Pty Ltd and Department of Occupational Health, Safety and Welfare of Western Australia. No. OHSW7 of 1990. COMMISSIONER G.L. FIELDING. 11th day of June 1990. THERE being no appearances on behalf of the v there being no appearances on behalf of the

(1990) 70 WAIG Single Commissioner (WAIRC) 1990-01-01 File: No. 13 of 1987

Source

Not yet cited by other cases

APPLICANT: Pty Ltd and Department of Occupational Health, Safety and Welfare of Western Australia. No. OHSW7 of 1990. COMMISSIONER G.L. FIELDING. 11th day of June 1990. THERE being no appearances on behalf of the

RESPONDENT: there being no appearances on behalf of the

This case hasn't been analysed yet.

Generate ratio, outcome, key facts, concept tags and cited-case edges. Takes ~15–30 seconds.

Authority signal

Not yet cited by other cases Signal-weighted score: 0.0

Derived from how later decisions have treated this case. Dark green = leading authority, green = positively treated, grey = neutral or sparse data, amber = caution, red = treated negatively.

Concept tags · 7

[P]Casual employee definition (s15A) [P]Public Service Appeal Board appeal (historical) [P]Public sector matter (general WAIRC jurisdiction post-PSAB) [S]Unfair dismissal (WA) [S]Unfair dismissal (federal) [S]Superannuation guarantee [S]Mining / resources sector

Related cases · 10

Decisions sharing two or more primary concepts with this case.

Citation	Court	Date	Shared
[2011] FWAA 5145 Application by The Australian Capital Territory	FWC	2011-08-17	3
(2019) 99 WAIG EMMANUEL - CHAIR MS B CONWAY - BOARD MEMBER MR S GREGORY- BOARD MEMBER HEARD...	PSAB (former)	2019-01-08	3
(2018) 98 WAIG 16 SSIONER T EMMANUEL HEARD : WRITTEN SUBMISSIONS: 12 FEBRUARY 2018, 14...	WAIRC — Single Commissioner	2018-02-12	3
(2007) 87 WAIG 36 AIRC 00461 Result Agreement Registered Representation Mr S Connell Mr R Knox...	WAIRC — Single Commissioner	2007-05-21	3
(2007) 87 WAIG 31 R 2007 DELIVERED : MONDAY, 12 NOVEMBER 2007	WAIRC — Full Bench	2007-09-10	3
(2001) 81 WAIG 228 PARTIES NICKOL BAY HOSPITAL BOARD v WESTERN AUSTRALIAN BRANCH OF THE...	WAIRC — Single Commissioner	2000-12-07	3
(2000) 80 WAIG 2082 No. PSA AG 23 of 2000. Hospital Salaried Officers Avon Health Service...	WAIRC — Single Commissioner	2000-05-19	3
(2000) 80 WAIG 2158 No. PSA AG 28 of 2000. Hospital Salaried Officers Dongara Health Service...	WAIRC — Single Commissioner	2000-05-19	3
(2000) 80 WAIG 2292 No. PSA AG 37 of 2000. Hospital Salaried Officers Morawa and Districts...	WAIRC — Single Commissioner	2000-05-19	3
(2000) 80 WAIG 2306 No. PSA AG 38 of 2000. Hospital Salaried Officers Mullewa Health Service...	WAIRC — Single Commissioner	2000-05-19	3

Archived text (99128 words)

