr Caruso. The request to make available the time and wage records was initially refused ostensibly on the basis that Mr Caruso was a cabinet-maker and accordingly not subject to the provisions of the award. The Defendants in resisting the complaint now also argue other grounds, which are referred to below. In order to prove its case the Complainant must establish the following elements on the balance of probabilities— 1. That the relationship of employer-employee existed between the Defendants and an employee covered by the award; 2. That the official of the organization suspected a breach of the award had been committed before a demand was made that the records be supplied; and 3. that the records requested pursuant to clause 28(6) of the Award were not made available and supplied within 48 hours of the demand having been made. For the reasons previously given it is apparent that the first element referred to above has been established. I need say no more about that element. The evidence of Mr Joyce enables the second element to be proved. There can be no doubt on his evidence that an official of the Complainant suspected a breach. In consequence of the suspected breach the Complainant sought pursuant to clause 28(6) the Defendants’ time and wage records appertaining to Mr Caruso. The third element to be proved requires careful consideration in the light of submissions made by the Defendants. They submit that for the third element to be satisfied there must be evidence before this Court to establish that Mr Joyce was authorized to make the demand that he made. Mr McCorry for the defendants argues that Section 49B(1)(b) of the Act prohibits the Industrial Relations Commission from making an award which empowers a representative of an organisation of employees to inspect the time and wages records of an employee or former employee unless the award provides inter alia that— “(b) the power of inspection may only be exercised by a representative of an organization of employees authorized for the purpose in accordance with the rules of the organization;” There is no doubt that such a provision is contained within the award. Notwithstanding that, the Defendants submit that there is a requirement for the rules of the Complainant to expressly provide for the authorization of a person or persons to inspect time and wages records. The Defendants argue that a general power as contained within the Complainant’s rules to do lawful things or authorize lawful things is not sufficient to satisfy section 49B(1)(b) of the Act. Clause 17 of the Complainant’s rules (Exhibit 2) headed General Secretary provides inter alia— “He/she shall ensure that the Union complies with such legislation as exists from time to time in relation to industrial relations.” Mr McCorry argues that the abovementioned provision does not and did not enable Mr McDonald, the Complainant’s Secretary, to authorise Mr Joyce to make the demand for the supply of the time and wage records. With all due respect for Mr McCorry I find no force in his argument. I say that because clause 28(5) of the award is aimed at inspection by a duly accredited official under the rules. However the request that was made to the Defendants on 10 August 2000 was not seeking an inspection of the records by Mr Joyce but rather a making available and supply to the Complainant of the Defendants’ records concerning Mr Caruso. The letter written by Mr Joyce was written on behalf of the Complainant seeking the supply of copies of the record pursuant to clause 28(6). It was not written for the purpose of inspecting the records pursuant to clause 28(5). There is an obvious distinction between the two provisions. The distinction although subtle is there. For the sake of completeness I set out the relevant subclauses of clause 28 of the award. “(5) Subject to subclause (6) of this clause, all records and documentation referred to in subclause (1), (2) and (3), or copies thereof, shall be available for inspection by a duly accredited official under the rules of an organisation of employees bound by this Award during the usual office hours, at the employer’s office or other convenient place. This is subject to reasonable notice of not less than 24 hours of the intention to inspect the records being given to the employer by the union or duly accredited union official. (6) Subject to subclause (7) of this clause, and upon request, the employer shall make copies available to the union of the record maintained under subclause (1) of this clause, if the Secretary of the Union reasonably suspects that a breach of the Award has been committed. Copies of the records shall be supplied within 48 hours. (7) The employer may refuse the representative access to the records if the employer— (a) is of the opinion that access to the records by a duly accredited official of the organisation of employees would infringe the privacy of persons who are not members of the union; (b) undertakes to produce the records to an industrial inspector within 48 hours of being notified of the requirements to inspect by the Union official; and (c) complies with the undertaking to produce the records to an industrial inspector.” (See exhibit 4) A perusal of the relevant subclauses makes it apparent, in my view, that Mr McCorry’s argument can only be relevant in so far as the allegation is in respect to a breach of clause 28(5) of the award. In this instance the allegation is one in respect to a breach of clause 28(6) of the award. Accordingly the argument has no application in this matter and must therefore fail. Even if I am wrong in that approach I take the view that I cannot go behind the award. Conclusion For the reasons enunciated above I am satisfied that the Defendants failed to make available to the Complainant copies of the time and wage records relating to their employee Giuseppe Caruso contrary to clause 28(6) of the Building Trades (Construction) Award 1987 being an award by which they were bound. G. CICCHINI, Industrial Magistrate. ____________________ 82 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 115 IN THE INDUSTRIAL MAGISTRATE’S COURT HELD AT PERTH WESTERN AUSTRALIA Complaint No. 263 of 1998 Date Heard : 15, 16 & 17 December 1999 19, 20 & 26 April 2000 10 May 2000 & 15 June 2000 Date Decision Delivered: 2 August 2000 BEFORE: Mr G. Cicchini I.M. Between— SEAN KENNEDY Complainant and D.P.H. NOMINEES PTY LTD t/as AUSMIC ENVIRONMENTAL INDUSTRIES W.A. Defendant Appearances— Ms Y.D. Henderson instructed by Messrs Gibson & Gibson Solicitors appeared for the Complainant. Mr M.D. Evans instructed by Messrs Corsers Barristers and Solicitors appeared for the Defendant. Reasons for Decision The Claim and Counterclaim The Complainant has brought an action pursuant to Section 83 of the Industrial Relations Act 1979 (the Act) claiming that the defendant has committed 127 breaches of the Pest Control Industry Award 1982 (“the award”). The complainant further claims that he has been underpaid a total amount of $14,775.92 as a result of those breaches. The defendant denies it committed the alleged breaches and accordingly maintains that there was no underpayment. The defendant counterclaims the amount of $13,036.33, which it says was overpaid to the complainant. The defendant maintains that the overpayment arose as a consequence of the complainant’s breach of duty of fidelity and good faith to the defendant. Jurisdiction There can be no doubt that Section 83 of the Act enables the complainant to bring the action that he has brought with respect to each of the alleged breaches. The issue is whether the defendant is entitled to bring a counterclaim. The issue was not the subject of any discussion, comment or argument at the trial. It is obvious that both parties proceeded on the basis that the defendant’s counterclaim is both permissible and justiciable by this Court. However in order to remove any doubt that may arise from the Act’s silence with respect to counterclaims it is appropriate that I examine the issue at this point as a preliminary issue going to jurisdiction. Relevantly Section 81CA of the Act provides— “Procedure, enforcement etc. 81CA. (1) In this section— ‘general jurisdiction’ means the jurisdiction of an industrial magistrate’s court under— (a) section 77, 80 (1) and (2), 83, 84K, 96J, 97U, 110, 111 or 112; (b) Part IV of the Long Service Leave Act 1958; or (c) Division 1 of Part 5 of the Workplace Agreements Act 1993; ‘prosection jurisdiction’ means … (2) Except as otherwise prescribed by or under this Act or another law— (a) the powers of an industrial magistrate’s court; and (b) the practice and procedure to be observed by an industrial magistrate’s court, when exercising general jurisdiction are those provided for by the Local Courts Act 1904 as if the proceedings were an action within the meaning of that Act. (3) … (4) … (5) … (6) … (7) … (8) …” There is no doubt that the Local Courts Act 1904 and the Local Courts Rules 1961 contain the powers and the practice and procedures which enable and facilitate the making of a counterclaim in the Local Courts. Accordingly the issue to be resolved is whether this Court is seized with the same jurisdiction by virtue of the application of Section 81CA (2) or whether this Court’s jurisdiction is constrained by Regulation 3 (1) of the Industrial Relations (Industrial Magistrate’s Courts) Regulations 1980. The issue has been the subject of recent judicial consideration and comment by the Federal Court of Australia in Metropolitan Health Services Board v. Australian Nursing Federation [1999] FCA 1513 delivered on 2 November 1999. His Honour Lee J. said commencing at paragraph 9— “9 Under s.81CA (1) of the State Act, the jurisdiction of the court is defined as being either “general jurisdiction” or “prosecution jurisdiction”. Part of the “general jurisdiction” of the court is that conferred by s.83 of the State Act in respect of the enforcement of an award made under the State Act. For the purposes of the present analysis, the rights created and made enforceable under s.83 of the State Act, although distinguishable, are not far removed from like provisions in s178 of the Act. 116 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 82 W.A.I.G. 10 Under s.81CA (2) of the State Act, the powers of the court, and the practice and procedure to be observed by the court when exercising “general jurisdiction”, are those provided for by the Local Courts Act 1904 (WA) (“Local Courts Act”) as if the proceedings were an “action” within the meaning of that Act. The appropriate initiating process in respect of the enforcement of an award under s83 of the State Act may be, therefore, a “plaint” rather than a “complaint”. Section 81CA (3) further provides that regulations may extend the circumstances in which the court exercising general jurisdiction may hear and determine an action under the Local Courts Act for “small debts”. 