WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION. Industrial Relations Act 1979. The Hospital Laundry and Linen Service (Appellant) and The Federated Miscellaneous Workers' Union of Australia, Western Australian Branch (Respondent). No. 1124 of 1993. BEFORE THE FULL BENCH HIS HONOUR THE PRESIDENT P.J. SHARKEY. COMMISSIONER J.F. GREGOR. COMMISSIONER R.N. GEORGE. 17 December 1993. Reasons for Decision. THE PRESIDENT: This is the unanimous decision of the Full Bench. This is an appeal against the decision of the Commission, constituted by a single Commissioner. The appeal is properly brought under s.49 of the Industrial Relations Act 1979 (as amended) (hereinafter referred to as "the Act"). The decision is contained in an order made on 9 July 1993, and which, formal parts omitted, reads as follows (see Section 3 of the appeal book (hereinafter referred to as "AB")):— "That the Hospital Laundry and Linen Service pay an amount of $44,100 to a superannuation scheme to be nominated by Mr W. Schutze which complies with the Commonwealth Occupational Superannuation Standards within 60 days." The reasons for decision of the Commission, being reasons given in relation to the question of jurisdiction on 5 November 1992, and reasons given as to the hearing and determination of the matter proper on 24 June 1993, are set out in Section 3 (AB). The respondent at first instance. The Hospital Laundry and Linen Service (hereinafter referred to as "the HLLS"), appealed against that decision and seeks that the order of the Commission at first instance be quashed. The grounds of appeal we now set out hereunder (see Section 1 (AB)):— "1. Senior Commissioner erred in law in making the order on the grounds that the matter the subject of the reference for hearing and determination was not an industrial matter within Section 7 of the Industrial Relations Act 1979 in that: (a) the matter of superannuation in the circum- stances of this case, was not one which was directly connected with the relationship between the Appellant as employer and the Respondent as employee; (b) the Respondent's entitlement to superannua- tion derived from statute, being the Govern- ment Employee Superannuation Act 1987 ("the Act") and was not part of the contract of service between the Appellant and Re- spondent or any matter relating thereto; (c) the relief sought by the Respondent was not a matter which the Appellant had power to bring about, but rather was governed by the terms of the Act and accordingly a matter between the Respondent and the Government Superannuation Board and, in the alternative, or the Treasurer. (R v. Portus & Ors; ex parte City of Perth & Ors) 2. The Senior Commissioner erred in law in making the order in that the matter of the duty of the Appellant as employer to bring the attention of the Respondent as employee any changes to the law was not an industrial matter. 46 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 74 W.A.I.G. 3. The Senior Commissioner erred in law in making the order in that the matter of an allegation that the Appellant as employer had breached its duty, or in the alternative, obligation, to bring changes in the law in relation to superannuation to the attention of its employee the Respondent was in the nature of an allegation of a breach of an existing duty and accordingly in the nature of a claim for the enforcement of an existing right and beyond the jurisdiction of the Commission. 4. The Senior Commissioner erred on the evidence and weight of evidence in finding that "the evidence of Mr A J Reid and Mr E Browne as to the superannuation arrangements then in existence for "blue collar" employees does not directly conflict with that of Mr Schutze so far as the overall position which then obtained, i.e., it was not considered appropriate nor encouraged by management that they should join the then existing superannuation scheme for several rea- sons, one being the cost to them." 5. The Senior Commissioner erred on the evidence and weight of evidence in finding that, "the evidence of Mr Harris, Mr Squire and Mr Hewlett again does not directly negate that of Mr Schutze in the critical areas of his position and level of knowledge of the respective superannuation schemes." 6. The Senior Commissioner erred on the evidence and weight of evidence in not finding in (a) that Mr Schutze became aware of eligibility to superannuation in 1977 or 1978. 7. The Senior Commissioner erred on the weight of evidence in finding that it was more probable than not in (b) that "Mr Schutze enquired as to his eligibility to join the "old scheme" several years after commencing employment but was advised that the superannuation scheme was for salaried staff only." 8. The Senior Commissioner erred on the evidence in finding that in (f) "Mr Schutze, because of the nature of his duties, did not attend a meeting of employees on 27th June, 1986 addressed by the General Manager about rapid action being re- quired of employees to join the superannuation fund." 9. The Senior Commissioner erred on the evidence in not finding in (g) that "others" were informed of the extension of the closing date for the old scheme and did join before its expiry. 10. The Senior Commissioner erred on the evidence and weight of evidence in finding that on the basis of equity and the substantial merits of the case, that the applicant's claim (as outlined in the schedule) that the treatment of Mr W Schutze with respect to his superannuation entitlements has been harsh and unfair." This matter came before the Commission by virtue of an application brought under s.44 of the Act. The terms of that application it will be convenient to set out hereunder (see Section 2 (AB)):— "The FMWU requests an (sic) s(44) conference to discuss the failure of the Hospital Laundry and Linen Service to make a discretionary superannuation pay- ment to a member, Bill Schutze where the cirotim- stances warrant such a payment. On 24th June, 1986 the Premier announced that the "old pension scheme" would be closed 30th June, 1986 and be replaced by a "new" superannuation scheme. Current employees who were not members of the "old" scheme were given the opportunity to join the "old" scheme by 30th June, 1986. This date was extended to 15th August, 1986. The provisions of the "new" scheme allowed persons who joined the "old" scheme prior to 16th August, 1986 to transfer to the "new" scheme during the period 1st July 1987 to 31st December, 1987, and to receive a transfer benefit based on years of previous service, rather than years of contributory membership of the "old" scheme. Mr Schutze was unfortunately overseas from 20th June, 1986 to 25th July, 1986 and was not aware of his entitlement to join the "old" scheme. Mr Schutze has pursued his entitlement through the Parliamentary Commissioner for Administrative Inves- tigations (The State Ombudsman) who has recom- mended that a discretionary payment should be paid. The Premier has declined to exercise her discretion under Section 49. The Union claim Mr Schutze has been unfairly treated and seek the Commission's assistance in resolving this matter. Those persons requested to attend should include: Mr Logan Howlett, General Manager, Hospital Laundry and Linen Service, Murdoch Drive, MURDOCH. W.A. 6150 Telephone: 332 7011 Department of Productivity and Labour Relations, 2nd Floor, Dumas House, 2 Havelock Street, WEST PERTH. W.A. 6005" Background. The background to this matter was as follows. Mr Wilhelm Schutze, a member of the respondent organisation, The Federated Miscellaneous Workers' Union of Australia, Western Australian Branch (hereinafter re- ferred to as "the FMWU"), was, at all material times, employed as a security guard at the HLLS at Murdoch, and had been so employed for 18 years. Because of the nature of his shifts, in 1986-1987 he was unable to have much contact with other staff, even other security officers. That was corroborated in evidence by other security officers who gave evidence. Mr Schutze and 50 other employees of the HLLS, which is a Government organisation, had com- plained to the Commissioner for Parliamentary Investiga- tions about these sorts of matters. Having investigated the matter, the Commissioner recommended that a gratuitous payment be made by the Government to Mr Schutze. Mr Schutze then was the subject of an application by the FMWU. The Commission at first instance adopted the facts recited by the State Ombudsman in his report, and they constitute the background to this matter. We should also add that there was a notice to admit facts given by the applicant at