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION. Industrial Relations Act 1979. Multiplex Constructions Pty Ltd and Department of Occupational Health, Safety and Welfare of Western Australia. No. OHSW7 of 1990. COMMISSIONER G.L. FIELDING. 11th day of June 1990. THERE being no appearances on behalf of the Applicant and there being no appearances on behalf of the Respondent, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979 hereby orders — That leave be and is hereby granted for the application to be discontinued. (Sgd.) G.L. FIELDING, Commissioner. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 70 W.A.I.G. ANNUAL REPORT OF THE CHIEF COMMISSIONER - AWARDS/AGREEMENTS — APPLICATION FOR — Ambulance Superintendents Award No. A6 of 1988 — Dismissed Artworkers Award No. A30 of 1987 — Delivered Australian Workers Union Talc Mining and Processing Award No. A16 of 1988 — Withdrawn by Leave Catering Workers' (Como Investments Pty Ltd) Fast Food Operations Catering and Restaurant Operators Agreement No. AG 14of 1989 — Registered Dismissed Cement and Lime Employees (Swan Portland Cement Limited) Award No. A26 of 1988(R) — Delivered Clerks (West Australian) Special Casual Employees Agreement — No. AG15 of 1989 — Delivered Community Colleges Award A19 of 1988(R) — Correction Order Contract Cleaners* (Ministry of Education) Award No. A5 of 1981 — Delivered CSBP and Farmers Award No. A19 of 1989 — Adjourned CSBP and Farmers Award No. A19 of 1989 — Delivered Gold Banking Corporation Salaries Allowances and Conditions Award No. A17 of 1988 — Withdrawn Government Officer Salaries, Allowances and Conditions Award No. PSA A3 of 1989 — Delivered Industrial Spraypainting and Sandblasting Award No. A33 of 1987 — Adjourned Monumental Masonry Industry Award No. A36 of 1987 — Delivered Ngala Superannuation Award No. A17 of 1989 — Delivered Parliamentary Employees Award Nos. A15 of 1987, A4 of 1988. A7 of 1988 and A7 of 1989 — Delivered Private Psychiatric Hostels Employees Award No. A7 of 1987 — Adjourned Public Service General Conditions of Service and Allowances Award No. PSA A4 of 1989 — Delivered Public Service Superannuation Award No. A3 of 1988 — Dismissed Robe River Iron Associates Employee Representatives and Grievance Procedure Award No. 4(1) of 1987 — Remitted Wildflower Production Traineeship Agreement No. AG13(1) of 1989 — Delivered Wildflower Production Traineeship Agreement No. AG 13(2) of 1989 — Delivered AWARDS/AGREEMENTS — APPLICATION FOR VARIATION OF — NO VARIATION RESULTING - Bakers* (Metropolitan) Award No. 13 of 1987 Breadcarters (Country) Award No. 17 of 1975 Breadcarters (Metropolitan) Award No. 35 of 1963 Brick Manufacturing Award No. R19 of 1990 Building Trades (Goldmining Industry) Award No. 29 and 32 of 1965 and No. 4 of 1966 Fibrous Plaster and Cement Workers' Award No. 11 of 1969 Foreman (Building Trades) Award No. 9 of 1962 Gaol Officers Award No. 12 of 1968 Glassfibre Reinforced Cement Award No. 24 of 1984 Mineral, Sands Mining and Processing Industry Award No. A38 of 1981 Mineral Sands Mining and Processing (Engineering and Building Trades) Award No. 6 of 1977 Plaster Mill Workers* Award No. 6 of 1962 Porcelain Workers Award No. 1 of 1970 Railway Employees Award No. 18 of 1969 Shop and Warehouse (Wholesale and Retail Establishments) Award No. 32 of 1976 State Energy Commission of Western Australia Wages and Conditions Award No. 1 of 1989 Telfer Gold Mine (Production and Maintenance Employees) Award No. A9 of 1987 Western Australian State Public Hospitals, Medical Practitioners Award No. PSA A19 of 1986 AWARDS/AGREEMENTS — CONSOLIDATION OF — Ferries Masters and Engineers (Transport Trust) Award No. 8 of 1965 388, 1217 Railway Officers* Award No. RCB A1 of 1985 455 AWARDS/AGREEMENTS - CONSOLIDATION BY REGISTRAR- Aged and Disabled Persons Hostels Award No. A6 of 1987 Nurses' (Private Hospitals Award No. 1 of 1966 Private Hospital Employees Award No. 27 of 1971 Security Officers* Award No. A25 of 1981 ; Watchmakers* and Jewellers* Award No. 10 of 1970 AWARDS/AGREEMENTS — INTERPRETATION OF - Iron Ore Production and Processing (Hamersley Iron Pty Ltd) Award No. 20 of 1987 1019 Security Officers' Award No. 25 of 1981 505, 1287 Transport Workers (Mobile Food Vendors — Flash Foods Canteen) Award No. A3 of 1986 509 (iii) 70 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE CUMULATIVE CONTENTS—cornmi/erf AWARDS/AGREEMENTS - VARIATION OF - Aboriginal Medical Service Employees' Award No. A26 of 1987 .... Activ Foundation (Salaried Officers) Award No. 13 of 1977 Aerated Water and Cordial Manufacturing Award No. 10 of 1975 . Aged and Disabled Persons Hostels Award N0.A6 ofl987 349 150 351 256, 992 Airconditioning and Refrigeration Industry (Construction and Servicing) Award No. 10 of 1979 1376, 1521, 1594 Ambulance Service Employees' Award No. 50 of 1968 579 Animal Welfare Industry Award No. 8 of 1968 75/ Argyle Diamond Mines Production Award No. A28 and A32 of 1984 354 Asbestos — Cement Workers Award 23 of 1960 1037 Bag, Sack and Textile Award No. 3 of 1960 758, 1393 Bakers' (Country) Award No. 18 of 1977 1757 BHP — Utah Minerals International Cadjebut Production Award No. A11 of 1989 761 Biscuit and Cake Manufacturing Award No. 7 of 1971 356 BP Refinery (Kwinana) (Security Mens) Award No. R56 of 1978 ... 1394, 1758 Brewery Craftsmen Agreement C 368A of 1979 358, 581 Brewery Engine Drivers and Firemen Agreement No. C368B of 1979 358 Brewing Industry and Malting Industry Award No. 33 of 1982 364 Brewery Laboratory Employees Award No. A8 of 1983 358 Brick Manufacturing Award No. 19 of 1979 1039 Brushmakers' Award No. 30 of 1959 762 Building and Engineering Trades (Nickel Mining and Processing) Award No. 20 of 1968 1589 Building Materials Manufacture (CSR Limited — Welshpool Works) Award No. 10 of 1982 68 Building Trades Award No. 31 of 1966 — 71 Building Trades (Construction) Award No. 14 of 1978 76, 257, 535, 536, 558,918, 924, 1189,1190, 1191, 1204, 1403, 1587, 1588, 1594, 1759, 1924, 1941, 1942 Building Trades (Fremantle Port Authority) Award No. 3 IB of 1966 1 '79, 1205 Building Trades (Government) Award No. 31A of 1966 — —83. 137, 763 Burswood Island Resort Employees Award No. A23 and A25 of 1985 —- 1409, 1411, 1759 Burswood Island Resort (Maintenance Employees) Award No. A22 of 1986 768 Cargill Australia Ltd — Salt Production and Processing Award No. A34 of 1988 770 Can Manufacturing (Production and Maintenance — Amalgamated Industries Pty Ltd) Award No. A4 of 1985 1760 Case and Box Makers Award No. 48 of 1951 1954, 1056 Cement Tile Manufacturing Award No. 3 of 1966 '939 Child Care Centres (Aides) Award No. A2 of 1983 375 Child Care Centres (Child Care Workers) Award No. A4 of 1983 376 Child Care Centres (Pre School Teachers') Award No. A3 of 1983 376 Child Care (Lady Gowrie Child Centre) Award No. A3 of 1984 367 Child Care (Out of Schools Care — Play-Leaders) Award No. A13 of 1984 84, 370 Child Care (Subsidised Centres) Award No. A26 of 1985 372, 1609, 1955 Children's Services Consent Award No. A1 of 1985 377, 1609 Child Care Workers (Education Department) Award No. 20 of 1984 1762 Cleaners and Caretakers Award No. 12 of 1969 380,775 Cleaners and Caretakers (Car and Caravan Parks) Award No. 5 of 1975 777 Cleaners and Caretakers (Government) Award No. 32 of 1975 778, 1762, 1791 Cleaners and Caretakers (Metropolitan and Market Trust) Agreement NO. 9 of 1967 1762 Clerks (Bailiffs Employees) Award No. R19 of 1976 141L 1609 Clerks' (Commercial Radio and Television Broadcasters) Award 1970 No. 14C of 1968 1414 Clerks (Control Room Operators) Award No. A14 of 1981 1059 Clerks (Credit and Finance Establishments) Award No. 16 of 1952 1416 Clerks' (Customs and/or Shipping and/or Forwarding Agents) Award No. 47 of 1948 1792 Clerks (Grain Handling) Award No. R34 of 1977 1060 Clerks' (Hotels, Motels and Clubs) Award No. 7 of 1977 °5 Clerks" (RAC Control Room Officers) Award No. A42 of 1987 384 Clerks' (Racing Industry — Betting) Award No. 22 of 1977 .. 1794 Clerks (Swan Brewery Co Ltd) Award No. A5 of 1986 358 Clerks (Taxi Service) Award 14B of 1968 1418. 1796 Clerks (Timber) Award No. 61 of 1947 *420 Clerks' (Wholesale and Retail Establishments) Award No. 38 of 1947 87, 89, 941 Clothing Trades Award No. 16 of 1972 93 Club Workers' Award No. 12 of 1976 '967 Cockburn Cement Laboratory Employees Award No. CR175 of 1980 1075 Community Colleges Award No. A19 of 1988(R) '709 Community Welfare Department Hostels Award No. A27 of 1981 '762 Contract Cleaners' Award No. A6 of 1985 — — 779, 1075 1422 Country High School Hostels Award No. 7A of 1979 '762 • Crothall Hospital Services (WA) Pty Ltd Award No. A3 of 1987 1076 Cultural Centres Award No. A28 of 1988 '762 Dairy Factory Workers Award No. A15 of 1982 — '077 Deckhands (Port Hedland) Agreement No. AG27 of 1978 1080 Drum Reclaiming Award No. 21 of 1961 779, 1423 Dry Cleaning and Laundry Award No. R35 of 1978 385 Earthmoving and Construction Award No.10 of 1963 '0L 257, 1594 Egg Processing Award No. 42 of 1978 '423 Electrical Contracting Industry Award No. R22 of 1978 918, 1080, 1192, 1193,1516, 1521, 1594, 3797, 1924 Electrical Trades (Goldmining) Award No. 57 of 1968 307 Electronics Industry Award No. A22 of 1985 - '425 Electronic Servicing Employees (Building Management Authority) Award No. A40 of 1982 137 Engine Drivers (Building and Steel Construction) Award No. 20 of 1973 106,257, 535, 536, 558, 918, 924, 1204, 1587, 1594, 1924 Engine Drivers (General) Award No. R21A ofl977 199, 1431 Engine Drivers (Gold Mining) Consolidated Award No. 37 of 1947 307 Engine Drivers (Government) Award No. A5 of 1983 781,993 Engine Drivers (Nickel Mining) Award No. 37 of 1968 '589 Engine Drivers Minerals Production (Salt Industry) Award No. 43 of 1968 1431 Engine Drivers (North West Abattoirs) Award No. 4 of 1969 I610 Engineering and Electrical Trades (West Australian Newspapers Limited) No. A17 of 1985 782, 1085 109, 1431 307 781,993 1589 1431 1610 782, 1085 (iv) WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 70 W.A.I.G. CUMULATIVE CONTENTS—continued AWARDS/AGREEMENTS — VARIATION OF —continued Engineering and Engine Drivers (Nickel Smelting) Award No, 4 of 1973 Engineering (Government Printing Office) Award No. 12 of 1984 Engineering Trades (Fremantle Port Authority) Award Nos. 42 and 48 of 1968 Engineering Trades (Government) Award Nos. 29, 30 and 31 of 1961 and 3 of 1962 . Enrolled Nurses and Nursing Assistants (Government) Award No. R7 of 1978 Enrolled Nurses and Nursing Assistants (Private) Award No. 8 of 1978 Family Day Care Co-ordinators' and Assistants* Award No. A16 of 1985 Farm Employees' Award No. A19 of 1984 1433 1438 1435 . 137, 783, 792,925,993, 1177, 1311 35,793 797 386 798 Ferries Masters and Engineers (Transport Trust) Award No. 8 of 1965 388, 1217, 1798 Fibre Cement Workers Award No. 23 of 1960 1037 Fire Brigade Employees' Consolidated Award No. 26 of 1971 1799 Fire Brigade Officers* Consolidated Award No. 489 of 1972 1800 Fitters (Continuous Process Work) Hospital Award No. 20 of 1971 993, 1440 Foodland Associated Limited (Western Australia) Warehouse Award No. 27 of 1982 941 Fremantle Port Authority Deckhands and Deckboys Award No. 21 of 1971 1442 Fremantle Port Authority Masters Launch Masters and Survey Masters Award No. 10 of 1977 1086 Fremantle Port Authority Port Security Agreement No. AG11 of 1986 1442 Frozen Foods Award No. R25 of 1977 394 Fruit and Vegetable Processing and Packing Award No. R41 of 1978 395 Funeral Directors Assistants* Award No. 18 of 1962 798, 1443, 1610 Furniture Trades (Government) Award No. 34 of 1979 Furniture Trades Industry Award No. A6 of 1984 Gaol Officers Award No.12 of 1968 Gardeners (Government) Award No. 16 of 1983 Gate, Fence and Frames Manufacturing Award No. 24 of 1971 Glassfibre Reinforced Cement Award No. A24 of 1984 Gold Mining Consolidated Award No. 21 of 1967 Golf Link and Bowling Green Workers* Award No. 16 of 1967 Government Engineering and Building Trades Foremen and Sub-Foremen Award No.15 of 1973 137 799 111 1762 1802 803, 805 1444, 1804 1806 137, 806 Government Railways Locomotive Enginemen's Award No. 13 of 1973 112, 397, 807, 1445 Government School Teachers Salaries Award 1981 1616 Government Water Supply (Kalgoorlie Pipeline) Award No. 15 of 1981 1808 Government Water Supply. Sewerage and Drainage Employees Award No. 2 of 1980 1824 Government Water Supply Sewerage and Drainage Forcmens* Award No. 10 of 1983 398 Grain Handling Maintenance Workers* Award No. C477 of 1979 808 Grain Handling Salaried Officers* Consolidated Award No. 37 of 1965 412 Grocery and Match Manufacturing Award No. 11 of 1971 417, 581 Hairdressers'Award No. A32 of 1988 811 Health Attendants Award No. A49 of 1978 812 Health Workers — Community and Child Health Services Award No. 21 of 1979 .. 418 Horticultural (Nursery Industry) Award No. 30 of 1980 1814 Hospital Employees (Homes of Peace) Consolidated Award No. 26 of 1960 115, 583, 668, 1611 Hospital Employees (Perth Dental Hospital) Award No. 4 of 1970 419 Hospital Laundry and Linen Service (Government) Award No. 36 of 1981 420, 1842, 1948 Hospital Salaried Officers (Nursing Homes) Award No. R18 and R19 of 1974 1446, 1448 Hospital Salaried Officers (Private Hospitals) Award No. R28 of 1977 1446, 1448 Hospital Salaried Officers (Red Cross Blood Transfusion Service) Award No. R17 of 1974 1447, 1448 Hospital Salaried Officers (Red Cross Social Work Service) Award No. R17A of 1974 1448, 1463 Hospital Salaried Officers (Silver Chain) Award No. R38 of 1978 1448, 1464, 1543 Hospital Salaried Officers (Spastic Welfare) Award No. R37 of 1976 1448, 1464 Hospital Workers (Cleaning Contractors — Private Hospitals) Award No. R2 of 1977 669 Hospital Workers (Government) Award No. 21 of 1966 35, 116, 595, 1465, 1471 Hospital Workers (N'gala) Award No. 6A of 1958 669 Hotel and Tavern Workers Award No. R31 of 1977 1087 Ice Cream and Frozen Confectionery Award No. A32 of 1982 422 Independent Schools" Teachers" Award No. 27 of 1976 1844 Iron and Steel Industry Workers (BHP Steel International Rod and Bar Division) Award No. 1 of 1968 1845 Iron Ore Production and Processing (BHP Minerals Ltd) Award No. 22 of 1981 1846 Iron Ore Production and Processing (Goldsworthy Mining Ltd) Award No. A43 of 1981 1095 Iron Ore Production and Processing (Hamersley Iron Pty Ltd) Award No. A20 of 1987 424, 813, 1100, 1101, 1472 Iron Ore Production and Processing (Mt Newman Mining Company Pty Ltd) Award No. A29 of 1984 1479, 1937 John Lysaght (Australia) Ltd Award No. 27 of 1967 1102 Journalists (Suburban and Free Newspapers) Award No. A1 of 1981 1673 Laboratory and Technical Employees [Peters (WA) Limited] Award No. 12 of 1981 1853 Landscape Gardening Industry Award No. R18 of 1978 428, 1854 Laundry Workers Award No. 29 of 1981 815 Licensed Establishments (Retail and Wholesale) Award No. R23 of 1977 1487, 1949 Lift Industry (Electrical and Metal Trades) Award No. 9 of 1973 1105, 1106 Marine Stores Award No. 13 of 1958 816 Meat Industry (Government) Award No. A44 of 1981 117 Meat Industry (State) Award No. R9 of 1979 430, 817, 1109, 1491, 1920 Meat Industry (Western Australian Lamb Marketing Board) Award No.37 of 1981 120,941 Meat Industry (Western Australian Meat Commission — Robb Jetty Division) Award No. 16 of 1976 122, 123,1593, 1855 Mechanical and Electrical Contractors (North West Shelf Project Platform) Award No. A10 of 1984 1492 Mental Health Nurses' Consolidated Award No. 13 of 1947 435, 1856 Menial Health Rehabilitation Assistants Award No. 36 of 1965 438 Metal Trades (General) Award No. 13 of 1965 538,918, 1110,1192,1193, 1376,1431, 1494, 1497, 1498,1499, 1500, 1501, 1502, 1503,1509, 1510,1515, 1516, 1521, 1524,1594,1797, 1858, 1859, 1924 Metropolitan Prison Complex Catering Staff Award No. 1 of 1980 126 Mineral Earths Employees Award No. 9 of 1975 818 Mineral Sands Mining and Processing Industry Award No. A38 of 1981 670, 1113 Mineral Sands Mining and Processing (Engineering and Building Trades) Award No. 6 of 1977 819 Miscellaneous Workers (Slow Learning Children's Group) Award No. A20 of 1980 127 Mooring Staff Award No. 31 of 1959 1525 Motel Hostel Service Flats and Boarding House Workers Award No. 29 of 1974 1114 (v) 70 W.A.LG. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE CUMULATIVE CONTENTS—continued AWARDS/AGREEMENTS — VARIATION OF— continued Nickel Mining and Processing Award No. 18 of 1975 1526 Nickel Refining Award No. 6 of 1971 826 Nickel Smelting (Western Mining Corporation Ltd) Award No. 18 of 1972 1528 Nurses' (Dentists' Surgeries) Award No. 44A of 1976 1528 Nurses' (Doctors' Surgeries) Award No. 44 of 1976 .... 1528 Nurses' (Indpendent Schools) Award No. 21B of 1962 I860 Nurses (Private Hospitals) Award No. 1 of 1966 439, 1611, 1861 Nurses (Royal Flying Doctor Service) Award No. A18 of 1982 827, 1122, 1123 Oil Bunkering BP (Fremantle) Award No. 20 of 1981 828, 1863 Optical Mechanics' Award No. 9 of 1970 829, 1531 Paint and Varnish Makers Award No. 22 of 1957 * 830, 1531 Particle Board Employees' Award No. 22 of 1964 1123, 1125 P. and O. Towage Services Small Craft Crews Agreement No. AG2 of 1989 1126 Particle Board Industry Award No. 10 of 1978 831 Permanent Building Societies (Administrative and Clerical Officers) Award No. 26 of 1975 127 Pest Control Industry Award No. A9 of 1982 1865 Photographic Industry Award No. 9 of 1980 835 Pipe, Tile and Pottery Manufacturing Award No. 34 of 1978 1059 Plastic Manufacturing Award No. 5 of 1977 601,920 Plywood and Veneer Workers Award No. 24 of 1952 1127, 1128 Pr»tirr> AvunrH TvJn ? nf 1066 130 P. and O. Towage Services Small Craft Crews Agreement No. AG2 of 1989 1126 Particle Board Industry Award No. 10 of 1978 831 Permanent Building Societies (Administrative and Clerical Officers) Award No. 26 of 1975 127 Pest Control Industry Award No. A9 of 1982 1865 Photographic Industry Award No. 9 of 1980 835 Pipe, Tile and Pottery Manufacturing Award No. 34 of 1978 1039 Plastic Manufacturing Award No. 5 of 1977 601,920 Plywood and Veneer Workers Award No. 24 of 1952 1127, 1128 Police Award No. 2 of 1966 130 Poultry Breeding Farm and Hatcheries Workers Award No. 20 of 1976 838 Printing (Country) Award No. 9 of 1969 * 1867 Printing (Government Printing Office) Award No. 31 of 1975 130, 1180, 1223 Printing (Newspapers) Award No. R23 of 1979 1532 Printing (Western Mail) Award No. 39 of 1982 1537 Private Hospital Employees Award No.27 of 1971 133, 839, 1611 Psychiatric Nurses (Public Hospitals) Award No. 14 of 1973 ■ 440,1868 Public Hospitals, Board and Lodging Award No. R16 of 1978 ■ 1924 Quarry Workers'Award No. 13 of 1968 ■ 1869 Radio and Television Employees Award No. R3 of 1980 _ 1537 Railway Employees Award No. 18 of 1969 T42, 840, 1540, 1541, 1879, 1938 Railway Officers' Award No. RCB A1 of 1985 455, 486. 1542, 1543, 1612 Railway Refreshment Services Award No. 2 of 1972 442,487 Rangers (National Parks) Consolidated Award No. 17 of 1981 487, 919 Recreation Camps (Department for Sport and Recreation) Award No. A28 of 1985 1262, 1949 Restaurant, Tearoom and Catering Workers Award No. R48 of 1978 1879, 1880, 1950 Retail Pharmacists Award No. 23 of 1965 * 1543 Robe River Iron Associates Employee Representatives and Grievance Procedure Award No. 4(1) of 1987 1659 Rope and Twine Workers Award No. 11 of 1963 840 Saddlers and Lealherworkers Award No. 7 of 1962 841 Salaried Officers (Paraplegic — Quadraplegic Association) Award No. A17 of 1986 1130 Salt Production and Processing — Dampier Salt (Operations) Pty Ltd — Dampier and Lake McLeod Award No. A12 of 1985 ... 1131, 1548, 1889 Saw Servicing Establishments Award No. 17 of 1977 * — 942, 1132, 1133 School Employees (Independent Day and Boarding Schools) Award No. 7 of 1979 - 489 School Employees (University Colleges and Swanleigh) Award No. 7B of 1979 134,490 Security Officers Award No. A25 of 1981 135, 843, 1891 Sheet Metal Workers Award No. 10 of 1973 1549, 1903 Sheet Metal Workers (Government) Award No. 31 of 1973 137, 925,993, 1552, 1554 Shop and Warehouse (Wholesale and Retail Establishments) State Award No. R32 of 1976 149, 944, 1905, 1906, 1907 Soap and Allied Products Manufacturing Award No. 25 of 1960 844, 1555 Social Trainers and Assistants Supervisors (Slow Learning Children's Group) Award No. A15 of 1984 155 Social Trainers (Nulsen Haven) Award No. A11 of 1985 845 State Energy Commission of Western Australia Wages and Conditions Award No. A1 of 1989 156, 158, 491, 559, 846, 1188, 1597 State Research Stations, Agricultural Schools and College Workers Award No. 23 of 1971 .. • 492 Storemen (Government) Consolidated Award No. 20 of 1969 •• 495, 850. 945 Storcmen Independent Wool Dampers Pty Ltd Award No. A36 of 1982 ■ 496 Storemen's Rapid Metal Developments (Aust) Ply Ltd Award No. A44 of 1982 • 497 Sugar Refining Award No. A41 of 1982 * 853 Supermarkets and Chain Stores (Western Australia) Warehouse Award No. A26 of 1982 158 Teachers' Aide's Award No. 4 of 1979 - 1262 Teachers' Aides' (Independent Schools) Award No. A27 of 1987 * 498 Teachers* (Kindergartens) Award No. 22 of 1963 1262 Telfer Gold Mine (Production and Maintenance Employees') Award No. A9 of 1987 855 Thermal Insulation Contracting Industry Award No. R1 of 1978 1376, 1594 Timber Workers Award No. 36 of 3950 859,861 Timber Yard Workers Award No. 11 of 1951 1135,1136 Titanium Oxide Manufacturing Award No. 8 of 1975 •• 1140 Tool and Material Storemen (Education Department) Award No. 24 of 1974 •• 1556 Training Assistants and Community Support Staff (Spastic Welfare) Award No. A16 of 1986 670 Transport Workers' (Burswood Island Resort) Award No. A2 of 1987 ■■ 1908 Transport Workers (Eastern Goldficlds Transport Board) Award No. 23 of 1976 1557 Transport Workers (General) Award No. 10 of 1961 * 1613, 1691, 1909 Transport Workers (Government) Award No. 2A of 1952 * 499, 880 Transport Workers (Mobile Food Vendors — Flash Foods Canteen) Award No. A3 of 1986 1918 Vehicle Builders Award No. 9 of 1971 1558, 1919 Ward Assistants (Mental Health Services) Award No. 35 of 1966 502 Watchmakers and Jewellers Award No. 10 of 1970 - 881 Western Australian Mint Security Officers* Award No. A5 of 1988 •• 1262 Wire Manufacturing (Australian Wire Industries) Award No. 24 of 1970 - 600, 1141 Woodchip Industry Award No. 21 of 1976 - 1560 Wool, Hide and Skin Store Employees Award No. 8 of 1966 502 Wool Scouring and Fellmongery Industry Award No. 32 of 1959 883 Wool Sorters (Wool Scouring Works) Award No. 41 of 1956 •• 504 Wundowie Foundry Award No. 8 of 1986 1564 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 70 W.A.I.G. CUMULATIVE COmEmS—continued BOARD OF REFERENCE - DECISIONS OF - Building Trades (Construction) Award No. 14 of 1978 — Claim re termination of a worker . Club Workers Award No. 12 of 1976 — Claim re Long Sendee Leave — Claim Refused CANCELLATION OF AWARDS/AGREEMENTS/RESPONDENTS - Griffin Coal Mining Company Ltd Night Shift (Muja) Operations Agreements 1987 . Public Hospitals, Board and Lodging Award No. R16 of 1978 CANCELLATION OF ORDERS - Amalgamated Metal Workers Union and Others and Barclay Bros Pty Ltd and Others — No. 90 of 1990 — Building Metal and Electrical Trades (Channar Iron Ore Project) Construction Order No. CR1313 of 1988 — Cancelled Amalgamated Metal Workers Union and Others and Clyde-Carruthers Pty Ltd and Others — No. 2743 of 1989(R) — Pilbara Maintenance (Living Out Allowance) Order 1988 — Cancelled and replaced Amalgamated Metal Workers Union and Another and Otraco (Interntional) Pty Ltd and Others — No. 2827 of 1990(R) — Order No. C1256 of 1988 — Cancelled and replaced Electrical Trades Union and Others and State Energy Commission — Nos. CR262,CR322, CR322A, CR567(A)and CR618 of 1989 — The Orders made out of conference in these applications are hereby cancelled Electrical Trades Union and Others and State Energy Commission — Nos. CR262, CR322, CR322A, CR567(A) and CR618 of 1989 — The Orders made out of conference in these applications are hereby cancelled — Correction Electrical Trades Union and Western Mining Corporation — No. 1751 of 1989(R) — Cancelling Orders C406 and C533 of 1988 Meat Industry Employees Union and Western Australian Meat Commission — No. 45 of 1990 — Order Nos. 693 of 1984 and C674of 1986 — Cancelled and replaced Miscellaneous Workers Union and Wormald Security — Nos. 1437 and 1505 of 1989 — Order No. 465 of 1989 — Cancelled and replaced - Application for New COMMISSION IN COURT SESSION - MATTERS DEALT WITH - Amalgamated Metal Workers Union and Others and CSBP and Farmers Ltd and Another — No. A19 of 1989 — Application for a new Award — Adjourned Amalgamated Metal Workers Union and Others and CSBP and Farmers Ltd and Another — No. A19 of 1989 — Application for New Award — Granted ••••• Australian Railways Union and Western Australian Government Railways Commission and Another — No. CR544of 1989 — Claim re sole constitutional and Industrial Coverage of Shunting Work — Dismissed Australian Workers Union and Associated Minerals Consolidated and Others — No. 1839 of 1989(R) — Application to vary Award — Granted Builders Labourers Federation and Another and Civil and Civic Pty Ltd and Others — No. CR1511 of 1988 — Claims re demarcation dispute — Order Accordingly Construction, Mining and Energy Workers Union and Kalgoorlie Lake View Pty Ltd — No. 1450 of 1987 — Application to vary Award — Granted Electrical Trades Union and Central Norseman Gold Corporation and Others — No. 274 of 1989 — Application to vary Award — Granted Electrical Trades Union and Hon Minister for Works and Others — No. 1567 of 1989 — Claim re Award Variation — Ordered Accordingly Electrical Trades Union and Others and State Energy Commission — Nos. CR262, CR322, CR322A, CR557(A) and CR618 of 1989 — The Orders made in these application arc hereby cancelled Journalists Union of Workers and Community Newspapers (1985) Ltd and Another — No. 1899 of 1989 — Application re increase in rates of wages pursuant to "Special Cases of the Wage Adjustment Principle" Journalists Union of Workers and Community Newspapers (1985) Ltd and Another — No. 1899 of 1989 — Application re increase in rates of wages pursuant to "special cases of the Wage Adjustment Principle" — Corrected Order Miscellaneous Workers Union and Board of Management, Royal Perth Hospital and Others — No. 328 and 701 of 1984 and CR267 of 1989(R) — Application to vary Award — Further hearing and determination following Appeal to Industrial Appeal Court Miscellaneous Workers Union and Casson House and Others — No. A7 of 1987 — Application for New Award — Adjourned - Order re cessation CONCILIATION ORDERS - Amalgamated Metal Workers Union and Mt Newman Mining Company Pty Ltd — No: C418 of 1990 — Order re cessation of industrial action re classification of workers to mechanical Tradesperson Special Class Australian Railways Union and Western Australian Government Railways Commission — No. C304 of 1990 — Order re cessation of industrial action re trials of video cameras and monitoring equipment Australian Railways Union and Western Australian Government Railways Commission — No. 1284 of 1988 — Term of Schedule of Order to continue until 20 March Australian Railways Union and Western Australian Government Railways Commission and Others — No. C157 of 1990 — Orders re cessation of Industrial Action and Procedures for Settling Disputes Builders Labourers Federation and Jennings Industries — No. C222(l) of 1990 — Order re cessation of industrial action in support of labourers claim for site allowance and over award payments Construction. Mining and Energy Workers Union and Others and Master Builders' Association — No. C34(l) of 1990 — Order re cessation of industrial action at the Ansett Airport Terminal construction site Electrical Trades Union and Others and Hon Minister for Mines, Fuel and Energy and the Mid-West — Appeal No. 2795 of 1989 — Order re the decision in Matter No. C1066 of 1989 insofar as it relates to the appellant is quashed Electrical Trades Union and Others and Slate Energy Commission of Western Australian and Another — No. C1066 of 1989 — Order re cessation of industrial action and treatment of a worker pending hearing and determination of dispute over the dismissal of that worker Electrical Trades Union and Another and Western Australian Government Railways Commission — No. CBS of 1990 — Order re Implementation and operative date of new classification structure/Structural Efficiency Principle 70 W.A.LG. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE CUMULATIVE CONTENTS—continued Order re cessation of CONFERENCES - MATTERS ARISING OUT OF - Amalgamated Metal Workers Union and Associated Minerals Consolidated and Others — No. C930 of 1988 — Order re Award Variation pursuant to State Wage Case — Discontinued Amalgamated Metal Workers Union and Mt Newman Mining Company Pty Ltd — No. C418 of 1990 — Order re cessation of industrial action re classification of workers to mechanical Tradesperson Special Class Amalgamated Metal Workers Union and Another and Perth Mint — No. C1068 of 1989 — Order re conditions applying to employees nominated to the Australian Golf Refineries Perth Breathing Apparatus (BA) Crew Amalgamated Metal Workers Union and Western Mining Corporation — Kwinana Nickel Refinery — No. C213 of 1990 — Withdrawn by leave Australian Railways Union and Western Australian Government Railways Commission and Others — No. C157 of 1990 — Orders re cessation of industrial action and procedures for settling disputes Australian Railways Union and Western Australian Government Railways Commission — No. C304 of 1990 — Order re cessation of industrial action re trials of video cameras and monitoring equipment Australian Workers Union and Eltin Pty Ltd — No. C336 of 1990 — Withdrawn by leave Australian Workers Union and Western Mining Corporation — No. C234 of 1990 — Withdrawn by Leave Builders Labourers Federation and Another and Enola Gay Pty Ltd — No. C246 and C260 of 1990 — Order re payment to employees Builders Labourers Federation and Another and Enola Gay Pty Ltd — No. C246A and C260A of 1990 — Order re payment to employees Builders Labourers Federation and Jennings Industries — No. C222(l) of 1990 — Order re cessation of industrial action in support of labourers claim for site allowance and over award payments Builders Labourers Federation and Master Builders Association — No. C318 of 1990 — Withdrawn by leave Building Trades Association and Barclay Mowlen Ltd — No. C212 of 1989 — Order re site allowance of the Haul Truck Workshop at Hamersley Iron Ltd at Paraburdoo — Granted Building Trades Association and Geraldton Building Company — Nos. C844 and 845 of 1989 — Claimsre site allowanceson Geraldton Senior High School site and Stella Moris College site, Geraldton — Dismissed Building Trades Association and Barclay Mowlen — No. C955 of 1989 — Order re site allowance on Hamersley Iron Pty Ltd plant workshop and warehouse complex site at Paraburdoo Building Trades Association and J.M. Best and Sons — No. C913 of 1989 — Order re site allowance and other entitlements for Falcon Primary School site Building Trades Association and R.J. Brady Pty Ltd No. C1054 of 1989 — Order re site allowance on Hamersley Iron Pty Ltd pellet plant site at Dampier .......... Building Trades Association and Kalgoorlie Concreting — No. C730 of 1990 — Order re site allowance on the Pinjar Power Station, Pinjar Building Trades Association and Southdown Construction Company Pty Ltd — No. C15 of 1990 — Order re site allowance on WACAE construction site at Joondalup Construction, Mining and Energy Workers Union and State Energy Commission — No. C243 of 1990 — Order re cessation of industrial action re provisions of travel allowances for shift workers Construction Mining and Energy Workers Union and Others and Fremantle Port Authority — No. C122 of 1990 — Order re Structural Efficiency for Wages of the Building Trade (Fremantle Port Authority) Construction, Mining and Energy Workers Union and Others and Master Builders* Association — No. C34(l) of 1990 — Order re cessation of industrial action at the Ansett Airport Terminal construction site Construction, Mining and Energy Workers Union and Mt Newman Company Pty Ltd — No. C359 of 1990 — Order re Award variation Construction, Mining and Energy Workers Union and Robe River Iron Associates — No. C294 of 1990 — Withdrawn by leave Construction, Mining and Energy Workers Union and Western Mining Corporation Ltd — No. C1084 of 1988 — Order re an increase in Wage Rates — Granted Electrical Trades Union and Another and AHPC Pty Ltd — No. C46 of 1989 — Order re site allowance on Pinjar Power Station site Electrical Trades Union and Others and Hon Minister for Mines, Fuel and Energy and the Mid-West — Appeal No. 2795 of 1989 — Order re the decision in Matter C1066 of 1989 insofar as it related to the appellant is quashed Electrical Trades Union and Others and State Energy Commission and Another—No. 01066 of 1989 — Orderrecessation of industrial action and treatment of a worker pending hearing and determination of a dispute over the dismissal of that worker Electrical Trades Union and Another and Western Australian Government Railways Commission — No. C138 of 1990 — Order re Implementation of new classification structure/Structural Efficiency Principle Food Preservers Union and APD Snack Foods Pty Ltd — No. C163 of 1990 — Withdrawn by leave Furniture Trades Union and Construction, Mining and Energy Workers Union — No. C228 of 1990 — Order re demarcation dispute Liquor and Allied Industries Union and G.S. Chhachhi trading as Chicken Treat Medina — No. C164 of 1990 — Order to re-employ as agreed between the parties Meat Industry Employees Union and Western Australian Meat Commission — No. C1203 of 1988 — Superannuation Fund Order Miscellaneous Workers Union and Board of Management, Royal Perth Hospital — Order No. C939 of 1989 — Order re