WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION. PARTIES THE CIVIL SERVICE ASSOCIATION OF WESTERN AUSTRALIA INCORPORATED, APPLICANT v. MANAGING DIRECTOR, MINISTRY OF HOUSING, RESPONDENT CORAM COMMISSIONER P E SCOTT DELIVERED FRIDAY, 11 MAY 2001 FILE NO/S P 4 OF 2001 CITATION NO. 2001 WAIRC 02789 _______________________________________________________________________________ Result Application pursuant to Section 80 E dismissed _______________________________________________________________________________ Order. WHEREAS this is an application pursuant to Section 80E of the Industrial Relations Act 1979; and WHEREAS on the 11th and 30th days April 2001 the Com- mission convened conferences for the purpose of conciliating between the parties; and WHEREAS on the 10th day of May 2001 the Applicant filed a Notice of Discontinuance in respect of the application; NOW THEREFORE, the Commission, pursuant to the pow- ers conferred on it under the Industrial Relations Act 1979, hereby orders— THAT this application be, and is hereby dismissed. (Sgd.) P.E. SCOTT, [L.S.] Commissioner, Public Service Arbitrator. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1389 81 W.A.I.G. INDUSTRIAL MAGISTRATE— Complaints before— IN THE INDUSTRIAL MAGISTRATE’S COURT OF WESTERN AUSTRALIA HELD AT PERTH Complaint No. 161 of 2000 Date Heard: 19 & 26 April 2001 Delivered: 17 May 2001 BEFORE: G. Cicchini I.M. B E T W E E N— Armando La Guidara Complainant and Antonino Tripolitano Defendant Appearances— Mr K C Brown of Southbrook Enterprises Pty Ltd appeared as agent for the Complainant. Mr G McCorry of Labourline—The Employment Law Spe- cialists appeared as agent for the Defendant. Reasons for Decision. The Claim The complainant claims $46,338.28 being the value of the underpayments allegedly owing to him with respect to wage payments made by the defendant to the complainant during the course of his employment with the defendant between April 1997 and February 2000. The complainant alleges that the defendant engaged him to perform work as described within the terms of the Building Trades (Construction) Award 1987 No R17 of 1978 (the award). He contends that at all material times he performed work in the calling of a labourer assisting a tradesman en- gaged in the trade of tiling on construction work as defined by clause 7(3)(a) of the award The complainant alleges that he was— • entitled to adult rates of pay for the period 1 July 1997 until termination. • not paid in accordance with the award as a full time employee but was paid a lesser amount for each day worked over the period of continuous service. • not paid as a casual and was not paid the appropriate minimum weekly rate for each week worked. • not provided with annual leave and loading. • not paid accrued annual leave upon termination. • not paid for public holidays not worked. • not paid the appropriate rate for public holidays worked. • not paid the appropriate rate for weekends worked. • not paid fares and travel allowance. • not paid severance pay. • not given the appropriate superannuation contribu- tion. • not given the appropriate payment in lieu of notice. Accordingly the complainant seeks to recover the under- payments together with interest thereon. He also seeks the imposition of penalties with respect to the alleged breaches and seeks to recover the costs of these proceedings from the defendant. The Defence The defendant maintains that at all material times there was not in existence an employment relationship between the com- plainant and the defendant. Further, and in the alternative, the defendant says that the complainant, insofar as is relevant to the application of the award was— • not engaged to perform work described by the terms of the award. • not performing the work of a labourer assisting a tradesperson in the work of tiling on construction work. • not entitled to adult rates of pay. • not entitled to be paid as a full time employee. • not entitled to be paid the minimum weekly rate for each week worked. • not entitled to annual leave and loading and had no accrued leave on termination. • not entitled to be paid for public holidays not worked. • not entitled to be paid for public holidays allegedly worked. • not entitled to reasonable pay in lieu of notice. • not entitled to severance pay. • not entitled to have superannuation contributions made. The defendant contends that he engaged the complainant on duties whereby the complainant was kept off the streets, kept usefully occupied and provided “good teaching and in- struction whereby he may profit himself afterwards”. The defendant says that he did not require the complainant to per- form the work of a labourer and was only obliged to pay the complainant an agreed sum based on work performed but be- ing no less than the minimum rates of pay prescribed by order made under the Minimum Conditions of Employment Act 1993 (MCE Act). The defendant also says that clause 45(1) of the award constitutes a prohibition clause with respect to the em- ployment of junior employees without union approval. Further, and in the alternative, the defendant