11 Section 81CA (5) provides that when exercising “prosecution jurisdiction”, the court constitutes “a court of summary jurisdiction”. That term is defined in s5 of the Interpretation Act 1984 (WA) (“State Interpretation Act”), which reads as follows— “court of summary jurisdiction” … means any justice or magistrate to whom jurisdiction is given by, or who is authorised to act under, the Justices Act 1902, and whether acting thereunder, or under any other Act, or by virtue of his commission, or under the common law;” Part of the “prosecution jurisdiction” includes jurisdiction under s83A of the State Act to hear and determine complaints for any contravention or failure to comply with the State Act that constitutes an offence. Section 83A (1) of the State Act provides that the Court has “jurisdiction under the Justices Act 1902” to hear and determine such complaints. Sections 81CA and 83A were inserted in the State Act by amendments which took effect on 16 January 1996. 12 The respondent submitted that regulations made under the State Act show that the Industrial Magistrate’s Court sits as a court of summary jurisdiction. In particular the respondent relies on reg 3 (1) of the Industrial Relations (Industrial Magistrates’ Courts) Regulations 1980 which reads as follows— 3 (1) [Justices Act, 1902-1979] “Subject to the Act and to these regulations, proceedings before an industrial magistrate’s court and in particular the making of a complaint, the issue of a summons, the summoning of witnesses, the fees to be paid relating to any matter, the taking of evidence, the hearing and determination of a complaint and the costs and allowances to parties and witnesses shall be, with such modifications as circumstances require, those prescribed by the Justices Act, 1902-1979, in respect of proceedings before justices for a simple offence.” The Regulation goes on to provide that proceedings are to be commenced by complaint and a summons directed to a defendant requiring that party to appear before the Court. The Regulation came into force in 1980 and was last amended in 1992. Plainly, the Regulation has been overtaken by the amendments to the State Act which inserted, inter alia, s81CA. In any event in its terms the Regulation is subject to the State Act and gives way to the provisions of s81CA where there is inconsistency. Obviously the practice and procedure to be observed by the court in the exercise of “general jurisdiction” is governed by s81CA and not reg 3.” The aforementioned decision of the Federal Court binds this Court by virtue of the fact that this Court exercises federal jurisdiction. Accordingly, the powers, the practice and procedure as provided for by the Local Courts Act 1904 are to be adopted by the Industrial Magistrate’s Court in its exercise of general jurisdiction. It follows that this Court has jurisdiction to consider and determine the counterclaim made in this matter. Pleaded Issues By his complaint and particulars of claim filed 6 April 1999, the complainant alleges that the defendant has committed 127 separate breaches of the award. In general, the breaches alleged are a repeated failure by the defendant to pay overtime entitlements due to the complainant under the award. It is alleged that in each instance clauses 5 and 6 of the award have been breached. By the amended defence and counterclaim filed on behalf of the defendant in August 1999, it is pleaded that:— (a) the defendant has not committed any of the alleged breaches of the award (paragraph 4); (b) the complainant has in fact been paid the base rate to which he is entitled under the award, together with bonuses pursuant to the first and second contracts which in fact exceeded overtime entitlements under the award (paragraph 5); (c) the complainant failed to accurately record starting times on the work cards and opening times of the defendant’s premises (paragraphs 8 and 9); (d) the complainant owed the defendant a duty of fidelity and good faith, which the complainant breached in failing to accurately record starting times and related information on the job cards, resulting in the defendant suffering loss and damage (paragraphs 10, 11, 13 and 15). By his reply to defence and counterclaim filed on 6 October 1999, the complainant— (a) denies that any contracts of employment contracted out of the conditions of the award (paragraph 3); (b) denies that the complainant was overpaid (paragraph 5); (c) alleges that the complainant was instructed not to take lunch breaks (paragraph 6); (d) admits that the complainant was required to keep records of work done in the job cards (paragraph 8); and (e) denies that there are any discrepancies recorded by the complainant in the job cards (paragraph 9). Issues Not in Dispute It is not in dispute that:— • The complainant is an “employee” within the meaning of sub-section 7 (1) of the Act, during the periods in dispute between 4 July 1994 and 27 October 1998 (“the relevant period”). • The defendant was an “employer” within the meaning of sub-section 7 (1) of the Act, during the relevant period. • The award applied to the employment of the complainant by the defendant during the relevant period. • The respondent paid the complainant the base rate prescribed by the award during the whole of the relevant period, and additionally paid amounts for overtime, as well as bonuses and incentive payments in respect of work done by the complainant, throughout the whole of the relevant period. Primary Issues in Dispute The primary issues in dispute are— (a) The amount of overtime actually worked by the complainant and whether or not the complainant was paid overtime award entitlements in respect of overtime work allegedly carried out. In that regard the complainant alleges that the defendant failed to pay overtime for— • Lunch hours worked by the Complainant; • Travelling times to and from jobs; and • Additional overtime worked. 82 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 117 (b) Whether the complainant breached his duty of fidelity and good faith to the defendant resulting in the defendant suffering loss and damage. In that regard the defendant alleges that the complainant failed to accurately record starting times and other details on job cards that he was required to complete in the course of his employment. The Award Relevantly clauses 5 and 6 of the award provide— “5. – HOURS (1) The ordinary working hours shall not exceed forty in any one week and shall not exceed eight hours in any one day Monday to Friday inclusive, to be worked between the hours of 6.00 a.m. and 6.00 p.m. (2) The meal interval shall not exceed one hour. 6. – OVERTIME (1) Except as hereinafter mentioned, all work performed in excess of or outside the ordinary daily working hours Monday to Friday inclusive shall be paid for at the rate of time and a half for the first two hours and double time thereafter. Provided that all work performed after noon on Saturday shall be paid for at the rate of double time. Work done on Saturday prior to 12 noon shall be paid for at the rate of time and a half for the first two hours and double time thereafter. (2) All work performed on Sundays shall be paid for at the rate of double time with a minimum payment as for three hours. (3) All work performed on any of the holidays prescribed in subclause (1) of Clause 8 hereof shall be paid for at the rate of double time and a half with a minimum payment as for three hours. (4) When an employee without being notified on the previous day or earlier is required to continue working after his usual knock off time for more than two hours he shall be provided with any meal required or be paid three dollars in lieu thereof. Provided that such payment need not be made to employees living in the same locality as their place of employment who can reasonably return home for a meal. (5) An employee shall not be compelled to work for more than five hours without a break for a meal. (6) (a) When an employee is recalled to work after leaving the job he shall be paid for at least three hours at overtime rates. (b) Time reasonably spent in getting to and from the job shall be counted as worked.” The Evidence Sean Kennedy The complainant Sean Kennedy worked for the defendant during two periods from 1992 until 27 October 1998. In fact he worked for the defendant for the entirety of the abovementioned total period except for two weeks in about August/September of 1996. The brief interlude in 1996 came about as a result of a dispute between the parties over payment of wages. Mr Kennedy was at all material times employed as a “Pest Control Operator” otherwise referred to by those within the industry as a technician. During the material periods the complainant and the defendant were parties to written employment agreements. The agreements, which were substantially in the form of exhibits 5 and 6, were entitled “Employment Agreement and Conditions of Employment for Pest Management Technicians”. The agreements provided for over award incentive payments to be made to the complainant. There were a number of different incentive payments provided for in the agreements. One of those incentive payments was a “production bonus”. The production bonus was payable to the complainant at the rate of 5% of the gross value of the jobs carried out by him after having reached a $450 daily threshold. The production bonus was calculated weekly for all work performed from 7.00 am to 4.00 pm on any normal working day (Mondays through to Fridays). The accounting period for the calculation of production bonuses and the wages pay period were offset. The two periods did not coincide resulting in the potential confusion. It is axiomatic that there was an incentive for all workers subject to such agreements including the complainant to carry out as many jobs as possible in any given day. It follows that the longer the technician worked during normal working hours ( 7.00am to 4 pm ) on any given day the more likely it would be that the production bonus component of their wage would be higher. Furthermore the evidence from all the witnesses who have worked or do work as technicians for the defendant under such an arrangement dictate that the achievement of a production bonus entitlement and the quantum thereof was and is very much foremost in their respective minds. It appears that the production bonus forms a very substantial component of the technician’s weekly wage. Although the complainant was employed to carry out a number of different tasks his primary function was to carry out pre- treatment work. Pre-treatment work entailed the spraying of chemicals onto house pads prior to concrete pours, follow up perimeter spray treatment and the curing of concrete. In the main such work was carried out on building sites in newly developed estates. Over above the pre-treatment work the complainant also carried out other types of duties common within the pest control industry. He was however, the defendant’s main pre-treatment technician. Accordingly his duties, work situation, and method of work differed markedly from other technicians employed by the defendant. The