variation to Award — Correction Order Miscellaneous Workers Union and Department of Conservation and Land Management — No. C209 of 1988 — Ranger (Woodvale Research Centre) Order, 1989 Miscellaneous Workers Union and Hon Minister for Education — No. C140 of 1990 — Order re contractual entitlements Miscellaneous Workers Union and Jaylon Industries Pty Ltd — No. C1265 of 1988 — Order re Second Tier Wage Increase Printing and Kindred Industries Union and Government Printer — No. C959 of 1989 — Order re Employees of State Printing Division government printer Grade 1 Binder and Finisher be reclassified State School Teachers Union and Hon Minister for Education No. TCI of 1990(R) — Order re variation to Award Timber Industry Industrial Union and Westralian Forest Industries Pty Ltd — No. C286 of 1990 — Withdrawn by leave CONFERENCES - MATTERS REFERRED - Amalgamated Metal Workers Union and Alloytech Pty Ltd No. CR33 of 1989 — Claim re unfair dismissal seeking reinstatement — Dismissed Amalgamated Metal Workers Union and Arcus Australia Pty Ltd No. CR908 of 1989 — Claim re unfair dismissal seeking reinstatement without loss of service or entitlements — Dismissed Amalgamated Metal Workers Union and Others and Baulderstone Hornibrook and Others — No. CR57 of 1990 — Order re site allowance on the pigment plant Kwinana site Kwinana Amalgamated Metal Workers Union and Hamersley Iron Pty Ltd — No. CR965(1) of 1989 — Claim re utilisation of contractors on crane and rigging work — Dismissed Amalgamated Metal Workers Union and Hamersley Iron Pty Ltd — No. CR965 of 1989 — Claim re manning levels with respect to crane and rigging work — Dismissed Amalgamated Metal Workers Union and Hamersley Iron Pty Ltd — No. CR1184 of 1989 — Claim re unfair dismissal seeking re-employment without loss of entitlement — Dismissed (viii) WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 70 W.A.LG. CUMULATIVE CONTENTS—continued CONFERENCES - MATTERS REFERRED—continued Amalgamated Metal Workers Union and Others and State Energy Commission — No. CR795 of 1989 and CR980 of 1989 — Order re site allowance on Narrogin Switchyard Amalgamated Metal Workers Union and Thiess Contractors Pty Ltd — No. CR907 of 1989 — Claim re site allowance for repair work at Nelson point shiploading facilities at Mt Newman Mining Company berth at Port Hedland — Granted in Part Amalgamated Metal Workers Union and Transperth — No. CR565 of 1989 — Discontinued Amalgamated Metal Workers Union and Western Australian Government Railways Commission No. CR596 of 1989 — Order re appropriate remuneration be paid at a higher rate for the work performed as a Grade 4-3 Test Room Supervisor — Granted ... Australasian Society of Engineers. Moulders and Foundry Workers and Another and State Energy Commission of Western Australia — No. CR841 of 1989 — Claim re relocation of employees due to refusal to do overtime — Dismissed Australian Railways Union and Western Australian Government Railways Commission — Nos. CR701 and 702 of 1989 — Claims re unfair dismissal — Dismissed Australian Railways Union and Western Australian Government Railways Commission and Another—No.CR544of 1989—Claim re Sole constitutional and industrial coverage of shunting work — Dismissed Australian Railways Union and Western Australian Government Railways Commission — No. CR678 of 1989— Dispute reemployers* right to instruct certain workers to train other workers on the job — Granted Australian Workers Union and Argyle Diamond Mines Pty Ltd — No. CR901 of 1989 — Claim re unfair dismissal — Dismissed Australian Workers Union and Hill 50 Gold Mine — No. CR248 of 1990 — Withdrawn by leave Australian Workers Union and Leighton Contractors Pty Ltd — No. CR889 of 1989 — Claim re rate of pay to certain employees under an award — Dismissed Australian Workers Union and Newmont Australia Limited — No. CR587 of 1989 — Claim re unfair dismissal — Dismissed Australian Workers Union and Newmont Australia Limited — No. CR972 of 1989 — Claim re unfair dismissal — Dismissed Australian Workers Union and Western Mining Corporation — No. CR649 of 1989 — Claim re payment for days not worked due to arsenic fall out — Granted Bakers', Pastrycooks' and Confectioners Union and Brynwood Pty Ltd trading as "Peters Bakers" — No. CR897 of 1989 — Claim re unfair dismissal seeking reinstatement — Dismissed Breweries and Bottleyards Employees Union and Swan Brewery Company Ltd — No. CR287 of 1990 — Withdrawn by leave Builders Labourers Federation and Another and Civil and Civic Pty Ltd and Others — No. CR1511 of 1988 — Claims re demarcation dispute — Ordered Accordingly Builders Labourers Federation and G. & R. Constructions — No. CR922 of 1989 — Claim re site allowance on the home units construction site, Walcott Street. Mt Lawlcy — Dismissed Builders Labourers Federation and Jennings Constructions — No. CR921 of 1989 — Withdrawn by Leave Builders Labourers Federation and Keith Anderson Construction Pty Ltd No. CR166 of 1990 — Claim re unfair dismissal — Discontinued Builders Labourers Federation and Keywest Construction Group Pty Ltd — No. CR1053 of 1989 — Discontinued Builders Labourers Federation and Keywest Construction Pty Ltd No. CR1076(2) of 1989 — Matter Discontinued Builders Labourers Federated and Marble and Cement Work (WA) Pty Ltd — No. CR24 of 1990 — Withdrawn by Leave Builders Labourers Federation and Multiplex Constructions Pty Ltd — No. CR211(A) of 1990 — Discontinued Builders Labourers Federation and Skytec Constructions — No. CR13 of* 1990 — Claim re unfair dismissal — Granted Building Trades Association and Binnum Pty Ltd — No. CR834 of 1989 — Claim re site allowance on Cable Beach Resort Restaurant Site. Broome — Dismissed Building Trades Association and Others and De Vaugh and Sons and Another — No. CR581 of 1989 — Claim re payment for lost time —Granted Building Trades Association and Hon Minister for Works — No. CR477 of 1989 — Order re site allowance on the Balga Technical School Project — Further correcting order Building Trades Association and Jaxon Construction Pty Ltd — No. CR704 of 1989 — Order re site allowance on the Port Hedland College site Building Trades Association and Jaxon Construction Pty Ltd — No. CR44 of 1990 — Order re site allowance on the Kalgoorlie Police Station Building Trades Association and Key West Construction Group Pty Ltd — No. CR919 of 1989 — Claim re site allowance on Mandurah Primary School site — Granted Building Trades Association and Master Builders Association on behalf of Grendel Construction Engineers Pty Ltd — No. CR1122 of 1989 — Claim re site allowance at Prindiville Drive Construction site Wangara — Granted Building Trades Association and Redhill Construction Company and AHPC Pty Ltd No. CR25 of 1990/No. 36 of 1990 — Order re site allowance on the SEC Power Station site at Pinjar Building Trades Association and Southdown Constructions — No. CR862 of 1989 — Claim re site allowance on Dalmain Primary School site, Kingsley — Granted in Part Building Trades Association and Others and State Energy Commission of Western Australia — No. CR589 of 1989 — Claim re site allowance and other entitlements for employees at Pinjar Power Station site Clothing and Allied Trades Union and Fernfield Pty Ltd Trustee for the Lawson Family Trust Trading as Ultra Cove Dry Cleaners — No. CR1413 of 1988 — Claim re unfair dismissal — Dismissed Construction Mining and Energy Workers Union and Design Ceilings — No. CR1095 of 1989 — Claim re unfair dismissal — Dismissed Construction Mining and Energy Workers Union and Hon Minister for Health and Others No. CR529 of 1989 — Structural Efficiency adjustment for employees in Engineering Service of the Public Hospitals — Granted Construction, Mining and Energy Workers Union and Robe River Iron Associates — No. CR301 of 1990 — Withdrawn by leave ... Electrical Trades Union and another and Building Management Authority — Nos. CR1030 to 1036 of 1989 — Claims re site allowances on the Art Gallery. Perth and other Government construction sites — Granted Electrical Trades Union and Another and Electric Power Transmission Pty Ltd and Others — No. CR1157 of 1989 — Order re Metal and Electrical Trades (Wagerup Alumina Refinery and Willowdale Mine site) Electrical Trades Union and Another and JLV Constructors Ltd and Others — No. CR1160 of 1989 — Order re Metal and Electrical Trades (Worsley Alumina Refinery Modification and Construction) Electrical Trades Union and Others State Energy Commission — No. CR262, CR322, CR322A, CR357(A) and CR618 of 1989 — The Orders made in these applications are hereby cancelled Federated Clerks Union and Action Food Barns (WA) Pty Ltd — No. CR1000 of 1989 — Claim re unfair dismissal — Dismissed Federated Clerks Union and Australian Concessions Management — No. CR1021 of 1989 — Application Discontinued Federated Clerks Union and Donhad Forgings Pty Ltd — No. CR1354 of 1988 — Claim re unfair dismissal seeking reinstatement without loss of entitlements — Dismissed Federated Clerks Union and George Moss Limited — No. CR388 of 1989 — Claim re unfair dismissal — Dismissed Federated Clerks Union and K-Mart — No. CR1647 of 1988 — Claim re declaration that work hours had been altered and reduced and to be re-established as previously — Dismissed Federated Clerks Union and Transport Workers Union — No. CR1651 of 1988 — Claim re contractual entitlements — Granted Fire Brigade Employees Union and Western Australian Fire Brigades Board — No. CR925 of 1989 — Claim re manning of a fire station — Granted in Part (ix) 70 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE CUMULATIVE CONTENTS—continued CONFERENCES — MATTERS REFERRED —continued Furniture Trades Union and Construction, Mining and Energy Workers Union — No. CR1540 of 1988 — Claims re demarcation dispute — Ordered accordingly Furniture Trades Union and Another and Jaxon Construction Pty Ltd — No. CR193 of 1989 — Claim re demarcation dispute — Ordered accordingly Furniture Trades Union and Jaxon Construction and Another — No. CR303 of 1989 — Claim re demarcation dispute — Ordered accordingly Furniture Trades Union and Another and Multiplex Constructions Pty Ltd — No. CR219 of 1989 — Claim re demarcation dispute — Ordered accordingly Furniture Trades Union and Another and Theiss Contractors Pty Ltd — No. CR251 of 1989 — Claim re demarcation dispute — Ordered accordingly Liquor and Allied Industries Union and Burswood Management Ltd No. CR20 of 1990 — Claim re unfair dismissal seeking reinstatement — Dismissed for want of prosecution Liquor and Allied Industries Union and Criterion Douglas Hotel — No. CR87 of 1989 — Claim re unfair dismissal — Dismissed Liquor and Allied Industries Union and Observation City Resort Hotel — No. CR746 of 1989 — Claim re unfair dismissal — Dismissed Liquor and Allied Industries Union and Warwick Hotel — No. CR885 of 1989 — Withdrawn by Leave Meat Industry Employees Union and E.G. Green and Sons — No. CR1043 of 1989 — Discontinued Meat Industry Employees Union and Reg Russell and Sons Pty Ltd trading as Gascoyne Abattoirs — No. CR1086 of 1988 — Withdrawn by Leave Merchant Service Guild and Another and Stirling Marine Services Pty Ltd — No. CR1012 of 1989 — Claim re unfair dismissals — Dismissed Miscellaneous Workers Union and Anglican Homes (Inc) — No. CR898 of 1989 — Claim re employers right to transfer employees and employers right to change classification of employees or declare them redundant — Granted Miscellaneous Workers Union and Cat Welfare Society Incorporated No. CR1041 of 1989 — Order the proceedings be stayed until further orderd Miscellaneous Workers Union and Mawamkarra Health Service Aboriginal Corporation No. CR807 of 1989 — Claim re unfair dismissal — Granted Railways Officers' Union and Western Australian Government Railways Commission — No. RCB CR3 of 1990 — Withdrawn by leave Seamen's Union and P&O Towage Services, a division of P&O Australia Ltd — Nos. CR571 and 865 of 1989 — Claim re payment of wages arising out of a dispute over exclusive right to perform refurbishing of mooring buoys work — Dismissed Shop Distributive and Allied Employees Association and Jim Berry Terrace Pharmacy No. CR1089 of 1989 — Claim re unfair dismissal — Granted Transport Workers Union and Agribusiness Products Pty Ltd — No. CR460 of 1989 — Discontinued United Timber Yards, Sawmills and Woodworkers Union and McLeans Consolidated Pty Ltd and Pinetec Pty Ltd — Nos CR305 of 1989 and CR474 of 1989 — Claims re redundancy payments and recognition of previous service concerning change of ownership of a company — Pending and Dismissed respectively CONFERENCES - NOTATION OF - 935, CORRECTIONS - Aged and Disabled Persons Hostels Award No. A6 of 1987 Ambulance Service Communication Centre Employees Order 1989 Ambulance Service Employees Award No. 50 of 1968 Australasian Society of Engineers, Moulders and Foundry Workers — Application No. 2269 of 1989 — Correction Notice — Application to alter Rule 2.—Constitution Australian Federation of Construction Contractors Association — Application No. 2185 of 1989 — Correction Order — Re Registration of an Organisation Brewery Craftsmen Agreement No. C368A of 1979 Building Trades (Construction) Award No. 14 of 1978 Building Trades (Fremantle Port Authority) Award No. 31B of 1966 Child Care (Subsidised Centres) Award No. A26 of 1985 Children's Services Consent Award 1984 No. A1 of 1985 Clerks (Bailiffs Employees) Award No. R19 of 1976 Clerks' (Wholesale and Retail Establishments) Award No. 38 of 1947 Community Colleges Award A19 of 1988(R) Earthmoving and Construction Award No. 10 of 1963 Electrical Trades Union and Others and State Energy Commission — Nos. CR262, CR322, CR322A, CR567(A) and CR618 of 1989 — Cancellation of Orders — Correction notice Engine Drivers' (Building and Steel Construction) Award No. 20 of 1973 Engine Drivers' (North West Abattoirs) Award No. 4 of 1969 Ferries Masters and Engineers* (Transport Trust) Award No. 8 of 1965 Foodland Associated (Western Australia) Warehouse Award No. 27 of 1982 Funeral Directors Assistant Award No. 18 of 1962 Grocery and Match Manufacturing Award No. 11 of 1971 Hospital Employees (Homes of Peace) Consolidated Award No. 26 of 1960 Hospital Laundry and Linen Service (Government) Award No. 36 of 1981 Hospital Laundry and Linen Service (Salaried Officers) Award No. 36 of 1978 Hospital Salaried Officers' Award No. 39 of 1968 Hospital Workers (Government) Award No. 21 of 1966 Journalists (Suburban and Free Newspapers) Award No. A1 of 1981 Licensed Establishments (Retail and Wholesale) Award No. R23 of 1977 Meat Industry (Western Australian Lamb Marketing Board) Award No. A37 of 1981 Nurses (Private Hospitals) Awards No. 1 of 1966 Plastic Manufacturing Award No. 5 of 1977 Printing (Government Printing Office) Award No. 31 of 1975 Private Hospital Employees* Award 1972 No. 27 of 1971 Railway's Officers Award RCB Ai of 1985 Recreation Camps (Department for Sport and Recreation) Award No. A28 of 1985 Retail Catering Structural Efficiency Order 1990 Saw Servicing Establishments Award No. 17 of 1977 Shop and Warehouse (Wholesale and Retail Establishments) Stale Award No. R32 of 1976 Storemen (Government) Consolidated Award No. 20 of 1969 Transport Workers (General) Award No. 10 of 1961 Western Australian School of Nursing (Salaried Officers) Award No. 37 of 1978 Wire Manufacturing (Australian Wire Industries) Award No. 24 of 1970 Correction Order (x) WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 70 W.A.LG. CUMULATIVE CONTENTS— continued Page DECLARATIONS - Construction Mining and Energy Workers Union and Hamersley Iron P/L No. 788 of 1989 — Declaration reTrue Interpretation of the Award re Shift Work - 1019 Morgan S.A. and Bruining Hedlam Computers Pty Ltd — No. 756 of 1989 — Claim re unfair dismissal seeking declaration to that effect — Ordered accordingly 200 Thobvavan L.JJ. and Albany Dog Rock Motel — No. 2336 of 1989 — Claim re unfair dismissal — Granted 1173 Wainwright C. and Biblos Nominees Pty Ltd trading as Artifex Australia — No. 2683 of 1989 — Claim re unfair dismissal seeking reinstatement — Ordered accordingly 1126 FULL BENCH — APPEALS AGAINST DECISION OF COMMISSION — Amalgamated Metal Workers Union and EPT Fochi Joint Venture — Appeal No. 215 of 1988 — Appeal against decision of Commission (68 WAIG 891) — re reinstatements — Dismissed by consent Amalgamated Metal Workers Union and Others and Robe River Iron Associates — Appeal Nos. 2332 and 2394 of 1989 — Appeal against decision of Commission (69 WAIG 3000) re registration of industrial award — Suspended and Remitted for further hearing and determination Australian Railways Union and Western Australian Government Railways Commission — Appeal Nos. 2401 and 2403 of 1989 — Appeal against decision of Commission (69 WAIG 3123) re jurisdiction of Commission re unfair dismissal claims — Dismissed Chernoff P.M. and Stastra Page and Associates Pty Ltd — Appeal No. 1609 of 1989 — Appeal against decision of Commission (69 WAIG 2507 and 2784) re claim for denied contractual entitlements — Upheld in Part Electrical Trades Union and Others and Hon Minister for Mines. Fuel and Energy and the Mid-West — Appeal No. 2795 of 1989 — Appeal against decision of Commission (70 WAIG 537) re dismissal of a worker — Upheld Federated Clerks Union and Another and Australian Bank Employees Union — Appeal No. 870 of 1989 — Appeal against decision of Commission (69 WAIG 1957) re registration of industrial agreement — Dismissed Federated Clerks Union and Others and Tip Top Bakeries (Canning Vale) — Appeal No. 2310 of 1989 — Appeal against decision of Commission (69 WAIG 3132) re redundancy package — Upheld Ishmael S.A. and Turk Ellis Pty Ltd for Elverston Nominees Ply Ltd — Appeal No. 662 of 1990 — Adjournment of Appeal No. 2798 of 1989 re Appeal against decision of Commission (70 WAIG 180) re unfair dismissal — Granted Locomotive Engine Drivers', Firemen's and Cleaners' Union and Western Australian Government Railways Commission — Appeal Nos. 2202 and 2203 of 1989 — Appeal against decision of Commission in matter No. CR563 of 1989 — Dismissed Locomotive Engine Drivers'. Firemen's and Cleaners' Union and Western Australian Government Railways Commission — Appeal No. 2203 of 1989 — Application for extention of time in Appeal No.2202 of 1989 — Granted Mason P. and Bastow P.D. — Appeal No. 2242 of 1989 — Appeal against decision of Commission (69 WAIG 2780) re contractual entitlements — Dismissed Merchant Service Guild and Another and Stirling Marine Services Pty Ltd — Appeal No. 2820 of 1989 — Appeal against decision of Commission (70 WAIG 245) re unfair dismissals —■ Dismissed Miscellaneous Workers' Union and Wormald International (Australia) Pty Ltd and Others — Appeal No. 2614 of 1989 — Appeal against decision of Commission (70 WAIG 505) re interpretation of an Award Shop, Distributive and Allied Union and Jim Berry Terrace Pharmacy — Appeal No. 668 of 1990 — Appeal against decision of Commission (70 WAIG 1196) re unfair dismissal — Dismissed State School Teachers Union and Hon Minister for Education — Appeal No. 1814 of 1989 — Appeal against decision of Government School Teachers" Tribunal (69 WAIG 2269) — Dismissed by consent State School Teachers Union and Honourable Minister for Education — Appeal No. 2330 of 1989 — Appeal against decision of Government School Teachers' Tribunal (69 WAIG 3437) — Dismissed Structor Pty Ltd Trading as Intcrigo and Cooray DNH — Appeal No. 2589 of 1989 — Appeal against decision of Commission (69 WAIG 3383) re contractual entitlements — Dismissed FULL BENCH - APPEALS AGAINST DECISION OF INDUSTRIAL MAGISTRATE - McCorry G. and Como Investments Pty Ltd — Appeal No. 2358 of 1989 — Appeal against decision of Industrial Magistrate in Complaint No. 547 of 1988 re breach of Award — Dismissed 658 Registrar and Amalgamated Metal Workers Union — Apcal No. 1747 of 1989 — Appeal against decision of Industrial Magistrate in Complaint No. 104 of 1989 re breach of Award — Upheld and Remitted 29 Wilkins G.R. and Vcrticordia Holdings Pty Ltd trading as Bernies. Mounts Bay Road — Appeal No. 218 of 1990 — Appeal against decision of Industrial Magistrate in Complaint No. 186 of 1989 re breach of Award — Upheld and Remitted 1292 FULL BENCH - MATTERS REFERRED UNDER SECTION 27 - Clothing and Allied Trades and Wilsons and Others — Appeal No. 1470 of 1987 — Refrain from hearing the matter — To be remitted to the Commission at the first instance 983 Operative Plasterers and Plaster Workers Federation and Construction Mining and Energy Workers Union — Appeal No. 308 of 1990 — That the hearing date of application No. 1 of 1988 be brought forward — Granted 983 FULL BENCH - PROCEEDINGS FOR ENFORCEMENT OF ACT - Civil Service Association and Registrar — Appeal No. 666 of 1989 — Application for enforcement of Direction No. PSA Cll of 1989 Civil Service Association and Registrar — No. 666 of 1989 — Application for enforcement of Direction No. PSA Cll of 1989 — Consideration of section 84(4)(a) matters — Ordered accordingly Federated Clerks Union and D. Jones and George Moss Ltd — No. 50 of 1990 — Application for enforcement of the Act re misleading Commission in CR388 of 1989 — Dismissed by consent Federated Clerks Union and G. Moss Ltd — No. 589 of 1990 — Application for enforcement of the Act re discovery of documents in Application No. 50 of 1990 — Dismissed Registrar and Benzi D.C. — Appeal No. 110 of 1990 — Application for Enforcement of the Act re failure to attend conference — Granted INDUSTRIAL APPEAL COURT - APPEALS AGAINST DECISION OF COMMISSION IN COURT SESSION - Builders Labourers Federation and Construction Mining and Energy Workers Union — Appeal Nos. 1 and 2 of 1990 — Against decision of Commission in Court Session in the Matter No. CR1511 of 1988 (70 WAIG 662) re demarcation disputes — Dismissed and upheld respectively 1653 Miscellaneous Workers Union and Others and Confederation of Western Australian Industry (Incorp) — Appeal Nos. 12 and 13 of 1989 — Against decision of Commission in Court Session in the matter Nos. 328 of 1984,801 of 1984andCR267 of 1989(70 WAIG 35) re variation to Awards in respect to shift and overtime rates — Dismissed 1281 (xi) 70 W.A.LG. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE CUMULATIVE CONTENTS—commit INDUSTRIAL APPEAL COURT - APPEALS AGAINST DECISION OF FULL BENCH — Australian Railways Union and Western Australian Government Railways Commission — Appeal No. 15 of 1989 — Appeal against decision of Full Bench (70 WAIG 1) re unfair dismissals — Dismissed Construction, Mining and Energy Workers Union and Operative Plasterers and Plaster Workers Federation — Appeal Nos. 4 and 5 of 1989 — Appeal against decision of Full Bench (69 WAIG 1908) re Applications for alteration of Union Rules — Dismissed and Upheld respectively Owners of Johnstone Court Strata Plan No. 5493 and Dumancic A.— Appeal No. 10 of 1989 — Appeal against decision of Full Bench (69 WAIG 2653) re dismissal of appeal against convictions of Industrial Magistrate — Dismissed INDUSTRIAL MAGISTRATE — COMPLAINTS BEFORE — Amalgamated Metal Workers Union and Carrigg J. — Complaint No. 104 of 1989 — Complaint re breach of Award — Dismissed Australian Railways Union and Western Australian Government Railways Commission — Complaint Nos. 289 and 401 of 1989 — Complaint re breach of award — Proven Builders Labourers Federation and P.B. & K.A. Brajkovich Pty Ltd — Complaint Nos. 328, 329 of 1989 — Complaint re failure to pay entitlements in accordance with Award — Proven Meat Industry Employees Union and Mills L.G., Mills R.L., Phillips A., Phillips L.C., trading as Valley Meats — Complaint Nos. 250, 251, 252, 259 and 260 of 1989 — Complaints re breach of award — Dismissed Transport Workers Union and Fresh West Corporation Pty Ltd — Complaint Nos. 356-362 of 1989 — Complaint re breach of award — Proven Transport Workers Union and Mountgrove Holdings Pty Ltd trading as Titan Ford — No. 386 of 1989 — Complaint re breach of award — Proven Wilkins G., Office of Industrial Relations and Verticordia Holdings Pty Ltd trading as Bernies Mounts Bay Road — Complaint No. 186 of 1989 — Complaint re breach of award — Proven JOINDER/CONCURRENCE OF PARTIES -- APPLICATION FOR - Building Trades (Government) Award No. 31A of 1966 — No. 1702 of 1988 — United Timber Yards Sawmills and Woodworkers Employees Union — Discontinued Child Care (Subsidised Centres) Award No. A26 of 1985 — No. 492 of 1990 — Murdoch University Child Care Association (Inc) — Granted Engineering and Electrical Trade (West Australian Newspapers Ltd) Award No. A17 of 1985 — No. 855 of 1989 — Construction Mining and Energy Workers Union — Granted Transport Workers (Mobile Food Vendors — Flash Foods Canteen) Award No. A3 fo 1986 — No. 376 of 1988 — Transport Workers Union — Discontinued LONG SERVICE LEAVE - BOARD OF REFERENCE — SPECIAL - Construction Industry Long Service Leave Payments Board and Positron Pty Ltd — Determination re registration of an employer under the Construction Industry Portable Paid Long Service Leave Act — Granted Purvis L. and Others and Verbatim Reporters (1980) — Claim re pro rata long service leave (remitted from Commission in Court Session for further hearing and determination) — Granted Thomson G.B. and Nimoola Nominees Pty Ltd trading as Industrial Enamellers — Determination re Long Service Leave —Granted NOTICES - APPOINTMENTS - Commissioner G.L. Fielding appointed as Deputy Chairman of the Railways Classification Board Thompson A.J. appointed as a Member of the Railways Classification Board Gabrovec S.D. appointed as a Deputy member of the Railways Classification Board NOTICES — AWARD/AGREEMENT MATTERS - Automotive Dismantler Youth Traineeship Agreement — Application No. AG3 of 1990 Australasian Society of Engineers, Moulders and Foundry Workers — Application for an Agreement Brewing Industry and Malting Industry Award No. 33 of 1982 — Application No.s 433 and 434 of 1990 — Breweries and Bottleyards Employees Industrial Union — Application for variation to Award Building Management Authority Operations Award 1990 — Application No. A3 of 1990 — Honourable Minister for Works and Services — Application for a new Award Building Trades Award No. 31 of 1966 — Application No. 999 of 1990 — Painters and Decorators Union — Application for variation to Award Building Trades (Construction) Award No. 14 of 1978 — Application No. 2651 of 1989 — Construction Mining and Energy Workers Union — Application for variation to award Burswood Island Resort Employees Award Nos. A23 and A25 of 1985, Application No. 261 of 1990 — Burswood Management Ltd — Application for variation to Award Catering Workers' (Como Investments Pty Ltd Fast Food Operations Catering and Restaurant Operations) Agreement No. AG 14 of 1989 — Liquor and Allied Industries Union — Notice of Retirement from Industrial Agreement Children's Services (Education) Award 1990 — Application No. A2 of 1990 — Miscellaneous Workers' Union — Application for a new Award Children's Services (Private) Award — Application No. A10 of 1990 — Miscellaneous Workers Union — Application for a new Award Clerks' (Accountants Employees) Award No. 8 of 1982 — Application No. 1585 of 1989 — Federated Clerks Union — Application for variation to award Clerks (Accountants Employees Clerical Industrial Traineeship) Agreement — Application No. AG2 of 1990 — Federated Clerks Union — Application for an Agreement Clerks' (Bailiffs Employees) Award No. 19 of 1976 — Application No. 2038 of 1989 — Federated Clerks Union — Application for variation to Award Clerks' (Commercial Radio and Television Broadcast) Award No. 14C of 1968 — Application No. 1580 of 1989 — Federated Clerks Union — Application for variation to Award Clerks' (Commercial, Retail, Wholesale, Hotels and Motels Clerical Industrial Traineeship) Agreement — Application No. AG1 of 1990 — Federated Clerks Union — Application for an Agreement Clerks' (Commercial Social and Professional Services) Award No. 14 of 1972 — Application No. 1583 of 1989 — Federated Clerks Union — Application for variation to Award Clerks' (Control Room Operators) Award No. A14of 1981 — Application No. 2037 of 1989 — Federated Clerks Union — Application for variation to Award (xii) WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 70 W.AXG. CUMULATIVE CONTENTS—continued NOTICES — AWARD/AGREEMENT MATTERS —continued Clerks' (Credit and Finance Establishments) Award No. 16 of 1982 — Application No. 2036 of 1989 — Federated Clerks Union — Application for variation to Award Clerks' (Customs and/or Shipping and/or Forwarding Agents) Award No. 47 of 1948 — Application No. 1581 of 1989 — Federated Clerks Union — Application for variation to Award Clerks' (Grain Handling) Award No. 34 of 1977 — Application No. 2035 of 1989 — Federated Clerks Union — Application for variation to Award Clerks' (Hotel. Motels and Clubs) Award No. R7 of 1977 — Application No. 1582 of 1989 — Federated Clerks Union — Application for variation to award Clerks (Public Authorities) Award No. PSA7 of 1987 — Application No. P24 of 1990 — Federated Clerks Union — Application for variation to Award Clerks (Retail Industry) Award 1990 — Application No. All of 1990 — Myer Stores Ltd and Others — Application for a new Award Clerks (Sunday Times) Special Casual Employees Agreement — Application No. AG4 of 1990 — Federated Clerks Union — Application for new Agreement Clerks" (Taxi Services) Award No. 14B of 1968 — Application No.2033 of 1989 — Federated Clerks Union — Application for variation to Award Clerks' (Timber) Award No. 61 of 1947 — Application No. 1579 of 1989 — Federated Clerks Union — Application for variation to Award Earthmoving and Construction Award No. 10 of 1963 — Application No. 2737 of 1989 — Construction Mining and Energy Workers Union — Application for variation to Award Engineering Trades (Government) Award Nos. 29, 30 and 31 of 1961 and 3 of 1962 — Application No. 788 of 1990 — Water Authority of Western Australia — Application for variation to Award Engineering Trades (RAC of WA) Award 1990 — Application No. A13 of 1990 — Amalgamated Metal Workers Union — Application for a new Award Fast Food Outlets Award — Application No. A14 of 1990 — Liquor and Allied Industries Union — Application for a new Award Fire Brigade Employees Award 1990 — Application No. A28 of 1989 — WA Fire Brigade Employees Union of Workers — Application for a new Award Health Care Industry (Private) Superannuation Award No. 8 of 1988 — Application No. 542 of 1990 — Australian Nursing Federation — Application for Variation to Award Home and Community Care Award 1990 — Application No. A7 of 1990 — Federated Miscellaneous Workers Union — Application for New Award Hospital Workers (Government) Award No. 21 of 1966 — Application No. 272 of 1990 — Miscellaneous Workers Union — Application for variation to Award Independent Schools (Non Teaching) Boarding School Staff Award — Application No. A9 of 1990 — Independent Schools Salaried Officers Association — Application for New Award Meat Industry (State) Award No. 9 of 1979 — Application No. 786 of 1990 — Meat Industry Employees Union — Application for variation of Award Metal Trades (General) Award No. 13 of 1965 — Application No. 927 of 1990 — Amalgamated Metal Workers Union — Application for variation of Award "Miscellaneous Workers" Government Service Employees Award 1990 — Application No. A12 of 1990 — Miscellaneous Workers Union — Application for a new Award Mooring Services (Cape Cuvier) Award 1990 — Application No. A27 of 1989 — Seamen's Union — Application for a new Award Plaster and Cement Workers Award 1989 — Application No. A29 of 1989 — Operative Plasterers and Plaster Workers Federation — Application for a new award Printing (Government) Award 1990 — Application No. A8 of 1990 — Printing and Kindred Industries Union — Application for a new Award Printing State Award 1990 — Application No. A6 of 1990 — Printing and Kindred Industries Union — Application for new Award Retail Industry Award 1990 — Application No. A4 of 1990 — Myer Stores Limited and Others — Application for a new Award Shop and Warehouse (Wholesale and Retail Establishments) Award No. 32 of 1976 — Application No. 460 of 1990 — Shop Distributive and Allied Employees Association — Application for variation to Award State Research Stations, Agricultural Schools and College Workers Award No. 23 of 1971 — Application No. 64 of 1990 — Australian Workers Union — Application for variation to Award Swan Brewery Award 1990 — Application No. A5 of 1990 — The Swan Brewery Company Limited — Application for a new Award Theatrical Employees (Multiplex Cinema) Award 1990 — Application No. A1 of 1990 — WA Theatrical and Employees' Association — Application for a new Award Transport Workers (Burswood Island Resort) Award No. A2 of 1987 ~~ Application No. 260 of 1990 — Burswood Management Ltd — Application for Variation to Award The West Australian Surveying (Private Practice) Industry Award 1989 — Application No. A2 of 1988 — Association of Draughting Supervisory and Technical Employees — Application for a new Award Vita Pacific Ltd WA Industrial Agreement — Application No. AG5 of 1990 — Furniture Trades Union — Application for new Agreement Wool Scouring and Fellmongery Award No. 32 of 1959 — Application No. 598 of 1990 — Miscellaneous Workers Union — Application for variation to Award NOTICES - UNION MATTERS - Australasian Society of Engineers, Moulders and Foundry Workers — Application No. 2269 of 1989 — Corrected Notice — Application to alter Rule 2. — Constitution Electrical Trades Union and Australasian Society of Engineers, Moulders and Foundry Workers — Application No. 790 of 1990 — Amalgamation as a new Organisation Furniture Trades Union and Timber Industry Union — Application No. 820 of 1990 — Amalgamation as a new Organisation Miscellaneous Workers Union and Baker's, Pastrycook's and Confectioners Union — Application No. 212 of 1990 — Amalgamation as a new Organisation PRESIDENT - MATTERS DEALT WITH - Anderson M. trading as Nashua Karratha and Lane A. — No. 430 of 1990 — Application for a Stay of Order No. 797 of 1989 — Granted Australian Workers Union and Robe River Iron Associates — No. 729 of 1990 — Application for a stay of Order No. CR175 of 1990 pending appeal — Dismissed , Australian Workers' Union and Western Mining Corporation Ltd — No. 2810 of 1989 — Application for Stay of Order No. CR649 (xiii) 70 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE CUMULATIVE CONTENTS—continued PRESIDENT — MATTERS DEALT WITH —continued of 1989 pending appeal — Granted Building Management Authority and Ion V. — No. 431 of 1990 — Application for BMA to be removed as Respondent in Matter 290 of 1990 — Granted Cooray D.N.H. and Structor Pty Ltd trading as Interigo — No. 2735 of 1989 — Order re Stay in matter No. 2066 ot 1989 — Pending hearing and determination — Dismissed Executive State School Teachers Union and Pratt R. — No. 304 of 1990 — Withdrawn by Leave Federated Clerks Union and Coles New World Supermarkets and Others — No. 2784 of 1989 — Application for Stay of Order No. 1584 of 1989 pending appeal — Dismissed ; Federated Municipal and Shire Council Employees Union and Bellamy R.T. — No. 616 of 1990 — Application for a joinder ol the respondent to Application No. 508 of 1990 — Dismissed Fry E.L. Secretary, Liquor and Allied Industries Union and Baxter W.T. — No. 2238 of 1989 — Clarification of Order 2238 of 1989 1 V Furniture Trades Union and Construction Mining and Energy Workers Union and Others — No. 2724 of 1989 — Application for Stay of Order Nos. CR1540 of 1989. CR193 of 1989, CR219 of 1989 and CR251 of 1989 pending determination of appeal — Granted Hampson P. and Ritchie N. and Ministry of Education — Nos. 2779 and 2780 081989 — Application for Stay of Order pending appeal — Dismissed - — Harken E. State School Teachers Union and Pratt R. — No. 270 of 1990 — Withdrawn by Leave Shop. Distributive Allied Employees Association and Jim Berry Terrace Pharmacy — No. 493 of 1990 — Application for a stay of Order No. CR1089 of 1989 pending appeal — Dismissed Transport Workers Union and Australian Glass Manufacturing Co Pty Ltd and Others — No. 698 of 1990 — Application for a stay of Order No. 1628 of 1989(R) pending hearing and determination — Granted Transport Workers Union and Freshwater Corporation Pty Ltd — Nos. 417 — 418 of 1990 — Application for Stay of Order Nos. 356-362 of 1989 pending appeal — Dismissed Wilkins G.R. and Verticordia Holdings trading as Bcrnies — No.220 of 1990 — Application for Stay of Decision in Complaint No. 186 of 1989 pending appeal — Granted PROCEDURAL DIRECTIONS AND ORDERS - Application T18 of 1989 — Application for Shortened time for answers! to Application T17 of 1989 — Dismissed Application No. 1548 of 1989 — Application for Shortened time for answers to Application No. 1547 of 1989 — Withdrawn by Leave Appeal No. 2203 of 1989 — Application for extenstion of time in Appeal No. 2202 of 1989 — Granted Application No. 2239 of 1989 and 2277 of 1989 — Order re ApplicationNo. 