says that the clause is void and of no effect by reason of section 5 of the MCE Act. The defendant accordingly denies the complainant’s claim. The Witnesses The complainant has given evidence, as has his father, Carmelo La Guidara. The complainant’s agent, Mr Keith Brown, also gave evidence concerning this matter. The de- fendant elected not to give evidence or call witnesses. The Facts In about April 1997, at which time the complainant was aged 16 years soon to turn 17 years, he was unemployed hav- ing left his previous employment as a tiler’s labourer. He left on account of having been underpaid and had at that stage remained out of work for about 3 months. He had held that employment for about one year. His parents, quite understand- ably, were anxious for their son to gain an apprenticeship in tiling. Accordingly they contacted the defendant who comes from the same town in Sicily that the complainant’s mother comes from. The complainant testified that his parents asked the defendant that he be taken on as an apprentice. The de- fendant agreed to take the complainant on trial for a two-week period to assess his suitability as an apprentice. Following that trial period which was successfully completed the de- fendant agreed to take the complainant on as an apprentice. He agreed to procure the necessary papers to formalize the arrangement. Those papers were never procured and the ap- prenticeship never formally commenced. The complainant testified that he worked for the defendant on a weekly basis. His only time off work was when he was sick or when the defendant did not work by reason of his attending the Hopman Cup or being away on holidays. Whilst working for the defendant he carried out duties such as cut- ting tiles, mixing glue, grouting, mixing topping and washing tools, being much the same as the types of duties he had per- formed for his previous employer. The complainant testified that his work for the defendant was carried out at private houses, at houses under construc- tion by builders, at factories and at “Red Rooster”. Some of the houses at which he worked were being renovated. He al- ways worked within the metropolitan area. Prior to obtaining his driver’s licence he was usually driven to and from his employer’s house by his father. Once he obtained his licence he drove himself there and back. On a couple of occasions the defendant picked him up from his home. On some occasions, after having made his way to the defendant’s home, he would be told there was no work available and he would have to return home. The defendant would on occasions return him to his home. He normally started work at about 7 am but started earlier, at 6 am, if the defendant had to play tennis. When he started early he finished at 2.30 pm. When he started later he would finish later. The complainant testified that he was ab- sent from work a “couple of times” due to illness. He was not paid sick leave for such absences. He also testified that he WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 81 W.A.I.G. 1390 worked “sometimes 8 hours” per day -“sometimes more”. He was asked whether there were any occasions when he worked for less than 8 hours to which he responded “no”. He was then asked whether in answering that question he meant that he never worked less than eight hours or whether his answer was to signify that he could not recall. He responded by say- ing that he could not recall. That response is clearly inconsistent with other aspects of his testimony. The com- plainant told the Court that he worked Mondays to Fridays. Sometimes he worked on weekends. He also worked on pub- lic holidays. There were some public holidays that he did not work. He said that he never worked on site alone and that he never actually laid tiles. He was always under the control and direction of the defendant. The complainant testified that tax was deducted but that his accountant had informed him that the mode of deduction of tax was not right. In fact, tax was deducted under the Pre- scribed Payments System at the rate of 20%. He also testified that he was always paid by cheque and that each cheque was always deposited at the bank on the same day as it was re- ceived. The cheques were always deposited in the complainant’s account held at the National Australia Bank. The complainant said that his pay was not always received on time. He was due to be paid each Friday. However, sometimes he was paid a couple of days late. On occasions he was paid a week late. Superannuation was paid for him during the period of his employment. In January 2000 the complainant wrote to the defendant for- mally complaining that he had been underpaid. Prior to that, he had verbally and informally advised the defendant that he was being underpaid however nothing eventuated from those approaches. Following his sending of the letter dated 11 Janu- ary 2000 formally advising the complainant that he believed that he was being underpaid his employment was terminated. When cross-examined the complainant confirmed that the discussions that took place concerning his engagement as an apprentice were