first instance, the FMWU. Most of the facts sought to be admitted were admitted. The HLLS is and was, at all material times, a department of Government, and its employees were Government employees. Mr Schutze and approximately 50 other employees complained to the Ombudsman regarding the non-recogni- tion of their past service for benefit purposes under the Government Employees Superannuation Act Superannua- tion Scheme (hereinafter referred to as "the new scheme"). The Government Employees Superannuation Act 1987 (as amended) (hereinafter referred to as "the GES Act") created the new scheme after its proclamation on 1 July 1987. The scheme is and was administered by the Government Employees Superannuation Board (hereinafter referred to as "the GESB'') constituted under s.5 of the GES Act with its functions prescribed by s.6 of the GES Act The GESB did not recognise the past service of those persons and of Mr Schutze because they had not been members of the Superannuation and Family Benefits Act Scheme (hereinafter referred to as "the old scheme"). That scheme existed by virtue of the Superannuation and Family Benefits Act 1938 (as amended). Mr Schutze was never a member of the old scheme. It was Mr Schutze's complaint to the Ombudsman and to the Commission that he would have joined the old scheme, so as to take advantage of the new scheme, had he been given full and accurate information about it by his employer. The closure of the old scheme was advertised within the Government sector through a circular to Heads of Depart- ments by the Premier dated 24 June 1986 (see Admitted Facts). It stated that immediate steps should be taken to ensure that employees who are not members of the old scheme were made aware of the changes, and they should be given the opportunity to join the old scheme by 30 June 1986. On 23 July 1986, the Secretary of the GESB issued a circular advising that the Government had decided to extend the date for joining the old scheme to 15 August 1986. The provisions of the new scheme allowed persons who had joined the old scheme prior to 16 August 1986 to transfer automatically to the new scheme during the period 1 July 1987 to 31 December 1987, and to receive a transfer benefit based on years of previous service (rather than years of contributory membership of the old scheme). The new scheme provided additional cover against death and disabil- ity. The end benefit (payable on retirement) of 12% of final average salary for each year of service prior to transferring applied equally to all persons who had joined the old scheme before 16 August 1986, including those who had joined during the few weeks prior to the closure of the old scheme. The new scheme also provided that persons who had joined the old scheme between 16 August 1986 and 30 June 1987, would automatically transfer to the new scheme on 1 July 1987. There was no transfer benefit based on years of previous service for these persons. As we have said, as from 1974 the HLLS was a "department" within the meaning of the Superannuation and Family Benefits Act, and all permanent full time employees of the laundry service were eligible to participate in the old scheme. It was in issue as to whether employees were given information about the scheme in an "Information for Employees" booklet, which was said to have been handed to new employees. That booklet is said to have contained the following entry:— "SUPERANNUATION Permanent employees may elect to join the State Superannuation Fund." In Mr Schutze's case, he joined the HLLS as a security guard in June 1975. He did not join the old scheme. His evidence was that he did not join the old scheme because it was not drawn to his attention and that when he raised it by way of query with the General Manager he was told that "blue collar'' workers were not eligible to join that scheme. There was a similar experience referred to in evidence by Mr Angelo Chiappalone, Mr James Gilmour, Ms Pamela Day, Ms Ann Day and Ms Wilma Anna Sally McKenzie, that is that these matters were not drawn to their attention, and that when they asked about them of various members of staff of the management area, including Mr Eric Browne, Mr Edward Terrence Squire, Mr Barry Arthur Harris, Mr Ian Francis Lockyer and others, they were told that "blue collar" workers were not eligible to join the scheme. This was denied by those gentlemen who gave evidence for the respondent at first instance. Mr Schutze went on annual leave from 20 June 1986 to 29 July 1986, and was overseas for the period 21 June 1986 to 25 July 1986 (according to his employer). However, he said that he went overseas on 20 June 1986. In May 1987, Mr Schutze had an accident at work and was off duty on workers' compensation from 18 May 1987 to 11 September 1987. On his return to work, he joined the new scheme on 24 September 1987. His complaint is that he was not told of the existence of the closure time for the old scheme, otherwise he would have joined it. His complaint was that he had not been given full and accurate information about it by his employer. Before the old scheme was terminated, and when the Superannuation and Family Benefits Act was repealed, the scheme's imminent closure was advertised within the Government sector through a circular to Heads of Depart- ment, which indicated that immediate steps should be taken to ensure that employees who were not members of the old scheme were made aware of the proposed changes. It was the appellant's case that current employees who were not members of the old scheme were given the opportunity to lodge applications with the GESB by close of business on 30 June 1986, a date later extended to 15 August 1986. The provisions of the Act allowed persons who had joined the old scheme prior to 16 August 1986 to transfer to the new scheme during the period 1 July 1987 to 31 December 1987 automatically, as we have said, and to receive a transfer benefit based on years of previous service. Of course, Mr Schutze, because he was not aware of this, was deprived of that benefit. There was the evidence of Mr Logan Kenneth Hewlett, the Manager of HLLS at the time, that on 27 June 1986 there was a meeting for all staff at which these matters were explained, and also the information circular was put up on the notice board. Ms Pamela Day and Ms McKenzie, in evidence, complained of the inadequacy of what occurred at that meeting, and Mr Gilmour and Mr Chiappalone, security guards at the time, were unaware that such a meeting occurred and had no knowledge of any of these matters relating to superannuation. Some persons did join the scheme following the meeting, but it is not clear whether this occurred after or before the meeting, or both before and after. Mr Cloghan, who appeared for the appellant, said there were 12 persons on the evidence of correspondence from Mr Hewlett to the Parliamentary Commissioner. It was Mr Schutze's evidence, of course, that he was overseas from 20 June 1986 to 25 July 1986 and was not aware of his entitlement to join the scheme. He was, however, back at work 14 or so days before 15 August 1986, but because of the nature of his duties, which meant that he saw little of other members of staff or of management, since he commenced work at 3.30 pm as a security guard, he was not aware of these events. In the end, he made application to the then Premier (as Treasurer) under s.49( 1) of the GES Act, which reads as follows:— "(1) The Treasurer may, where he considers there are special circumstances, by notice in writing given to the Board- (a) deem a contributory member to have a greater contributory period than the member would have; (b) deem an employee to be eligible to be a member; (c) deem a member, a former member or the personal representative of a member or former member to be eligible for payment of a benefit to which that person is not otherwise entitled under this Act, and the Board shall give effect to such a notice." The Premier, in her capacity as Treasurer, however, declined to assist Mr Schutze by the exercise of discretion under the GES Act, which would have included him in the benefits which he required to receive (see exhibit 1). The Commission at first instance heard evidence from Mr Schutze, Mr Gilmour, Mr Chiappalone, Ms McKenzie. Ms P Day and Ms A Day for the respondent at first instance, the FMWU. The latter three employees were laundry workers. The first three were security guards. The Commis- sion also heard evidence from Mr Alec John Reid, Mr Browne, Mr Harris, Mr Squire, Mr Howlett and Mr Lockyer, all members, at the material time, of administrative staff for the appellant. There was evidence for the respondent, 106, given by Mr Shane Thomas O'Donohue. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1' Reasons for Decision of the Commission at First Instance. The Commission at first instance found that the evidence given by Mr Schutze was straight forward, clearly recol- lected and that he presented as an honest and uncomplicated witness. It therefore accepted his version of the events, and where there were differences with the respondents' wit- nesses' recollection of those events, preferred the evidence of Mr Schutze, supported as it was to a considerable extent by the evidence of Mr Gilmour, Mr Chiappalone, Ms McKenzie and Ms P Day. The Commission also found that the evidence of Mr Reid and Mr Browne as to the superannuation arrangements then in existence for "blue collar" employees did not directly conflict with Mr Schutze, insofar as the overall position which then obtained ((ie) that few "blue collar" employees had superannuation) and it was not considered appropriate nor encouraged by management that they should join the existing superannuation scheme for several reasons, one being the cost to them. The Commission further observed that the evidence of Mr Harris, Mr Squire and Mr Howlett again did not directly negate that of Mr Schutze in the critical areas of his position and level of knowledge of the respective superannuation schemes. Having observed that, and from a detailed consideration of all the evidence and material before it, the Commission said that it found that it was more probable than not:— "a. Mr Schutze did not receive the Induction Booklet on commencing employment with the respondent and was therefore unaware of his situation as to superannuation. b. Mr Schutze enquired as to his eligibility to join the "old scheme" several years after commencing employment but was advised that the superannua- tion scheme was for salaried staff only. c. The applicant union in it's journal in approxi- mately 1985-86, published details of the old superannuation scheme and encouraged it's mem- bers to take up the advantage and join that scheme. However, on Mr Schutze's evidence he did not receive the union journals' containing that infor- mation. d. The then Union Job Representative, Ms P. Day, was under the clear impression that only "white collar" staff could join the superannuation scheme and she conveyed this information to other wages employees' if they asked her advice. e. Mr Schutze did not become aware prior to his proceeding on annual leave overseas, of the impending closure of the old scheme nor that such closure date was later extended. He didn't become immediately aware of the position after returning to work following his holidays and sick leave. f. Mr Schutze, because of the nature of his duties, did not attend a meeting of employees on 27th June, 1986 addressed by (he General Manager about rapid action being required of employees to join the Superannuation fund. g. Mr Schutze, along with others was not informed of the extension of the closing date for the old scheme because the respondent did not receive the Superannuation Board's circular to that effect. h. In June, 1987 three superannuation advice letters were allegedly sent to the Security Guards then employed, which included Mr Schutze. However, receipt of such letters is denied in the evidence before the Commission and I accept that evidence. i. Mr Schutze's evidence is that on return to work and becoming aware of the hew scheme he joined straight away and again the Cbmmission accepts this evidence. . ■ j. The information as to increased benefit's gained from joining the old scheme first and then transferring to the new scheme, apparently came to Mr Schutze from a retiring employee and Mr Schutze then commenced action to join the old scheme retrospectively which finally led to these proceedings. k. Exhibit A, section 7, contains a letter from the then Hon Premier to the General Manager, H.L.L.S. The letter states inter alia:— "A promotional booklet explaining the new arrangements has been prepared for distribution by Government departments and agencies. Every Government employee should receive a copy of this booklet no later than early June, so that they will have sufficient time to assess the new arrangements before the commencement on 1 July 1987. For this purpose, it is important that immediate arrangements are made to facilitate the distribu- tion of the booklet to your employees. As the new superannuation arrangements will directly affect the financial well-being of your employees, your prompt attention to and co- operation on this matter would be appreciated." (Exhibit A, section 7) (Emphasis Added)" In the end, the Commission at first instance found that the requests to the HLLS detailed above did not occur and therefore Mr Schutze did not receive the required informa- tion. Conclusions Jurisdiction and Industrial Matter. There was a major question raised as to the jurisdiction of the Commission at first instance to deal with this matter. Summarised, the submissions were on either side that what was before the Commission was an industrial matter, or that it was not an industrial matter as defined in s.7 of the Act. "Industrial matter" is defined in s.7 of the Act as follows:— " "industrial matter", other than in relation to a person who is a teacher as defined in section 73A and is employed under the Education Act 1928, means, any matter affecting or relating to the work, privileges, rights, or duties of employers or employees in any industry or of any employer or employee therein and, without limiting the generality of that meaning, includes any matter relating to— (a) the wages, salaries, allowances, or other remuneration of employees or the prices to be paid in respect of their employment; (b) the hours of employment, leave of absence, sex, age, qualification or status of employees and ttie mode, terms, and conditions of employment including conditions which are to take effect after the termination of employ- ment; (c) the employment of children or young per- sons, or of any person or class of persons, in any industry, or the dismissal of or refusal to employ any person or class of persons therein; (d) any established custom or usage of any industry, either generally or in the particular locality affected; (e) the privileges, rights, or duties of any organization or association or any officer or member thereof in or in respect of any industry; (f) in respect of apprentices or industrial train- ees— (i) their wage rates; and (ii) subject to the Industrial Training Act 1975— (aa) their other conditions of employ- ment; and (bb) the rights, duties, and liabilities of the parties to any agreement of apprenticeship or industrial train- ing agreement; (g) the restoration of a practice of collecting subscriptions to an organization of employ- ees where that practice has been ceased by an employer, or the implementation of an agreement between an organization of em- ployees and an employer under which the employer agrees to collect subscriptions to the organization; (h) membership or non-membership of an organ- ization; (i) any matter, whether falling within the pre- ceding part of this interpretation or not, where, (i) an organization of employees and an employer agree that it is desirable for the matter to be dealt with as if it were an industrial matter; and (ii) the Commission is of the opinion that the objects of this Act would be fur- thered if the matter were dealt with as an industrial matter;" The definition is expanded by the definitions of "em- ployer" and "employee" in s.7 of the Act. "Employer" is defined in s.7 as follows:— " "employer" includes— (a) persons, firms, companies and corporations; and (b) the Crown and any Minister of the Crown, or any public authority, employing one or more employees;" "Employee" is defined in s.7 as follows:— " "employee" means— (a) any person employed by an employer to do work for hire or reward including an appren- tice or industrial trainee; (b) any person whose usual status is that of an employee; (c) any person employed as a canvasser whose services are remunerated wholly or partly by commission or percentage reward; or (d) any person who is the lessee of any tools or other implements or production or of any vehicle used in the delivery of goods or who is the owner, whether wholly or partly, of any vehicle used in the transport of goods or passengers if he is in all other respects an employee, but does not include any person engaged in domestic service in a private home