227 of 1989 to be heard separately and immediately after Application No. 2239 of 1989 and other procedural matters Application No. 2324 of 1989 — Order re adjournment of proceedings and service of Application and Answers Application Nos.2365 to 2383 of 1989 — Stay of Application Nos. 2365 to 2383 of 1989 pending leave of the Supreme Court Application No. 2465 of 1989 — Order re adjournment of proceeding — Granted Application No.2481 of 1989 — Appliation for further and better particulars to Application No. 2229 of 1989 —• Granted Application No. 2622 of 1989 — Application for further and better particulars to Application 225 of 1987 — Withdrawn by Leave Application No. 2656 of 1989 — Production of documents to Application No. 2484 of 1989 — Withdrawn by leave Application No. 2748 of 1989 — Production of documents to Application No. 2747 of 1989 Application No. 2753 of 1989 —Order re Stale School Teachers Union be joined as Respondent to Application No. 2753 of 1989 and service and answers to Applicant ApplicationNo. 2753 of 1989 — Orders re adjournment of Application No. 2753 of 2989 Application No. 2758 of 1989 — Order re abridgement of time in Application No. 2753 of 1989 Application No. 2762 of 1989 — Application for shortened time for answers to Application No. 2761 of 1989 — Dismissed Application No. 2771 of 1989 — Application for shortened time for answers to Application No. 2770 of 1989 — Dismissed Application No. 2788 of 1989 — Shorten Time for Answer — Withdrawn by Leave Application No. 2814 of 1989 — Shortened time for answers to Application No. 2813 of 1989 Application No. PI of 1990 — Production of Documents — Dismissed Application No. 8 of 1990 — Shortened time for answers to Application No. 7 of 1990 Application No. 25 of 1990 — Production of documents to Application No. 25 of 1990 Application No. 88 of 1990 — Application to file notice of Answer and counter proposal in Application No. 2137 of 1989 — Granted in Part Application No. 89 of 1990 — Application for shortened time for answers to Application No. 88 of 1990 — Granted Application No. 116 of 1990 — Application for further and better particulars to Application No. 2825 of 1989 — Dismissed Application No. 215 of 1990 — Application for shortened time for answers to Application No.214 of 1990 — Granted Application No. 299 fo 1990 — Application for shortened time for answers to Application No. 298 of 1990 — Granted Application No. 310 of 1990 — Application No. 2843 and 2844 of 1989 to be heard concurrently and contractual entitlements of Application No. 2843 of 1989 be determined as a separate issue Application No. 382 of 1990 — Application for Shorten Time for Answer in Application No. 381 of 1990 — Granted Application No. 427 of 1990 — Application for shortened time for answers in Application No. 426 of 1990 "Application No. 456 of 1990 — Application for shortened time for answer in matter No. 437 of 1990 Application No. 459 of 1990 — Application for shortened time for answers to Application No. 458 of 1990 — Withdrawn by leave Application No. 556 of 1990 — Application for shortened time for answer in matter No. 555 of 1990 Application No. 557 of 1990 — Shortened Time for Answers in Application No. 544 of 1990 Application No. 589 of 1990 — Application for discovery of documents to Application No. 50 of 1990 — Dismissed Application No. 616 of 1990 — Application for a joinder of the respondent to Application No. 508 of 1990 — Dismissed Application No. 617 of 1990 — Production of Documents — Discontinued Application No. 618 of 1990 — Production of Documents — Discontinued Appeal No. 662 of 1990 — Application for Appeal No. 2798 of 1989 be adjourned — Granted Application No. 690 of 1990 — Production of documents and further and better particulars to Application Nos. 2843 and 2844 of 1989 — Granted Application No. 713 of 1990 — Application for an extension of lime in Application No. 582 of 1990 — Granted Application No 736 of 1990 — Application for shortened time for answers to Application No. 735 of 1990 — Withdrawn by leave - - Application No. 745 of 1990 — Application for shortened time for answers to Application No. 744 of 1990 — Granted Application No. 859 of 1990 — Appliction for an extension of time to Application No. A11 of 1990 — Granted Application No. 908 of 1990 — Application for shortened time for answers in Application No. 905 of 1990 — Withdrawn by leave (xiv) WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 70 W.A.I.G. CUMULATIVE CONTENTS—con/in«erf Page PROCEDURAL DIRECTIONS AND ORDERS —continued Application No. 910 of 1990 — Appliction for shortened time for answers to Appliction No. 909 of 1990 — Granted 1954 Application No. 912 of 1990 — Application for shortened time for answers to Application No. 911 of 1990 — Granted 1954 Application No. 948 of 1990 — Application for shortened time for answers in Application No. 947 of 1990 — Dismissed 1955 Appliction No. 968 of 1990 — Application for shortened time for answers in Application No. 967 of 1990 — Granted 1955 Application No. 1001 of 1990 — Application for shortened time for answers in Application No. 1000 of 1990 — Granted 1955 PROMOTION APPEALS — Cantrill R.L. and Marcos L. — Appeal No. PAB300 of 1988 — Clerk Table A(i), Marketing and Operating Branch Fremantle. Westrail — Dismissed Patrick G.A. and Evans L.R. — Appeal No. PAB34 of 1990 — Occupational Health and Safety Co-ordinator, Authority for the Intellectually Handicapped — Upheld PUBLIC SERVICE APPEAL BOARD - Neil D.J. and Hon Minister for Community Seraces — PSAB8 of 1989 — Withdrawn by Leave 1615 PUBLIC SERVICE ARBITRATOR - AWARDS/AGREEMENTS — VARIATIONS OF - Childrens' Services (Government) Award No. A29 and PSA A29A of 1985 Clerks' (Public Authorities) Award No. A7 of 1987 Community Colleges (Salaried Officers) Award No. A14 of 1983 Government Officers (Social Trainers) Award PSA A20 of 1985 Hospital Laundry and Linen. Service (Salaried Officers) Award No. 36 of 1978 Hospital Salaried Officers Award No. 39 of 1968 Metropolitan Teaching Hospitals — Salaries and Conditions of Service Award 1986 (Medical Officers) No. PSA A18 of 1986 . Police Award No. 2 of 1966 Port Hedland Port Authority Port Control Officers Award No. A1 of 1982 Public Service Camping Allowance Agreement No. PSA AG2 of 1985 Public Service Miscellaneous Allowances Award No. 14 of 1982 Western Australian School of Nursing (Salaried Officers) Award No. 37 of 1978 Western Australian State Public Hospitals Medical Practitioners Award No. PSA A19 of 1986 Rl-.Cl ASSII ICATION APPEALS 603, 954, 1249, 1991 SECTION 29 — NOTATION OF SITE ALLOWANCES — Amalgamated Metal Workers Union and Others and Baulderstone Hornibrook and Others — CR57 of 1990 — Order re site allowance on the Pigment Plant site at Kwinana — Granted Amalgamated Metal Workers Union and Others and State Energy Commission — No. CR795 of 1989 and CR980 of 1989 — Order re site allowance on Narrogin Switchyard — Granted ■■■ 11 Amalgamated Metal Workers Union and thiess Contractors Pty Limited — No. CR907 of 1989 — Claim re site allowance for repair work on Nelson Point Shiploading facilities at the Mt Newman Mining Company berth. Port Hedland — Granted in Part Builders Labourers Federation and G. & R. Constructions — No. CR922 of 1989 — Claim re site allowance on the home units construction site. Walcott Street, Mt Lawley — Dismissed Building Trades Association and Barclay Mowlen — No. C995 of 1989 — Order re site allowance on Hamersley Iron Pty Ltd plant workshop and warehouse site at Paraburdoo — Granted Building Trades Association and Barclay Mowlem Ltd — No. C212 of 1990 — Order re site allowance for construction of Haul Truck Workshop at Hamersley Iron Pty Ltd site at Paraburdoo — Granted Building Trades Association and Binnani Pty Ltd — No.CR834 of 1989 — Claim re site allowance on Cable Beach Resort Restaurant site, Broome — Dismissed Building Trades Association and Geraldton Building Company — Nos. C844 and 845 of 1989 — Claims re site allowances for Geraldton Senior High School Geraldton — Dismissed Building Trades Association and Hon Minister for Works — No. CR477 of 1989 — Order re site allowance on the Balga Technical School Project Site — Further Correcting Order Building Trades Associatin and Jaxon Construction Pty Ltd No. CR704 of 1989 — Order re site allowance on the Port Hedland College site — Granted Building Trades Association and Jaxon Construction Pty Ltd — No. CR44 of 1990 — Order re site allowance on the Kalgoorlie Police Station, Kalgoorlie — Granted Building Trades Association and J.M. Best and Sons — No. C913 of 1989 — Order re site allowance and other entitlements on Falcon Primary School site — Granted Building Trades Association and Kalgoorlie Concreting — No. C730 of 1990 — Order re site allowance on the Pinjar Power Station. Pinjar — Granted Building Trades Association and Keywest Construction Group Pty Ltd — No. CR919 of 1989 — Claim re site allowance on Mandurah Primary School site — Granted Building Trades Association and Master Builders Association on behalf of Grendel Construction Engineers Pty Ltd — No. CR1122 of 1989 — Claim re site allowance at Prendiville Drive construction site, Wangara — Granted Building Trades Association and Redhill Construction Company and AHPC Pty Ltd — No. CR25 of 1990/No. 36 of 1990 — Order re site allowance on the SEC Power Station site at Pinjar — Granted Building Trades Association and RJ. Brady Pty Ltd — No. C1054 of 1989 — Order re site allowance on Hamersley Iron Pty Ltd pellet plant site at Dampier — Granted ■••• Building Trades Association and Southdown Construction — No. CR862 of 1989 — Claim re site allowance on Dalmain Primary School site, Kingsley — Granted in Part Building Trades Association and Southdown Construction Company Pty Limited — No. C15 of 1990 — Order re Site Allowance on WACAE Construction site Joondalup — Granted Building Trades Association and Others and State Energy Commission — No. CR589 of 1989 — Claim re site allowance and other entitlements for employees of Respondent on Pinjar Power Station site — Granted Building Trades Association and Universal Constructions — No. 2532 of 1989 — Order re site allowance on the Churchlands College of Advanced Education Construction Site — Further Correcting Order Electrical Trades Union and Another and AHPC Pty Ltd — No. C46 of 1989 — Order re site allowance at Pinjar Power Station site — Granted •■■■• Electrical Trades Union and Another and Building Management Authority — Nos. C1030 to 1936 of 1989 — Claims re site allowances on Art Gallery Perth and other Government sites — Granted 70 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE CUMULATIVE CONTENTS—continued SUPERANNUATION/WAGE FIXING PRINCIPLES — ORDERS - Case and Boxmakers Award No. 48 of 1951 Dardanup Butchering Company Nominees Pty Ltd Occupational Superannuation Fund Order — No. 3 Fremantle Furniture Factory Superannuation Order C210 of 1988 George Moss Limited (Superannuation) Order No. 2 — No. 684(a) of 1988 Particle Board Employees Award No. 22 of 1964 Plywood and Veneer Workers Award No. 24 of 1952 Western Australian Meat Commission Occupational Superannuation Fund Order — No. C1203 of 1988 No. 379 of 1990 . UNFAIR DISMISSAL/CONTRACTUAL ENTITLEMENTS - Amalgamated Metal Workers Union and Alloytech Pty Ltd No. CR33 of 1989 — Claim re unfair dismissal seeking reinstatement — Dismissed Amalgamated Metal Workers Union and Hamersley Iron Pty Ltd — No. CR1184 of 1989 — Claim re unfair dismissal seeking reinstatement without loss of entitlements — Dismissed Arnold B. and Mairim Pty Ltd (Receiver and Manager Appointed) trading as Dolmar Chemicas — No. 2297 of 1989 — Claim re contractual entitlements — Granted Australian Workers Union and Argyle Diamond Mines Pty Ltd — No. CR901 of 1989 — Claim re unfair dismissal — Dismissed Australian Workers Union and Newmont Australia Limited — No. CR587 of 1989 — Claim re unfair dismissal — Dismissed Australian Workers Union and Newmont Australia Limited — No. CR972 of 1989 — Claim re unfair dismissal — Dismissed Australian Railways Union and Western Australian Government Railways Commission — No. CR701 and 702 of 1989 — Claims re unfair dismissal — Dismissed Bataille R. and Connor Refrigerated Transport Pty Ltd — No. 822 of 1988 and Connell K.M. and Connor Refrigerated Transport Pty Ltd — No. 960 of 1988 — Claim re contractual entitlements — Dismissed Bellamy R.T. and Federated Municipal and Shire Employees' Union of Australia, Western Australian Branch — No. 2311 of 1989 — Claim re unfair dismissal — Dismissed Black L, Smith S. and Burns J. and Zeus Holdings Pty Ltd trading as Supergym — No. 956, 1531 and 1806 of 1989 — Claim re contractual entitlements — Granted Brady A.G. and Isherwood Holdings Pty Ltd trading as "Superior Courier Services" — No. 2674 of 1989 — Claim re contractual entitlements — Granted Builders Labourers Federation and Skytcc Constructions — No. CR13 of 1990 — Claim re unfair dismissal — Granted Burnes R. and Allwaste Pty Ltd — No. 1807 of 1989 — Claim re Contractual Entitlements — Dismissed Campbell T. and Novapanel Pty Ltd — No. 924 of 1989 — Claim re contractual entitlements — Granted in Part Carlyou P. and Dulville Pty Ltd trading as Ross Squire Kit Homes — No. 2502 of 1989 — Claim re unfair dismissal seeking re-employment — Dismissed Clothing and Allied Trades Union and Fernfield Pty Ltd Trustee for the Lawson Family Trust trading as Ultra Cove Dry Cleaners — No. CR1413 of 1988 — Claim re unfair dismissal — Dismissed Colman R. and Smithson B. — No. 2757 of 1989 — Claim re unfair dismissal — Dismissed for Want of Jurisdiction Construction Mining and Energy Workers Union and Design Ceilings — No. CR1095 of 1989 — Claim re unfair dismissal — Dismissed Construction, Mining and Energy Workers Union and Robe River Iron Associates — No. CR301 of 1990 — Claim re unfair dismissal — Withdrawn by leave Day J.M. and Sonic Souvenir Co Ply Ltd — No. 1889 of 1989 — Claim re contractual entitlements — Granted in Part Federated Clerks Union and Action Food Barns (WA) Pty Ltd — No. CR1000 of 1989 — Claim re unfair dismissal — Dismissed (refused) Federated Clerks Union and Donhad Forgings Ply Ltd — No. CR1354 of 1988 — Claim re unfair dismissal seeking reinstatement without loss of entitlements — Dismissed Federated Clerks Union and George Moss Ltd — No. CR388 of 1989 — Claim re unfair dismissal — Dismissed Federated Clerks Union and K-Mart — No. CR1647 of 1988 — Claim re declaration that work hours had been altered and reduced and to be re-established as previously — Dismissed Federated Clerks Union and Merchant Service Guild — No. 2590 of 1989 — Claim re contractual entitlements — Granted Federated Clerks Union and Transport Workers Union — No.CR1651 of 1988 — Claim re contractual entitlements — Granted Ferguson H. and Cheeta Holdings Ply Ltd trading as Australian Accounting Services — No. 776 of 1988 — Claim re contractual entitlements — Dismissed for want of prosecution Fitzgerald M.A. and Butler C.G. trading as "Femme Fatale Beauty Salon" No. 2772 of 1989 — Claim re contractual entitlements — Dismissed Gale G.B. and Paul Jones and Associates Pty Ltd — No. 2287 of 1989 — Claim re contractual entitlements — Granted Hunt G.V. and Contract Diving Services Pty Ltd — No. 1487 of 1988 — Claim re contractual entitlements — Granted Ishmael S.A. and Elverston Nominees — No. 2233 of 1989 — Claim re contractual entitlements — Dismissed Jackson B.L. and Seismic and General Geophysical Services Pty Ltd — No. 724 of 1988 — Claim re contractual entitlements — Dismissed Janssen K. and Lifestyle Construction — No. 837 of 1989 — Claim re contractual entitlements — Dismissed Kin P. and Jackson M.H. and Assist Computer Technology Pty Ltd — Nos. 990 and 991 of 1989 — Claim re contractual entitlements — Granted Kukurs J.L. and Allpike Honda — No. 2327 of 1989 — Claim re contractual entitlements — Granted Lang M.A. and Telecom Australia — No. 845 of 1989 — Claim re contractual entitlements — Dismissed Leverencc L.J. and Auto Trans Express trading as West Bros — No. 1917 of 1989 — Claim re unfair dismissal seeking reinstatement — Dismissed Lipscombe J.R. and Safari Trek Australia Pty Ltd — No. 108 of 1989 — Claim re contractual entitlements — Granted Liquor and Allied Industries Union and Chhachhi G.S. trading as Chicken Treat Medina — No. C164 of 1990 — Claim re unfair dismissal — Granted Liquor and Allied Industries Union and Criterion Douglas Hotel — No. CR87 of 1989 —- Claim re unfair dismissal — Dismissed Liquor and Allied Industries Union and Observation City Resort Hotel — No. CR746 of 1989 — Claim re unfair dismissal — Dismissed Littlewood M. and B.A. & M.L. Wilson trading as Wilson Business and Investment Group — No. 2534 of 1989 — Claim re contractual entitlements — Ordered Accordingly Long S. and Others and Prime Holdings Pty Ltd trading as Phoenix Hotel — No. 2396/1-4 of 1989 — Claim re contractual entitlements — Granted Lovejoy C.B. and Osborne Entereprises — No. 2838 of 1989 — Claim re unfair dismissal and contractual entitlements — Dismissed Lumbacca L. and Pentapac Limited No. 779 of 1988 — Claim re contractual entitlements — Dismissed McDowell E. and Swan Cottage Homes Inc — No. 830 of 1989 — Claim re unfair dismissal seeking reinstatement — Dismissed .... McGinnis D. and Vawn No. 4 Pty Ltd trading as Rod Ferguson Suzuki — No. 1650 of 1989 — Claim re contractual entitlements — Adjourned (xvi) WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 70 W.AJ.G. CUMULATIVE CONTENTS- UNFAIR DISMISSAL/CONTRACTUAL ENTITLEMENTS —continued McGinnis D. and Vawn No. 4 Pty Ltd trading as Rod Ferguson Suzuki — No. 1650 of 1989 — Claim re contractual entitlements — Granted Margio J.A. and Fremantle Arts Centre Press — No. 713 of 1988 — Claim re unfair dismissal seeking reinstatement and contractual entitlements — Granted in Part MarkovinaM. and Darby T. and Cambrai Holdings Pty Ltd trading as West Coast Health Club — Nos. 2199 and 2200 of 1989 — Claim re contractual entitlements — Granted Merchant Service Guild and Another and Stirling Marine Services Pty Ltd — No. CR3012 of 1989 — Claim re unfair dismissal —- Dismissed Miscellaneous Workers Union and Hon Minister for Education — No. C140 of 1990 — Claim re contractual entitlements — Granted Miscellaneous Workers Union and Mawarnkarra Health Service Aboriginal Corporation — No. CR807 of 1989 — Claim re unfair dismissal — Granted Morgan S.A. and Bruining Hedlam Computers Pty Ltd — No. 756 of 1989 — Claim re unfair dismissal seeking declaration to that effect — Ordered accordingly Needham M.J. and Consolidated Constructions Pty Ltd — No. 1858 of 1989 — Claim re contractual entitlements — Dismissed Norstrand R.R. and Minproc Engineers Pty Ltd — No. 1956 of 1989 — Claim re contractual entitlements — Granted Penley P.G. and Probatus Pty Ltd — No. 291 of 1989 — Claim re contractual entitlements — Dismissed for want of prosecution .... Pennelf J.C. and Others and Manfal Ply Ltd (In Liquidation) — No. 2365 to 2383 of 1989 — Claims re contractual entitlements — Stay of matter pending leave of Supreme Court — Pending Price RJ. and Berkely Challenge Corporation — No. 2360 of 1989 — Claim re contractual entitlements — Granted Purvis E. and Auto Bavaria — No. 2533 of 1989 — Claim re unfair dismissal and contractual entitlements — Granted in Part Ramage B.W. and House of Carpets No. 2504 of 1989 — Claim re contractural entitlements — Granted Ranasinghe V.C.W. and Commodity and Projects Export Development Pty Limited trading for the Milton Family Trust trading as Douglas Designs — No. 1271 of 1987 — Claim re contractual entitlements — Dismissed Reid J.L. and Danebrook Holdings Pty Ltd — No. 1748 of 1989 — Claim re unfair dismissal and contractual entitlements — Dismissed Riley L.J. and Valkai Pty Ltd trading as Pcet and Co Rockingham No. 2252 of 1989 — Claim re unfair dismissal and contractual entitlements — Granted in Part Rowley P. and Summit Products Pty Ltd — No. 602 of 1989 — Claim re contractual entitlements — Dismissed Sala Tenna M.R. and RJ. Galloway trading as Photogem. Primary Color — No. 2083 of 1989 — Claim re contractual entitlements — Dismissed Scouller M. and Ask Australia Computer System — No. 547 of 1989 — Claim re Contractual Entitlements — Dismissed for want.of Proscctuion Scrivens H. and Fernhurst Holdings Pty Ltd trading as W. Moser Consultants — No. 819 of 1989 — Claim re contractual entitlements — Granted in Part Semniler M.A. and Carmond J. — No. 2312 of 1989 — Claim re contractual entitlements — Granted Shaw G.M. and Hills Industries — No. 432 of 1989 — Claim re unfair dismissal — Dismissed for Want of Prosecution Shop Distributive and Allied Employees Association and Jim Berry Terrace Pharmacy No. CR1089 of 1989 — Claim re unfair dismissal seeking reinstatement — Granted Stairmond D. and Scarlc K. and Capoditra Pty Ltd — Nos. 1282 and 1283 of 1988 — Claims re unfair dismissal and contractual entitlements — Dismissed and Discontinued Stevenson I. and Stevenson B.M. and Ellesen Pty Ltd — Nos. 1533 and 1534 of 1989 — Claim re contractual entitlements — Dismissed Stokes P.K. and Marsara S. trading as Marsara Property Group — No. 1713 of 1989 — Claim re contractual entitlements — Granted Thobavan L.J.J. and Albany Dog Rock Motel — No. 2336 of 1989 — Claim re unfair dismissal — Granted Trott R. and Structor Pty Ltd trading as Interigo and Intcleclric — No. 920 of 1989 — Claim re contractual entitlements — Granted in Part Vaile S.A. and Webster and Webster — No. 2594 of 1989 — Claim re contractual entitlements — Dismissed Wainwright C. and Biblos Nominees Pty Ltd trading as Artifcx Australia — No. 2683 of 1989 — Claim re unfair dismissal seeking reinstatement — Ordered Accordingly Walsh A.J. and the Farmers Federation Investment Company Limited trading as Farmers Weekly — No. 2675 of 1989 — Claim re unfair dismissal — Dismissed West Australian Bakers'. Pastrycooks' and Confectioners Union and Brynwood Pty ltd trading as "Peters Bakers" — No. CR897 of 1989 — Claim re unfair dismissal seeking reinstatement — Dismissed Zovko V. and Somas Holdings trading as Fast Eddy's Cafe — No. 611 of 1989 — Claim re unfair dismissal — Dismissed for Want of Proscctuion • Alteration to Rules 14. 20. 28 and 29 — Application to alter Rule 4 — Eligibility for UNIONS - APPLICATION FOR ALTERATION OF RULES - Australasian Society of Engineers. Moulders and Foundry Workers — Application No. 2269 of 1989 — Before Full Bench — Alteration to Rule 2 — Constitution — Dismissed Australian Nursing Federation — No. 314 of 1990 — Before Deputy Registrar — Alteration to Rules 14. 20. 28 and 29 Australian Nursing Federation — No. 485 of 1989 — Before Full Bench — Application to alter Rule 4 — Eligibility for Membership — Granted in Part Hotels Association Inc. — Application No. 2155 of 1989 — Before the Full Bench — Alteration to Rule 1 — Name — Granted Merchant Service Guild — Application No.2562 of 1989— Before Deputy Registrar — Alteration to Rules 6. 8,9.10.11.12.13.14.17.20 and 35 — Granted Miscellaneous Workers Union — No. 2804 of 1989 — Before Deputy Registrar — Alteration to Rule 10 Operative Plasterers and Plaster Workers Federation — Application No. 1 of 1988 — Before Full Bench — Alteration to Rule 3 — Constitution — Granted Railway Officers Union — Application No. 2201 of 1990 — Before the Full Bench — Alterations to Rules 4 and 5 — Granted Railway Officers Union — Application No. 2659 of 1989 — Before Deputy Registrar — Alteration to Rules 6. 8. 10. 11. 12. 18, 21. 22, 23, 25, 27, 28, 39, 36, 37 and 42 — Granted Railway Officers Union — No. 805 of 1990 — Before Deputy Registrar — Alteration to Rules 21 and 33 State School Teachers Union — Application No. 1543 of 1988 — Before Full Bench — Alteration to Rule 3 — Membership — Granted State School Teachers Union — Application No. 1543 of 1988 — Before Full Bench — Order re Application be adjourned sine die State School Teachers Union — Application No. 2239(3) of 1989 — Before President and Registrar — Alteration to Rules 3. 17,19,27, 30 State School Teachers Union — Harken E. and Pratt R. and Others — No. 92 of 1990 — Before Deputy Registrar — Rules 19(e) and 19(0 deleted under section 66 (xvii) 70 W.AXG. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE CUMULATIVE CONTENTS— continued UNIONS - APPLICATION FOR REGISTRATION - Australian Federation of Construction Contractors — Application No. 2185 of 1989 — Before Full Bench — Application for Registration — Granted Australian Federation of Construction Contractors Association — Application No. 2185 — Before the Full Bench — Correction Order UNIONS - APPLICATION FOR INDUSTRIAL ASSOCIATION - Australian Federation of Construction Contractors — Application No. 2185 Order Before Full Bench Correction UNIONS — CHANGE OF NAME - Western Australian Hotels Association Incorporated (Union of Employers) — No. 2155 of 1989. — Before Full Bench — Change of Name — Granted UNIONS — MATTERS DEALT WITH UNDER SECTION 66 - Civil Service Association and Kaub J.H. — No. 2194 of 1989 — Application for new elections and that election complies with Act and Rules — Granted Civil Service Association and McDonald R.A. — No. 773 of 1990 — Application re elections of the Association be conducted in accordance with the said Rules — Granted Civil Service Association and Another and White J.A. and Others — No. 2634 of 1989 — Application for an Order requiring compliance with rules — Withdrawn Construction, Mining and Energy Workers Union and Martin R.J. and Rayner S.B. — Nos. 2132 — 2138 of 1989 — Application for enforcement and interpretation of union rules re membership — Granted Fry E.L. Secretary, Liquor and Allied Industries Union and Baxter W.T. — No. 2238 of 1989 — Clarification of Order No. 2238 of 1989 Fry E.L. Secretary, Liquor and Allied Industries Union and Baxter W.T. — No. 2465 of 1989 — Order re adjournment of proceedings Liquor and Allied Industries Union and Others and Baxter W.T. — No. 2324 of 1989 — Order re adjournment of proceedings and service of Application and Answers Newman W., Acting General Secretary State School Teachers Union — No. 2277 of 1989 — Order re Application No. 2277 of 1989 be heard separately and immediately after Application No. 2239 of 1989 Pratt R.D.R. and State School Teachers Union, Lloyd T. — No. 108 of 1990 — Breach of rules in relation to elections — Dismissed President and Executive of Stale School Teachers Union and Gurgone M. — No. 2753 of 1989 — Interim Application for Interim Orders enforcing compliance with union rules — Dismissed — Orders Issued re procedures and joinder of respondent — Pending President and Executive of State School Teachers Union and Gurgone M. — No. 2758 of 1989 — Order re abridgement ol time in Application No. 2753 of 1989 President and Secretary, Bakers, Pastrycooks' and Confectioners' Union and Tumoana J. — No. 25 of 1990 — Application re joinder of Respondent to Application and procedural matters — Order re dismissal of Application — Dismissed Slate School Teachers Union, Harken E. and Pratt R. and Others — No. 92 of 1990 — Application re interpretation of Union rules — Ordered Accordingly Slate School Teachers Union and Farrell K.M. — No. 2432 of 1989 — Application for order to require compliance with union rules and order No. 2248 of 1989 — Granted State School Teachers Union, Harken E. and Pratt R. and Others — No. 92 of 1990 — Rules 19(e) and 19(1) of State School Teachers Union deleted State School Teachers Union and Ohters and Doherty J.A. — No. 2239 of 1989 — Claim re breach of union rules in union elections — Granted and Rules altered State School Teachers Union, Executive of and Hunter R.J. — No. 2597 of 1989 — Application for order requiring union to comply with rules — Withdrawn State School Teachers Union, Executive of and Phillips D. — No. 2598 of 1989 — Application for order requiring union to comply with rules — Withdrawn UNSPECIFIED ORDERS - Miscellaneous Workers Union and St John Ambulance Association — No. 2047 of 1989 (R) — Order re "Ambulance Service Communication Centre Employees Order 1989" COAL INDUSTRY TRIBUNAL - AWARDS/AGREEMENTS - VARIATION OF - Coal Mining Industry (Miners' Western Australia) Award 1981 The Collie Deputies Award 1954 Colliery Staffs' Award 1968 No. 62 of 1955 Engineers Coal Mining Award 1953 1 Griffin Coal Mining Company (Special Conditions of Employment — Deputies) Award 1988 Griffin Coal Mining Company (Special Conditions of Employment — Engineers) Award No. 29 of 1988 Griffin Coal Mining Company (Special Conditions of Employment — Miners) Award 1988 604, i Griffin Coal Mining Company (Special Conditions of Employment — Staff) Award 1988 Long Service Leave — Miners Award No. 104 of 1955 Western Collieries Ltd (Special Conditions of Employment — Deputies) Award 1988 Western Collieries Limited (Special Conditions — Engineers) Award No. 14 of 1988 . Western Collieries Limited (Special Conditions of Employment — Miners) Award 1988 Western Collieries Limited (Special Conditions of Employment — Staff) Award 1988 COAL INDUSTRY TRIBUNAL - DISPUTES — MATTERS REFERRED - Coal Miners' Union and Griffin Coal Mining Company Ltd — No. 27 of 1989 — Claim re unfair dismissal — Dismissed 615 (xviii) WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 70 W.A.I.G. CU M U LATIVE CONTENTS—continued SCHOOL TEACHERS TRIBUNAL — MATTERS DEALT WITH — Anderson W.D. and the Honourable Minister for Education — No. T3 of 1988 — Appeal against dismissal order — Dismissed .. Application T18 of 1989 — Application for Shortened time for answers to Application T17 of 1989 — Dismissed Shepherd C.E. and the Honourable Minister for Education — No. T4 of 1989 — Appeal against dismissal — Dismissed State School Teachers Tribunal and Hon Minister for Education — No. TCI of 1990(R) — Order that the Award be varied Granted OCCUPATIONAL HEALTH. SAFETY AND WELFARE ACT - MATTERS DEALT WITH - Amalgamated Metal Workers Union and Others and Bains Harding Industries — No. OHSW 8 of 1989 — Withdrawn by Leave Australian Workers Union and Commissioner of Department of Occupational Health. Safety and Welfare — No. OHSW15 of 1989 — Dispute re suspension of crane driver — Dismissed Department of Occupational Health. Safety and Welfare and A1 Auto Spray Painters — No. OHSW12 of 1989 — Application to suspend prohibition notice — Dismissed Department of Occupational Health. Safety and Welfare and Arnold Kimberly Bird (Maybird and Associates) — No. OHSW4 of 1990 — Order re cancellation of Prohibition Notice 02163 — Granted Department of Occupational Health. Safety and Welfare and Bakers" Hill Wool Processors — No. OHSW3 of 1990 — Order re cancellation of prohibition notice and suspension of prohibition notice — Dismissed Department of Occuplional Health. Safety and Welfare and Multiplex Construcitons Ply Ltd — No. OHSW7 of 1990 — re review of a prohibition Notice issued — Discontinued Department of Occupational Health. Safely and Welfare and Owners of 524 Hay Street. Perth — No. OHSW6 of 1990 — Order re temporary suspension of Prohibition Notice No. 02302 — Granted Department of Occupational Health. Safety and Welfare and Owners of 524 Hay Street, Perth — No. OHSW5 of 1990 — Order re issue of Prohibition Notice No. 02301 — Granted Department of Occupational Health Safety and Welfare and Simsmctal Ltd — No. OHSWl(A) of 1990 — Order re suspension of Prohibition Notice subject to Order No. OHSW1 of 1990 be extended indefinitely — Granted Department of Occupational Health. Safety and Welfare and Simsmetal Ltd No. OHSW1 of 1990 — re review of a Prohibition Notice issued — Adjourned sine die (xix) WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 70 W.A.LG. MATTERS REFERRED TO IN DECISIONS OF INDUSTRIAL APPEAL COURT, INDUSTRIAL COMMISSION AND INDUSTRIAL MAGISTRATES CONTAINED IN VOL. 70 PART 1, SUB PART 7. 