WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION. Industrial Relations Act 1979. Katherine Emma De Berner and Parcae Pty Ltd as trustee for Parcae Unit Trust t/a Perth Finance & Insurance Services. No. 1447 of 1991. COMMISSIONER A.R. BEECH. 3 March 1992. Reasons for Decision. THE COMMISSIONER: This is an application pursuant to section 29(b)(ii) of the Act by the Applicant for contractual benefits denied, specifically 12 days' annual leave, and "termination pay being l/12th of ten days 17/8/91 — 30/8/ 91", giving a gross amount of $988.17. The claim is denied by the Respondent and the matter was listed for hearing. When the matter came on for hearing the Applicant tendered a number of statutory declarations in support of her claim. The Commission drew the parties' attention to regulation 86 of the Industrial Commission Regulations which for present purposes requires any declaration or affidavit to be filed with the Registrar before being used in proceedings and except where otherwise provided they are to be served on the other party to the proceedings not less than 24 hours before the time fixed for the hearing. This regulation was not observed. 1160 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 72 W.A.I.G. and the Respondent took issue with the contents, or some of them, of the statutory declarations. The Respondent asked for and has been granted an adjournment to enable it to summons the makers of the statutory declarations to attend resumed proceedings and be subject to examination. In granting this request, which was made after the completion of the Applicant's case and after the Respondent had put the substantial part of its case, the Commission indicated to the parties that it would take the opportunity of providing Reasons for Decision on the material put before the Commission so far. This is done for two reasons: firstly, both the Applicant and the Respondent are appearing on their own behalf and are unaware of the procedures of the Commission. Secondly whilst the issue, and the only issue, before the Commission is the claim of the Applicant for the untaken annual leave and corresponding termination pay- ments, it has become apparent to the Commission from the proceedings that there are other matters at issue between the parties which are not of an industrial nature. The Commis- sion is not prepared to have these proceedings used for a purpose other than the purpose of the industrial matter that is before the Commission. It is necessary to approach this matter from the very beginning. A matter may be referred to the Industrial Relations Commission by an employee claiming that he/she has not been allowed by his employer a benefit, not being a benefit under an award or order, to which he/she is entitled under his/her contract of service (section 29(b)(ii)). Ms De Berner's task therefore is five fold: (1) She must show that she is an employee. (2) She must show that the matter referred is an industrial matter. (3) She must show that she was entitled to a benefit under a contract of service. (4) She must show that her employer had not allowed her that benefit. (5) She must show that the benefit is not one under an award or order of the Commission. In this case the evidence of the Applicant and the Respondent, both of which were given under oath, reveals a number of agreed facts. The Applicant commenced with the Respondent as a receptionist/secretary on the 17th August 1989. Her employment terminated on the 30th August 1991. Thus far, the Commission is satisfied that the Applicant was an employee, and that the claim she has referred is an industrial matter, and indeed it is not argued otherwise. The Applicant claims that she was entitled to the two matters claimed ie payment for annual leave untaken upon termination, and a termination pay in the manner she has claimed. This is disputed, at least to some extent by the Respondent. The Commission concludes from the evidence that there was not a written contract of employment as between the parties when the Applicant commenced employment. The Commission is also satisfied that such conditions of employment as were in operation did not change throughout the period of the Applicant's employment, notwithstanding some re-structuring of the company during that period. In relation to Ms De Berner's contract of employment, both the Applicant and the Respondent have proceeded on the basis that the Applicant's employment was not covered by an award or order of the Commission. Clearly, if the matters claimed by Ms De Berner in this application are matters contained within an award or order of the Commission, then Ms De Berner's action against the Respondent lies in the Industrial Magistrate's court, not within the Industrial Relations Commission (s.29(b)(ii); s.82, s.83 of the Indus- trial Relations Act). It is also important to note that even though the Applicant and the Respondent may well be proceeding, and may have proceeded when Ms De Berner was employed, on the basis that an award or order of the Commission did not apply to Ms De Berner's employment, an award or order may in fact apply, in which case the award or order overrides any agreement reached between Ms De Berner and the Respondent to the extent of any inconsis- tency between the award and order on the one part, and any purported agreement reached between the parties on the other (s.l 14). Ms De Berner relies upon a statutory declaration made by Karen Patricia Payne (exhibit 1) to support her contention that she was entitled to the matters that she has claimed. Given that the Respondent has stated that it does not accept the contents of the statutory declaration, and wishes to summons Ms Payne to give evidence as to the contents of her statutory declaration, the Commission does not rely upon it as such other than to draw the attention of the parties to the following. The statutory declaration itself states in part that Ms Payne employed Ms De Bemer on behalf of the company in consultation with the directors who agreed that her conditions of employment would be based on — "the Clerks (Finance Companies) Award which briefly included the following: 1. 