unless— (e) more than 6 boarders or lodgers are therein received for pay or reward; or (0 the person so engaged is employed by an employer, who is not the owner or occupier of the private home, but who provides that owner or occupier with the services of the person so engaged;" Plainly, an employee in the definition of industrial matter means, because of that definition, any person whose usual status is that of an employee. That would, on its plain reading, encompass a person who is no longer employed but whose usual status is that of an employee. That is because "usual" means "habitual or customary" (see the Mac- quarie Dictionary at page 1920), and "status" defined in the same dictionary means, inter alia, "the condition, position or standing, socially or otherwise". In this case, of course, there is no difficulty with jurisdiction because the contract of employment has been terminated, because, in fact, it has not and is still afoot, or was at the time this matter was heard (unlike the situation in RRIA v. ADSTE 68 WAIG 11 (Pepler's case) and Coles Myer Ltd t/a Coles Supermarkets v. Coppin and Others 73 WAIG 1754 (IAC), for example). The Commission at first instance held that this application related to an industrial matter and that the Commission had jurisdiction to hear and determine it. The Commission so decided under s.24 of the Act, and with regard to submissions and cases. Of course, jurisdiction can only exist in a case such as this by virtue of s.23 of the Act. The Commission relied upon RRIA v. AMWSU and Others 69 WAIG 2629 at 2640-2642, Re Cram and Others; ex pane New South Wales Colliery Proprietors' Association Ltd and Others (1987) 163 CLR 117, R v. Judges of the Commonwealth Industrial Court and Others; ex pane Cocks and Others (1968) 121 CLR 313, Re Manufacturing Grocers' Employees Federation of Australia and Another; ex pane Australian Chamber of Manufactures and Another (1986) 65 ALR 461, Clancy v. Butchers' Shop Employees Union and Others (1904) 1 CLR 181 at 207, and R v. Industrial Commission of South Australia; ex pane Master Builders Association of South Australia Inc 26 SASR 535 at 537 (see also Hamersley Iron Pty Ltd v. AMWSU 70 WAIG 3001 at 3007). The Commission also held that the judgment in Re Amalgamated Metal Workers Union of Australia; ex pane Shell Co of Australia Ltd 66 ALJR 645 at 648 put the issue beyond doubt that a question relating to superannuation was an industrial matter. In the end, the Commission concluded that jurisdiction existed because:— "The person is an employee of the Hospital Laundry and Linen Service. As a result of and because and only because of that employment with the Hospital Laundry and Linen Service, a superannuation scheme became available to the employee. It became available, as I have just said, because and only because he was an employee of HLLS. Then what happens is that there are changes made to the superannuation scheme and it is the only scheme which, because of his employment with HLLS, the employee has access to. The employee is not advised of those changes to the scheme by his employer and therefore his ability to participate in the only scheme available to him at that time is removed. The employee says, "My employer has damaged my monetary entitlements upon my retirement from em- ployment with my employer and thus I want relief for my loss caused by my employer from the Commis- sion." What is wrong with that? Why is that not an industrial matter?" " Mr Cloghan submitted that the matter to be determined by the Commission here did not effect or relate to the relationship between employer and employee. In particular, he submitted that not all issues pertaining to superannuation are industrial matters. We were taken to the authorities. Firstly, it was submitted that the 3% Case (RRIA v. AMWSU and Others {op cit)) involved a claim against the employer for payment of superannuation contributions based on 3% of ordinary time earnings and was, therefore, distinguishable from this case. Next, we were taken to Re Manufacturing Grocers' Employees Federation of Australia and Another; ex parte Australian Chamber of Manufactures and Another {op cit), and it was submitted that that case involved an application to vary certain awards requiring the payment by the employer of certain superannuation entitlements. It did, of course, in this case, however, it was submitted there was no claim for benefits, and the employees' entitlement was not contained in an award but in an Act of Parliament. Hence, the essential relationship for the purposes of this matter was not between Mr Schutze and his employer, but between Mr Schutze and the GESB. There was a distinction then, it was submitted, from Re Manufacturing Grocers' Employees Federation of Australia and Another; ex pane Australian Chamber of Manufactures and Another {op cit) where there was a demand by the employee for payment of superannuation contributions in lieu of wage increases. Further, unlike those cases, the relationship between Mr Schutze and his employer was inconsequential and indirect in relation to the issue of superannuation. We were also referred to Hamersley Iron Pty Ltd v. AMWSU 70 WAIG 3001 and the cases cited therein. That was an appeal in which the Full Bench canvassed in detail the definition of "industrial matter" contained in the Act and a number of pertinent authorities. The same occurred in the 3% Case (RRIA v. AMWSU and Others (op cii)). Further, it was submitted that Re Amalgamated Metal Workers Union of Australia; ex parte Shell Co of Australia Ltd (op cit) was distinguishable because the employer had no power to grant the claim in this case, and its views were irrelevant to the issue, which was a matter for determination by the Treasurer under s.49 of the GES Act. The submission was that, in this case, the claim for superannuation is governed by an Act of Parliament, not by an award, and membership of the old scheme was voluntary not mandatory. Scally and Others v. Southern Health and Social Services Board IRLR 522, on which the Commission at first instance based its decision in law, was said to be distinguishable. Mr Schutze's entitlement, it was submitted, did not arise under any contract of service. Further, the old scheme did not even rely on the employer making a contribution, whereas the new scheme does. We were referred to s.5, s.6, s.9(l) and (2), s.17 and s.27 of the GES Act to support that proposition. The relief sought by Mr Schutze was not within the appellant's power, it was submitted, but was a matter between him and the GESB or the Treasurer, and, indeed, further, that there was no legal entitlement under the GES Act. The remedy lay, therefore, against the GESB and not against the appellant. That is a brief summary of those submissions. Ms Jackson's submissions, on behalf of the respondent, on that point were these. Superannuation, in this case, was a matter directly related to the employer/employee relationship. Indeed, it was as a direct consequence of Mr Schutze's employment or status as an employee of the Government that he was able to become eligible for a superannuation benefit. He was not able to obtain such benefits unless he were under the GES Act and an eligible Government employee. Hence, it was not correct to say that superannuation was not a condition of employment. Indeed, superannuation, it was submitted, was a benefit arising out of his contract of service because Mr Schutze was a Government employee. That benefit, it was submitted, was denied him by the actions of his employer. There was a number of other submissions made by Ms Jackson which we attempt to summarise hereunder. The actions of the employer were harsh and unfair and warranted the intervention of the Commission at first instance and the order of compensatory payment which it made. The order was made and the application was made, so it was submitted, during a continuing contract of employment. Further, Re Amalgamated Metal Workers Union of Australia; ex parte Shell Co of Australia Ltd (op cit) was authority for the proposition that a dispute between an employer and its employee as to the form that a scheme should take is a matter pertaining to the relationship of employer and employee. The claim here, however, it was submitted, was not a claim against the fund, but a claim against the employer. The authority, Ms Jackson submitted, supported a very broad view or interpretation of the ability of the Commission to intervene. This was a contractual benefit not paid during the term of the contract of employment. Further, it was submitted, the existence