'Denotes Industrial Appeal Court Decision. 2Denotes Full Bench Decision. 3Denotes Commission in Court Session Decision. "Denotes Decision of President. ABSENCE WITHOUT LEAVE - Employee terminated for being absent without medical certificate — Applicant Union claimed dismissal unfair and sought reinstatement — Respondent argued that the employee had a history of chronic absenteeism and poor performance — Commission found that a letter to the employee had created a term of contract between the parties as to the product of a further absence — Furthermore Commission found as a matter of merit that the Respondent was not wrong in bringing the contract of employment to a close — Dismissed — AWU v. Newmont Australia Ltd — No. CR587 of 1989 — Gregor C. — 5/1/90 — Mining ACT - INTERPRETATION OF - application for interpretation of union rules re whether the Respondent Union had the ability to enrol the Applicants or not — Respondent Union claimed President did not have jurisdiction to deal with matter under section 66 of Industrial Relations Act as Applicants were not eligible to be members of the Union — President found Applicants clearly past members ofthe Respondent Union and able to seek relief under section 66 — Moreover that a declaration ofthe Commission (65 WAIG 2300 at 2306) applied, that the Applicants were not eligible to be members of the Respondent and should be refunded fees collected — Ordered accordingly — Martin J.M. and Rayner S.B. and CMEU - No. 2132—2138 of 1989 - Sharkey P. - 30/10/89 - Unions Conference referred re unfair dismissal claims — question of jurisdiction previously determined — Applicant Union claimed dismissal of two employees was unfairas the stated reason, a lack of work, was allegedly not true — Commission found on agreed facts that employees had been employed as temporary employees — Dismissed — ARU v. WAGRC CR701 of 1989 and CR702 of 1989 Kennedy C. — 12/12/89 — Railways application for an order re non compliance with Union rules and a previous order of the President — Respondent Union denied that it had failed to comply with the previous order and claimed that section 66 of the Industrial Relations Act provided no jurisdiction for enforcement of orders — President reviewed Industrial Relations Act, Rules and internal disputation in the Union — President found that there had been reasonable opportunity for a committee to meet and report on certain issues in accordance with the order — However President also found other matters had been dealt with through a Union conference contrary to the Respondents policy, there had been a breach of Rules and the previous order — Granted in Part — Farrell K.M. v. SSTU — No. 2432 of 1989 — Sharkey P. — 28/11/89 — Unions 2Appeal against decision ofCommission at (69 WAIG 3123)re jurisdiction to deal with claimsof unfair dismissal — Appellant argued that Commission had erred in holding that it had jurisdiction to hear the claims as section 23(3)(d) of the Industrial Relations Act and section 73 of the Government Railways Act prohibited it from so doing— Full Bench reviewed authorities and found that the right of Appeal to the Railways Appeal Board extended only to dismissal for misconduct and therefore there was no exclusion of jurisdiction under section 23(3)(d) of the IR Act — Dismissed — ARU v. WAGRC — No. 2401 and 2403 of 1989 — Sharkey P., Gregor and Parks C. — 13/12/89 — Railways 2 Appeal against decision of Government School Teachers Tribunal at (69 WAIG 3437) re Order for pay claim — Industrial disputation — section 44 proceeding — Education Act and IR Act referred to for definition of "industrial matter" with regard to teacher — Applicants tendered as a record of conference proceeding—Opportunity given to Appellant to be heard on all material matters — Industrial action peripheral to salary claim — section 44(6) orders not final — Orders made not determinative — Full Bench found Orders were made within power there was no miscarriage of justice — No grounds made out — Dismissed — SSTU and Hon Minister for Education — No. 2330 of 1989 — Sharkey P., Salmon C, George C. — 21/12/89 — Education Applications for new Awards to cover employees of the Houses of Parliament for the first time — Commission reviewed tortuous path of the attempts to establish Award Coverage for the employees concerned — Moreover. Commission reviewed authorities pertaining to the question of who was employer and the Commission s jurisdiction in relation to Parliamentary employees — Commission found all three Unions parly to the Applications had constitutional coverage, at least within their respective areas — Commission further found the Award finally proposed by agreement of all parties complied with the Wage Fixing Principles, allowed for the peculiarities of employment in the Houses of Parliament and despite misgivings, should issue — Granted — CSA and Others and the Governor in Council and Others — Nos. A15 of 1987, A4 and A7 of 1988 and A7 of 1989 — Fielding C. — 27/10/89 — Government Administration 2Appeai against decision of Commission (70 WAIG 537) insofar as it relates to the Appellant re conciliation Order pending determintion of dispute over dismissal — Appellant argued that it was not the employer concerned and not a party to any industrial matter properly before the Commission — Full Bench reviewed the circumstances of the case, Authorities and Legislation and found that although the summoning of the Appellant was within the Commission's power, making the Appellant subject to the Order was not — Upheld — Hon Minister for Mines, Fuel and Energy and the Mid-West and ETU — Appeal No. 2795 of 1989 — Sharkey P., Coleman C.C., Gregor C. — 17/5/90 — Electricity Supply 2 Appeal against decision ofCommission (68 WAIG 891)—Appellant sought to discontinue appeal — Full Bench found it was unable to discontinue appeal under section 49 of the Industrial Relations Act — Appeal dismissed by consent at request of parties — Dismissed — EPT Fochi Joint Venture and AMWSU — Sharkey P., Coleman C.C., Gregor C. — 8/12/89 — Construction Application for registration as an employer organisation — An Intervener supported the application — Objector/Intervener argued that there would be overlapping of membership and confusion in representation before the Commission — Full Bench reviewed authorities. Industrial Relations Act, and found where overlapping of membership was likely to occur the Full Bench can only register a new organisation where there is good reason to do so — Majority of Full Bench found on evidence that there were good reasons in accordance with section 6 of the Act to register the applicant, including the role it had already played in industrial relations in the Building and Construction Industries and its registration before other Inudstrial Commissions — Furthermore majority of Full Bench found there was on evidence an absence of problems arising out of the overlap in membership — Granted — AFCC — No. 2185 of 1989 — Sharkey P., Fielding C, Beech C. — 14/3/90 — Construction •Appeal against decision of Commission re Dispute Settlement Order issued pending hearing and determintion of matters referred out of conference — Appellant argued that in denying the Appellant an adjournment sought to consider the minutes of the Order, the Commission had adequately complied with section 35 of the Industrial Relations Act and hence procedural fairness — Respondent advised Full Bench in writing that it would not appear — Full Bench extensively reviewed authorities and found Commission was not bound to keep Full Bench of section 44conferences and that notes on the conference proceedings submitted as evidence by the Appellant should have been verified by Affidavit — Full Bench further found the Order was of a temporary routine, represented a finding, did not finally decide the matter and that the matter was not of such importance that an appeal should be — Dismissed — WALEDFCU and WAGRC — Nos. 2202 and 2203 of 1989 — Sharkey P.. Salmon C., Parks C. — 22/12/ 89 — Railways 70 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE CUMULATIVE DIGEST—continued Page ACT — INTERPRETATION OF —continued Application to alter rules re membership remitted back to Full Bench by Industrial Appeal Court for further enquiry and determination — Appeal Court had found Full Bench acted beyond power in effectively amending the application — No finding of fact was disturbed — Respondent argued for new evidence to be considered — Full Bench reviewed authorities. Industrial Relations Act and decision of Appeal Court and found that on appeal lies from the Full Bench if the decision is considered erraneous in Law or in excess of jurisdiction, but on no other grounds — Furthermore Appeal Court had not advised the Full Bench that further hearing and determination included a reconsideration of the factual position — Full Bench found question was whetherthe Applicant should have the right to enrol as members wall and ceiling fixers — Full Bench was not persuaded by permissible further enquiry and determination and with regard to unchallengable findings of fact at the original hearing that the application should not be granted as it was made — Granted — OPPWF and CMEU — No. 1 of 1988 — SharkeyP., ColemanC.C. Fielding C. — 30/3/90 — Unions 1294 Joint Federal and State proceedings re Unions refusal to attend work due to picket line of a Federal Union — Applicant employers sought order to remove picket line — Commission found it could join Federal Union to a conference by virtue of sections 27( 1 )(j) and 44(1) of the Industrial Relations Act. as the Federal Union was a "person" by virtue of the Interpretation Act and Federal Industrial Relations Act 1988 — Commission reviewed definitions of an industrial matter, the power to make orders pursuant to section 44 and found the removal of the picket line was a matter of fundamental significance to the resolution of the dispute — Granted — MBA and CMEU and Others — No. C34(l) of 1990 — Beech C. — 2/2/90 — Building Constrcution 1589 "Complaintre Breach of Union Rules — Applicant sought election to be declared void and previous committees to stand pending new- elections — Respondent Union sought matter be dealt with as trivial and discontinued as it had not and would be causing the complained ofcommittecs to meet prior to the new executive taking office — President considered undertaking of Respondent to be significant — President found no breach of the rules, though custom and practice was to hold elections, as the committees in question were not "offices" and there was no evidence of an irregularity as defined by section 7 of the Industrial Relations Act — Dismissed — Pratt R.D.R. and SSTU and Another — No. 108 of 1990 — Sharkey P. — 26/3/90 — Unions 1322 Application for registration of Industrial Agreement — TLC and Minister for Labour believed Applicant's establishments to be covered by Restaurant, Tearoom and Catering Workers Award so urged Commission to take cautions approach due to inconsistencies between Award and proposed Agreement which had adverse implications for State Wage Fixing Principles — Minister advised proceedings had been instituted in Industrial Magistrate's Court against Applicant for breach of Award and that the retrospective aspects of proposed Agreement were to avoid prosecution — Commission found there was a case for concluding that Award had always applied to all of Applicant's businesses but on evidence presented Commission was only prepared to find that Le Mirage Centre was bound to the Award — Commission was prepared to register Agreement for other establishments and suggested that ifMinisterwasof mind Award applied he should convince Magistrate — Granted in Part — Como Investments Pty Ltd v. FLAIEU — No. AG14 of 1989 — Salmon C. — 1/12/89 — Restaurant 322 'Appeal against decision of Full Bench (70 WAIG 1) to dismiss appeal — Appellant claimed Commission did not have jurisdiction to hear matter in first instance because section 23(3)(d) of Industrial Relations Act excludes Commission from having jurisdiction over various industrial matters if any other Act provides that that matter may be appealed —There is provision for appeal under section 73 and 77 of Government Railways Act 1904 if a permanent employee is dismissed as a punishment and although the termination in this instance was not as a punishment the Respondent argued that as another Act deals with dismissals and appeals it is to be assumed that that Act has covered the field and the Commission may not deal with it — Further, if that other Act provides for termination of employee but not an appeal it must be assumed legislature intended there be no appeal — Industrial Appeal Court found only if there is an appeal under provisions of some other Act is the power of the Commission restricted — Dismissed — WAGRC and ARU — No. 15 of 1989 — Brinsden J.. Kennedy and Rowland J.J. — 30/3/90 — Railways 1283 Appeal against recommendation of appointment to advertised vacancy — Recommended Applicant argued that Appellant had not applied for position now under appeal — Commission reviewed relevant sections and definitions of Industrial Relations Act and found that while three positions were advertised jointly as vacancies Appellant applied for only two of them and not the one under appeal — Thus Appellant has no right of appeal pursuant to section 80ZA of Act — Dismissed — Cantrill R.L. v. Morcos L. — No. PAB300 of 1988 — Parks C. — 12/06/89 — Railways 953 ALLOWANCES — 'Application to vary Award as a Special Case remitted to CICS by Appeal Court (69 WAIG 3219) for further hearing and determination — CWAI submitted that CICS was required to reconsider matters of shift allowances and weekend penalty rates and properly apply the specific tests inherent in the Anomalies and Inequities Principle — CWAI further argued that the agreement in question relied upon the doctrine of comparative conditioin justice and as such should be rejected — CICS examined principles and found it a strange application of equity and good conscience to reconsider the question in the light of a State Wage Decision published after the earlier decision — Moreover, CICS considered questions in light of comparisons which were concomitant with the Inequitites Principle, found the existence of an inequity worthy of rectification and that the improvement in the conditions was justified as a matterof merit — Granted — FMWU and Board ofManagement, Royal Perth Hospital and Others — Halliwell S.C., Negus C., George C. — 16/11/89 — Health Application to vary Award by consent pursuant to Structural Efficiency Principle and allowances — Commission viewed agreement, including introduction of broadbanding and ratified the variations sought subject to an agreement to further documentation regarding training and skills matters by the second phase of wage increases — Granted — WAROU v. WAGRC — No. RCB 4 of 1989 — Railways Classification Board, Kennedy C, Chairperson — 4/12/89 — Railways Applications to vary Awards/Agreements pursuant to Structural Efficiency Principle, by consent — Commission's Reasons for Decision to be read in conjunction with those of another application due to common background — Commission found Principles to be satisfied, however determined quantum increase in rates for some classifications and dismissed a submission to include a "test" classification structure on the basis that the Commission was obliged by the State Wage Decision to adopt a decision of another Commission — Granted in Part — CMEU and Others and Swan Brewery Co Ltd — Nos. 2028,2100.2120,2453 of 1989 (R) — Kennedy C. — 17/11/89 — Brewing Industry Application for variation to award re meal allowance — Applicant union sought increase pursuant to Allowances Principle and quantum in relation to food component of CPI as an indicator— Respondent agreed to increase, however argued that it should be assessed in accordance to paragraph of the Principle that deals with existing allowance which related to work or conditions — Commission found in favour of respondents argument — Granted in Part — FCU and Boans Ltd and Others — No. 811 011989 — Parks C. — 6/12/89 — Clerical Application for award variation re district allowance — Parties were in agreement and sought increases based on the CPI movements — Commission found increase in allowance to reflect additional costs were within the Principles — Granted — CSA v. Kalgoorlie College and Others — No. P57 of 1989 — Fielding C. — 4/12/89 — Education Application for variation of award re various allowances — Applicant Union sought increases in line with CPI movement from and including March 1985 for two of the allowances and others to be increased based on wage movements since they were last fixed — Respondent consented to claim — Commission answered question as to whether allowance was reimbursement of expenses or an allowance relating to conditions of work — Commission found claim to be within guidelines — Granted — FMWU v. Canine Security and Others — No. 1504 of 1989 — Fielding C. — 11/12/89 — Security Aclaim seeking increase to travel allowance — Commission detailed history of allowance and found it to be partial reimbursement of the cost to the shift work employees providing their own transport — Commission determined amount from evidence provided with regard to present day costof private transport — Ordered Accordingly—CMEU v. SEC — No. 795 of 1988 — Halliwell S.C.— 20/11/89 — Power/Energy (xxi) WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 70W.A.I.G. CUMULATIVE DIGEST—continued Page ALLOWANCES —continued Application for award variation re reimbursement of costs associated with travelling — Applicant Union claimed specialisation of occupation, requirement to work shift work all year, to be on call or to work overtime as required and as a matter of equity, all officers should receive the payment — Respondent objected and argued matter had been dismissed by the Commission previously and cannot be granted in accordance with the State Wage Fixing Principles — Commission cited other matters similar in claim and found in favour of respondent — Dismissed — WA Prison Officers Union v. Hon Minister for Corrective Services — No. 157 of 19S9 — Gregor C. — 7/12/89 — Goal/Security 160 Application for award variation pursuant to Structural Efficiency Principle — Parties were in agreement to variations sought — Question of date of operation — Commission found parties had demonstrated a long and abiding commitment in co-operating to meet the ends of the Structural Efficiency Principle and endorsed variations in rates — Granted — Breweries and Bottleyards Employees Union v. Swan Brewery Co Ltd — No. 1976 of 1989 — Kennedy C. — 17/11/89 — Brewing/Malting 364 Claim re payment of site disability allowance — Applicant Union claimed noise, exposed and oppressive conditions, wet underfoot and discomfort from iron ore dust — Respondent objected to payment and quantum claimed — Commission found award does not adequately compensate for the disabilities experienced — Ordered Accordingly — AMWSU v. Thiess Contractors Pty Ltd — No. CR907 of 1989 — George C. — 19/12/89 — Metal Trades 538 Application for award variation pursuant to Structural Efficiency Principle — Application sought order to reflect an agreement between the company and one union party to award — History and background to application were summarised — Commission found claim has merit so far as the twin objectives of flexibility and opportunity for employees are concerned — Ordered Accordingly — Hamersley Iron Pty Ltd v. AMWSU and Others — No. 2747 of 1989(R) — Kennedy C. 11/1/90 — Mining/Iron Ore — Claim re site allowance — Applicant Union claimed excessive dust, noise and dirty nature of demolition work and difficulty with access from site to various points — Respondent argued onus was on applicant to provide proof that disabilities encountered on site exceeded the disabilities already compensated under relevant awards — Commission found from inspection in favour of respondent —Dismissed —Building Trades Association and Geraldton Building Co —Nos. C844andC845of 1989 —Gregor C. — 20/12/89 — Building/Construction 533 Applications to vary Award by consent re Allowances — Public Service Arbitrator found increase in Travelling and like allowances to be consequent upon adjustments to similar provisions in Public Service and had application across public sector — Public Service Arbitrator found Meal Allowance claim accorded with a 5.5 per cent in the Consumer Price Index and within the State Wage Principles — Granted —WA Police Union and Hon Minister for Police — Nos. 606 and 607 of 1990 — FieldingC.— 14/5/90 — Police '252 Claim re site allowance — Parties in dispute over level to be paid — Commission found site to be, inter alia, difficult to work due to weather conditions, compact with limited lay down areas and that an appropriate allowance was 1.20 per hour — Ordered Accordingly — BTA and Jaxon Constructions Pty Ltd — No. CR44 of 1990 — Gregor C. — 9/4/90 — Building/ Construction '"41 Conference referred for hearing re site allowance to be paid in lieu of pay for confined space, wet work, dusty work and the use of second hand timber — Parties drew attention of Commission to Decisions of Commission that they believed were appropriate — Commission stated criteria to be followed have been set out in MBA v. John Holland (67 WAIG 1731) — Commission found that in the assessment of disabilities of each site must stand alone but once an assessment has been made there is no prohibition from using previous decisions of Commission as guide to level of those disabilities as opposed to agreements specifically proscribed by dicta inSapri decision (Print F1957) — Commission took guidance from decisions presented by Applicant —Granted in Part — Building Trades Association and Jaxon Construction Ply Ltd — No. CR704 of 1989 — Gregor C. — Building Construction ... Application to vary Award pursuant to Structural Efficiency Principle by consent — Commission carefully considered the terms of the Memorandum of Agreement, other exhibits and proposed amendments to Award, including the concept of security of supply, part progression towards Structural Efficiency and future agendas — Commission found agreement met the tests required under the Structural Efficiency Principle and encapsulated changes which embodied both greater flexibility in the organisation of work and greater opportunity for employee so far as the development of skills and exercises of progression were concerned — Granted — H.I. Ply Ltd and CMEU — No. 426 of 1990(R) — Kennedy C. — 5/4/90 — Iron Ore Claim re site allowance — Respondent argued disabilities were accounted for in allowances and special provisions clauses of the applicable Award — Commission found on inspection and evidence no allowance should be issued in consideration of the isolation of the site and that there were adequate amenities — Confined space was limited to electrical fitters and accounted for in the Award — However Commission found disabilities associated with weather conditions warranted an allowance ofSOcents per hourandlhattherewouldbenolikelyflowon —Granted in Part—BTA and Others and SECWA — No. CR589 of 1989—Salmon C. — 20/10/89 — Electricity Supply Application for a new Award — Parties sought award on the grounds that the industry awards were unsuited to their operations — Commission judged application in accordance with State Wage Principles and staled that for an award to be used as a vehicle for the introduction of Structural Efficiency that award must be a reflection of the actual conditions observed by the parties — Commission arbitrated on matters disputed, at the request of the parties, including Hours of Work, Annual Leave, Allowances and the inclusion of Over Award Payments — Award issued — Swan Portland Cement Ltd and AWU — No. A26of 1988 — Beech C. — 28/11/89 — Cement Manufacturing Claim re site allowance — Commission found on evidence two disabilities, ground problem during wet period, flies during the warm period warranting an allowance of 80 cents per hour under Allowances Principle —Commission found induction problem could be rectified through safety measures — Restrospectivity granted — Ordered Accordingly—AM WSU and Others and SEC — Nos. CR795 and CR980 of 1989 — Salmon C. — 24/1/90 — Energy Supply Conference matter referred for hearing and determination re Declaration sought that employees assisting in on the job training of other employees on a new machine is implicate duty present to the contract of employment of the employees concerned —Union argued that the payment of an employee at instructor rate on an earlier occasion constituted the status quo for any subsequent training on the machine and that the Applicant was prohibited from doing what it proposed by Occupational Health, Safety and Welfare Regulations — Commission found safety issue had been addressed and no difference between the common practice of a co-workcrassistinganothcrcmployccina new area on a new machine — However Commission did note that were the situation to prove to be beyond that then provided the Wage Fixing Principles were met there would be a remedy as the Printing Industry case demonstrated — Granted — WAGRC and ARU — No. CR678 of 1989 — Kennedy C. — 11/10/89 — Railways Application to vary Award pursuant to Structural Efficiency Principle and allowances — Commission found Structural Efficiency Agreement, to include a rcviewof classifications structure, and the wage increases proposed for each classification level to comply with the spirit of Principles — Commission sustained increases in allowances in line with CPI movements — For reasons ofequity and consistency with employees covered by a Federal Award Commission was prepared to include a new set of location allowances with but rather as an isolation allowance — Granted — WAGHSOAandCBH — No. 2411 of 1989 — FieldingC. — 22/ 12/89 — Grain Handling Application to vary Award pursuant to Structural Efficiency Principle — Commission reviewed initiatives in the industry by Committees. Memorandum of Agreement, claim for increased allowances based on wages movements and a claim for a special payment earlier determined by Commission in Court Session — Commission found special payment was not intended to be included in the base rate until the second Structural Efficiency Increase — Commission was satisfied commitments and proposed variation, save some amendments, were consistent with the State Wage Principles — Granted in Part — AMWSU and Associated Minerals Consolidated and Others — No. 1754 of 1989(R) — George C. — 27/12/89 — Mining and Processing (Mineral Sands) (xxii) 70 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE CUMULATIVE DIGEST—continued ALLOWANCES —continued Conference matter referred for arbitration re ratification of site allowances — Parties now agreed that proposed allowances were to be in lieu of all special rates and provisions contained in various awards — Commission was satisifed from submission and evidence that site allowance payments were justified to compensate for all the special features and disabilities in connection with these sites — Granted — ETU and Another v. Building Management Authority — No. CR1030-1036 of 1989 — George C. — 25/01/90 — Engineering and Sheet Metal Application to vary Award re allowance for tradespersons performing in charge duties as a special case — Applicant Union argued work value change was reasonable in terms of the extra responsibilities undertaken as to saftey — Respondent argued wage structure incorporated experience component — C1CS reviewed authorities and OHSW Act and found employees had a duty of care with respect to training issues and skills, also conditions of employment were more readily susceptible to re-evaluation than skills and responsibilities — Furthermore in one word what needed to be demonstrated was a significant net addition to work value and more onerous responsibilities — Dismissed — ETU and Others and SECWA—Nos. CR262,322,322A, 557A and 618 of 1989 — Halliwell S.C., Salmon C, George C. — 7/3/90 — Electricity Supply 'Application for variation of Award by inserting provision for a new allowance for electrical tradesmen who hold and use an additional licence — Matter comes before Commission in Court Session as a "Special Case" pursuant to Wage Fixing Principles — Majority of Commission in Court Session found that having regard to Work Value Change Principle and the Structural Efficiency Principle which talks of establishing skill related career paths and better paid jobs there should be a new classification for an electrical tradcsperson, being a tradcsperson trained in and licenced to perform both electrical installing and electrical fitting and required by the employer so to do so at a higher rate of wage than for those callings rather than an allowance — Granted in Part — Electrical Trades Union v. Minister for Works — No. 1567 of 1989 — Martin C., George C, Beech C. — 24/01/90 — Engineering Trades Consent Application for variation of Award pursuant to Structural Efficiency Principle — Commission commended parties on their efforts towards Structural Efficiency — Granted — Timber Industry Union and Wesfi Pty Ltd — No. 1933 of 1989(R) — Beech C. — 03/01/90 — Particle Board Manufacture Application to vary Award re Availability and On-Cail — Disputed only was Applicant Union's claim with respect to On-Call provision, including question of On-Call Allowance — Commission found agreed part of claim, within the Wage Fixing Principles — Commission found both parties' arguments on the issue of unfair discrepency with respect of disputed claim to be inconsistent — Commission applied principles of Appeal Court Decision in determining matter under the Wage Fixing Principles particularly re structuring and efficiency and in light of public interest — Granted in Part — ASEMFWU and Others v SECWA - No. 2206 of 1989 - Salmon C. - 06/02/90 - Electricity Supply ANNUAL LEAVE — Application to vary Award pursuant to Strucutrual Efficiency Principle — Application split to accommodate Arbitration of claim in so far as a group of opposing Respondents were concerned — Commission dealt with that part of application pertaining to consenting parties — Commission found proposed amendments complied with requirements of State Wage Decision subject to the insertion of an Award Modernisation clause — Granted in Part and Adjourned — WAMIEU and Action Food Barns and Others — No. 2115 of 1989 (R) and 2115A of 1989 (R) — Parks C. — 19/12/89 — Meat Claim re contractual entitlement — Applicant sought payment of moneys for accrued leave — Commission found pro rata payment claimed did not exist within the terms and conditions of the applicant's contract of employment — Dismissed — Jackson B.L. and Seismic and General Geophysical Services Ply Ltd — No. 724 of 1988 — Parks C. — 29/11/89 Claim re contractual benefit — Applicant sought payment in lieu of notice and pro rata annual leave payments — No appearance on behalf of respondent — Commission found from evidence, no terms within applicant's contract of employment which afforded the benefits which was being claimed — Dismissed — Lumbaca L. and Pentapac Ltd — No. 779 of 1988 — Parks C. — 9/11/89 — Secretarial Services Claim for award variation re annual leave and travel time — History of Award outlined — Commission found travel time should only be provided once in any 12 month period and as a matter of merit approved application — Granted — Port Hedland Port Authority and Merchant Service Guild of Australia — No. P13 of 1989 — Negus C. — 20/12/89 — Marine/Harbour Applications for new Awards to cover employees ofthe Houses of Parliament for the first time — Commission reviewed tortuous path of the attempts to establish Award Coverage for the employees concerned — Moreover, Commission reviewed authorities pertaining to the question of who was employer and the Commission's jurisdiction in relation to Parliamentary employees — Commission found all three Unions party to the Applications had constitutional coverage, at least within their respective areas — Commission further found the Award finally proposed by agreement of all parties complied with the Wage Fixing Principles, allowed for the peculiarities of employment in the Houses of Parliament and despite misgivings, should issue — Granted — CSA and Others and the Governor in Council and Others — Nos. A15 of 1987, A4 and A7 of 1988 and A7 of 1989 — Fielding C. — 27/10/89 — Government Administration Claim re contractual entitlements — Applicant sought payment of pro rata annual leave and leave loading — Respondent