complainant was allocated a truck with a 2500 litre capacity tank on board to enable him to carry out his duties. The truck usually carried a tank full of emulsion, up to ten drums of chemicals, bags of granite, tools and other necessary equipment. The vehicle used by the complainant was the largest in the fleet of vehicles operated by the defendant. It was the heaviest vehicle with the largest spraying capacity. It was obviously designed to cater for pre-treatment work. The complainant testified that although his official start time for work was 7.00 am he was nevertheless required to be at the defendant’s Spearwood yard well prior to that time. In fact he received instructions to be at the yard early to prepare for the day’s activities. He was generally at the yard by 6.30 am. He said that the yard sometimes opened as early as 6.00am. He would arrive at the yard at any time between 6.00 am and 7.00 am dependant upon the allocated duties for that day. Whilst at the yard he would generally hand over paperwork and any money he had received from customers the previous day. He would load up chemicals and all necessary equipment needed for the day. He sometimes took on water. He would repair any faulty equipment. He would also use the time to maintain the vehicle. He would also generally pick up a run sheet detailing the jobs that had been booked for the day. The jobs allocated on the run sheet did not represent all of the work to be carried out during the day. Over and above that he would usually during the course of the day be allocated other jobs in addition to those shown on the run sheet by the defendant’s two-way radio operator. The pre-treatment work commenced early in the day particularly in summer. During the summer the complainant attended building sites as early as 5.30 am in order to spray pads prior to concrete pours. In summer grano workers usually got off to a very early start 118 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 82 W.A.I.G. in order to avoid the midday heat and the complainant necessarily had to start early to work in with their requirements. In those situations the complainant would travel directly to site and only return to the yard later in the day when circumstances permitted. The complainant needed to travel from site to site to carry out his work. In some instances the distance travelled between sites was significant. In other cases the complainant only travelled relatively short distances. The complainant was required to record his duties and travels on a daily job card. The card used by the defendant inter alia to assess the work carried out by the complainant and to calculate payment of wages and production bonuses. The complainant usually commenced worked on any given workday sometime between 6.30am and 6.45 am. He usually completed his duties at 4.00 pm. However given the nature of his job both the start and finish times varied according to circumstance. Notwithstanding that he was paid on the basis that he commenced work at 7.00 am and finished at 4.00 pm. The complainant testified that his daily work schedule was so heavily booked that he did not have the opportunity to take a lunch break. Although the complainant was routinely not able to take an hour’s lunch break the defendant, through its director Tanya Harrison, nevertheless deducted an hour each day on account of lunch. Therefore on the defendant’s account the complainant worked from 7.00 am to 4.00 pm each day comprising a total of 9 hours however he was only paid for 8 hours work with 1 hour routinely deducted on account of lunch. The complainant told the Court that the issue of his inability to take a lunch break was matter of ongoing concern to him. He regularly complained about to it to his superiors namely Barry Hayden and Peter Arnold. His complaints were sustained over a long period. Barry Hayden’s response to his complaints was that given that the complainant was paid a production bonus for work carried out during the lunch period he was expected to work during such period. Peter Arnold’s response was that the complainant would be paid a production bonus instead of a lunch break. The complainant testified that he some times ate lunch and sometimes did not. When he did eat lunch it was usually on the run such as eating whilst driving between jobs. The complainant alleges that the issue of the lunch break was one of the main issues leading to his resignation. He says that he was labelled a “trouble maker” because of his persistence about the issue. He told Barry Hayden in no uncertain terms that he objected to not being given a lunch break and then having an hour deducted from his pay on account of lunch. According to the complainant Barry Hayden’s response was that if he did not stop creating waves and insisting on a lunch break the business would be restructured so as to do away with his job. In the alternative he threatened the issue of warning letters to manufacture the complainant’s removal. Mr Hayden told the complainant that if that happened it was up to the complainant to prove that Hayden was lying about the matters giving rise to the warnings. The complainant resigned the next day. When cross-examined the complainant was taken to the job cards completed by him. His attention was drawn to perceived discrepancies on the face of the job cards. There can be no doubt that quite a number of the job cards which comprise exhibit 1 show on their face apparent discrepancies particularly relating to odometer reading entries. The complainant explained those away by conceding that in some instances his recording was inaccurate on account of his vision disability. In other instances the inaccuracy of the record was on account of his failure to contemporaneously record the information leading to guess work in the recording process. In some instances the inaccuracies were explained away by virtue of the fact that very nature of the complainant’s duties and the systems employed by the defendant made it impossible to record every task undertaken. By way of example the complainant testified that he often had to detour between jobs to pick up chemicals, to pick up payments, to deliver tools to other technicians and so forth. Those deviations were not accounted for nor recorded on the job cards as to time taken or distance travelled. The complainant was not at all phased when cross-examined. He was, in my view, genuinely able to explain away most of the discrepancies on the face of the job card. There was some suggestion on the part of counsel for the defendant that the complainant “fudged the figures” on his job cards. I do not accept that at all. Undeniably there are some inaccuracies on the job cards but that is all they are. Indeed an examination of the pre-treatment booking sheet (exhibit 14) and the job cards (exhibit 1) reveal a high degree of consistency. Clearly the complainant was subject to error. Furthermore some inaccuracies arose from his failure to contemporaneously record his travels and duties, however there was no “fudging of figures”. Indeed the complainant’s job cards were reviewed weekly by his supervisors and the defendant’s director Ms Harrison. No problem was ever found with them at the relevant time. No complaint was ever made about his work, conduct or recording. It is only now in the light of these proceedings that the defendant through Ms Harrison and Mr Hayden has carried out what can only be described as an intensive painstaking methodical review of the job cards. The review of the job cards has clearly been aimed at the discovery of anomalies to discredit the complainant and to give rise to some form of counterclaim. The process embarked upon by the defendant did not in fact work to discredit the complainant but rather demonstrated his genuine approach. The errors made by him were of a minor nature and have been of no consequence to the defendant. Given the amount of control exercised by the defendant over its employees there can be no doubt that had any significant error would have come to the attention of the defendant well before it did. Furthermore the discrepancies appear on the face of the job cards. The defendant had the opportunity at the material time to check the cards and raise any concerns there and then. However it did not do so. Its officers checked and accepted the record contained in the job cards. If the apparent errors were of any significance they would have obviously been the subject of comment or reprimand. There was no comment or reprimand of the complainant with respect to those apparent anomalies. It follows that at the material times the defendant must have accepted the anomalies to be what they are, that is simple errors or inaccuracies of little or no significance. There is no doubt that the complainant has human frailties as we all do. Further given his workload and work practices that he was subject to error. However those frailties do not give rise to any apprehension of lack of credibility. Indeed I accept Mr Kennedy’s evidence. Peter Arnold Peter Arnold is a former employee of the defendant. He was initially employed by the defendant to perform the duties of technician including the carrying out of pre-treatment work. Overtime he was promoted and became the complainant’s supervisor. Mr Arnold testified that when he first commenced work as a technician for the defendant Barry Hayden told him that it was expected that he work during the period normally taken as a lunch break. He was told that he would not be paid for that time because he would earn a production bonus instead. He told the Court that the technicians did not usually take a “lunch hour”. That was because the taking of a lunch hour was simply not built into the system. He said that he participated in the drawing up of technicians’ daily work schedules. They simply did not facilitate the taking of a lunch hour break. He said the defendant attempted to get as much work out of each technician as it could and that jobs were allocated according to that philosophy. Mr Arnold testified that he usually arrived at the defendant’s Spearwood yard at about 6.15 am. He said that the complainant was often there at that time taking on chemicals, filling up his tank with water and attending to paper work. The complainant was described by Mr Arnold as being a very good, reliable and contentious worker who did the right thing by the company and the client. In fact in one year he was presented with an award for being the employee of the year. Mr Arnold said that was the defendant’s way of publicly acknowledging the complainant’s efforts. He described the complainant as being honest in his accounts of how long he spent on particular jobs. Mr Arnold testified as to his experience as a technician particularly involved in pre-treatment work. He told the Court that there is no rule of thumb in relation to how long each job will take. Each job is different. When pre-treating you work alongside grano 82 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 119 workers and