of other legisla- tion, as in this case, does not take away the nature of an industrial matter in this jurisdiction. The existence of a relationship between an employee and a superannuation fund and its administrators does not necessarily mean that the matter is not also connected to the employer/employee relationship. Indeed, the heart of this matter was the failure by the employer to notify its employees of their entitlement to the superannuation benefits (perhaps it is more accurate to say to advise them, firstly, that they were entitled to superannu- ation benefits, and, secondly, if they wished to take proper advantage of the benefits available then they should join the old scheme before the new scheme came into operation). That sort of notification where it relates to benefits "applicable" under someone's contract of employment is something that can be said to be demanded by employees in their role as employees. In summation, so the submission went, the rights and/or duties of employers and employees were in issue here because the employer had a duty to notify the employees of changes to the superannuation benefits and entitlements. The superannuation benefit is and was a privilege which related to an industrial matter. The Premier instructed the GESB to inform staff because the new superannuation arrangements would definitely affect the financial well being of those employees. The Commission at first instance had relied on Scally and Others v. Southern Health and Social Services Board (op cit). That case was applied by the Full Bench in different circumstances in Coles Myer Ltd t/a Coles Supermarkets v. Sweeting and Others 73 WAIG 225 (FB). In Scally and Others v. Southern Health and Social Services Board (op cit) the House of Lords held that there was a contractual obligation on the employers to take reasonable steps to bring the existence of the right to enhance their pension entitlement by the purchase of added years to the notice of the plaintiff employees. It is necessary to imply an obligation on the employer to take reasonable steps to bring a term of a contract of employment to the employees that he may be in a position to enjoy its benefit, where the terms of the contract have not been negotiated with the individual employee but result from negotiations with a representative body or are otherwise incorporated by reference; a particular term of the contract makes available to the employee a valuable right contingent upon action being taken by him to avail himself of the benefits; the employee cannot, in all the circum- stances, reasonably be expected to be aware of the term unless it is drawn to his attention. Accordingly, there was an implied term in the plaintiff's contracts of employment of which the employers were in each case in breach. In Scally and Others v. Southern Health and Social Services Board (op cit) the plaintiffs were four medical practitioners employed by die Northern Island Health Services. They sought to sue the respective Health and Social Services Board by whom they were employed as junior doctors for loss sustained by them by reason of the Board's failure to bring to their notice their right to purchase added years of pension entitlements before that right elapsed. We should say that a judgment which is a House of Lords judgment is very strongly persuasive. If it is not distinguishable we will apply it. The plaintiffs' contracts of employment incorporated a statutory superannuation scheme giving an entitlement on retirement to a pension and a lump sum in that case. The plaintiffs were told nothing and knew nothing about the added years entitlement on entry into service and found nothing until it was too late. In this case, the Commission at first instance found, as a fact, that Mr Schutze learnt nothing of the proposal to end the old scheme until it was too late. That finding of fact was not challenged later in the grounds of appeal, and we will turn to it in a moment. In this case, applying Scally and Others v. Southern Health and Social Services Board (op cit), and using the authority of Coles Myer Ltd t/a Coles Supermarkets v. Sweeting and Others (op cit) (FB), there was, on those authorities, an implied term in Mr Schutze's contract of employment which required the employer to bring to his attention the existence of the forthcoming change in the superannuation scheme, namely its end and WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 51 replacement by a new scheme, and this was a very drastic change affecting the financial well being of Mr Schutze and his right as an employee to join the scheme. We do not think that the facts in this case are materially distinguishable from those in Scally and Others v. Southern Health and Social Services Board (op cit) merely because persons involved in Scally and Others v. Southern Health and Social Services Board (op cit) were, in fact, members of the scheme at the time the information they should have received was not conveyed to them. It is quite clear that, because he was not made aware of the proposed changes to the superannuation legislation and scheme, Mr Schutze was substantially disadvantaged. However, the situation was this. Mr Schutze was employed by a body which was a Government department. The Premier directed that employer, on behalf of the Government, to ensure that employees were informed of what was to occur. Under the schemes it is true that the superannuation entitlements fell due from a fund which exists by virtue of an Act. That is no different from other schemes which are not Government schemes where the fund is not created by an Act, but it is the fund which provides the superannuation benefits. The fact of the matter is (as in Scally and Others v. Southern Health and Social Services Board (op cit)) that two successive Acts of Parliament incorporated into the contracts of employment of Mr Schutze and other employees (some 250 at the time of these events) a statutory superannuation scheme giving entitle- ment to superannuation benefits. Under the old scheme the Government and its instrumen- talities, as we understand the evidence, did not contribute to the fund. However, we do not think that that is a distinguishing factor. Employees could elect not to join it. However, they could elect to join it. However, it was not in dispute that under the GES Act one could not join unless one were a Government employee, and it was not in dispute that the existence of the scheme and the right to join it was regarded by the employer HLLS as part of the information which it should convey to new employees upon induction. Mr Reid regarded himself as being responsible to explain superannuation matters to employees. Indeed, so did Mr Hewlett, at least in relation to information which Mr Schutze said was not conveyed to him. Mr Howlett held a meeting to convey information to employees. Whether that information was conveyed or not, of course, was a matter of dispute, and the Commission at first instance found otherwise. Under the new scheme, of course, the employer made and makes contributions. However, the facts, which were not in dispute, are that the Government instructed the GESB to advise employees of the proposed changes, and, in that respect, requested, in terms amounting to a direction, that employees be notified, as we have observed. Mr Howlett, as the Manager, deemed it necessary to comply with that request and held a meeting in 1986 to explain the new changes and also gave evidence of putting that information in the form of a circular on the notice board. In other words, he undertook it as a duty as the employer's Manager to inform the employees at the end of one scheme and the commencement of another and what the implications were for those employees who were entitled to participate in those schemes. That was never disputed. There was, indeed, a recognition of that obligation on the evidence. However, in Mr Schutze's case, it was not suggested that the terms of the contract of employment were negotiated with individual employees, that employees were informed what they were, and that there was no question of there being a different situation from that which obtained in Scally and Others v. Southern Health and Social Services Board {op cit) as far as striking of terms of employment are concerned. In addition, it was a term of the contract of employment and superimposed by the statute that an employee was entitled to superannuation if he elected to join the scheme. Further, the acknowledged conduit of information in relation to superannuation was the employer appellant. Mr