argued Applicant was at all times a subcontractor — Commission found on evidence that there had existed an employee/employer relationship between the parties, but that the contract of employment was not on foot for as long as the Applicant claimed — Granted in Part — Scrivens H. and Fernhurst Holdings Pty Ltd trading as W. Moser Consultants — No. 819 of 1989 — Kennedy C. — 15/1/90 — Financial Services Claim re contractual entitlements — Applicant sought 21 weeks' salary, car allowance and two weeks" holiday pay on the basis that the contract of service was for a guaranteed period of six months and terminated prematurely — Respondent argued contract was of an indefinite nature and dependant upon the Applicant meeting a sales target — Commission noted onus of proof lay with the Applicant — Commission found on evidence supply of car was not part of Applicant's remuneration and that the contract was terminated on one month's notice by either party — Granted in Part — Day J.M. and Sonic Souvenir Co Pty Ltd — No. 1889 of 1989 — Parks C. - 11/12/89 - Retail/Wholesale Application for allegedly denied contractual entitlements — Applicant sought payment for the equivalent of an air fare, annual leave, accrued sick pay. on the basis of a verbal agreement — Commission found question ofimplied terms did not arise — Commission found on evidence that the contract of service had charged upon the receival and implicit acceptance of a document and the Applicant was entitled only to pro rata payments for denied benefits, prior to that change — Granted in Part — Price R.J. and Berkely Challenge Corporation — No. 2360 of 1989 — Gregor C. — 15/1/90 — Catering ANOMALY — 'Application to vary Award as a Special Case remitted to C1CS by Appeal Court (69 WAIG 3219) for further hearing and determination — CWAI submitted that CICS was required to reconsider matters of shift allowances and weekend penalty rates and properly apply the specific tests inherent in the Anomalies and Inequities Principle — CWAI further argued that the agreement in question relied upon the doctrine of comparative conditioin justice and as such should be rejected — CICS examined principles and found it a strange application of equity and good conscience to reconsider the question in the light of a State Wage Decision published after the earlier decision — Moreover, CICS considered questions in light of comparisons which were concomitant with the Inequitites Principle, found the existence of an inequity worthy of rectification and that the improvement in the conditions was justified as a matter of merit — Granted — FMWTJ and Board of Management, Royal Perth Hospital and Others — Halliwell S.C., Negus C. George C. — 16/11/89 — Health 35 (xxiil) WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 70 w.A.I.G. CUMULATIVE DIGEST—continued APPEALS — Appeal against decision of Commission (70 WAIG 537) insofar as it relates to the Appellant re conciliation Order pending determintion of dispute over dismissal — Appellant argued that it was not the employer concerned and not a party to any industrial matter properly before the Commission — Full Bench reviewed the circumstances of the case. Authorities and Legislation and found that although the summoning of the Appellant was within the Commission's power, making the Appellant subject to the Order was not — Upheld — Hon Minister for Mines, Fuel and Energy and the Mid-West and ETU — Appeal No. 2795 of 1989 — Sharkey P., Coleman C.C., Gregor C. — 17/5/90 — Electricity Supply 2Appeal against decision of Commission (68 WAIG 891) — Appellant sought to discontinue appeal — Full Bench found it was unable to discontinue appeal under section 49 of the Industrial Relations Act — Appeal dismissed by consent at request of parties — Dismissed — EPT Fochi Joint Venture and AMWSU — Sharkey P., Coleman C.C., Gregor C. — 8/12/89 — Construction 2Appeal against decision of Commission re Dispute Settlement Order issued pending hearing and determintion of matters referred out of conference — Appellant argued that in denying the Appellant an adjournment sought to consider the minutes of the Order, the Commission had adequately complied with section 35 of the Industrial Relations Act and hence procedural fairness — Respondent advised Full Bench in writing that it would not appear — Full Bench extensively reviewed authorities and found Commission was not bound to keep Full Bench of section 44 conferences and that notes on the conference proceedings submitted as evidence by the Appellant should have been verified by Affidavit — Full Bench further found the Order was of a temporary routine, represented a finding, did not finally decide the matter and that the matter was not of such importance that an appeal should be — Dismissed — WALEDFCU and WAGRC — Nos. 2202 and 2203 of 1989 — Sharkey P., Salmon C, Parks C. — 22/12/ 89 — Railways "Appeals against decision of Full Bench (69 WAIG 1908) to allow the Respondent to amend its rules to allow it to enrol "wall and/or ceiling fixers" as members — Industrial Appeal Court reviewed long history of this matter and the application and meaning of sections 55,56,58(3) and 62 of Industrial Relations Act 1979 — Appellant argued an issue estoppel arose and that Full Bench was bound by previous findings of fact made by Commission — Industrial Appeal Court found that matter decided by Full Bench was very different from what Commission had to decide and in any case Full Bench did not depart from finding of Commission — Appellant also argued that the amendment to the Respondent's rules the Full Bench had ordered the Registrar to register was not the same as the amendment proposed in the application, advertised in the WAIG and brought before the Respondent's members so as to a fford them the opportunity to object as required by sections 62(3) and 55(2), (3) and (4) — Industrial Appeal Court found what Full Bench ordered registered was substantially different to what had been proposed thus Full Bench could not have been satisfied as Act required it to be that those sections affording members opportunity to object etc. had been complied with — Full Bench, therefore, did not have power to authorise amendment — Upheld — CMEWU v. Operative Plasterers and Plaster Workers and Another — Industrial Appeal Court Nos. 4 and 5 of 1989 — Brinsden J., Kennedy and Franklyn JJ. — Building Construction 'Appeals against two decisions of Commission in Court Session (70 WAIG 35) to vary awards on basis Applications had not been dealt with in accordance with Wage Fixing Principles — Both decisions had been superseded the following day by another decision not appealed and therefore no longer had any effect — Appellant argued that it was important that reasoning of Commission in Court Session be challenged as it stood as a test in other Anomalies and Inequities cases — Industrial Appeal Cou rt reviewed authorities and found it was not their function to entertain applications which are solely as a means of obtaining legal advice for potential litigants unless it would be in the public interest to do so — Nothing Industrial Appeal Court could say or do in present appeals would directly affect the rights of the parties and there was no suggestion that public interest was involved — Dismissed — Confederation of WA Industry and Federated Miscellaneous Workers Union and Others — Industrial Appeal Court Appeals No. 12 and 13 of 1989 — 1/3/90 — Kennedy J., Rowland and Nicholson JJ. — Public Hospital Appeal against decisionof order of dismissal of employee pursuant to Education Act — Tribunal from evidence presented found appellants manner, style, language and behaviour quite incompatible with a position in the respondent's school — Dismissed — Anderson W.D. v. Hon Minister for Education — No. T3 of 1988 — Martin C., Rodway, Reeves — 15/12/89 — Education "Appeal against decision of Full Bench (69 WAIG 2653) to dismiss appeal — In original proceedings in Industrial Magistrate Court Magistrate had allowed complaints for breach of Award to be amended to reflect defendan'ts correct name at which point Counsel for Appellants suggested complaints should be dismissed — Industrial Appeal Court referred to Strata Title Act and found that the original defendant cited was the "Council" which exercises the company's function but has no relevant legal identity for the purposes of being sued and no separae legal corporate existence apart from the strata company (Appellant) — Industrial Appeal Court found Magistrate's decision to substitute names was entirely proper as it was simply a case of getting the proper defendant's name right and sections 46,47 and 48 of the Justices Act empowered him to do so — Dismissed — Owners of Johnston Court Strata Plan No. 5493 and Dumancic A. — No. 10 of 1989 — 1/3/90 — Strata Company "Appeal against decision of Full Bench (70 WAIG 1) to dismiss appeal — Appellant claimed Commission did not have jurisdiction to hear matter in first instance because section 23(3)(d) of Industrial Relations Act excludes Commission from having jurisdiction over various industrial matters if any other Act provides that that matter may be appealed — There is provision for appeal under section 73 and 77 of Government Railways Act 1904 if a permanent employee is dismissed as a punishment and although the termination in this instance was not as a punishment the Respondent argued that as another Act deals with dismissals and appeals it is to be assumed that that Act has covered the field and the Commission may not deal with it — Further, if that other Act provides for termination of employee but not an appeal it must be assumed legislature intended there be no appeal — Industrial Appeal Court found only if there is an appeal under provisions of some other Act is the power of the Commission restricted — Dismissed — WAGRC and ARU — No. 15 of 1989 — Brinsden J., Kennedy and Rowland J.J. — 30/3/90 — Railways 'Appeal against decision of Commission in Court Session (70 WAIG 662) in demarcation dispute as to whether operators of certain equipment on building site are entitled to be represented by the Australian Builders' Labourers' Federated Union of Workers, Western Australian Branch or the Construction, Mining and Energy Workers' Union of Australia, Western Australian Branch — Industrial Appeal Court found that question to be decided is are they "builders' labourers" within the rule of the Australian Builders' Labourers' Federated Union of Workers, Western Australian Branch or are they "engine drivers" within the rule of the Construction, Mining and Energy Workers' Union of Australia, Western Australian Branch — Industrial Appeal Court found that to the extent that in its decision Commission in Court Session had not identified which operators ofwhich plant identified as to operator and plant rather than the basis on which his or her employer is on a building site the Construction, Miningand Energy Workers' Union of Australia, Western Australian Branch appeal is upheld — Matter remitted to Commission in Court Session — BLFand Another—CMEWU and Another—Nos. 1 and2ofl990 — Kennedy J./RowlandJ./NicholsonJ. — 25/05/90—Building Construction "Appeal against decision of Commission (69 WAIG 3132) re dispute over redundancy payments — Amongst many other claims Appellant argued that Commission did not have jurisdiction to deal with redundancy matters as they involved awarding compensation which was contrary to decision in Pepler's Case — Full Bench rejected that argument because this was not a claim for compensation for dismissal but a claim for a better redundancy package to effect proper job protection measures based on a formula to be prescribed and approved by Commission — Full Bench found, however, that Commission acted out of power by purporting to make orders it did under section 44of the Act and erred in placing weight it did on Government Employees Consent General Order without affording parties opportunity to adduce evidence thereon — Full Bench also found that it was not for it to substitute its own decision so matter remitted to Commission for further hearing and determination in accordance with its directions and observations — Upheld — Tip Top Bakeries (Canning Vale) v. Federated Clerks Union and Others — Full Bench - 22/12/89 -Baker (Food) "Appeal against decision of Commission at (69 WAIG 3123)re jurisdiction to deal with claimsof unfair dismissal — Appellant argued that Commission had erred in holding that it had jurisdiction to hear the claims as section 23(3)(d) of the Industrial Relations Act and section 73 of the Government Railways Act prohibited it from so doing—Full Bench reviewed authorities and found that the right of Appeal to the Railways Appeal Board extended only to dismissal for misconduct and therefore there was no exclusion of jurisdiction under section 23(3)(d) of the IR Act — Dismissed — ARU v. WAGRC — No. 2401 and 2403 of 1989 — Sharkey P., Gregor and Parks C. — 13/12/89 — Railways (xxiv) 70 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE CUMULATIVE DIGEST—confinuec/ APPEAL —continued 2Appeal against decision of Commission at (69 WAIG 2780) re contractual entitlement — Appellant argued nett income per week claimed in "Contract of Employment" and whether Respondent was dismissed or "walked out" was not established — Full Bench found no reason to intervene as Commission had made no palpable error in the findings as to the facts which were made and in accepting the Applicant's evidence — Furthermore, claim was competent as it was a contract for an amount in excess of award entitlements — Dismissed — Mason P. v. BastowP.D. — No. 2242 of 1989 — Sharkey P., Coleman C.C., Beech C. — 20/12/89 — Hospitality 2 Appeal against decision of Government School Teachers Tribunal at (69 WAIG 3437)reOrder for pay claim — Industrial disputation — section 44 proceeding — Education Act and IR Act referred to for definition of "industrial matter" with regard to teacher — Applicants tendered as a record ofconference proceeding — Opportunity given to Appellant to be heard on all material matters — Industrial action peripheral to salary claim — section 44(6) orders not final — Orders made not determinative — Full Bench found Orders were made within power there was no miscarriage of justice — No grounds made out — Dismissed — SSTU and Hon Minister for Education — No. 2330 of 1989 — Sharkey P., Salmon C., George C. — 21/12/89 — Education 2 Appeal against decision ofCommission at (68 WAIG 1957) re order registering an Industrial Agreement — Appellant granted leave to appeal — Appellant granted leve to appeal — Appellant argued that by registering an agreement that varied from that which was annexed to Application, Commission had erred in law and exceeded its jurisdiction — Furthermore Commission had denied natural justice in failing to fix a time and place at which the Appellant might be heard — Full Bench found from principles set out in the cases cited that the discretion ofCommission at first instance did not miscarry nor did it err in law or exceed its jurisdiction — Full Bench found grounds of appeal not made out — Dismissed — ABEU and FCU and Others — No. 870ofl989 — Sharkey P., Salmon C, Gregor C. — 29/11/89 — Financial Services 2Appeal against decision oflndustrial Magistrate (Complaint No. 104 of 1989) — Claim for overtime and bans imposed on overtime — Breach of Wage Fixing Principles and award — Industrial Magistrate ruled no case to answer — Admissions made by union officer that claim was being pursued outside the wage principles — Vicarious liability — Prima facie evidence of breach of evidence — Full Bench found all grounds made out and there was a case to answer — Matter Remitted — Upheld — Registrar and AMWSU - No. 1747 fo 1989 - Sharkey P.. Halliwell C.C., Fielding C. - 17/11/89 — Construction 2Appeal against decision of Commission at (69 WAIG 2507 and 2784) re contract of sendee — Claims contractual benefits, motor vehicle, travel — Financial arrangements in relation to motor vehicle altered — Refinancing of motor vehicle did not alter original benefits due to Appellant — Admission made by Respondents travel claim — Full Bench granted claim in relation to travel, however found grounds in relation to motor vehicle not made out — Upheld in Part — P.M. Chernoff and Stastra Page and Associates Pty Ltd — No. 1609 of 1989 — Sharkey P., Kennedy C, George C. — 16/11/89 — Engineering 2Appeals against decision of Commission re handing down of new Award — Full Bench found appeals should be allowed due to procedural unfairness insomuch that many of the matters contained in the Award were not raised by the Commission with the parties and parties were not given opportunity to address matters or call evidence before they were decided and which is contrary to section 26(3) of the Industrial Relations Act — Full Bench decided that even though Commission had expressed concluded views to break off a fragment of proceedings and remit it to another Commissioner would be a greater evil especially as no submissions of bias were raised — Remitted to Commission for further hearing and determination — Robe River Iron Associates and Others v. Amalgamated Metal Workers and Shipwrights Union of Western Australia — 2332 and 2394 of 1989 — Sharkey P./ Gregor C./Kenncdy C. — 23/3/90 — Iron Ore AWARDS — Application to vary Award by consent re a new classification — CSA sought leave to intervene on the grounds of previoius industrial coverage and its membership rule — CSA argued that it was not precluded by its rules to cover the employoees in question as the Award was, it was argued, invalid on the basis that the Respondent had no authority to employ — Commission found CSA Rules precluded it from seeking to cover any employee properly covered by the Award, that section 34(4) of the Industrial Relations Act prevented any credence being given to the Association's argument and therefore that the CSA had no proper interest in the matter — Commission further found after examining Structural Efficiency measures between the parties, no impediment to granting the application proper, and allowed for negotiation to proceed on the appropriate wage — Adjourned — PKIU and the Government Printer — No. 1256 of 1988 — Negus C. — 16/10/89 — Printing Application to vary Award pursuant to Structural Efficiency Principle — Parties disputed only a $15.00 rather than a $12.50 wage claim for a wage classification grouping by the Applicant Union — Respondent argued that the work of the Wage Group had to be assessed as at least equivalent to that of a tradesperson to qualify for the increase claimed as specified under the Stale Wage Principles and that the skills and training required by tradespersons substantially exceeded that of the Wage Group — Commission found on inspections, authorities and evidence that the Applicant had failed to prove that equality existed but recommended the issue be addressed in further restructuring negotiations — Commission found remainder of Award amendments sought fulfilled initial requirements of State Wage Principles however included a clause to reinforce the commitment to Award modernisation — Granted in Part — FMWU v. CSR Limited — No. 1383 of 1989 — Parks C. — 30/10/89 — Building Materials Manufacture 2 Appeal against decision ofCommission at (68 WAIG 1957) re order registering an Industrial Agreement — Appellant granted leave to appeal — Appellant granted leve to appeal — Appellant argued that by registering an agreement that varied from that which was annexed to Application, Commission had erred in law and exceeded its jurisdiction — Furthermore Commission had denied natural justice in failing to fix a time and place at which the Appellant might be heard — Full Bench found from principles set out in the cases cited that the discretion of Commission at first instance did not miscarry nor did it err in lawor exceed its jurisdiction — Full Bench found grounds of appeal not made out — Dismissed — ABEU and FCU and Others — No. 870 of 1989 — Sharkey P., Salmon C., Gregor C. — 29/11/89 — Financial Services Application to vary Award pursuant to Strucutrual Efficiency Principle — Application split to accommodate Arbitration of claim in so far as a group of opposing Respondents were concerned — Commission dealt with that part of application pertaining to consenting parties — Commission found proposed amendments complied with requirements of State Wage Decision subject to the insertion of an Award Modernisation clause — Granted in Part and Adjourned — WAMIEU and Action Food Barns and Others - No. 2115 of 1989 (R) and 2115A of 1989 (R) - Parks C. - 19/12/89 - Meat 'Application to vary Award by consent re Wages — Parties sought increase in rates of wages as a special case with a Structural Efficiency wage adjusment to be applied for in addition to it — Parties argued that the increase sought was justified under the Work Value Principle to reflect significant net additions to work requirements — CICS granted leave for application to be varied to incorporate the necessary increase in rates under the Structural Efficiency Principle — CICS found the requirements of the Work Value Principle had been met—However, after reviewing Authorities CICS would not finally determine the matter until the Parties presented their Structural Efficiency Package — Adjourned — WA Journalists Union and Community Newspapers (1985) Ltd and Another — No. 1899 of 1989 — Martin C, Negus C, Kennedy C. — 18/12/89 — Media (Newspapers) Application to vary Award pursuant to Structural Efficiency Principle — Disputed only. Applicant Union claim for a $ 15.00 quantum wage increase for a particular classification — Applicant expressed concern that an anomaly would be created via the no extra claims commitment if a nexus Award received the higher quantum increase where the instant Award did not — Commission viewed Structural Efficiency measures including an agreed programme of award re-drafting with the assistance of a Legal Practitioner — Commission found that, to the particular classification, the increase of $12.50 should be applied, but did not preclude any consideration of changed circumstances — Granted in Part — LEDFCU and WAGRC — No. 1530 of 1989 (R) — Kennedy C. — 30/11/89 — Railways Application to vary Award by consent pursuant to Structural Efficiency Principle — Commission found Award had in it, and operational, many of the features of Structural Efficiency and proposals for further improvements — Granted — AMWSU and Others and Argyle Diamond Mines Pty Limited and Another — No. 2023 of 1989 (R) — Halliwell S.C. — 10/11/89 — Diamond Mining and Production (xxv) WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 70 CUMULATIVE DIGEST—continued AWARDS —continued Application to vary Award by consent pursuant to Structural Efficiency Principle and allowances — Commission viewed agreement, including introduction of broadbanding and ratified the variations sought subject to an agreement to further documentation regarding training and skills matters by the second phase of wage increases — Granted — WAROU v. WAGRC — No. RCB 4 of 1989 — Railways Classification Board, Kennedy C, Chairperson — 4/12/89 — Railways Applications to vary Awards/Agreements pursuant to Structural Efficiency Principle, by consent — Commission s Reasons for Decision to be read in conjunction with those of another application due to common background — Commission found Principles to be satisfied, however determined quantum increase in rates for some classifications and dismissed a submission to include a "test" classification structure on the basis that the Commission was obliged by the State Wage Decision to adopt a decision of anotherCommission — Granted in Part — CMEU and Others and Swan Brewery Co Ltd — Nos. 2028,2100,2120,2453 of 1989 (R) — Kennedy C. — 17/11/89 — Brewing Industry Application for an interpretation of an Award re entitlement to sick leave — Commission found compliance with regulations to be deficient and required Applicant Union to elaborate on the facts giving rise to the Application — Commission reviewed authorities and found that where an employee had provided medical certification for absences, for which sick leave was claimed, as and when they occurred, the entitlement to payment for sick leave without provision of medical certification remained after the first two absences of two days or less during each year of service, unless after those absences the employer had notified the employee in writing that a certificate from a medical practitioner would be required for further absences in that year—Granted — Transport Workers Union v. Portius Pty Ltd trading as Flash Foods Canteen — No. 298 of 1989 — Parks C. — 9/11/89 — Transport Mobile Food Venders Application for award variation pursuant to Structural Efficiency Principle — Parties gave undertakings to examine the award and implement the terms of the Structural Efficiency Principle — Commission found approach of parties on this occasion was sufficient conformity with the Principles to permit the first increases — Granted — CMEU v. Civil and Civic and Others — No. 1822 of 1989(R) — Beech C. — 17/10/89 — Building/Construction Application for award variation pursuant to Structural Efficiency Principle — Application principally to provide for classification broadbanding, thus providing employees to be appointed to levels rather than positions and if nothing else, enhance the concept of multi-skilling—Commission found claim to be within guidelines however noted that there are certain matters to be attended to before the second limb of the salary adjustments in particular positions that fall across the borders ofthe new bands — Granted — HSOA v. Activ Foundation Inc — No. 2079 of 1989 — Fielding C. — 11/12/89 — Clerical Application for award variation pursuant to Structural Efficiency Principle — Parties had reached agreement on ways and means of improving efficiencies such as short leave provisions, penalty provision for employees who leave service without proper notice, spread of hours and further modernisation of the Award — Question of operative date — Commission found parties to have complied with the requirements of Structural Efficiency Principle and ordered amendments as of date of determination — Granted — ECU v. WA Coastal Shipping Commission and Others — No. P48 of 1989 — Fielding C. — 3/11/89 — Government/ Clerical Application for variation to award — Applicant Union sought insertion of two new classifications in wages clause — Commission found prima facie that classification would fall within the industry contemplated by the scope of award — Furthermore Commission answered question ofworking hours — Granted — FM\W v. St John of God Hospital and Others — No. 898 of 1989 - Fielding C. — 28/11/89 — Medical Application to vary award pursuant to Restructuring and Efficiency Principle — Parties sought Commissions* approval to vary award by consent to increase wage rates and other amendments to conditions contained therein — Intervener sought two specific commitments, however Applicant Union refused and only confirmed commitment as required by State Wage Principles — Commission found parties recognised corner stone to award restructuring and proposed new clause to make their commitment more binding — Ordered Accordingly — Meat Industry Employees Union and WA Meat Commission — No. 2112 of 1989(R) — Parks C. — 30/11/89 — Meat Industry Application to vary award pursuant to Restructuring and Efficiency Principle — Parties sought Commission's approval to vary award by consent to increase wage rates and other amendments to conditions contained therein — Intervener sought two specific commitments, however Applicant Union refused and only confirmed commitment as required by State Wage Principles — Commission found parties recognised corner stone to award restructuring and proposed new clause to make their commitment more binding — Ordered Accordingly — Meat Industry Employees Union and WA Meat Marketing Corporation — No. 2113 of 1989(R) — Parks C. — 30/11/89 — Meat Industry - Application to vary award pursuant to Restructuring and Efficiency Principle — Parties sought Commission's approval to vary award by consent to increase wage rates and other amendments to conditions contained therein — Intervener sought two specific commitments, however Applicant Union refused and only confirmed commitment as required by State Wage Principles — Commission found parties recognised corner stone to Award Restructuring and proposed new clause to make their commitment more binding — Ordered Accordingly — Meat Industry Employees Union v. WA Meat Commission and Others — No. 2114 of 1989(R) — Parks C. — 30/11/89 — Meat Industry ... Application for variation to award pursuant to Restructuring and Efficiency Principle — Parties were in agreement to variation — Inclusion of new clause 'Award Modernisation' to deal with enterprise negotiations — Commission found that application should be split — Granted — Federated Clerks Union v. Permanent Investment Building Society and Others — No. 2034 and 2034A of 1989(R) - Parks C. - 4/12/89 and 8/12/89 — Financial/Clerical and Administration Application to vary award pursuant to Structural Efficiency Principle — Commission noted award has nexus with Federal Award howeveragreed that parties were entitled to proceed with claim, pursuant to State Wage Principles — Parties recognised that there could be further adjustments in a manner consistent with the corresponding amendments to Federal award in order to preserve consistency — Commission found proposed amendments were within the Structural Efficiency Principle — Granted — CMEU v, Archibald and Thorpe and Others — No. 1821 of 1989(R) — Beech C. — 30/11/89 — Earthmoving/Construction Application for award variation pursuant to Structural Efficiency Principle — Parties were in agreement to variations sought — Question ofdate ofoperation — Commission found parties had demonstrated a long and abiding commitment in co-operating to meet the ends ofthe Structural Efficiency Principle and endorsed variations in rates — Granted — Breweries and Bottlcyards Employees Union v. Swan Brewery Co Ltd —■ No. 1976 of 1989 — Kennedy C. — 17/31/89 — Brewing/Malting Application for award variation pursuant to Structural Efficiency Principle — Application sought order to reflect an agreement between the company and one union party to award — History and background to application were summarised — Commission found claim has merit so far as the twin objectives of flexibility and opportunity for employees are concerned — Ordered Accordingly — Hamersley Iron Pty Ltd v. AMWSU and Others — No. 2747 of 1989(R) — Kennedy C. 11/1/90 — Mining/Iron Ore Applications for new Awards to cover employees ofthe Houses of Parliament for the first time — Commission reviewed tortuous path of the attempts to establish Award Coverage for the employees concerned — Moreover. Commission reviewed authorities pertaining to the question of who was employer and the Commission's jurisdiction in relation to Parliamentary employees — Commission found all three Unions party to the Applications had constitutional coverage, at least within their respective areas — Commission further found the Award finally proposed by agreement of all parties complied with the Wage Fixing Principles, allowed for the peculiarities of employment in the Houses of Parliament and despite misgivings, should issue — Granted — CSA and Others and the Governor in Council and Others — Nos. A15 of 1987, A4 and A7 of 1988 and A7 of 1989 — Fielding C. 27/10/89 — Government Administration 70 W.A.LG. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE CUMULATIVE DIGEST—continued AWARDS —continued Interpretation of an Award re was an employer required to pay an officer who is absent on sick leave the shift and weekend penalties the officer would have received had the officer would in accordance with his/her shift roster —Applicant Union agreed that the word "wages" was to be read in its widest and general sense in determining the payment due — Respondent argued paragraph of clause in Award in question was inserted as part of implementation of 38 hour week and intended confine payment to the ordinary payment or wages the employee would have received i.e. 7.6 hours rather than eight and adjust the accrued entitlement to paid sick leave similarly — Commission received Authorities and found in favour of Respondent — Declared Accordingly — FMWU and Wormald International (Australia) Pty Ltd and Others — No. 725 of 1989 — Martin C. — 3/11/89 — Security Application for award variation pursuant to Structural Efficiency Principle — Applicant Association sought three per cent wage increase, an increase in on-call allowance and call-back substitute allowance —Parties are in agreement on a numberof reforms and propose a tidying up of award — Commission found in favour of application being amended — Granted — Australian Medical Association Incv. Boards ofManagement of Royal Perth Hospital and Others — No. P46 and P49 of 1989 — Fielding C. — 21/12/89 — Medical Services Applications to vary Award by consent re Allowances — Public Service Arbitrator found increase in Travelling and like allowances to be consequent upon adjustments to similar provisions in Public Service and had application across public sector — Public Service Arbitrator found Meal Allowance claim accorded with a 5.5 percent in the Consumer Price Index and within the State Wage Principles — Granted — WA Police Union and Hon Minister for Police — Nos. 606 and 607 of 1990 — Fielding C.