plumbers. Those trades sometime cause difficulty or delay. A small job can sometimes take a great deal of time indeed longer than expected. Larger jobs sometimes take less time. The length of time taken with respect to each job will very much be dependent on the particular circumstances of the job. When cross-examined on the issue of the taking of a lunch break Mr Arnold forcefully maintained that the taking of a formal lunch break was not allowed and indeed was positively discouraged. That was on the basis that payment of a production bonus would be received for work carried during such period that the luncheon break would have been taken. Mr Arnold was questioned about the compilation of job assessment sheets. He said that the assessments were prepared with a view to the quality certification of the defendant. He admitted having fabricated at least one such document but explained that was done at the behest of one of the defendant’s officers. He testified that the defendant engaged in inappropriate if not dishonest commercial practices with respect to its operations. Mr Arnold also told the Court that he was approached by Mr Hayden concerning his prospective testimony. He informed Mr Hayden that he was going to tell the Court exactly what happened and that he was not going to lie for any one. There can be no doubt that Mr Arnold corroborated the complainant’s evidence in every material particular of which he had knowledge. I found Mr Arnold to be a credible witness. His admission against interest concerning the fabrication of the job assessment sheet enhances his credibility rather than impugns it. I was extremely impressed by Mr Arnold’s demeanour in the witness box. I have no doubt that he gave forthright and honest testimony. John Taylor John Taylor a former employee of the defendant also testified on behalf of the complainant. He described the complainant as being conscientious and competent in his duties. Importantly his evidence on some of the evidentiary matters in dispute clearly corroborates the complainant’s evidence. By way of example, he supported the complainant’s contention that the yard opened early and that technicians were directed to be at the yard by 6.45am. He also confirmed that the completed job cards did not reflect every task undertaken or journey undertaken. Furthermore, he confirmed he did not receive a lunch break and that he was expected to work right through what would normally be the luncheon break. He said the defendant constantly put him under pressure to move from one job to the next. He described the situation as “always chasing your tail”. Over and above the scheduled jobs allocated for the day other jobs were also routinely parachuted into his daily work obligations. Mr Taylor testified that he complained on two occasions about the fact that he was not receiving a lunch break. When he complained to Peter Arnold about it, Mr Arnold told him that it was part of the job and that he was paid bonuses for working during the lunch break. When he complained to Barry Hayden about it he was told “lump it or leave it”. When cross-examined on the issue Mr Taylor reaffirmed and quite strongly so that lunch breaks were not permitted and that there were serious consequences for insisting on a lunch break. By reason of the constant pressure on him and the lack of reward for his efforts he found alternative employment. Mr Taylor’s evidence is accepted. He was a forthright witness whose mode of delivery was unremarkable. His evidence is supportive of the complainant’s claim and supports the evidentiary matters raised by him. Gerald Olsen The complainant also called Gerald Olsen. He continues to work for the defendant. He told the Court that from his dealings with the complainant that the complainant was second to none so far as his honesty and trustworthiness were concerned. Mr.Olsen testified that he is generally allocated jobs to fill his work day. He has his lunch when he gets an opportunity to take a break between jobs. He always notifies the two-way radio operator of his intention to take lunch prior to doing so. He said that on one occasion that he complained to Peter Arnold about not getting a lunch break and was told “to eat on the run”. He said that his lunch breaks were generally of short duration. By not taking lunch hour breaks production bonuses accrued. Mr Olsen came across as being an unassuming compliant worker who simply acquiesced to anything required of him by his employer. He accepted his lot. He worked and was paid trusting his employer to do the right thing as to the calculation of his pay. He rarely complained about anything at work. Mr Olsen was an honest witness. Rachel Cosentino She gave evidence of her inspection of the primary source documents held by the defendant, which gave rise to her calculation of the complainant’s under-payment. It suffices to say that I am satisfied with her evidence. I am also satisfied that the calculations she has made are accurate. Indeed her testimony is unchallenged in that regard. Tania Harrison Ms Harrison is a director of the defendant. She testified that she first became involved in the defendant’s business in 1987. She at that stage carried out general office duties. Later she progressed looking after wages. She and her husband through the defendant eventually took over the business. The business carries out pest and weed control. The complainant was engaged by the defendant to carry out pest control work under various contracts of employment. Pursuant to the terms of those contracts the complainant was employed as a technician and paid a base wage rate plus incentive bonuses, which included an increased overtime rate. Ms Harrison explained that because the award rate was so low it was difficult to find people to work within the industry unless over award payments were made. She explained that payments of wages to employees were calculated on the basis of information contained on the job cards (in the form of exhibit 1) which were completed by employees. Employees were expected to complete details about the job undertaken, the journeys undertaken, odometer readings, money collected and the like. The cards when handed in were initially checked by the supervisor and subsequently processed by Ms Harrison. Any overtime or production bonus payable was calculated from the information contained on the job cards. Ms Harrison told the Court that the complainant was engaged to work from 7am to 4pm with a one-hour lunch break. She said that he understood that. She went on to say that the complainant simply failed to record the lunch breaks taken. Indeed he made many mistakes in the completion of his paperwork. He sometimes neglected to hand in his job cards. Ms Harrison also told the Court that the complainant was very intimidating in his approach to the office staff. He was very argumentative and she did not like dealing with him as a result of that. When cross-examined Ms Harrison avoided answering the question as to why no verbal or written warnings were given to the complainant on account of his poor behaviour. Ms Harrison testified that employees were informed that lunch breaks were to be taken. They could and did take breaks at their own discretion. Some employees consciously decided not to take lunch because they could earn a greater production bonus. Ms Harrison testified that the complainant was always seeking to maximise the production bonuses paid. For that purpose he was often in the office checking on documents to see if he could create extra work for himself leading to greater production bonus payments. He would often arrange his own jobs to boost production. 120 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 82 W.A.I.G. Ms Harrison testified that subsequent to the initiation of the proceedings she and Barry Hayden had gone through the complainant’s job cards for the relevant period. She explained that a perusal of the cards revealed numerous discrepancies on the face of the record. Ms Harrison painstakingly took the Court through the discrepancies that appeared on the face of the record. The discrepancies related to the time of arrival at the yard, the time of commencement of the job, the time taken to do the job, the distance travelled between places, the time taken to travel distances and so on. What I have just referred to is not an exhaustive list of the discrepancies but rather a mere example of the types of discrepancies. Ms Harrison highlighted entries on the job card showing the complainant’s very early arrivals at the defendant’s yard. Arrivals as early as 4.30am were noted. Also noted were one-minute attendances at the yard. By reference to such matters the defendant through Ms Harrison and Mr Hayden attempted to paint a very dim picture of the complainant. In effect they attempted to portray him as being dishonest, unreliable and untrustworthy. Indeed counsel for the defendant suggested that based on the evidence given by Ms Harrison and others that this Court could form the view that the complainant had “fudged the figures.” Ms Harrison said that in 1998 the company decided on a change of direction given the lack of profitability of the pre-treatment work carried out. Accordingly the complainant was removed from pre-treatments and placed into the domestic pest control area. That she says that caused him to resign his position. When subjected to cross-examination Ms Harrison revealed that much of the evidence she had given concerning, for example, the yard opening times were not from her direct observations but rather from what she had been told by others. Furthermore Ms Harrison conceded that she had no knowledge of the particular jobs recorded on the job cards and accordingly could not dispute the complainant’s evidence relating to reasons for the discrepancies apparent on the cards. She was not, for example, able to contradict the complainant’s assertion that many jobs took longer than usual or anticipated on account of “waiting time”. When questioned about the daily job allocation (run) sheets Ms Harrison conceded that the sheets did not show a lunch break. She maintained however that although the sheets did not show the same, there was always time for lunch to be taken. When cross- examined on that issue she avoided answering the question or alternatively did not answer the questions directly. It was only the persistence of Ms Henderson in that regard which caused the concession. Another concession made by Ms Harrison was that she routinely deducted one hour’s pay on account of lunch for each day worked by the complainant. She insisted that she knew “damn well that he took a lunch break”. The reality is however that she did not know and was not in a position to know whether or not the complainant took a lunch hour break. She might have been aware through her contact with him on the two-way radio that he may have had lunch. However that is to be distinguished from taking a lunch hour break. She said that she automatically deducted an hour each day on account