Reid was said to be the person to whom one should go for information. In this case, too, the term sought to be implied was one which should be implied as a necessary incident of a definable category of relationships, not necessarily to give efficacy to it (see the general discussion of implication of terms in Coles Myer Ltd t/a Coles Supermarkets v. Sweeting and Others {op cit) at pages 228-231 (FB)). However, on the authority of Scally and Others v. Southern Health and Social Services Board {op cit), the Commission at first instance was correct in implying the term requiring that reasonable steps be taken by the employer. There was here an express term of the contract conferring a valuable right on an employee to join a superannuation fund, which was to be varied in the only way in which it could, by Act of Parliament. Whether he would benefit or not or wished to benefit depended, as in Scally and Others v. Southern Health and Social Services Board {op cit), upon Mr Schutze being informed (see, too. Coles Myer Ltd t/a Coles Supermarkets v. Sweeting and Others {op cit) at page 229 (FB) and Scally and Others v. Southern Health and Social Services Board {op cit) at page 569 per Lord Bridge of Harwich). In this case, the terms of the contract had not been negotiated with the individual employee. Employees were told what these terms were. Secondly, there was a specific term of the contract making available to the employee a valuable right contingent upon action being taken by him, that is to join or not to join the old scheme, to benefit or not benefit under the new scheme. In all the circumstances, it could not reasonably be expected that he be aware of the term unless it were drawn to his attention. The Government recognised it by instruct- ing those in charge of Government employees to inform them, and the acceptance of that responsibility by Mr Howlett and Mr Reid, at the material time, and in the past, was recognition. It was reasonable and necessary to imply such a term in terms of Scally apd Others v. Southern Health and Social Services Board {op cit). There is no doubt, for those reasons, that the Commission at first instance was correct in implying such a term. Implied terms arise from an industry or trade custom. That was the case here. There was a custom in the HLLS that the employees would be advised about superannuation by Mr Reid sufficient to found an implied term that they would do so (see Con-Stan Industries of Australia Pty Ltd v. Norwich Winterthur Insurance (Australia) Ltd 60 AUR 294 at 296-297). The same applies to a past course of dealings between the parties. If the Commission at first instance had accepted the evidence of the appellant's witnesses, it was open to him to find that there was a custom or course of dealing whereby the HLLS, through its management, took it upon itself to give information about superannuation scheme entitlements to employees. In fact, the Commission did not accept the evidence of the respondent's witnesses at first instance and accepted the evidence of Mr Schutze and others that "blue collar" employees, of whom Mr Schutze was one, were told that they were not eligible to enter the superannuation scheme, which was only for "white collar workers", which was misleading and incorrect information. Once that was an implied term of the contract, as we have held, then a complaint of its breach and of unfair treatment in relation to that contract, as occurred here, plainly relates to an industrial matter. It does so because:— (1) The dispute is directly between the employer and the employee. (2) The fact that a matter affects their other relation- ships does not necessarily mean that it is not also concerned with the relationship of employer/ employee. It is, notwithstanding that there is a superannuation fund involved, a matter which directly relates to the employer's duty to the employee. 52 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 74 W.A.I.G. (3) This Commission is a tribunal to which employers and employees can resort to have a decision upon all issues which can legitimately be regarded as industrial issues decided. Thus, it would be inconsistent with the policy and objects of the Act to place a restrictive interpretation upon the naturally wide meaning of the words "affecting or relating to" in the definition of industrial matter in s.7 of the Act. Thus, a wide interpreta- tion should be placed upon the definition of "industrial matter", and we think that Cram's Case (op cit) supports us, if we needed support, in that view. (4) As a term of the contract was alleged to have been breached, what was at the heart of this application was therefore a matter affecting the right of the employee to be informed and the duty of the employer to inform ("rights" and "duties" are referred to in the definition of "industrial matter" (op cit)). In addition, this matter related to the conditions of employment defined in Australian Tramways Employees' Association v. Prahran and Malvem Tramways Trust (1913) 17 CLR 680 at 693-694 as including "all elements that constitute the necessary requisites, attributes, qualifications, environment or other circumstances affecting the employ- ment". In that broad sense, then, this matter related to conditions of employment (see also Hamersley Iron Pty Ltd v. AMWSU and Others 70 WAIG 2545 and the discussions set out therein). We do not think that the facts make it distinguishable in any real sense from Re Manufacturing Grocers' Employees Federation of Australia and Another; ex pane Australian Chamber of Manufactures and Another (op cit) and Re Amalgamated Metal Workers Union of Australia; ex pane Shell Co of Australia Ltd (op cit), although one must always be conscious of the difference between the definitions of "industrial dispute" in the Commonwealth legislation and "industrial matter" in the Act. It matters not that the superannuation benefits are prescribed as an Act of Parliament or were so prescribed; they too were a condition of employment stemming from being a Government employee because Mr Schutze was a Government employee and for no other reason. It matters not that s.49 of the GES Act could have been used to remedy the complaint of Mr Schutze, the matter is plainly one directly related to the contract of employment and to the rights and duties of an employer and employee. The fact of the matter is that the complaint was (and it was found to be made out) that an implied term of the contract of employment was breached. Further, the com- plaint was that this resulted in Mr Schutze being harshly and unfairly treated by his employer. The matter before the Commission was directly related to the rights or duties of employers and employees in an industry as defined, and of the employees and employer concerned. It also related to terms and conditions of employment. What was before the Commission was plainly an industrial matter as that is defined in the Act. Of course, at all material times, the contract of employment remained in existence. There was jurisdiction plainly to hear and determine this matter, which was, on all of those bases, without doubt, an industrial matter. Judicial or Arbitral. We now turn to those submissions which were to the effect that, what was sought, was a remedy requiring the use of judicial power and not arbitral power, and that inferredly the Commission, constituted by a single Commissioner, could not exercise judicial power. This was said to be the position because what it was sought to do was to enforce an existing right. Arbitral functions relate to the determination of future rights and it is the exercise of a judicial function if its object is to enforce an existing right (see Crewe and Sons Pty Ltd v. AMWSU 69 WAIG 2623) (see, too. Re Cram and Others; ex pane New South Wales Colliery Proprietors' Association Ltd and Others (op cit)). This matter came before the Commission pursuant to s.44 of the Act. That Act requires the Commission to hear and determine the matter before it. We are not persuaded that it cannot act judicially in so doing. Certainly, it cannot so act if to do so would be to enforce an award. However, much of the prohibition upon acting judicially in the authorities exists because of the separation of powers contained in the Australian Constitution. There was no such prohibition in the Act, or, sofar as we are aware, in any Act which might touch upon the Act. That prohibition exists in that certain judicial powers are conferred on the Commission, constituted otherwise than by a single Commissioner. All enforcement proceedings, for example, are