held between his parents on the one hand and the defendant on the other. He was also cross-examined as to when it was that various breaks from work were taken. He told the Court that he could not remember. Further he could not identify the days on which he was sick and for which he claims he was not paid but should have been paid sick leave. He was cross-examined as to his hours of work. He said he worked 8 hours per day for over half the time and less than 8 hours per day for a quarter of the time. Sometimes the jobs finished as early as 11 am and they went home. The com- plainant admitted that he could not be sure of how many hours he worked on any one day. The complainant similarly was unable to identify which Saturdays or Sundays he worked. He was also unable to say how many hours he worked on the weekend. He could not identify which public holidays were worked. The complainant also said that, although on occa- sions he was told the night before that he would not be required, sometimes he was told that there was no work available after having made his way to the defendant’s home. The complainant denied having received any cash payments. All payments made to him were made by cheque. Further he conceded during cross-examination that most of the work car- ried out by the defendant in private houses related to renovation work. The complainant’s father, Carmelo, gave evidence concern- ing his discussion with the defendant in relation to taking on the complainant as an apprentice. He testified that the defend- ant took on the complainant on a trial basis. Following the successful trial the defendant indicated to him that the com- plainant would be taken on as an apprentice. The defendant agreed to procure the necessary papers to facilitate the com- mencement of the apprenticeship. That did not eventuate. After three months had elapsed, Carmelo confronted the defendant concerning the apprenticeship papers. At that stage he was told that there was no need for the complainant to have a ticket and that he could stay on with him as a labourer. From that point onwards it was understood that the complainant would work as a labourer. Carmelo La Guidara confirmed that prior to his son gaining his driver’s licence he took his son to the defendant’s home in the mornings. On occasions he would have to return to the defendant’s home soon after drop off in order to pick his son up when work was not available. When cross-examined Carmelo La Guidara testified that the defendant was anxious to employ his son because “he had to sack the other man” referring to the defendant’s then current employee. He confirmed also that the original offer of a job was that in the capacity of an apprentice. At that time wages were not discussed at all. Keith Charles Brown gave evidence of his analysis of the complainant’s bank records, PPS tax statements and superan- nuation records. He then from those source documents calculated the days worked by the complainant. His evidence speaks for itself. I do not intend to comment further as to his evidence at this stage. Mr Brown has arrived at certain con- clusions based on his calculations. Those conclusions relate to the days and weeks worked by the complainant. He asks that I accept his conclusions as being accurate going to prove the days and weeks allegedly worked by the complainant. No Case to Answer Submission Upon the conclusion of the complainant’s case the defend- ant submitted that there is no case to answer. In making this submission the defendant elected not to give or call any evi- dence. A submission of “no case to answer” is a motion made by the defendant for dismissal of the case against him on the ground that no case has been made out. The submission is based on one or more of the following— (1) that there has been no evidence of some element es- sential to the case against the defendant, (2) that the evidence against him is so inherently unreli- able or has been so discredited that no reasonable tribunal could rely on it, or (3) that on the evidence presented the verdict should go to the defendant. Generally speaking the making of a “no case to answer” submission in a Magistrate’s Court is not a bar to the defend- ant calling evidence in the event that the submission is unsuccessful. However, if the defendant submits at the close of the complainant’s case that although there is some evidence of all the necessary elements required to be proved before the order sought can be made, such evidence is so weak or so unsatisfactory that it should not be accepted, then such is an argument on an issue of fact, and the defendant should not be allowed to argue such a question of fact and, if defeated, then claim to be entitled to call evidence. Questions of fact should be decided only after all of the evidence has been given. It is only questions of law that may be raised and argued at the close of the informant’s case without being subjected to the necessity of electing whether or not he will go into evidence (See Tate v Johnson (1953) 70 WN(NSW) 302). In this instance it appears that the defendant has elected not to call evidence