of a lunch break because “the card was more than likely wrong”. If he was wrong in recording his job card relating to the lunch hour break issue one wonders why the rest of the entries were accepted. I take the view that Ms Harrison did not give her evidence objectively. She was not forthright in answering questions under cross- examination. She avoided answering some questions and prevaricated in some situations. Much of her evidence was opinion evidence without foundation. She speculated on a wide variety of issues. All in all her testimony lacked substance and was unconvincing. Ms Harrison’s action of going through the job cards one by one in a nit picking exercise was clearly aimed at frustrating the complainant and obfuscating the material facts in issue. Quite frankly I formed the view that the bringing of the counter-claim has been a tit for tat exercise poorly considered and without foundation. Indeed the particulars expressed in the counter claim relating to discrepencies on the job cards bear no connection to the quantum of overpayment sought to be recovered. The quantified amount sought to be recovered represents the sum of the over award payments made in excess of the award rate for overtime payable with respect to those payments. It seems that Ms Harrison has taken the view that by reason of the complainant’s action that the defendant ought to recover all over-award overtime payments made by the defendant to the complainant. There is simply no basis for claiming the repayment of such over-award payments already made. The complainant was clearly entitled to such payments in accordance with his contracts of employment. The defendant through Ms Harrison is attempting to retrospectively change the terms of the contracts of employment. Barry Hayden Mr Hayden is the General Manager of the defendant and has worked for it since 1989. He was initially engaged as a technician and worked his way up to his present position. Mr Hayden told the Court that the complainant was mainly involved in pre-treatment work. He did however carry out some hygiene work. He was allocated a 3 tonne truck with a two or three thousand litre tank on it to facilitate the carrying of out such work. Mr Hayden testified that the defendant’s Spearwood yard officially opened at 6.30.am. In practice however it opens any time between 6.00am and 6.30.am. He told the Court that all work carried out by the defendant is pre-booked into the system and the two-way radio operator allocates that work to individual technicians. Employees are required to follow the two-way operator’s specific instructions. Each technician is required to record an entry on a job card after every job is completed. Thereafter he is required to report back to the two-way operator following completion of the entry and seek instructions as to further duties. He said that the job cards in the form of exhibit 1 were used to calculate productivity bonuses payable to technicians. He said he was involved in the employment of most employees. He said that he never informed any employee not to take lunch. “People were allowed their lunch breaks;” he said. To reinforce the fact that the taking of lunch breaks was something that the defendant wanted its employees to do, Mr Hayden pointed to exhibit 15 being the minutes of a meeting conducted by the defendant on operational matters held on 11 July 1995. The minutes record “Designated lunch and afternoon tea breaks have to be adhered to”. In my view however that gives little support to Mr Hayden’s contention. I say that because the objective evidence does not support the rhetoric. Indeed the evidence overwhelmingly dictates that there were no “designated” lunch breaks or tea breaks allocated to technicians. There was no provision for lunch in the scheduling process. It appears that exhibit 15 may have appertained only to office staff. Mr Hayden testified that he and Ms Harrison went through the complainant’s job cards and discovered numerous discrepancies. He explained that the process revealed that $13,036.53 was “overpaid to the complainant by way of productivity bonuses”. He added that there could be “thousands more” owing by the complainant to the defendant. Mr Hayden went on to testify of his experiences as a technician. He gave evidence of the time required to carry out certain jobs, the time taken to travel certain distances, the distances between certain suburbs and the general work routine of a technician carrying out pre-treatment work. By his evidence he sought to demonstrate that the complainant’s job cards were either “fudged” or alternatively did not represent the true position. Mr Hayden said that Mr Kennedy left on account of not being happy with the defendant’s change of direction in not continuing to do pre-treatment work and had nothing to do with the issue of a lunch break. When cross-examined Mr Hayden confirmed that he together with Ms Harrison had spent hours and hours going through the complainant’s job cards. He said that the cards were falsified to claim overtime. He said that the $13,036 counterclaimed related to overtime overpaid. When pressed on the issue he appeared to be confused as to the basis of the amount claimed in the counterclaim. Significantly he later explained whilst subjected to cross examination that the amount quantified in the counter-claim represented 82 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 121 the difference between what Mr Kennedy was paid for overtime at the over-award rate as against the amount he would have received had he been paid at the award rate for overtime. The issues of the taking of a lunch hour break and the payment of productivity bonuses in lieu of lunch was also the subject of extensive cross-examination. Mr Hayden said on the issue “people had a choice between productivity or a lunch break.” Technicians could either take their break or choose productivity bonuses instead. He said that he had no knowledge that an hour was routinely deducted on account of lunch. He said that technicians had a number of breaks during the day during which time they could have lunch. He said that from his own experience that technicians had numerous breaks during the day and often took time off to attend to private matters such as going to the bank during such breaks. Mr Hayden said that he could not recall any meeting held with the complainant regarding the issue of lunch breaks. Mr Hayden was not direct in his responses to questions put to him on that issue. I simply do not accept his evidence in that regard. Bradley Samuelson Mr Samuelson is the defendant’s operations manager. He has worked as a technician for the defendant. He has worked for the defendant in two stints for a total of 6 or 7 years. He told the Court that he was able to take lunch when he wanted to. If he worked through lunch he received production bonuses payments. Much of the evidence given by Mr Samuelson was supportive of the evidentiary matters raised by the complainant. When cross-examined Mr Samuelson said that the run sheets given to him allocating jobs did not contain provision for a lunch break. When he wanted lunch he would radio in and seek permission to take lunch. Lunch could then be taken over 15 to 45 minute period. It would not be noted on the job card. Other short diversions from work, which were taken, were not noted on the job card but would nonetheless be paid for. Mr Samuelson’s evidence was otherwise unremarkable. In my view his evidence tended to corroborate Mr Kennedy’s testimony on issues in dispute. David Schumacher Mr Schumacher is the defendant’s Industrial Facilities Manager. The defendant has employed him over various periods, the last of which commenced in October 1997. He testified that as part of his duties he conducted the two-way radio operations in the absence of Toni Di Mario the permanent operator. He usually relieved her during luncheon breaks. Whilst undertaking such duties he liaised with technicians as to scheduling and other operational matters. When circumstances required he took out chemicals to technicians in order to facilitate efficiency in the performance of the technician’s duties. He told the Court that on one occasion when he went out on site to take chemicals he found the complainant sitting with grano workers having his lunch. On the general issue of lunch breaks, he said that technicians took lunch when time permitted. There were no hard and fast rules concerning the same and those jobs were booked in such a way to facilitate the taking of lunch. He said that about 60-70% of technicians took lunch breaks whilst the rest did not because they were paid on production instead. When cross-examined he conceded that neither the “sheets” nor the computer screens upon which the jobs were scheduled showed an allocated lunch break. Billy Cooper-King Mr Cooper-King works for the defendant as a technician. He told the Court that he does not take lunch by choice. He eats between jobs. He gets paid a production bonus for working through lunch. He said that he is at work between 7.am and 4.pm a total of 9 hours but is paid for a total of 8 hours plus production bonuses. He has never been told not to take lunch. He confirmed also that he entered the defendant’s yard as early as 6.am in the morning. When cross-examined Mr Cooper-King re-confirmed that there was no expectation that all details of deviation or breaks be recorded on the job cards. Robert Davies Mr Davies is a franchisee of the defendant operating from Bunbury. He has had a lengthy association with the defendant initially as its employee and more recently as franchisee. Mr Davies was at all material times engaged in pre-treatment work. The details he gave concerning his duties and how he carried out those duties were not too dissimilar to the complainant’s description of his own duties. Mr Davies testified concerning the taking of lunch. He said that he did not find it at all difficult to achieve a break of about twenty to thirty minutes in order to have lunch if that was what he desired to do. He had never heard of anyone not being permitted their lunch break. He said that if he chose to work through his lunch break he would be “paid productivity”. He usually worked through lunch in order to achieve increased productivity payments. Under cross-examination he conceded that he ate lunch between jobs. He also conceded that his job cards were not an entirely accurate reflection of what he did on any given day. Mr Davies’ evidence about how he approached and carried out his own job inferred that the complainant was either slow and/or inefficient in what he did. Furthermore there was an inference by what he said that the complainant failed to properly record information on the job cards. Mr Davies testified that he frequently saw Mr Kennedy at the yard filling out his previous day’s job cards. He usually observed that within the training room. On one occasion Mr Kennedy told him that he was keeping a copy of the job cards “to get these people back later”. When cross-examined Mr Davies confirmed that he believed that he had a choice between overtime and productivity. He did not believe that he was entitled to both. He told the Court that each day an hour was deducted from the time he worked on account of lunch. He considered that to be fair and reasonable because of all the breaks that he had during the day. An example of such a break was the time spent waiting for the truck to fill. The totality of such breaks amounted to more than an hour each day. Mr Davies conceded that the time that he was working for the defendant he was not the only one carrying out pre-treatment work. Indeed there were four of them doing it at the time. He also conceded that it might have been different for the complainant by virtue of the fact that he was the only one carrying out those duties. When re-examined Mr Davies confirmed that he elected to receive a productivity bonus for working through lunch. He was paid 10% production bonus, which was far better than being paid overtime. Toni Di Mario Ms Di Mario was the last witness called by the defendant. She has worked for the defendant at its head quarters since 1995. She is an operations clerk. Her duties include the operation of the two-way radio system. 