solely within the jurisdiction of the Industrial Magistrate or the Full Bench under the Act. What occurred here was that the respondent claimed that the appellant had acted unfairly towards its employee, Mr Schutze, and it claimed the amount he would have been entitled to as a benefit, as a benefit. There was no suggestion that this was a matter covered by the award. In our opinion, there is no prohibition in the Commission acting in relation to resolving a dispute by reference to existing legal rights under this Act, unless it is a matter where power to deal with it is conferred exclusively on the Commission differently constituted or upon the Industrial Magistrates' Court. Insofar as Crewe and Sons Pty Ltd v. AMWSU (op cit) and Perth Dental Hospital v. FMWU 71 WAIG 2027 say otherwise, we would not follow them. This was a wide dispute under the contract not an award (and as to such conferred jurisdiction see Hamersley Iron Pty Ltd v. CMEWU 71 WAIG 903 at 905-907 (FB)). Benefit and Compensation. There is one other matter which was not directly raised. However, it falls to be decided in relation to the submission that what was claimed was contractual benefits, in that it was the amount of superannuation to which Mr Schutze would have been entitled had the appellant carried out its duty to inform him that he might join the old scheme before it was closed by repeal of the GES Act and had he then done so. The fact of the matter is that it was not a benefit to which he was entitled under the contract. What he was entitled to was to be informed of the fact that the old scheme was closing, since it was a scheme which he was entitled to join. At no time was the appellant obliged to pay him the amount of the entitlement. That was payable by the fund. There was no term of the contract express or implied requiring such a payment. This is a claim instead against the employer for an action which it was alleged to be harsh and unfair. Kennedy J in Pepler's case (op cit) cited Gibbs CJ in Slonim v. Fellows (1984) 154 CLR 505 at 510, and said that the jurisdiction of the Commission to deal with a recent unfair dismissal of an employee extended to ordering the employer to re-employ him; but it does not extend to making an order for compensation at large, quite unrestricted to the legal entitlement of the employee at the time of his dismissal. What we understand His Honour to say is that if Parliament required the Commission to have such a power then it would have said so. In any event, in this case, this is not a claim for compensation at large. It is a claim for a pre-determined amount which arises from a breach of contract, which amount would have been paid had the employer not failed to comply with the contract of employment and therefore acted inequitably. It seeks to put Mr Schutze back in the position he would have been in had he not been treated unfairly and in breach of the employer's obligation. It is not a claim for legal rights, but a claim for an industrial remedy to be determined in accordance with s.26 of the Act. We have re-read Pepler's case (op cit). It is clear that Kennedy J was dealing with the power to order compensa- tion in the context of an unfair dismissal because he said at page 18:— ' 'Furthermore, to deny the power to order compensa- tion in this case is not to deny the Commission power to deal with the industrial matter. It is simply to deny that its power to do so is unconstrained in any manner. It may deal with a complaint of unfair dismissal in the most appropriate manner, by ordering re-employment in a proper case. If the respondent's argument were correct, it is not difficult to envisage a vast range of powers which would be available to the Commission which it can never have been thought to have been conferred upon it." (our emphasis) In Pepler's case {op cit), Olney J said at page 20:— "In my opinion there is nothing in the Act to justify the exercise of a jurisdiction to award a dismissed employee compensation or any other money payment except as an incident to an order for reinstatement or re-employment." Like Pepler's case {op cit), Kounis Metal Industries Pty Ltd v. TWU 73 WAIG 14, on a fair reading of the judgment of Owen J, with whom Nicholson J agreed, is not authority for the proposition that compensation is not available as a method of determining or providing a remedy in an industrial matter. The ratio in Pepler's case {op cit) and Kounis Metal Industries Pty Ltd v. TWU {op cit) was confined by Owen J to the question of whether jurisdiction existed after the termination of the employer/employee relationship (see, too, Coles Myer Ltd t/a Coles Supermar- kets v. Coppin and Others {op cit) (IAC)). In this case, of course, the employer/employee relationship remains afoot. That dictum seems to be related purely to questions of reinstatement and dismissals and to go no wider. It is, in any event, obiter. In Anglican Homes Inc v. FMWU 71 WAIG 1401 Anderson J said:— "There is no need in this case to consider the difficult question whether in proceedings such as this, proceedings under s44 of the Act, there is power to order payment of money to an employee or to make orders which are in effect enforcement orders. For myself I am presently unable to see why a Commis- sioner to whom matters had been referred for arbitra- tion under s44 could not, in settlement of such a dispute, make orders having such an effect. The powers given to him to make orders binding on the parties to the particular dispute being arbitrated by him are very wide." His Honour does not exclude an order for payment of moneys as a valid exercise of power under s.44 of the Act. This matter was a s.44 matter. In our opinion, that is clearly the case here, the powers are very wide. We must therefore say that there is not binding authority, on our analysis of those authorities, to the effect that the order made in this matter was beyond power. The contract of employment was not terminated in this case, or had not been at the time the matter was heard, so that there was plainly jurisdiction (see Coles Myer Ltd t/a Coles Supermarkets v. Coppin and Others (op cit) (IAC)). S.23 of the Act confers jurisdiction. Jurisdiction is the authority a court has to decide a matter, and the power goes to the exercise of that authority. Without authority there can be no exercise of power (see Australian Health Insurance Association Ltd (formerly Voluntary Health Insurance Association of Australia Ltd) v. Esso Australia Pty Ltd 116 ALR 253 at 263 per Black CJ). In addition, by s.18 of the Interpretation Act 1984, the Act is required to be interpreted so that a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) should be preferred to a construction that would not promote that purpose or object. S.6(c) of the Act provides that object in this case, and, in our opinion, the power under s.44 of the Act is very widely framed. We are of opinion, for those reasons, that, in this case, the order made was within power and certainly within jurisdiction. In any event, the matter was not directly raised by Mr Cloghan. Insofar as it was necessary to decide the point, we would hold that the order was within jurisdiction and power for the reasons which we have set out. Evidentiary and Factual Matters. We now turn to the submission made as to evidentiary matters. Firstly, Mr Cloghan submitted that there was no evidence given by Mr Reid which said that superannuation was not considered appropriate, and Mr Schutze's evidence was that he had found the information on superannuation from an employee's booklet under the counter in a cardboard box. It was submitted that at the commencement of his employment nobody had made any comment regarding his entitlement to superannuation as a condition of employment, nor could Mr Schutze name anyone else who had made such an enquiry. There was evidence that no persons were discouraged from joining superannuation schemes. Next, Mr Cloghan submitted that Mr Browne said in evidence, to his recollection, superannuation was available to all permanent employees. Mr Squire, it was submitted, said that he did not discuss superannuation with new employees because it was not his area of responsibility. Mr Hewlett gave evidence that he was the General Manager from 1985 onwards and there was no discussion regarding superannuation at the commencement of his employment. He recalled only two discussions regarding superannuation with employees whom he said he would send to the GESB or to the accountant, Mr Reid. The submission was that these three people in their evidence negated Mr Schutze's