under a misapprehension that such an elec- tion was necessary. Clearly it was not. His submissions related only to the law and not to issues concerning the acceptability of testimony. In that regard there was no submission with re- spect to the inherent unreliability of a witness or witnesses. Furthermore there was no submission that the evidence of the complainant or other witnesses was so discredited that no rea- sonable tribunal could rely on it. It follows that if this no case to answer submission is unsuccessful he may wish to argue that he ought to be permitted to withdraw his election errone- ously made. In submissions the defendant’s agent contends that the com- plainant has to prove the following elements, they being that— 1. the complainant was an employee, 2. he was employed in a calling to which the award applies, 3. he was employed without the consent of the union, 4. he was entitled to specific benefits under the award, and 5. he did not receive those benefits. The defendant argues that none of the elements have been established. Is There Evidence Before the Court to Establish That the Complainant was an Employee? The defendant contends that it is not enough to establish the existence of an employment relationship. What must be shown is that there was an intention to create a legal relationship. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1391 81 W.A.I.G. The defendant says that whatever arrangements were made, the complainant’s father on the one hand and the defendant on the other made them. Even if it could be said to be a con- tract made for the benefit of his son it still does not demonstrate an employer-employee relationship grounding an application under s83 of the Industrial Relations Act 1979. The defendant cited the High Court authority of Dietrich v Dare (1980) 54 ALJR 388 to support his proposition that the performance of manual labour and the payment of remuneration are not enough to establish an employment relationship. The defendant sug- gests that an intention to create legal relations cannot be inferred from the evidence. Mr Brown for the complainant, in answer to that aspect of the submissions, said that it was “outrageous” to suggest that a relationship which resulted in work being performed, where moneys were paid for work performed and tax deducted therefrom together with other benefits paid, does not consti- tute an employment relationship. In my view the evidence before the Court can overwhelm- ingly establish that an employment relationship existed. The fact that the initial discussions concerning employment took place between the complainant’s parents, particularly his fa- ther, and the defendant is of no particular significance. It is clear that any contract made by the complainant’s father for the complainant’s benefit is both valid and enforceable. The conduct of the parties in the performance of the contract is also capable of establishing an employer-employee relation- ship. The circumstances in this case are not at all like the factual circumstances in Dietrich. The evidence in this case can clearly demonstrate an intention to create legal relations. That is that the complainant would provide his labour to the defendant at the direction of the defendant for remuneration. There is an abundance of evidence that would go to proving that element. I agree with Mr Brown’s submissions in that regard. There is absolutely no force in the defendant’s first ground. Is There Evidence Before the Court That Can Establish That the Complainant was Employed in a Calling to Which the Award Relates? The defendant contends that the complainant must estab- lish that he was doing work that was subject to the award. It is argued that the evidence cannot establish that he performed work in the callings of “trades labourer” or “plasterers’ la- bourer” as set out in clause 8(2)(b)(iii) of the award. In that regard the defendant says that there is no evidence to estab- lish that the defendant was a building tradesperson. I find little force in that argument because I take the view that the evidence enables the reasonable inference to be drawn that the defendant is a tradesperson. I say that because the evidence surrounding the discussion between the complain- ant’s parents and the defendant concerning the apprenticeship permits a finding that a representation was made by the de- fendant that he is a tradesperson and that he was able to take on apprentices. Furthermore, the evidence of the complainant concerning the work carried out by the defendant in the lay- ing of tiles permits such a finding. In my view such evidence suffices for the purposes of these proceedings given the stand- ard of proof required. It can go to establish that the defendant is a tradesperson. Having found that there is evidence that enables a finding to be made that the defendant is a tradesperson, does the evi- dence permit a finding that the complainant assisted him in his work? In my view it does. The complainant’s testimony going to the nature of his duties performed for the defendant goes to establish that fact. Further, his evidence concerning