122 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 82 W.A.I.G. She told the Court that she usually prints out a work sheet for technicians. That is given to them each morning. The sheet details the jobs allocated for the day. Technicians are required to report into her after every job. She keeps track of how each technician is going. If the technicians need extra chemicals or tools the technician is required to report that to her and she organises the provision of the same or otherwise gives other instructions. She is effectively the nerve centre of the operations. If a technician wants to take lunch he reports into her and she will either approve the immediate taking of lunch or ask the technician to hold off if necessary. Ms Di Mario said that no one had ever told technicians not to take a lunch break. When cross-examined on that issue Ms Di Mario denied ever having told Mr Kennedy not to take a lunch breaks. Ms Di Mario testified that she had seen Mr Kennedy having lunch. She had also seen his truck parked outside a lunch bar and also outside his own home at lunch times. She testified that Mr Kennedy’s scheduling was quite open enabling him to take lunch breaks if he wanted. Ms Di Mario testified that the complainant was always in the yard photocopying work sheets and job cards. He would go through the pre-treatment sheets and old pre treatment sheets. He would set about following up pre-treatment jobs in order to create extra work for himself. He in fact followed up perimeter treatments even when they had not been ordered. That was done in order to generate work “because he had not enough work to do”. When cross-examined Ms Di Mario was reticent. She often stated that she did not understand the question when in fact the question was, to my mind in each instance, perfectly straightforward. She gave me the impression that she was holding back in order not to give responses that may have been detrimental to the defendant. There can be no doubt that she is a loyal and trusted employee of the defendant. There is also no doubt that she has a close working relationship with Ms Harrison. I fear her loyalty to them may have clouded her responses under cross-examination. Ms Di Mario said under cross examination she could “not recall” a specific incident on 22 October 1998 when Mr Kennedy allegedly took issue with her concerning the refusal to allow him a lunch break. Furthermore she said that she did “not recall’ Mr Hayden’s intervention with the complainant on 23 October 1998 concerning the issue of lunch. Assessment of Witnesses I have no difficulty in accepting the evidence given by Mr Kennedy. He came across as being a truthful witness who was able to explain away the perceived inconsistencies on his job cards. Mr Arnold and Mr Taylor were also truthful witnesses. Both Mr Arnold and Mr Taylor were particularly impressive witnesses. Mr Arnold made admissions against his own interests in pursuance of his truthful account of what occurred. Mr Olsen’s evidence and that of Ms Cosentino is also acceptable and is accepted. I now move to deal with the witnesses called by the defendant. Firstly I deal with the evidence of Ms Harrison, Mr Hayden and Ms Di Mario. Each of them in my view was not direct in answering questions put to them in cross-examination. Each of them prevaricated. I was left with the firm view that they were not forthright and they attempted by their testimony to protect the defendant’s position. The manner in which they gave their evidence caused me concern as to their veracity. I prefer the complainant’s evidence and that of his witnesses to that of each of the aforementioned defence witnesses on issues in conflict. With respect of each of the other defence witnesses namely Bradley Samuelson, David Schumacher, Billy Cooper-King and Robert Davies it simply suffices to say that their evidence is of limited benefit. With respect to each witness there are some aspects of their evidence, which supports the defendant’s case while there are other aspects, which support the complainant’s case. Furthermore, their evidence is limited in application because each of them invariably worked at a different time place and circumstance to the complainant. Findings on the substantive issues in dispute Lunch Hour Breaks The defendant contends that there was no coercion used to force employees not to take lunch breaks and further that the decision as to whether or not lunch breaks were taken was left up to the individual employee. It is submitted that it is inconceivable that the complainant only took four lunch breaks though the material period. The defendant says that if the complainant worked through lunch hours he did so voluntarily in order to be paid a bonus for work actually done during the lunch hour. The evidence before the Court forcefully dictates that the complainant did not take an hourly lunch break. There can be no denying that on some days he ate his lunch during short interludes between jobs. However that does not constitute the taking of a lunch hour break. I find that the taking of a formalised lunch break was discouraged. It was discouraged by virtue of the way in which jobs were scheduled and allocated so as to make it almost impossible for employees and in this instance Mr Kennedy to take a lunch break. The jobs for him were booked in such a way that there was no opportunity for him to take a structured lunch break. If he wanted lunch, he had to eat it on the run or during some short interlude between jobs or within a job. I reject the evidence of Mr Hayden, Ms Di Mario and Ms Harrison concerning the opportunity of the complainant to have formalised structured lunch break. I prefer the evidence of Mr Arnold, Mr Taylor and Mr Olsen in that regard. Indeed their evidence goes further and supports the complainant’s testimony that the defendant through its officers overtly discouraged and denied technicians the opportunity to take lunch. The defendant’s conduct was inconsistent with its purported recognition of the right to have a lunch break as contained in exhibit 15. Furthermore an examination of the job cards (exhibit 1) and the pre treatment sheets (exhibit 14) reflect that the work was structured in such ways that lunch breaks were not catered for. Accordingly it follows that the routine deduction each week for a daily lunch hour taken was wholly without foundation. By making such deductions the defendant failed to properly account for the time the complainant actually worked each day. Consequently the complainant’s wages were not properly calculated at first instance and accordingly, it is possible to conclude that he was underpaid. Job Cards The defendant suggests that the job cards completed by the complainant (exhibit 1) and retained as part of its own record should not be used as evidence against it on account their lack of accuracy making them unreliable. Although there can be no denying that the job cards in a few instances demonstrate inaccuracies they are nevertheless in the main a true record of the complainant’s daily work history. The inaccuracies relate mainly to the record of the odometer readings. The majority of the record is accurate. I am satisfied that the start and finishing times are accurately recorded. I am also satisfied that the very early start times represent the complainant’s departure from the front of the yard to country work locations or other designated jobs and that the one minute attendances at the yard in the early hours of the morning simply reflect a reference time for significant journey’s undertaken. The complainant’s explanations with respect to such matters are entirely plausible. They are accepted. The defendant has in the defence of these matters and in furtherance of its counterclaim embarked upon an extremely detailed analysis of the job cards in what can only be described as a nit picking exercise aimed at discrediting the complainant. It is 82 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 123 interesting to note that the defendant’s problems with the complainant’s performance arose only after the institution of these proceedings. Whilst working for the defendant the complainant was never cautioned nor spoken to about his start or finish times, the odometer readings or other details on the job cards. The early start times for example were manifest on the face of the record, yet the defendant never objected to that record. It had the opportunity to take the complainant to task with respect to his job cards if they were in any way inaccurate. I take the view that the defendant through its officers did not do that because by en large the job cards accurately reflected the true work history of the complainant. The defendant accepted the record and made no complaint about it at the time. The fact that the record was checked is not disputed. Indeed each of the cards bears a big tick across the front of it inferentially indicating acceptance. The defendant accepted the complainant’s job cards as being accurate. The cards were accepted after checking. The defendant in reality had no difficulty with the way in which the complainant carried out his duties, the times that he started and finished and the record kept by him. Indeed so pleased was it with his performance that the complainant was at one stage awarded “employee of the year”. Furthermore the complainant and other technicians were extensively monitored. Given the stringent monitoring particularly through the two-way radio operations I find it difficult to accept that any departure from appropriate standards in carrying out his duties by the complainant would have gone unnoticed. The defendant accepted the complainant’s job card as being accurate in the light of its knowledge of his duties and functions. If there were