20 days annual leave entitlement for each one year of continuous service; 2. 10 days sick pay entitlement per annum...; 3. Termination pay to be calculated as follows: any unused annual leave; plus l/12th of normal gross earnings from the date of anniversary of employment until date of termination; less the applicable termina- tion tax". The reference v/ithin the statutory declaration to an award is presumably a reference to the Clerks (Credit and Finance Establishments) Award No. 16 of 1952 as amended and consolidated. Two issues arise. Firstly, that award applies to workers employed as clerks in any credit and finance establishment being an establishment where finance is arranged and/or extended to individual persons and/or bodies corporate for the purchase of goods (clauses 4 and 5). The Commission does not have evidence before it regarding the nature of the operations of the Respondent, and is unable to conclude thus far whether or not this award applied to Ms De Berner's employment. It may have done. Equally, it may not. If it did, and that is a matter of fact to be determined, then to the extent that the award provides for the matters claimed in these proceedings, the Industrial Relations Commission does not have the jurisdiction to deal with this claim that Ms De Bemer has made. Secondly, the statutory declaration states that the condi- tions of employment would be based upon the Award which include the matters set out above. Whilst that award does contain a provision for the payment on termination of any unused annual leave (clause 11(4)), it is not immediately apparent to the Commission that the award does contain the termination payment as alleged. If that is so, and Ms De Berner's conditions of employment so far as is relevant were based upon matters included in the award (as per exhibit 1), what effect does this finding have upon Ms De Berner's claim that the termination payment was indeed part of her contract of employment? In other words, if her conditions were indeed based upon the award and the award does not contain a termination pay provision, that would appear to be the end of the matter given the applicant's task set out in point (3) above. The problems facing the Applicant do not end there. Both parties have approached the Commission on the basis that Ms De Berner's employment was not covered by an award. If the Commission accepts for the moment that that is so, the next hurdle to be overcome is the General Order which prescribes annual leave for employees who are not covered by awards of the Commission. Both parties were unaware of this General Order when it was drawn to their attention by the Commission during the proceedings. A copy of it is enclosed with these reasons for decision for the information of the parties. To the extent that Ms De Berner's claim is to be paid for annual leave not taken upon termination, then that appears to be provided for by virtue of the Order (see clause 5). Once again if that is so, the Commission does not have the jurisdiction to grant Ms De Berner's claim, it being a matter properly for an Industrial Magistrate. If the Commission assumes that neither the award nor the Commission's General Order in fact applied to Ms De Berner's employment, then the Commission observes as follows. The evidence seems clear that Ms De Bemer was 72 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1161 entitled to four weeks' annual leave per year. It would be unusual if this was not the case, but in any event the evidence clearly shows that Ms De Berner had been granted four weeks' annual leave plus a further two weeks' annual leave in advance earlier in her employment when she travelled overseas. It is also customary for untaken annual leave to be paid to an employee on termination, provided that the termination was not for misconduct. In this case, Ms De Berner's termination was in accordance with her contract of service, assuming weekly hire and she having been given one week's notice of termination by the employer. The termination was not a summary termination for misconduct, but apparently due to the Respondent not being able to continue to afford to employ Ms De Berner, coupled with a perception of disloyalty on its part about her. Further, the Respondent's evidence during the proceedings is that the Respondent was prepared to pay some pro rata annual leave, but an amount of four days only, in the eyes of the Respondent, the balance of the eight days in the Applicant's claim having been paid in lieu of sick leave at an earlier time. From this, the Commission concludes that from the actions of the Respondent, it was part of the applicant's contract of employment that proportionate annual leave untaken on termination would be paid to her, and that it has not been so paid. The Respondent does not admit that the termination payment claimed by the Respondent was ever part of Ms De Berner's contract. The Commission is unable to progress this matter further on the evidence and material produced thus far. These Reasons for Decision have been made available to the parties to allow them an opportunity to understand the approach of the Commission to the claim and to provide an indication to them of the issues which may require their attention upon the resumption of the proceedings. Appearances: The Applicant on her own behalf. Mr G. Cockburn on behalf of the Respondent.