the localities and structures at and upon which such work was performed is capable of establishing that he assisted the work of a building tradesperson. Having so found, it is unnecessary for me to consider whether the complainant falls within the calling of “plasterer’s la- bourer”. In that regard the defendant’s arguments relating to clause 7(10) of the award and the complainant’s failure to negate the operation of the Building Trades Award 1968 No 31 of 1966 falls away. The defendant further contends that given that the complain- ant on his evidence was employed with the intention of being an apprentice he could not now be said to be a labourer assist- ing a tradesman. It is submitted that there is no evidence of any change in the nature of the relationship. I disagree. Carmelo La Guidara testified that about three months after the employ- ment relationship commenced the defendant made it clear that the complainant would not be taken on as an apprentice and that he would continue to work as a labourer. That position was reluctantly accepted. There is evidence to show therefore that the relationship changed at that point in time, in or about July 1997. It is clear that from that time neither party looked at the complainant as being an apprentice. Was the Consent of the Union Necessary to Enable the Employment of the Complainant and is That a Necessary Element to be Proved by the Complainant? The defendant says that for the complainant to succeed in his claim to be paid adult rates of pay pursuant to clause 45(1) of the award he first must prove that he was employed with- out the consent of the union. That is an essential pre-requisite to establishing the claim. Relevantly clause 45(1) of the award provides— “45.—PROHIBITION OF JUNIOR EMPLOYEES (1) Except as provided in subclauses (2)-(9) inclusive hereof, the employment of junior employees (except apprentices) on any work which, if performed by an adult employee, would be subject to the provisions of this award is prohibited unless the consent of the union is in each case first obtained. If any junior employee (except an apprentice) is so employed such employee shall be paid not less than the rate of pay of an adult performing similar work.” The defendant argues that the clause is a prohibition clause and not merely a junior workers wage clause. He argues that the second sentence of the subclause merely prescribes the wages to be paid to junior employees when the union gives consent. Mr Brown for the complainant argues that clause 45(1) does not “ab- solutely” prohibit the employment of junior workers. He says that if the clause does that, that it would be discriminatory and illegal. He contends that the provision is one that simply pro- vides that junior workers be paid at adult rates if such a worker is employed without the consent of the union. In my view clause 45(1) prohibits the employment of junior workers unless the consent of the union has first been ob- tained. Accordingly the clause does not “absolutely prohibit” the employment of junior workers but rather requires that the pre-requisite consent of the union be first obtained. In that regard the clause is neither discriminatory nor illegal. It does not prevent the employment of junior workers but rather regu- lates their employment. If the consent of the union is given, then such junior workers can be employed and are to be paid at adult rates. The second sentence of the subclause cannot in my view be read as a default provision permitting the pay- ment of adult rates regardless of whether the union’s consent has been obtained. I take that view because clause 8 of the award refers expressly to adult employees. There is no ex- press provision for wages to be paid to junior employees working with the consent of the union. What are the wages to be paid to such employees? Clearly the answer is the same rate of pay as an adult performing similar work. That is achieved by virtue of the second sentence of clause 45(1). The clause cannot be read in the manner suggested by the complainant. That being so it follows that evidence should have been called to address the issue of consent. Given that was not done it presents the complainant with insurmount- able difficulty with respect to his claim. It is appropriate that I, at this stage, also address the defend- ant’s argument concerning the invalidity of clause 45(1) of the award. The defendant argues in that regard that section 5 of the MCE Act provides that all minimum conditions are implied into all awards and that any provision that is less favourable to an employee than a minimum condition has no effect. The defend- ant argues that any requirement to have the union’s permission is clearly less favourable regardless of what the terms might be if the union’s permission was actually granted. In those circum- stances it is argued, clause 45(1) is less favourable than a minimum condition and therefore is of no effect. I find no force in the defendant’s argument that clause 45(1) is of no effect. Section 5(2) of the MCE Act provides— (2) A provision in, or condition of, a workplace agree- ment, an award or a contract of employment that is less favourable to the employee than a minimum condition of employment has no effect. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 81 W.A.I.G. 1392 “Minimum conditions of employment” is defined in sec- tion 3 of the MCE Act as follows— “minimum condition of employment” means — (a) a rate of pay, or other requirement as to pay, pre- scribed by this Act; (b) a condition for leave prescribed by this Act; or (c) a condition prescribed by Part 5; The requirement of the union’s consent as a condition prec- edent to employment of a junior worker is not a minimum condition as contemplated by the MCE Act. It does not fall within the definition of “minimum condition of employment” and any argument such as that of the defendant, founded upon general notions, cannot succeed given the specific provisions of the MCE Act. Clause 45(1) is valid and has force. Notwithstanding the validity of clause 45(1) the complain- ant faces insurmountable difficulty by virtue of his failure to call evidence of the union’s consent. The union’s consent was a pre-condition to his employment under the award. Further- more the complainant’s claim that the second sentence of clause 45(1) operates as a default clause entitling him to adult wages simply cannot be made out. Given that the complain- ant’s claim is entirely based on clause 45(1) it follows that he cannot possibly establish his claim. For the sake of completeness I will address the other issues that the complainant would have necessarily had to have proved in the event that he was successful in establishing that he comes within clause 45(1) of the award. Is there Evidence to Show that the Complainant is Enti- tled to Specific Benefits Under the Award? In his particulars of claim the complainant maintained that he was entitled to be paid 38 hours each week regardless of whether he worked those hours or not. In submissions it is suggested by Mr Brown that the complainant is entitled to be paid 8 hours for each ordinary day. The defendant contends that there is nothing in clause 13 of the award that would suggest that an employee is entitled to 38 hours pay regardless of whether he worked those hours or not. In fact it is argued that a proper reading of clauses 8(1), 8(4) and 35 suggests that employees be paid for only the hours worked. Clearly the provisions anticipate periods not worked on account of inclement weather and jobs not being ready, for example. In my view the defendant’s argument has consider- able force. The complainant must establish that he worked 38 hours in any given five consecutive days of work to claim 38 hours pay for that full week. Given his evidence, or lack of it in that regard, it is impossible for him to establish the same. Mr Brown’s evidence, even if accepted, could not establish the same. The complainant claims that where he has worked less than 5 days he is entitled to be paid casual rates. He relies upon clauses 7(2) and 8(15) of the award. He maintains that any consecutive period in which he worked for less than 5 days or where there was a break between one period of employment and another, that he ceased employment thereby entitling him to pay in lieu of notice, casual rates of pay, holiday pay and the like. In my view the complainant’s claims are simply not maintainable in that regard. I accept the defendant’s argument that the concept of em- ployment is one of relationship. The relationship does not necessarily end because there was a break of some duration in the performance of work. The complainant’s own testimony reflects a continuing relationship. Indeed there is absolutely no evidence before me that would enable me to find a series of discrete relationships. Just because an employee works for less than 5 days that, of itself, does not result in a conclusion that the employee’s status changed to that of a casual em- ployee. The clauses relating to lost time and inclement weather are indicative of that. The award clearly contemplates payment of wages contin- gent upon the hours actually worked. In that regard the complainant says that he usually worked within certain hour. He admitted however that he worked for less than those hours for “about twenty-five per cent” of the time that the defendant employed him. He himself has not given evidence identifying the days of the week that he actually worked, which week- ends he worked or which public holidays he worked. In that regard the complainant effectively relies upon Mr Brown’s testimony relating to the conclusions he reached as a consequence of calculations performed based on the complain- ant’s bank records, tax records and superannuation records. However Mr Brown’s conclusions are not evidence going to the proof of those matters. It is not for Mr Brown to say that the complainant worked the days as set out in exhibit 5. It is for the complainant to give such evidence. The complainant has to prove that he worked the days alleged. He should have testified in much the same way that Mr Brown did as to how, based on calculations, he could determine which days he worked. He has not