any such problems with the complainant’s conduct it would have come to the fore well before the institution of the counterclaim. I fear that the review of the complainant’s job cards in microscopic detail well after the event is aimed at obfuscating the complainant’s claim. I am fortified in that view because the alleged discrepancies set out in the counterclaim bears no apparent relationship to the amount sought to be recovered by the defendant. Mr Hayden testified that the amount claimed in the counterclaim represents the amount Mr Kennedy was paid for overtime at over-award rates less the amount he would have received had he been paid at the award rate of overtime. Quite frankly the whole basis of the counter-claim is non-sensical given that it is not disputed that Mr Kennedy was entitled to be paid for his overtime at the over-award rate. If the defendant relies on the particularised discrepancies to give rise to its counterclaim, then it is difficult if not impossible to work out how such discrepancies relate to the quantified amount sought as set out in the defence and counterclaim. In any event I am not at all satisfied that the alleged discrepancies are in each instance discrepancies in any event. Much of the allegations relating to the discrepancies are a product of supposition and guesswork on the part of Mr Hayden and Ms Harrison. Their evidence is entirely speculative in that regard. There may have been legitimate reasons for the entries made. It is impossible for each of them without knowledge of the actual job on a simple viewing of the cards to arrive at conclusions based on what is in the main based on a factual vacuum. The experiences of Mr Hayden, Ms Harrison and Mr Davies with respect to travelling between various suburbs do not on their own go to prove anything. Simply put neither they nor the Court can know of any particular circumstances experienced by the complainant with traffic on any given day. In any event even if the complainant got it wrong, rounded off figures or was inaccurate in some aspects of his recording that of itself does not lead to the conclusion that the complainant was overpaid. All it means is that in some instances his job cards were wrong. Given the meticulous monitoring that existed by way of the-two way radio operations, and furthermore given the meticulous approach of Mr Hayden and Ms Harrison I find it impossible to accept that they would have allowed Mr Kennedy to get away with cheating the defendant as is alleged he did. If any “real” problem existed I am sure it would have come to their attention well before the institution of proceedings. Although the defendant submits that its job cards should not be held against it I take the view there is no reason to depart from the approach taken by the Full Bench in FMWA v. Arpad Agency Pty Ltd 69 WAIG 1899 at 1903 that— “This was the respondent’s own record produced from its custody , maintained by it as a duty under the award and complied within its own knowledge. Indeed, the employer, having produced the records from his custody, prepared and maintained the time and wages record as was his duty. The record is evidence against the employer in the absence of evidence to the contrary as to the entries therein… as to the hours worked. Put in another way, it is evidence of the statements contained therein.” The job cards are evidence of the hours worked by the complainant. The cards represent part of the defendant’s time and wages record. The job cards were reviewed, checked and accepted by the defendant at the material times. The defendant’s subsequent speculative review of those cards does not vitiate such evidence, which is evidence against the defendant. Production Bonuses The employment agreements between the parties provided for the payment of a production bonus in addition to the award wage. The agreements provided for a percentage value of 5% to be “ paid on every dollar production completed in excess of $450 on any normal working day between first start in the morning (7.00 am) through to the completed day finishing at 4.00pm.” (see item 6 of the agreements - exhibits 5,6 and 7). Mr Hayden through his evidence clearly demonstrated that it was his view that technicians basically had a choice between working through their lunch hour breaks and receiving production money for doing that or alternatively claiming overtime but they were not entitled to both. He repeatedly referred to employees choosing between production bonuses and overtime. It is clear that his view has permeated amongst technicians who it appears have accepted that was and continues to be the situation. Mr Hayden’s evidence reveals that he took the view that technicians had the opportunity of working through their lunch breaks if they wanted to in order to earn production bonuses. That is what most of the technicians chose to do. In my view Mr Hayden and the defendant misconstrued the effect of the production bonus clause in the employment agreements. Mr Kennedy’s contract of employment provided that Mr Kennedy works and is paid in accordance with the award. Over and above that it provided for opportunities to earn other income beyond that provided by the award. There was in fact an opportunity to earn extra income being the production bonus. However the opportunity to earn production money for work performed during the time that the lunch hour break would have been taken did not remove the complainant’s entitlement under the award to be paid for that hour worked when he otherwise would have been at lunch. The payment of the production bonus under the agreement was a payment to be made in addition to the award entitlement and not instead of it. It was never a situation were employees were entitled to either one or the other but not both as Mr Hayden perceived it to be. The defendant claims that any production bonuses paid for that lunch hour worked should be set off against any entitlement that the complainant may have for overtime. However in view of what I have said above it follows that the production bonuses paid cannot be set off against award entitlements that the complainant is entitled to. The defendant’s submissions in that regard is therefore rejected Mr Kennedy worked a 9-hour day each regular working day but had one hour deducted on account of lunch. However he did not take an hour lunch break. That routine deduction was therefore inappropriate. He was accordingly paid for 8 hours when he should have been paid for a 9-hour day. By reason of that he routinely worked at least one hour overtime each day. Conclusion By virtue of the aforementioned reasons I am satisfied that the defendant has breached the award as alleged in the complaint by failing to pay the complainant for all overtime worked. As a consequence the defendant has regularly and consistently breached the 124 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 82 W.A.I.G. award over the periods set out in the complaints. Furthermore I am satisfied that the calculations contained in exhibit 8 accurately reflect the underpayments. I find that as a result of the breaches the complainant suffered a total underpayment of $14,775.92. As to the defendant’s counterclaim I must say that I find it to be without merit. The amount of $13,036.33 quantified as overpaid bears no relationship to the particularised alleged discrepancies found in the defendant’s defence and counterclaim. The basis upon which the counterclaim is brought appears to be most confused to say the least. The figure is calculated on the basis that it represents the difference between the over-award overtime payments made to the complainant and what he would have received had he been paid at the award overttime rate. The fact is that the complainant was entitled under his employment agreements to be paid overtime at the over award rate. I find that each of the alleged breaches in the complaint are proved and that the counterclaim is not proved. I will now invite the parties to address me on consequential orders to be made as a result of my findings. G. CICCHINI, ____________________ IN THE INDUSTRIAL MAGISTRATE’S COURT OF WESTERN AUSTRALIA HELD AT PERTH Complaints Nos 129 and 251 of 2000 Dates Heard: 4 October 2001; and 27 November 2001 Date Delivered: 13 December 2001 BEFORE: WG.Tarr I.M. B E T W E E N — Naomi Lynette Medwid Complainant and Central Metropolitan College of T.A.F.E. Defendant Appearances— Mr RW Clohessy of Union Industrial Advisory Services appeared as agent for the Complainant. Mr D Matthews of the Crown Solicitors Office appeared as Counsel for the Defendant. Reasons for Decision. The Complainant in these proceedings, Naomi Medwid (Rewell), has brought two actions by way of complaint against the Defendant, the Central Metropolitan College of T.A.F.E. Firstly, she claims that she was unfairly dismissed from her employment with the Defendant, inter alia, because at the time of termination she was on sick leave. In that action she is seeking a finding that the termination was in breach of a workplace agreement between the parties and in contravention of the provisions of the Workplace Agreements Act 1993 (the Act). She also seeks an order for reinstatement without loss of benefits. The second complaint alleges that the Defendant has failed to pay her sick leave from 10 April 2000 in accordance with its obligation pursuant to the workplace agreement. There is no dispute that she and the Defendant were parties to a Government workplace agreement (the Agreement) signed by her on 29 December 1997 and registered pursuant to the Act. Relevantly, the Act provides:— 18. Implied provision as to unfair dismissal (1) There is implied in every workplace agreement a provision that the employer must not unfairly, harshly or oppressively dismiss from employment any employee who is a party to the agreement. (2) The provision described in subsection (1) is enforceable under section 51 of this Act or under section 7G of the Industrial Relations Act 1979, as the case may be, and not otherwise. (3) A workplace agreement must not exclude the operation of subsection (1) and to the extent that it purports to do so it is of no effect. It is accepted by the parties that the Complainant was employed pursuant to the agreement that took effect on 1 January 1998. She was employed as a Level 3, Human Resource Adviser in the Human Resources Branch of the Defendant. Some time in March 1999, the Complainant commenced a period of leave, which included accrued days off, annual leave and long service leave on half pay. She was to return to work early in January 2000 having exhausted all of her recreational leave. During the early part of her leave she engaged in some external employment firstly with the West Coast College and then with the Ministry of Justice, as it was then called. While on leave the Complainant became the proprietor of a florist shop trading under the name of Millennium Florist. That business name was registered on 14 May 1999 and the Business Names Extract (exhibit U) indicates that the business commenced on the same day, although the evidence before me is that the florist opened for business on 17 June 1999. It also shows the Complainant as the person carrying on the business at the address of 79A Wanneroo Road, Tuart Hill. The Complainant gave evidence that she had been involved in a florist course, part-time, over a ten year period and had nearly completed the course when, by chance, she had an opportunity to open a business. She had been advised that her study had given her enough qualifications to do so. It is also her evidence that she was involved in negotiations regarding the business for one or two weeks prior to its registration. As I understand the evidence she has continued in the business as proprietor. 