position, and that they also gave evidence of a lack of knowledge of superannuation matters. Further, it was the submission that Mr Harris said that he was not employed when the new scheme came out, and Mr Squire only became aware of it when he was working in another department. That referred to ground 5. Next, it was submitted that the comments of the Commission at first instance, at which ground 6 of the appeal was levelled, are incomplete, and that it would have been more correct for the Commission to say that on the evidence Mr Schutze became aware of his situation and his eligibility to join the scheme in 1977-1978. Alternatively, the submission was that he became aware of his situation, and it was possible that he did receive the handbook on the information to employees about the availability of superan- nuation. These submissions related to ground 6. In relation to ground 7, Mr Cloghan made a number of submissions. There was evidence from Mr Gilmour and Mr Chiappalone who said that they knew little or nothing about any superannuation scheme. Further, there was evidence from other employees, Ms Pamela Day and Ms Ann Day, that they had spoken to Mr Harris and Mr Squire and were told that superannuation was for "white collar" employees only. That also was Mr Schutze's evidence in relation to a discussion with Mr Browne. Mr Cloghan submitted that these latter matters were not put to Mr Squire or Mr Harris in cross-examination. On the weight of the evidence, it was more probable than not, so the submission went, that Mr Schutze assumed that there was some general consensus that he was not entitled to the old pension scheme and never pursued the matter until the new scheme became attractive and he heard of its benefits through a retiring employee. There were submissions made as to ground 8. It was submitted that the Commission at first instance erred when it stated that Mr Schutze, because of the nature of his duties, did not attend the meeting of 27 June 1986 addressed by the General Manager about the rapid action being required of employees to join the superannuation fund. Mr Schutze was absent from Perth at the time and returned to work in August 1986. Indeed, there was evidence from Ms McKenzie that the meeting of 27 June 1986 was of very little information value. Mr Hewlett, she said, was not able to give information at a morning meeting, and when a new meeting took place at 1.00 pm the same day, that was conducted with very few staff present. None of the security guards knew of it, or of the proposed change to the superannuation system. Next, as to ground 9, it was submitted the Commission found that Mr Schutze was not informed of the extension of the old scheme because the respondent did not receive the 54 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 74 W.A.I.G. Superannuation Board circular to that effect. It was submitted that a number of people did join the scheme, 12 of them before the close off time, so that some employees were aware in direct contradiction of what was said of what had occurred. As to ground 10, it was submitted that whilst in the submissions Undercliffe Nursing Home v. FMWU 65 WAIG 385 was relied upon, there was no finding that the employer abused Mr Schutze's rights, or that his treatment was harsh or unfair. The submission was that the manage- ment held a meeting when the closure of the old scheme was discussed that enquiries referred to one person in the organisation (Mr Reid), that there was a process in place whereby employees were informed that they could go directly to the GESB or were given booklets. Mr Browne denied that he had told Mr Schutze that superannuation was not for "blue collar" workers. Not only did a meeting take place to deal with the closure of the scheme, but some employees had, prior to 15 August 1986, joined the scheme. Although Mr Schutze was overseas when the announce- ment was made, he was back at work for 14 or 15 days before the closure of the scheme. The submission was that the Commission preferred the evidence of Mr Schutze to that of Mr Reid, the accountant, and Mr Browne, the General Manager. The only way in which a "blue collar" worker could enquire about superannuation was to be referred to Mr Reid by the personnel section. These were the submissions of Ms Jackson. Ms Jackson also submitted that Ms Pamela Day gave evidence that she asked about superannuation and was told it was not for "blue collar" employees. Ms McKenzie gave evidence about similar enquiries and similar responses, as did Mr Schutze. It was submitted that there was consistent evidence to that effect. As to ground 7, it was submitted that Mr Browne and Mr Schutze contradicted each other and the latter's evidence was preferred, and that was an end of the matter. As to ground 8, it was submitted that Mr Schutze could not attend the meeting of employees because he was away, and it was therefore open to the Commission to make the findings which the Commission at first instance did. It is quite clear that the Commission relied on the advantage it had in observing the demeanour of the witnesses, and that, as a result, it is not for the Full Bench to interfere unless the Commission palpably misused that advantage. There is nothing to indicate that the Commission did misuse that advantage. The evidence about what occurred as to notification of superannuation is consistent throughout the evidence of the witnesses called for the FMWU at first instance. This version was denied, or was said not to be within the knowledge of witnesses who were staff and management persons called on behalf of the HLLS. The Commission preferred the evidence of the FMWU's wimesses having observed them. On a close scrutiny of the evidence, it is plain that that was open to the Commission so to do, and, once it preferred their evidence, it was open to it, generally speaking, to find as it did. However, we add some further comments. We would make these observations as to the grounds of appeal relating to fact and to ground 10. As a result of what we have found, the Commission at first instance was entitled to make the findings which it made and which we have set out (supra). It was open to the Commission to find that Mr Schutze did not attend the meeting of 27 June 1986 because of an inability to do so. Indeed, he was unaware of such a meeting occurring. The Commission did err in not finding that some employees were informed of the extension of the closing date of the old scheme and did join before its expiry. However, that could not alter the findings which were open to him in relation to Mr Schutze's lack of knowledge on the evidence, which he accepted. It was a lack of knowledge shared by other employees. The Commission at first instance also erred in finding that the evidence of Mr Reid did not directly conflict with Mr Schutze, namely that it was not considered appropriate nor encouraged by management that they should join. The evidence did conflict and it was clear that where there was a conflict the Commission accepted the evidence of Mr Schutze to the witnesses for the respondent at first instance. The Commission should have found accordingly, but the error cannot affect the correctness of the decision. As to ground 5, a similar observation applies. As to grounds 6 and 7, the Commission relied on Mr Schutze's evidence, as it was entitled to do. In the end, it was plainly open to the Commission to find that the applicant's claim that the treatment of Mr Schutze by his employer with respect to his superannuation entitlements, a condition of his employment, was unfair. The steps taken were not reasonable in the case of Mr Schutze, because management knew or ought to have known that the meeting being held to inform staff on 27 June 1986 was held before the security officers came on duty at 3.30 pm. Not one security officer knew of the meeting or of the proposed change. Further, the meeting itself was an ineffective instrument of providing information. Mr Howlett and other administrators knew or ought to have known that Mr Schutze was away and made no attempt to inform him otherwise. No reasonable step was taken to inform Mr Schutze in accordance with the obligation upon the employer appellant to do so. We have considered all of the submissions and authorities cited and all of the evidence, both oral and documentary. In all of the circumstances, and for the reasons set out above, no ground of appeal is made out and we would dismiss the appeal. Order accordingly Appearances: Mr D. Cloghan on behalf of the appellant. Ms S.M. Jackson on behalf of the respondent.