done that. He has effectively tried to do that by proxy through Mr Brown. Mr Brown cannot establish which days the complainant worked. It is for the complainant to give evidence, which would permit conclusions in that re- gard. Mr La Guidara has not, in his own testimony, stated which days he believes he worked. He has left that all to Mr Brown. In my view, that cannot be done. It was incumbent upon the complainant to testify that as a consequence of ref- erence to certain documents, he was able to conclude that certain days were worked. His evidence however does not specifically address those matters. It has all been left to Mr Brown. However Mr Brown cannot fill that void. Even if it is the case that Mr Brown’s conclusions are capa- ble of going to the proof of the days that the complainant worked, it is nevertheless the case that the calculations are based on assumptions made without foundation. For example, if 5 days or less were worked in any given week it has been assumed by Mr Brown that all days worked were weekdays. That may be so but equally it may not. For all I know such days may have included weekends. There is absolutely no evi- dence going to show which days were actually worked by the complainant for the defendant. That being the case, how could this Court possibly make findings as to the days and hours actually worked. Without such evidence the Court is not in a position to make findings as to what the complainant’s actual entitlements were. It follows given the state of the evidence, that it is impossible for the complainant to establish his claim. Does the Evidence Permit a Finding that the Complain- ant did not Receive Benefits Under the Award? The defendant submits that in the event that it can be estab- lished that the award was operative, that the complainant has been paid in excess of his entitlements. It is submitted that his entitlements were those of junior rates of pay as inserted into the award by order of the Industrial Relations Commission in Court Session on 13 November 1997. The defendant says that the complainant has failed to establish that he has not received entitlements to which he was entitled under that provision. In my view the complainant cannot, for the very same rea- sons previously given, establish that he is entitled to the amounts he has particularized in his claim as owing. He has not been able to establish that the award applies (on account of the prohibition clause). Furthermore he cannot establish that he worked the days and hours alleged in his claim. He cannot establish that he was entitled to adult rates of pay on account of clause 45(1) of the award and also on account of clause “1B.- Minimum Adult Award Wage” within the award (see 77 WAIG 3186). Comment In his submissions to me Mr Brown said that if his client’s claim were to fail on account of an inability to produce time and wages records then it would be a licence for unscrupu- lous employers to fail to comply with awards and get away with it. Employers would facilitate their defence by failing to keep and produce records. He submits that a failure by an employer to keep records should not be the reason for a com- plaint relating to a significant underpayment to be defeated. There can be no doubt that Mr Brown has felt a sense of frustration concerning the production of records. In his sub- missions to me he concludes that records were not kept. However I do not know whether that is the case or not. Clearly there were avenues open for the complainant, at law, to ascer- tain whether or not the records existed. If they exist he could have subpoenaed them. He did not do that. If they did not exist, then action could have been taken in that regard. Those steps may have well been a necessary practical requirement to facilitate the production of evidence for the purpose of insti- tution of proceedings. I say that because it is important to WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1393 81 W.A.I.G. reflect upon the fact that the Industrial Magistrate’s Court is a Court of law and is not governed by the Industrial Relations Commission’s jurisdiction. In particular, section 26 of the In- dustrial Relations Act 1979 requiring the Industrial Relations Commission to act “according to equity, good conscience and the substantial merits of the case” does not apply. The burden remains with the complainant to establish the elements of the claim either directly or by inference. If the complainant can- not establish the same in his own case then it follows that no case will have been made out. Conclusion Given the state of the evidence, the complainant cannot es- tablish on the balance of probabilities that the award applied to his employment by the defendant. Even if it could be estab- lished that the award applied, the complainant has failed to produce evidence to establish that he was entitled to adult rates of pay or other specific benefits under the award and further that he did not receive those benefits to which he was entitled. I find that there is no case to answer. G. CICCHINI, Industrial Magistrate. UNFAIR DISMISSAL— 2001 WAIRC 02734