82 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 125 While the Complainant has attempted to demonstrate that her involvement in the business was less than full time and of a managerial or supervisory nature, there is an irresistible inference on the evidence that she was involved on a full time basis as the primary functionary in the business. It was she who had spent ten years studying to be a florist and who had the skills and qualifications required to run a florist business the size of the Millennium Florist. Her husband gave evidence of his involvement, which included, as he said, 99.9% of the deliveries. He was also involved in customer services and ordering. He said that the Complainant’s duties in 1999 were “more of an overseeing capacity effectively … supervisory work”. That evidence is not credible. Mr Rewell was, at the time, running his own business, did not have the skills or experience to perform the duties of a qualified florist as they related to the actual flower products and the evidence shows that the other staff employed were juniors, two of which worked for very short periods. These actions have arisen because of the course of events that followed a letter sent to the Complainant by Mr Steven David Musson, the Director of Human Resources, outlining a number of performance issues involving the Complainant. The letter (exhibit B) was dated 27 July 1999 and was received by the Complainant while she was on long service leave. Her response dated 9 August 1999 (exhibit C) caused Mr Musson some dissatisfaction. As he said in his evidence, he was disappointed by the tone of the letter and the accuracy of some of the responses. In his view, while he accepted she might have been upset at receiving the letter while on leave, he believed he had put the matters to her fairly, politely and professionally and he expected an equally professional response. Mr Musson responded with a letter dated 6 September 1999 (exhibit X) setting out his continued concerns and what he saw as inadequacies in her responses to the issues raised by him. He maintained that there were still outstanding issues in the way she performed her role and that there were issues which would have to be dealt with on her return, which would be facilitated by the College providing support in the way of mentoring, coaching and formal training. The Complainant’s view was that apart from one of the complaints against her she had done nothing wrong and Mr Musson’s concerns were unjustified and, as she described the situation in her letter of 16 September 1999, the matter was a “totally unnecessarily pathetic affair”. Some attempts were made to resolve the situation that had developed and a grievance panel was constituted. It was the Complainant’s view, as expressed in the statement prepared for the grievance panel (exhibit Y), that her grievance with Mr Musson was “based around the unprofessional, intimidating and vindictive manner in which he has handled this entire matter from the start”. There is no doubt, on the evidence, that the relationship between the Complainant and Mr Musson had deteriorated and there were outstanding issues that needed to be resolved. However, the evidence would suggest that Mr Musson maintained a professional approach in his dealings with the Complainant and involved others, including Mr Mastrolembo and Mr Fitzgerald in an effort to resolve the matter. He maintained however that he had a legitimate right to raise his concerns with the Complainant but admits, as I have said, that it was unfortunate that those concerns were raised while she was on long service leave. He explained his reasons for doing so. Mr Gary Wayne Fitzgerald, the General Manager, Information and Resources at Central T.A.F.E. gave evidence that he chaired a grievance panel set up to review the formal grievance lodged by the Complainant after he gave her advice about the procedure. He explained that he suggested to the Complainant that she make contact with Mr Musson so that there could be an attempt to resolve the issues “face to face”. That, he said, was part of the college’s normal grievance resolution process and if that were not successful than he would move on to the formal part of the process. That meeting did not take place and, although at times after the first and second meetings of the grievance panel with the Complainant, Mr Fitzgerald thought they were heading towards a resolution, it did not eventuate. There is strong support for the view that there could be no resolution until the parties got together and that would necessitate the Complainant returning to work. The evidence before me leads me to conclude that was something the Complainant did not want to do. I find it difficult to accept that it was just by chance that she opened a florist shop while on leave. She had arranged, after all but completing her florist’s course, to take the longest amount of leave she could, which included long service leave on half pay. In fact, leave from March 1999 to 5 January 2000. She became involved in the purchase of the florist shop probably as early as April 1999 and, as I have found, was the primary person involved in the running of the business. It follows, I believe, that it was not in the interest of the business for the Complainant to return to the college on 5 January 2000 and that is why she made the applications she did. The first was a request for a severance payment made in her submission to the grievance panel. She next applied for reinstatement of four months long service leave because of the interruption to her long service leave caused by those matters that led to these proceedings. As a result her leave was extended by one month to 7 February 2000. On 21 January 2000, two weeks before she was to return, she applied for six months leave without pay “so she could take a holiday”. That application was refused and she was instructed to return to work on 7 February 2000. It would appear that around this time she had made contact with her industrial agent who wrote to the Defendant on 31 January 2000, which resulted in the response (exhibit H) confirming she had to return to work on 7 February 2000. On 2 February 2000 the Complainant obtained a medical certificate from Dr Caroline Chin indicating that she was unfit for work for two weeks from 7 February 2000. This certificate was followed by another for a further two weeks from 22 February 2000 to 7 March 2000. One could be forgiven for suspecting that the Complainant applied for sick leave so as to avoid returning to work and, as a result, continue to run the florist business. Dr Chin’s evidence was that the certificates were based mainly on what the Complainant had told her. She said she was relying on what the Complainant had told her. There was no mention of stress by the Complainant when Dr Chin saw her in November or December 1999. The Complainant had seen Dr Terace, a consulting psychiatrist, in relation to a workers compensation claim in July 1999. His report and evidence was that the Complainant was distressed, upset, angry, frustrated and demoralized, but concluded that these were all in the realms of normal mental experiences and that the Complainant was fit to return to work. Dr Chin did not give evidence that she was aware of Dr Terace’s report, but conceded she would probably heed the advice she received from a consulting psychiatrist. 126 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 82 W.A.I.G. While it is usual to accept a medical practitioner’s certificate as being sufficient evidence that a person is not fit to work, I am, in this case, not convinced that Dr Chin’s certificates can be relied upon, particularly when the Complainant was, in fact, working full time at the time she was on sick leave from the college. I do not find the Complainant to be a reliable witness generally. She claims that she was open about her involvement in the florist shop. Her evidence in regard to her dealings with Ms Susan Julie Egerton was not supported by Ms Egerton whose evidence was believable. The Complainant was a human resources adviser and was well aware of her obligations in regard to applying for approval to undertake external employment. She failed to make application until almost forced to on 6 December 1999. The description of her duties as managerial was misleading. As I have found she was the hands-on florist at Millennium Florist. Her interpretation that the approval was until further notice and not only while she was on long service leave has no basis. She could not be that naive as to think she would get approval to engage in external employment while on sick leave. The Defendant maintains that the Complainant repudiated the contract of employment and that its acceptance of that repudiation on 10 April 2000 terminated the employment. There can be no doubt that a contract of employment requires both parties to fulfill their part of the contract. The workplace agreement between the parties sets out the general terms and conditions applying to both parties. It is a fundamental condition applying to the employee that she will perform those duties allocated to her and she could only do that if she attended at her place of work. There are, of course, circumstances where she may be excused from attending, such as when on approved recreational leave, approved sick leave or workers compensation. The Complainant’s workers compensation claim failed and she had exhausted all her recreational leave. She had been requested to return to work on several occasions but failed to do so, claiming to be unfit for duties due to illness. In my view the Defendant was justified, in all the circumstances, in coming to a decision that the Complainant did not intend returning to work in the foreseeable future to perform her duties as required, and her claim to be unfit to do so was not sustainable. It was also justified in concluding that the Complainant had repudiated the contract of employment and that led to her lawful termination. It follows therefore that both her claim of unfair dismissal and for unpaid sick leave from 10 April 2000 must fail. Accordingly, both actions will be dismissed. W. G. TARR, Industrial Magistrate. WORKPLACE AGREEMENTS—Matters pertaining to— 2001 WAIRC 04353