— 14/5/90 — Police application to vary Award pursuant to Structural Efficiency Principle — Commission in Court Session had previously determined special case states — Commission in Court Found parties entitled to first wage adjustment under Structural Efficiency Principle to be applied to first increment of work value adjustment and that consideration of the second adjustment would not require further debate or determination of Work Value or Special Cases — Granted — WA Journalists Union and Community Newspapers and Another — No. 1899 of 1989 — Martin C./Negus C./Kennedy C. — 20/12/89 — Media (Newspapers) Application to be joined as a Respondent to an Award — Commission found Applicant had sufficient interest in the matter, wasprima facie bound by the Award by common rule and besides other good reasons, was entitled to be named as a party to the Award — Granted — Murdoch University Child Care Association (inc) and FMWU — No. 492 of 1990 — Fielding C. — 8/5/90 — Child Care Application for first wage increase under Structural Efficiency Principle — Structural Efficiency Agreement concluded between parties addressing issues of work practices. Award restructuring, cost time due to industrial disputes and forward planning and training — Commission stressed substantial part of Agreement involved the future and put the parties on notice that more than agreement would be required to achieve the second increase under Structural Efficiency Principle — Granted — AMSWU and Others and Hon Minister for Works and Services and Others — Nos. 1655,1722,1742,2357,2385.2361 of 1989(R) — Beech C. — 6/ 11/89— Building/Government Applications to vary Awards in relation to structural efficiency — Parties placed sufficient material before Commission to satisfy it there was positive co-operation in a fundamental review of the Award and implementation of measures to improve the efficiency of the industry and provide employees with access to more varied, fulfilling and better paid jobs in accordance with the Structural Efficiency Principle — Commission expressed hope that second stage structural efficiency applications would incorporate the necessary opportunities for training — Granted — FBTPU v. Midland Brick and Others — No. 1958 of 1989. 1959 and 1961 of 1989(R) — Beech C. — 2/11/89 — Brick, Cement, Rope, Tile and Pottery Manufacturing Application for new Award to cover Ambulance Superintendents and Deputy Superintendents — HSOA granted leave to intervene on basis that it and not Applicant had constitutional coverage of employees in question — In order to obtain Award it was necessary that Applicant have constitutional right to enrol as members those employees to be covered by scope of proposed Award — Applicant claimed coverage under that section of its constitution which included "eligibility of persons who were employed by a body which was not a public authority but in which the State Government had an interest" — Commission extensively reviewed the authorities and found that to be an instrumentality or authority of the kind in question there needed to be some governmental character in its function and substantial governmental control over its activities — The Respondent had none ofthese attributes, therefore the subject employees were not eligible for membership of the Applicant and the application must fail — Commission was also inclined to view that Intervener was not eligible to enrol employees in question — Dismissed — CSA v. St John Ambulance Association — No. A6 of 1988 — Fielding C. — 11/12/89 — Ambulance Services Application to vary Award pursuant to Structural Efficiency Principle — Applicant Union sought to have claim processed in same manner as had been for an Award in Victoria — Respondent opposed claim on the hours of the quantum sought, the requirements of the Principle and argued that Commission should direct the parties to negotiate — Intervener object to particular classifications in proposed trial classification structure on the grounds of constitutional coverage — Commission reviewed Victorian case. State Wage Principles and felt compelled to follow the course set in Victoria, despite reservations, with an Award Modernisation clause and directions to negotiate a classification structure for trial in the industry— Commission refrained from determining coverage issue and split application into two to deal with remaining matters — Granted in Part and adjourned — FCU and Boans Ltd and Others — No. 1584 of 1989(R) — Parks C. — 4/12/89 — Retail and Wholesale Application to vary Award pursuant to Structural Efficiency Principle — Commission reviewed background to application and was dissatisfied with industrial record of the parties — Commission found only Metal Unions to have shown any commitment to the principles in the case to justify an Award Variation — Commission further found need to include an Award Modernisation subclause in compulsory terms and directed the Australian Workers Union to enter into negotiations with the Respondent for the purposes of the Structural Efficiency Principle — Subsequently, in Supplementary Reasons for Decision, Commission was satisfied after hearing further submissions that it was able to ratify the arrangement as it stood after negotiations as it was consistent with undertakings given by the other parties to the Award — Granted — AMWSU and Others v. Cargill Australia — No. 1660 of 1989(R) — Gregor C. — 23/10/89 — Mining (Salt) Application to vary Award pursuant to Structural Efficiency Principle by consent — Commission carefully considered the terms of the Memorandum of Agreement, other exhibits and proposed amendments to Award, including the concept of security of supply, part progression towards Structural Efficiency and future agendas — Commission found agreement met the tests required under the Structural Efficiency Principle and encapsulated changes which embodied both greater flexibility in the organisation of work and greater opportunity for employee so far as the development of skills and exercises of progression were concerned — Granted — H.I. Pty Ltd and CMEU — No. 426 of 1990(R) — Kennedy C. — 5/4/90 — Iron Ore Application to vary Award by changing tally rate for dead rail slaughtering — Matter remitted to Commission for hearing and determination following Full Bench Appeal (69 WAIG 1884) — Commission further elaborated on its reasons for initial decision and acknowledged that these had not been made clear in initial Reasons — Commission adopted calculation for tally described by Full Bench but was still of view that Abbatoirs would now be processing different quality of sheep than those seen during inspections and on which this tally based — Commission, therefore, allowed parties opportunity to gather additional evidence and made a liberty to apply available to employers — AMIEU v. Action Food Barns and Others — No. 694 of 1987 — Gregor C. — 07/09/89 — Meat Application for consent variation to Award in accordance with Structural Efficiency Principle — Application wasopposed by ETU — Commission referred to previous SEP decisions for varying subject Award — Respondent reiterated its concern that unions party to Award had not been able to reach joint position and Commission too expressed concern at fragmented approaches to SEP — Granted — Hamersley Iron Pty Ltd v. ASEMFWU — No. 214 of 1990(R) — Kennedy C. — 27/02/90 — Iron ore Mining Application to vary two Awards by including maternity leave provisions for the first time into one and to remedy a defect in maternity leave clause in other — Commission found proposed changes to come within ambit of Wage Fixing Principles and do no more than add what is a Commission standard to Awards — Granted — Salaried Pharmacists and HSOA v. Pharmacy 777 and Others; Silver Chain Nursing Association — Nos. 1051 of 1989; 2514 of 1989 — Fielding C. — 20/03/90 — Retail Pharmacy (xxvii) WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 70 W.A.LG. CUMULATIVE DIGEST—continued AWARDS —continued Consent application for variation pursuant to Structural Efficiency Principle — Parties sought amendments to definition, various clauses and deletion of obsolete clauses — Commission found amendments and implementation agreement complied with State Wage Principles — Granted — PK1U and WA Newspapers and Others — No. 2151 of 1989(R) — Negus C. — 23/3/90 — Printing (Newspapers) Consent application for new Award to apply to manufacturing industry of monumental masonary including fixing work performed in a cemetry — Parlies claimed Award would facilitate the objectives of structural efficiency and conditions of service proposed reflected standards accepted by Commission in respect of the Building Trades Award 31 of 1966 and the Metal Trades (General) Award 13 of 1965 which a survey conducted by the parties found employers in the industry looked to establish current conditions — Commission referred to some issues not addressed by parties which needed consideration and found that subject to that consideration proposed Award was consistent with First Awards and Extension to Existing Awards Principle — Monumental Masonry Industry v. Bcllevue Monumental Works and Others — No. A36 of 1987 — George C. — 01/03/90 — Monumental Masonry Claim re Wages— Union sought increase in pay rates on the basis of the rates being paid by the Respondent on other necessities and isolation — Commission conducted inspections, reviewed evidence and reviewed the establishment of the different rates under the Awards in question — Commission found no justification in paying the higher rate as the conditions of the employees were, some travelling, equivalent to those on a mine site upon which the lower Paddington rate was based — Furthermore, Commission found workers had the advantage of living in a city environment — Commission found what Union sought was an over award payment and of rates which had been applied by the company at its own discretion over many years — Dismissed — Lcighton Contractors Pty Ltd and AWU — No. CR889 of 1989 — Gregor C. — 20/12/89 — Gold Mining Application for a new Award heard to deal with objections — Applicant Union sought to fill gap in Award coverage, as had been indicated by Appeal Court for an occupational grouping — Respondents saw award as desirable but further sought extension of coverage — Objector Respondent also supporting intervener, argued that it was covered by another award, was not in the industry to which the proposed award sought to cover and cited its previous case before the Australian Commission — Commission found in essence proposed award could be seen to be "roping in" the Respondents into the Building Trades (Construction) Award — Commission found it would strike out the objector and vary comparable employer unless the final determination of the application was not a construction type Award — Adjourned — OPDU and Abrasive Blasting Services Pty Ltd and Others — No. A33 of 1987 — Martin C. — 30/3/90 — Spray Painting and Sandblasting Application to vary Award pursuant to Structural Efficiency Principle — Applicants proposal included Broadbanding. Award Modernisation clause and pay rales aligned with a Federal Award — Respondent opposed claim on grounds that the amendments proposed were insufficient to justify a Structural Efficiency Wage Adjustment and that there was no nexus with the Federal Award as claimed — Respondents submitted their own proposals — Commission reviewed State Wage Principles and found it important to recognise the industry within a national perspective and particularly the relationship of the Stale Award under the Structural Efficiency Principle to other State Awards — Commission stressed the need for co-ordinated initiatives to implement structural efficiency at enterprise level and Award level — Commission found Rcspondenfs claim were not sufficiently addressed to arbitrate upon and would be the subject of future negotiations — In Supplementary Reasons for Decision Commission was not prepared to give full rctrospeclivity of the operative date to the last day of hearing but was prepared to accede to an earlier date than that of the order due to the progress made towards the second stage of Structural Efficiency — GrantedTWUand Australian Glass Manufacturers and Others — No. 1628 of 1989(R) — ColemanC.C. — 30/1/90 and 21/3/90 — Transport -'Consent application to vary Award pursuant to Structural Efficiency Principle, as a Special Case — Parties sought wage increase above that allowed by Wage Adjustment Principle and argued that it was necessary for Structural Efficiency within the Industry — CWAI intervening argued that a rigorous scrutiny was necessary to satisfy special case status and as did other section 50 parties addressed matters of public interest as related to the Principles — CICS found there was no need to consider the public interest in the context of the case and that the parties were committed to achieve an offset of the total package of costs — CICS included a review of the economic conditions within the industry — CICS found wage rates established in conformity with the Work Value Principle in the context of the Structural Efficiency Principle had satisfied a fundamental requirement of a Special Case — CICS however did not accept format in which wage rates were expressed and specified how the relativities should be determined against the rates of an Award in the industry, previously granted Structural Efficiency Wage Increases — Granted in Part — AWU and Associated Minerals Consolidated and Others — No. 1839of 1989(R) — ColemanC.C.. Gregor C.,GeorgeC.— 16/2/90 — Mining and Processing (Mineral Sands) Application to vary Award pursuant to Structural Efficiency Principle — Parties to Award sought to introduce same measures in two stages as had been ratified for the national industry by the Australian Commission — CWAI on behalf of employers in its membership opposed the application on the grounds of certain differences between the stale and national industry, particular rates proposed and sought insertion of a Structural Efficiency clause — CWAI particularly opposed retrospectively of the operative dates on the grounds that it was not possible under the Wage Fixing Principles — Commission found CWAI concerns would be well addressed by its participation in the State Working Party to be established under the arrangements for the industry — Commission further found parties had sufficiently satisfied the Principles to justify the first Structural Efficiency Wage increase in the same manner as the Federal Decision applied to the national industry —However, Commission also cautioned the parlies as to the need to honour their commitments, andofa review before the Commission ofprogress prior to the application for a second increase — In so far as operative date was concerned. Commission endorsed the sentiments ofthe Appeal Court and Full Bench, but thought it too far to suggest that the Commission was unable to depart from them in any circumstances —Commission found it would offend the notion of equity and good conscience considering the nexus between the State and Federal Awards, the presence of those awards applying parallel within the industry in the state and the possibility of conflict therein, to apply the strict work of the principle — Finally in Supplementary Reasons for Decision Commission considered position of BMA and its particular circumstances and found agreement satisfied Principles — Granted — BTA and Abel and Co J.C. and Others — No. 1744 of 1989(R) — Beech C. — 27/9/89 — Building Construction Application for a new Award — Parties sought award on the grounds that the industry awards were unsuited to their operations — Commission judged application in accordance with State Wage Principles and stated that for an award to be used as a vehicle for the introduction of Structural Efficiency that award must be a refiection of the actual conditions observed by the parties — Commission arbitrated on matters disputed, at the request of the parties, including Hours of Work, Annual Leave, Allowances and the inclusion of Over Award Payments — Award issued — Swan Portland Cement Ltd and AWU— No. A26of 1988— Beech C. — 28/11/89 — Cement Manufacturing Application for interpretation of an Award re whether relief crews were entitled to a penalty under the shift work provisions and whether the award required amendment to avoid confusion — Background of dispute centred around giving of notice of roster changes — Respondent argued no penalty applied under proper construction of Award — Commission reviewed authorities on the principles of interpretation — Commission found employees were not entitled to shift penalty and that it was not a matter of ambiguity but a perceived anomaly on the part ofthe Applicant and that the cause for remedying any perceived deficiency in an Award must be pursuant to section 40 ofthe Industrial Relations Act — CMEU and H.I. Pty Ltd — No. 778 of 1989 — Kennedy C. — 28/2/90 — Mining (Iron Ore) Application for registration of Industrial Agreement — TLC and Minister for Labour believed Applicants establishments to be covered by Restaurant, Tearoom and Catering Workers Award so urged Commission to take cautions approach due to inconsistencies between Award and proposed Agreement which had adverse implications for State Wage Fixing Principles — Minister advised proceedings had been instituted in Industrial Magistrate's Court against Applicant for breach of Award and that the retrospective aspects of proposed Agreement were to avoid prosecution — Commission found there was a case for concluding that Award had always applied to all of Applicant's businesses but on evidence presented Commission was only prepared to find that Le Mirage Centre was bound to the Award — Commission was prepared to register Agreement for other establishments and suggested that if Minister was of mind Award applied he should convince Magistrate — Granted in Part — Como Investments Pty Ltd v. FLAIEU — No. AG14 of 1989 — Salmon C. — 1/12/89 — Restaurant 70 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE CUMULATIVE DIGEST—continued AWARDS —continued Application for new Award which will set out all the conditions of employment for the bulk of Government officers and will replace 53 existing Awards — Application forms part of Respondent's undertaking made when it was granted increases under Structural Efficiency Principle and is one step towards Award Modernisation — Granted — Agriculture Protection Board of WA and CSA — No. PSA A3 of 1989 — Fielding C. — Public Administration Application to vary Award pursuant to Structural Efficiency Principle and allowances — Commission found Structural Efficiency Agreement, to include a review of classifications structure, and the wage increases proposed for each classification level to comply with the spirit of Principles — Commission sustained increases in allowances in line with CPI movements — For reasons of equity and consistency with employees covered by a Federal Award Commission was prepared to include a new set of location allowances with but rather as an isolation allowance — Granted — WAGHSOA and CBFI — No, 2411 of 1989 — Fielding C. — 22/12/89 — Grain Handling Application to vary Award pursuant to Structural Efficiency Principle — Commission reviewed initiatives in the industry by Committees, Memorandum of Agreement, claim for increased allowances based on wages movements and a claim for a special payment earlier determined by Commission in Court Session — Commission found special payment was not intended to be included in the base rate until the second Structural Efficiency Increase — Commission was satisfied commitments and proposed variation, save some amendments, were consistent with the State Wage Principles — Granted in Part — AMWSU and Associated Minerals Consolidated and Others — No. 1754 of 1989(R) — George C. — 27/12/89 — Mining and Processing (Mineral Sands) Application to vary Award by consent by increasing rates of pay pursuant to Structural Efficiency Principle — Other variations relating to conditions of employment and arising out of agreement known as Miscellaneous Workers Private Sector Memorandum of Agreement 1989 were also sought — Commission found this restructuring agreement to contain some changes of substance to the Award which incline towards added efficiencies and flexibility — Granted — FMWU v. Carine Glades Health Studio and Others — No. 1413 of 1989 — Fielding C. — 08/02/90 — Health and Fitness Application for variation of Award by increasing wages in accordance with second stage of Structural Efficiency Prinicple and inclusion of Award Modernisation and Structural Efficiency Exercise clauses — Applicants tendered a Joint Statement by Buildinglndustry Unions and employer organisations which set out further issues requiring resolution — COWAI submitted that agreement so far does not contain changes of such substance sufficient to warrant increase — Minister for Labour expressed concern at degree of disputation within building industry and claims for introduction of 36 hour week — Commission was satisfied parties were acting within limits set down by SEP and that package as presented had capacity to address a number of the industry's problems and increase its productivity — Commission referred to significance of Federal Award and that second stage structural efficiency had been introduced (Print J2041) with the federal counterpart of this package receiving express approval of Australian Commission — For reasons of equity, good conscience and substantial merit Commission allowed same date of operation as Federal Award — BMA specifically excluded at this time — Granted — BTA v. Adsigns Pty Ltd and Others — No. 296 of 1990 - 02/04/90 - Building 'Application for new Award to apply to employers conducting and employed in licensed private psychiatric hostels — Application came to Commission in Court Session as arguable case from an Anomalies Conference — First question posed by parties to Commission in Court Session was whether in principle the applicant should have an award for the area of activities to which the claims are directed — Commission in Court Session found Applicant may have award coverage for its members as specified, such award should reflect rates of wages and conditions of employment presently applicable to such employees and in the case of persons employed in the callings of Supervisor and Assistant Supervisor that First Awards and Extensions to existing Awards Principles must be applied as well — Adjourned to allow parties to process matter in accordance with their findings — Adjourned — FMWU v. Casson House and Others — A7 of 1987 — Martin C./Negus C./Gregor C. — Health Care Applications to vary Awards pursuant to Structural Efficiency Principle — Parties sought to vary Awards and wage increases consistent with the Federal Metal Industry Award Decision — Commission determined or commented on matters of difference between the parties in terms of wage and classification structure and those arising out of Memoranda of Understanding — Issues raised out of Memoranda of Understanding were, inter alia, implementation time tables, enterprise agreements — Commission directed parties to address matter of enterprise negotiaiton as a matter of priority, particularly considering of the Unions concerns and legitimate role — Commission would make note of question of a checklist for parties to follow as CICS had not — Commission further reviewed commitments of Unions — Commission varied Awards with respect to those Unions whose commitment was given under the Wage Fixing Principles, the Principles otherwise being satisifed in that it would be unrealistic to demand that the parties at State level deliver more tha what has been achieved at Federal level, particularly given the close relationship between the one State Award and its parent — Granted in Part — AMWSU and Others and Anodisers WA and Others — Nos. 1656, 1658 and 1797 of 1989 — George C. — 10/10/89 — Various Application to vary Award pursuant to Structural Efficiency Principle — Commission dealt with issue arising outofMemorandum of Agreement such as proposed new Award, classification structure, wages, respondent specific issues, service pay and the exclusion of Government Hospitals from the Order to issue — Commission found agreement in accordance with principles — Granted in Part — AMWSU and Others and Hon Minister for Works and Others — Nop. 1722(1) of 1989(R) — George C. — 14/11/89 — Engineering (Government) Application for variation to Award by increasing wages in accordance with Structural Efficiency Principle and changes to number of other clauses as outlined in Structural Efficiency Memorandum of Agreement — Parties submitted they did not yet wish to proceed with determination of casual employee provisions so Commission split application so that may be dealt with later — Applicant claimed salary rates for all adult workers should be increased by $ 15.00 in line with previous decision of Commission in this industry in line with national approach — Respondent claimed blanket approach too rigid and failed to allow for the idiosyncracies of an Award as it relates to a particular grading structure with related salary levels which are not aligned with other cleical Awards — Commission ordered that some adult workers receive $12.50 increase and balance $15.00 — Commission was not convinced there were any special circumstances to grant retrospectivity as claimed by Applicant — Granted in Part — FCU and Co-Operative Bulk Handling Ltd — No. 69A of 1990 — Parks C. — 15/3/90 — Grain Handling Applications to vary Award by allowing employees choice of more than one superannuation fund that they join — Applicants advanced a host of "in principle" arguments including "right of choice", the emergence of a new standard in Western Australia at variance to existing provision in subject Award and tht broad public policy as espoused by Trade Practices Act 1974 is that of a need for competition which is not met by an Award provision prescribing that employees' superannuation contributions must go into a particular superannuation fund — Commission found, amongst other things, that Applicants did not wish employees to have a free choice as such but merely the option to choose the fund the Applicants/employers wanted them in or that employer should choose fund — Commission also found that freedom of choice as far as Award conditions go is not a principle espoused in the Industrial Relations Act 1979 especially in light of section 114 and that most employees do not really know much about superannuation — Further, superannuation is part of employees' minimum conditions of employment and apart from considerations of convenience there is no good reason that employers should be involved in choosing superannuation funds — Dismissed — Wesfarmers Ltd and Others and SDA — Nos. 1690 of 1988, 1782 and 1891 of 1989 — Salmon C. — 26/2/90 — Wholesale and Retail 'Appeals against decision of Commission re handing down of new Award — Full Bench found appeals should be allowed due to procedural unfairness insomuch that many of the matters contained in the Award were not raised by the Commission with the parties and parties were not given opportunity to address matters or call evidence before they were decided and which is contrary to section 26(3) of the Industrial Relations Act — Full Bench decided that even though Commission had expressed concluded views to break off a fragment of proceedings and remit it to another Commissioner would be a greater evil especially as no submissions of bias were raised — Remitted to Commission for further hearing and determination — Robe River Iron Associates and Others v. Amalgamated Metal Workers and Shipwrights Union ofWestem Australia — 2332 and 2394 of 1989 — Sharkey P./ Gregor C./Kennedy C. — 23/3/90 — Iron Ore (xxis) WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 70W.A.I CUMULATIVE DIGEST—continued AWARDS —continued Application for new Award which will create one Award for whole of Applicants operations and replace existing Awards — Matter referred to Commission in Court Session as special case pursuant to State Wage Principles — CICS noted the current vague position of parties re intended scope and parties to Award — Applicant gave evidence that introduction of proposed Award was critical to continued future of company — section 50 parlies were generally supportive of application — CICS noted that application involved wage increases in excess of that allowed by Principles hence special case status, however, evidence was given that cost of these increases would be largely offset by the operational advantages the Applicant would gain — CICS found the method parties had chosen to implement Structural Efficiency Principle is appropriate and was prepared to approve in principle the proposed Award on understanding that Award finally presented to Commission is agreed and fully understood between parties — Adjourned — CSBP and Farmers Ltd and Another v. AMWSU — No. A19of 1989 — Halliwell S.C.. George C. Beech C. — 17/1/90 — Superphosphate and Chemical Application for variation to Award by increasing wages in accordance with Structural Efficiency Principle and changes to number of other clauses as outlined in Structural Efficiency Memorandum of Agreement — Parties submitted they did not yet wish to proceed with determination of casual employee provisions so Commission split application so that may be dealt with later — Applicant claimed salary rates for all adult workers should be increased by $15.00 in line with previous decision of Commission in this industry in line with national approach — Respondent claimed blanket approach too rigid and failed to allow for the idiosyncracies of an Award as it relates to a particular grading structure with related salary levels which are not aligned with other cleical Awards — Commission ordered that some adult workers receive $12.50 increase and balance $15.00 — Commission was not convinced there were any special circumstances to grant retrospectivity as claimed by Applicant — Granted in Part — FCU and Co-Operative Bulk Handling Ltd — No. 69Aof 1990 — Parks C. — 15/3/90 — Grain Handling 1 Applications to vary Awards by adjusting wages for second structural efficiency — Commission reviewed issue of establishment of minimum rates and accepted that awards were paid rates awards — Commission found on whole Wage Adjustment Principal satisfied and that it was duty bound to enforce Principles in terms of Operative Date — Granted — FMWU and Hon Minister for Education and Others — No. 137, 142-4, 146. 148. 154, 178, 188. 190. 195, 597, and P20 of 1990 — Fielding C. — 10/5/90 1 BOARD OF REFERENCE - Claim by employer against a requirement that it register as an employer pursuant to the Construction Industry Portable Paid Long Service Leave Act — Board of Reference found, inter alia, that the applicant was not engaged as an employer in the construction industry and the employees concerned were not covered by the Electrical Contracting Industry Award for the purposes of the said Act — Positron Ply Ltd and the Construction Long Service Leave Payments Board — Carrigg Registrar, Latter, Jones — 6/4/90 — Construction Claim (or pro rata long service leave remitted back to Board of Reference for further hearing and determination — Board of Reference reviewed evidence and found that there had not been a lawful transfer of employment between the Respondent and another company, hence the applicants were entitled to payment — Granted — Purvis L. and Others and Verbatim Reporters (1980) — No. 51 of 1988 — Pope Deputy Registrar. Jones, Latter — 14/5/90 — Court Reporting Services Claim that decision to terminate employment of Job Steward should be set aside on basis that it was unfair and that failing that employee should be paid up to date of determination — Respondent claimed that employee was dismissed due to insufficient work — Majority of Board of Reference determined that while there were some elements of unfairness in the way the termination was handled it was not sufficiently harsh or oppressive that Board should upset Respondents decision — Majority of Board also found employee was entitled to be paid up to date of determination — Granted in Part — McParland K. v. Matvalc Pty Ltd — No. 43 of 1985 — Board of Reference — 10/01/90 — Building Construction - Complaint of breach of Award by Development's alleged pursuit of claim outside State Wage Principles — Matter remitted to Industrial Magistrate following Full Bench ruling of a case to answer following appeal — Magistrate found that while workers on site had pursued claim outside Principles Defendant Union was not pursuing or authorising claim so there was no fault on part of Union — Not Proven — Carrigg J. v. AMWSU — No. 104 of 1989 — Maigstrate Walsh — 08/03/90 — Metal Trades Construction BONUS - Claim re contractual entitlements — Applicant sought pro rata payment of annual bonus — Respondent argued bonus was an incentive payment only — Commission found that applicant had failed to show that bonus was part of his contract of employment — Dismissed — Needham M.J. v. Consolidated Construction Pty Ltd — No. 1585 of 1989 — Beech C. — 06/12/89 — Construction ; Claim for payment ofbonus alleged to be due from contract of employment and for money deducted for damage to employer's vehicle — Commission examined letter containing terms ofcontract and found that bonus was only payable after three months service Commission also found no evidence that allowed Respondent to deduct moneys for damage to vehicle — Granted in Part — Lipscombe J.R. v. Safari Trek Australia Pty Ltd — No. 108 of 1989 — Parks C. — 02/02/90 —- Tourism Claim for payment of incentive bonus said to be due under contract of employment — Commission found that there could hardly be more conflict in evidence, however, that of the Applicant was on the balance of probabilities most reliable — Commission was satisfied Applicant was told at time of employment that he was to receive 30 per cent of an incentive bonus if it was paid to Respondent which, on evidence, it had been — Granted — Kukurs J.L. v. Allpike Honda — No. 2327 of 1989 — Fielding C. 27/ 02.90 —Car Sales BREACH OF AWARD - Claim re unfair dismissal — Applicant sought outstanding wages and declaration of unfair dismissal — Respondent denied allegations — Commission found that applicant was unfairly dismissed, however advised applicant to seek advice from appropriate authorities to clarify provisions under which he was covered — Ordered Accordingly — Morgan S.A. v. Bruining Hedlam Computers Pty Ltd — No. 756 of 1989 — Martin C. — 23/11/89 Complaint re failure to make available time and wages record for inspection — Industrial Magistrate found employees were covered by the scope clause of the Award in question, eligible to be members of the Complainant Union and involved in the delivery of goods and materials — Complainant Union had requested time and wages records in accordance with Award — Proven — TWU and Mountgrove Holdings Pty Ltd trading as Titan Ford — Complaint No. 386 of 1989 — Walsh S.M. — 8/1/90 — Transport Complaint re Breach of Award — Applicant claimed Respondent had failed to pay correct moneys for overtime, meal allowances and work done of holidays — Industrial Magistrate found employee to be covered by Award by common rule and in the absence of any evidence to the contrary the complaints proven — Granted — TWU v. Fresh West Corporation Pty Ltd — Complaints 356-362 of 1989 - Walsh S.M. — 15/2/90 - Transport Complaint that wages had not been paid in accordance with Award — Magistrate found that Respondent came within scope of Award by virtue ofcommon rule, employee concerned was on the balance ofprobabilities employed in the classification claimed and on a casual basis as claimed — Proven — Wilkins, OIR v. Verticordia Holdings Pty Ltd trading as Bernies — Walsh S.M. —12/01/90 — Proven — Restaurant (xxx) 70 W.AXG. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE CUMULATIVE DIGEST—continued BREACH OF AWARD —continued Complaint of failure to pay wages in accordance with Award — Complainant argued that boners should have been paid under a tally system rather than for time worked — Magistrate found construction of relevant clauses is Award allowed employer option of employing on either a tally system or for time worked — Evidence clearly showed workers subject to complaints were employed on an hourly basis and were paid overtime so there was no breach of the Award — Not Proven — Meat Industry Employees Union v. Valley Meats — Nos. 250. 251. 252. 259 and 260 of 1989 — Walsh S.M. — 12/02/90 — Meat 'Appeal against decision of Full Bench (69 WAIG 2653) to dismiss appeal — In original proceedings in Industrial Magistrate Court Magistrate had allowed complaints for breach of Award to be amended to reflect defendant s correct name at which point Counsel for Appellants suggested complaints should be dismissed — Industrial Appeal Court referred to Strata Title Act and found that the original defendant cited was the "Council" which exercises the company's function but has no relevant legal identity for the purposes of being sued and no separae legal corporate existence apart from the strata company (Appellant) — Industrial Appeal Court found Magistrate's decision to substitute names was entirely proper as it was simply a case of getting the proper defendant's name right and sections 46.47 and 48 of the Justices Act empowered him to do so — Dismissed — Owners of Johnston Court Strata Plan No. 5493 and Dumancic A. — No. 10 of 1989 — 1/3/90 — Strata Company Complaint that employees had not been paid wages in accordance with Award — Defendant sought to withhold payment due to stoppage by employees over safety issue — Industrial Magistrate found Defendant had failed to comply with Regulation 327 of Occupational Health, Safety and Welfare Regulations 1988 and employees had right to stop work as their safety was at risk — Magistrate found employees to be entitled to be paid for time of stoppage — Proven — ARU v. WAG RC — Nos. 289 and 401 of 1989 - Walsh S.M. - 16/11/89 - Railways CAPACITY TO PAY — Applicant Union claimed unfair treatment of employees re reduction of hours — Union sought declaration from Commission to re- establish hours of work to that which had previously applied — Respondent argued reduction in hours was a compromise when employee refused to accept transfer to another department and also to meet budget constraints imposed — Commission found it was the respondent's prerogative in determining how it would reduce cost so long as employees affected by such a decision have been treated fairly in the execution of that decision — Dismissed — FCU and K-Mart — No. CR1647 of 1988 — 5/12/89 Claim re contractual entitlements — Applicant claimed payment of wages and tendered evidence — No appearance on behalf of Respondent — Commission found in favour of applicant and issued order for outstanding wages — Granted — SemmlerM.A. v. John Carmona — No. 2312 of 1989 — Coleman C.C. — 18/1/90 — Equestrian Application for a new award — Applicant Union sought award to provide superannuation benefits to members in pension fund — Commission from evidence concluded that cost to the employers of the benefits paid to members of the pension fund is considerably higher than that paid in relation to current Superannuation Fund — Furthermore it would not be an exercise of equity or good conscience to further improve a scheme that has been demonstrated to be more generous that the other available scheme — Dismissed — CSA v. Public Service Commission — No. A3 of 1988 — Negus C. — 25/1/90 — State Government Claim repayment for extra work done — Applicant Union argued duties performed and responsibilities undertaken by employee warrant remuneration at a higher rate — Respondent raised jurisdictional points — Commission from evidence found on balance of probabilities major and substantial duties and responsibilities were performed by employee — Granted in Part — AMSWU v. WA Government Railways Commission — No. CR596 of 1989 — Halliwcll SC. — 13/10/89 — Railways CASUAL WORK — Claim re contractual entitlements — Applicants sought payment in lieu of notice and a pro rata payment in lieu of annual leave, including a loading thereon — Respondent argued no entitlements existed as nature of employment was casual — Commission found no arrangement was established and noted that terms ofcontract of employment cannot be assumed can they be implied — Dismissed — R. Battaile and K.M.Connell v. Connor RefriiieratedTransport Pty Ltd — Nos. 822and 960of 1988 —- ParksC. — 12/ 12/88 174 CLASSIFICATION - Application to vary Award by consent re a new classification — CSA sought leave to intervene on the grounds of previoius industrial coverage and its membership rule CSA argued that it was not precluded by its rules to cover the employoees in question as the Award was, it was argued, invalid on the basis that the Respondent had no authority to employ — Commission found CSA Rules precluded it from seeking to cover any employee properly covered by the Award, that section 34(4) of the Industrial Relations Act prevented any credence being given to the Association s argument and therefore that the CSA had no proper interest in the matter Commission further found after examining Structural Efficiency measures between the parties, no impediment to granting the application proper, and allowed for negotiation to proceed on the appropriate wage — Adjourned — PKIU and the Government Printer — No. 1256 of 1988 — Negus C. — 16/10/89 — Printing Application to vary Award pursuant to Structural Efficiency Principle — Parties disputed only a $15.00 rather than a $12.50 wage claim for a wage classification grouping by the Applicant Union — Respondent argued that the work of the Wage Group had to be assessed as at least equivalent to that of a tradesperson to qualify for the increase claimed as specified under the State Wage Principles and that the skills and training required by tradespersons substantially exceeded that of the Wage Group — Commission found on inspections, authorities and evidence that the Applicant had failed to prove that equality existed but recommended the issue be addressed in further restructuring negotiations — Commission found remainder of Award amendments sought fulfilled initial requirements of State Wage Principles however included a clause to reinforce the commitment to Award modernisation — Granted in Part — FMWU v. CSR Limited — No. 1383 of 1989 — Parks C. — 30/10/89 — Building Materials Manufacture Applications to vary Awards/Agreements pursuant to Structural Efficiency Principle, by consent — Commission's Reasons for Decision to be read in conjunction with those of another application due to common background — Commission found Principles to be satisfied, however determined quantum increase in rates for some classifications and dismissed a submission to include a test classification structure on the basis that the Commission was obliged by the State Wage Decision to adopt a decision ofanotherCommission — Granted in Part — CMEUand Othersand Swan Brewery Co Ltd—Nos. 2028,2100,2120.2453 of 1989 (R) — Kennedy C. — 17/11/89 — Brewing Industry Conference referred for hearing and determination re Demarcation dispute — Applicant Union sought declaration that it had sole constitutional and industrial coverge of shunting work and an order prohibiting the Respondent employer implementing "The Shunting Rationale — CICS reviewed authorities, evidence and history of demarcation disputation between the unions — CICS found it could not be said that the employer was prescribed by the constitutional rules of any union from directing a particular employee to perform work from time to time which was not substantially the work of that employee's classification — Furthermore CICS found no evidence of unsafeness and that custom and practice did not preclude the right of the employer to lawfully implement changes in work practices — CICS found in the end the only question was whether there should be intervention on the grounds of unfairness or unreasonableness resulting from the changes the employer made — Dismissed — ARU and WAGRC and Another — No. CR544 of 1989 — Halliwell S.C., Gregor C„ Kennedy C. — 22/1/90 — Railways (xxxi) WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 70 W.A.LG. CUMULATIVE DIGEST—continued CLASSIFICATION —continued Applications to vary Awards pursuant to Structural Efficiency Principle — Applications by consent subject to determination of rates to apply to six classifications — Both parties involved claimed their respective method of calculation most accurately established the skills rate — Commission reviewed Structural Efficiency measures includingbroadbanding. measures to resolve demarcation disputes and training. So far as the rales were concerned Commission found the problem was that rates specified for service did not of themselves denote skill — Commission, with regards to skills audits, restructuring commitments and the parties obligation to establish correct relativities found in favour of Applicant, provided that it did not establish that the same level of increase would apply for the second phase — Granted — Australian Railways Union v. Western Australian Government Railways Commission and Others — No. 1715 of 1989(R) and No. 2469 of 1989(R) — Kennedy C. — 24/11/89 — Railways Application to vary Award pursuant to Structural Efficiency Principle — Applicant Union sought to have claim processed in same manneras had been foran Award in Victoria — Respondent opposed claim on the hoursofthe quantum sought, the requirements of the Principle and argued that Commission should direct the parties to negotiate — Intervener object to particular classifications in proposed trial classification structure on the grounds of constitutional coverage — Commission reviewed Victorian case. State Wage Principles and felt compelled to follow the course set in Victoria, despite reservations, with an Award Modernisation clause and directions to negotiate a classification structure for trial in the industry — Commission refrained from determining coverage issue and split application into two to deal with remaining matters — Granted in Part and adjourned — ECU and Boans Ltd and Others — No. 1584 of 1989(R) — Parks C. — 4/12/89 — Retail and Wholesale Application to vary Award pursuant to Structural Efficiency Principle by consent — Commission carefully considered the terms of the Memorandum of Agreement, other exhibits and proposed amendments to Award, including the concept of security of supply, part progression towards Structural Efficiency and future agendas — Commission found agreement met the tests required under the Structural Efficiency Principle and encapsulated changes which embodied both greater flexibility in the organisation of work and greater opportunity for employee so far as the development of skills and exercises of progression were concerned — Granted — H.L Ply Ltd and CMEU — No. 426 of 1990(R) — Kennedy C. - 5/4/90 — Iron Ore Application to vary Award pursuant to Structural Efficiency Principle — Applicant's proposal included Broadbanding, Award Modernisation clause and pay rates aligned with a Federal Award — Respondent opposed claim on grounds that the amendments proposed were insufficient to justify a Structural Efficiency Wage Adjustment and that there was no nexus with the Federal Award as claimed — Respondents submitted their own proposals — Commission reviewed Stale Wage Principles and found it important to recognise the industry within a national perspective and particularly the relationship of the State Award under the Structural Efficiency Principle to other State Awards — Commission stressed the need for co-ordinated initiatives to implement structural efficiency at enterprise level and Award level — Commission found Respondent's claim were not sufficiently addressed to arbitrate upon and would be the subject of future negotiations — In Supplementary Reasons for Decision Commission was not prepared to give full retrospcctivity of the operative date to the last day of hcaringbut was prepared to accede to an earlier date than that of the order due to the progress made towards the second stage of Structural Efficiency — GrantedTWUand Australian Glass Manufacturers and Others — No. 1628on989(R) — ColemanC.C. — 30/1/90 and 21/3/90 — Transport 3Consent application to vary Award pursuant to Structural Efficiency Principle, as a Special Case — Parties sought wage increase above that allowed by Wage Adjustment Principle and argued that it was necessary for Structural Efficiency within the Industry — CWAI intervening argued that a rigorous scrutiny was necessary to satisfy special case status and as did other section 50 parties addressed matters of public interest as related to the Principles — CICS found there was no need to consider the public interest in the context of the case and that the parties were committed to achieve an offset of the total package of costs — CICS included a review of the economic conditions within the industry — CICS found wage rates established in conformity with the Work Value Principle in the context of the Structural Efficiency Principle had satisfied a fundamental requirement of a Special Case —CICS however did not accept format in which wage rates were expressed and specified how the relativities should be determined against the rates of an Award in the industry, previously granted Structural Efficiency Wage Increases — Granted in Part — AWU and Associated Minerals Consolidated and Others — No. 1839of 1989(R)— ColemanC.C, GregorC, George C.— 16/2/90— Mining and Processing (Mineral Sands) Applications to vary Awards pursuant to Structural Efficiency Principle — Parties sought to vary Awards and wage increases consistent with the Federal Metal Industry Award Decision — Commission determined or commented on matters of difference between the parties in terms of wage and classification structure and those arising out of Memoranda of Understanding — Issues raised out of Memoranda of Understanding were, inter alia, implementation time tables, enterprise agreements — Commission directed parlies to address matter of enterprise negotiaiton as a matter of priority, particularly considering ofthe Unions concerns and legitimate role — Commission would make note of question of a checklist for parlies to follow as CICS had not — Commission furthere reviewed commitments of Unions — Commission varied Awards with respect to those Unions whose commitment was given under the Wage Fixing Principles, the Principles otherwise being satisifed in that it would be unrealistic to demand that the parties at Stale level deliver more tha what has been achieved at Federal level, particularly given the close relationship between the one Slate Award and its parent — Granted in Part — AMWSU and Others and Anodisers WA and Others — Nos. 1656. 1658 and 1797 of 1989 — George C. — 10/10/89 — Various COMMON RULE - Application tobejoinedasa Respondent loan Award—Commission found Applicant hadsufficient interestin the matter, wzspnma facie bound by the Award by common rule and besides other good reasons, was entitled to be named as a party to the Award — Granted — Murdoch University Child Care Association (inc) and FMWU — No. 492 of 1990 — Fielding C. — 8/5/90 — Child Care COMPARATIVE WAGE JUSTICE - Application to vary Award as a Special Case remitted to CICS by Appeal Court (69 WAIG 3219) for further hearing and determination — CWAI submitted that CICS was required to reconsider matters of shift allowances and weekend penalty rates and properly apply the specific tests inherent in the Anomalies and Inequities Principle — CWAI further argued that the agreement in question relied upon the doctrine of comparative conditioin justice and as such should be rejected — CICS examined principles and found it a strange application of equity and good conscience to reconsider the question in the light of a Slate Wage Decision published after the earlier decision — Moreover, CICS considered questions in light of comparisons which were concomitant with the Incquitites Principle, found the existence of an inequity worthy of rectification and that the improvement in the conditions was justified as a matter of merit — Granted — FMWU and Board of Management, Royal Perth Hospital and Others — Halfiwell S.C., Negus C. George C. — 16/11/89 — Health Applications to vary Awards/Agreements pursuant to Structural Efficiency Principle, by consent — Commission's Reasons for Decision to be read in conjunction with those of another application due to common background — Commission found Principles to be satisfied, however determined quantum increase in rates for some classifications and dismissed a submission to include a "test" classification structure on the basis that the Commission was obliged by the State Wage Decision to adopt a decision of another Commission — Granted in Part—CMEUand Others and Swan Brewery Co Ltd — Nos. 2028,2100,2120,2453 of 1989 (R) — Kennedy C. — 17/11/89 — Brewing Industry Claim re Wages — Union sought increase in pay rates on the basis of the rates being paid by the Respondent on other necessities and isolation — Commission conducted inspections, reviewed evidence and reviewed the establishment of the different rates under the Awards in question — Commission found no justification in paying the higher rate as the conditions of the employees were, some travelling, equivalent to those on a mine site upon which the lower Paddington rale was based — Furthermore, Commission found workers had the advantage of living in a city environment — Commission found what Union sought was an over award payment and of rates which had been applied by the company at its own discretion over many years — Dismissed — Leighton Contractors Pty ltd and AWU — No. CR889 of 1989 — Grcgor C. — 20/12/89 — Gold Mining (xxxii) 70 W.A.LG. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE CUMULATIVE DIGEST—continued COMPENSATION - Claim re inequitable redundancy package due to deduction of money awarded in lieu of shift penalties — Applicant argued agreement on payment of shift penalties was because of special circumstances applicable and a once only lump sum payment, quite separate from the voluntary retrenchment package offered at a later date—Therefore no deductions should have been made ifthe latter package was accepted — Respondent challenged the jurisdiction ofthe Commission to entertain the claim and failing that, argued, deduction from payment i.e. (End of Shift Agreement) produced an "equitable" voluntary retrenchment payment and "avoids double dipping on shift penalty payment" — Commission concluded from evidence presented and cases cited that it is without jurisdiction to entertain claim, however if the reverse is found to be true then the applicants claim would have been successful — Dismissed — M.A. Lang and Telecom Australia — No. 845 of 1989 — 15/12/89 — Fielding C. — Telecommunications Claim re unfair dismissal — Applicant sought reinstatement and secondly, but alternatively, compensation as a consequence of his failure to receive contractual benefits for the guaranteed period of employment — However, if employment was not guaranteed, then reasonable notice of termination should have been given — Respondent argued no persons had fixed term contract other than persons employed for a few weeks — Commission found from evidence that applicant's termination was not an unfair act — Commission, however found that applicant had not received benefits to which he was entitled by his recompense — Ordered Accordingly — J.A. Margio v. Fremantle Arts Centre Press — No. 713 of 1988 — Parks C. — 17/11/89 — Printing/Artwork Claim re contractual entitlement — Applicant claimed unfair dismissal and sought contractual benefits as per contract of service and compensation for premature termination ofcontract — Respondent opposed claim — Commission having regard for established principles found that applicant was entitled to payment and set amount to be paid — Claim for damages failed — Ordered Accordingly — Norstrand R.R. and Minproc Engineers Pty Ltd — No. 1956 of 1989 — Fielding C. — 24/11/89 — Construction Claim repayment for extra work done — Applicant Union argued duties performed and responsibilities undertaken by employee warrant remuneration at a higher rate — Respondent raised jurisdictional points — Commission from evidence found on balance of probabilities major and substantial duties and responsibilities were performed by employee — Granted in Part — AMSWU v. WA Government Railways Commission — No. CR596 of 1989 — Halliwell SC. — 13/10/89 — Railways CONFERENCE — Conference referred re unfair dismissal claims — question of jurisdiction previously determined — Applicant Union claimed dismissal of two employees was unfair as the stated reason, a lack of work, was allegedly not true — Commission found on agreed facts that employees had been employed as temporary employees — Dismissed — ARU v. WAGRC CR701 of 1989 and CR702 of 1989 Kennedy C. — 12/12/89 - Railways Conference referred for hearing re site allowance to be paid in lieu of pay for confined space, wet work, dusty work and the use of second hand timber — Parties drew attention of Commission to Decisions of Commission that they believed were appropriate — Commission stated criteria to be followed have been set out in MBA v. John Holland (67 WAIG 1731) — Commission found that in the assessment of disabilities of each site must stand alone but once an assessment has been made there is no prohibition from using previous decisions of Commission as guide to level of those disabilities as opposed to agreements specifically proscribed by dicta in Sapri decision (Print F1957) — Commission took guidance from decisions presented by Applicant — Granted in Part — Building Trades Association and Jaxon Construction Pty Ltd — No. CR704 of 1989 — Gregor C. — Building Construction ... 2Appeal against decision of Commission re Dispute Settlement Order issued pending hearing and determintion of matters referred out of conference — Appellant argued that in denying the Appellant an adjournment sought to consider the minutes ofthe Order, the Commission had adequately complied with section 35 of the Industrial Relations Act and hence procedural fairness — Respondent advised Full Bench in writing that it would not appear — Full Bench extensively reviewed authorities and found Commission was not bound to keep Full Bench of section 44conferences and that notes on the conference proceedings submitted as evidence by the Appellant should have been verified by Affidavit — Full Bench further found the Order was of a temporary routine, represented a finding, did not finally decide the matter and that the matter was not of such importance that an appeal should be — Dismissed — WALEDFCU and WAGRC — Nos. 2202 and 2203 of 1989 — Sharkey P.. Salmon C, Parks C. — 22/12/89- Railways Conference referred for arbitration re reinstatement of employee who was allegedly unfairly dismissed — Subject employee was terminated prior to commencing work for Respondent when business changed hands — Employee told reason she was selected for dismissal was that she was not full-time — Respondent argued that as employee was dismissed before commencing work there was no contract of employment afoot and this matter was therefore not within Commission s jurisdiction — Commission found that employment contract had been offered by Respondent, accepted by employee and an employment relationship was thus in existence when employee told she was no longer required — Commission further found unfair dismissal had occurred as subject employee had not been given same consideration as other employee re future employment — Commission ordered Respondent offer contract of employment but declined to order payment of wages between dismissal and re-employment — Granted in Part — SDA v. Jim Berry Terrace Pharmacy — No. CR1089 of 1989 — Salmon C. — 01/03/90 — Retail Pharmacy Joint Federal and State proceedings re Unions refusal to attend work due to picket line of a Federal Union — Applicant employers sought order to remove picket line — Commission found it could join Federal Union to a conference by virtue of sections 27( l)(j) and 44(1) of the Industrial Relations Act, as the Federal Union was a "person" by virtue of the Interpretation Act and Federal Industrial Relations Act 1988 — Commission reviewed definitions of an industrial matter, the power to make orders pursuant to section 44 and found the removal of the picket line was a matter of fundamental significance to the resolution of the dispute — Granted — MBA and CMEU and Others — No. C34(l) of 1990 — Beech C. — 2/2/90 — Building Construction Conference matter referred for arbitration re ratification of site allowances — Parties now agreed that proposed allowances were to be in lieu of all special rates and provisions contained in various awards — Commission was satisifed from submission and evidence that site allowance payments were justified to compensate for all the special features and disabilities in connection with these sites — Granted — ETU and Another v. Building Management Authority — No. CR1030-1036 of 1989 — George C. — 25/01/90 — Engineering and Sheet Metal Conference re demarcation dispute over installation of certain kitchen units and other fittings into apartments under construction — Commission of firm opinion that no agreement is likely so matter will be referred forbearing and determination — Commission found it necessary to issue interim Order to prevent deterioration of industrial relations until arbitration has resolved matter — Order issued to preserve status quo — UFTU v. CMEU — No. C228 of 1990 — Beech C. — 27/03/90 — Furniture Trades Dispute re industrial representation of carpenters and/or joiners and cabinet makers in buildings under construction, or near completion — From all evidence presented and history of demarcation Commission found that there was no fixed solution to issues raised and made recommendations on current issues — Furthermore future disputes should be able to be determined by reference to these reasons and desirably an application to resolve such a dispute should be made well in advance of work commencing — Ordered Accordingly — United Furniture Trades Industrial Union and Another v. CMEU and Others — No. CR1540 of 1988, CR193, CR219, CR251 and CR303 of 1989 — Beech C. - 02/11/89 — Building/Construction CONFINED SPACE - Claim re site allowance — Respondent argued disabilities were accounted for in allowances and special provisions clauses of the applicable Award — Commission found on inspection and evidence no allowance should be issued in consideration of the isolation ofthe site and that there were adequate amenities — Confined space was limited to electrical fitters and accounted for in the Award — However Commission found disabilities associated with weatherconditions warranted an allowance of SOcents per hourand that there wouldbe no likely flowon —Granted in Part —BTAand Others and SECWA—No. CR589 of 1989 —Salmon C. - 20/10/89 - Electricity Supply 559 01587-2 (xxxili) WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 70 W.AJ.G. CUMULATIVE DIGEST—continued CONSUMER PRICE INDEX - Application for award variation re district allowance — Parties were in agreement and sought increases based on the CPI movements — Commission found increase in allowance to reflect additional costs were within the Principles — Granted — CSA v. Kalgoorlie College and Others — No. P57 of 1989 — Fielding C. — 4/12/89 — Education Application for variation of award re various allowances — Applicant Union sought increases inline with CPI movement from and including March 1985 for two of the allowances and others to be increased based on wage movements since they were last fixed — Respondent consented to claim — Commission answered question as to whetherallowance was reimbursement of expenses or an allowance relating to conditions of work — Commission found claim to be within guidelines — Granted — FMWU v. Canine Security and Others — No. 1504 of 1989 — Fielding C. — 11/12/89 — Security ; Application to vary Award pursuant to Structural Efficiency Principle and allowances — Commission found Structural Efficiency Agreement, to include a reviewof classifications structure, and the wage increases proposed for each classification level to comply with the spirit of Principles — Commission sustained increases in allowances in line with CPI movements — For reasons of equity and consistency with employees covered by a Federal Award Commission was prepared to include a new set of location allowances with but rather as an isolation allowance — Granted — WAGHSOA and CBH — No. 2411 of 1989 — Fielding C. — 22/ 12/89-Grain Handling CONTRACT OF SERVICE — Conference referred re unfair dismissal claims — question of jurisdiction previously determined — Applicant Union claimed dismissal of two employees was unfair as the stated reason, a lack of work, was allegedly not true — Commission found on agreed facts that employees had been employed as temporary employees — Dismissed — ARU v. WAGRC CR701 of 1989 and CR702 of 1989 Kennedy C. — 12/12/89 — Railways 2Appeal against decision of Commission at (69 WAIG 2780) re contractual entitlement — Appellant argued nett income per week claimed in "Contract of Employment" and whether Respondent was dismissed or"walked out" was not established — Full Bench found no reason to intervene as Commission had made no palpable error in the findings as to the facts which were made and in accepting the Applicants evidence — Furthermore, claim was competent as it was a contract for an amount in excess of award entitlements — Dismissed — Mason P. v. BastowP.D. — No. 2242 of 1989 — Sharkey P., Coleman C.C., Beech C. 20/12/89 — Hospitality 2Appeal against decision of Commission at (69 WAIG 2507 and 2784) re conract of service — Claims contractual benefits, motor vehicle, travel — Financial arrangements in relation to motor vehicle altered — Refinancing of motor vehicle did not alter original benefits due to Appellant — Admission made by Respondent re travel claim — Full Bench granted claim in relation to travel, however found grounds in relation to motor vehicle not made out — Upheld in Part — P.M. Chernoff and Stastra Page and Associates Pty Ltd — No. 1609 of 1989 — Sharkey P., Kennedy C, George C. — 16/11/89 — Engineering Claim re contractual entitlement — Applicant sought payment of moneys for accrued leave — Commission found pro rata payment claimed did not exist within the terms and conditions of the applicant s contract ofemployment — Dismissed — Jackson B.L. and Seismic and General Geophysical Services Pty Ltd — No. 724 of 1988 — Parks C. — 29/11/89 Claim re contractual entitlements — Applicants sought payment in lieu of notice and a pro rata payment in lieu of annual leave, including a loading thereon — Respondent argued no entitlements existed as nature of employment was casual — Commission found no arrangement was established and noted that terms of contract ofemployment cannot be assumed can they be implied — Dismissed — R. Baltaile and KM. Connell v. Connor Refrigerated Transport Pty Ltd — Nos. 822 and 960of 1988 — Parks C. — 12/ 12/88 Claim re continuity of service and redundancy payments — Applicant Union sought Order to ensure continuity of services of its members due to sale of business as an ongoing concern and certain redundancy payments for some members not re-employed — Respondent objected and opposed claim — Commission adjourned claim for redundancy payment, as question of its jurisdiction was currently the subject of an appeal — Commission from evidence found in favour of respondent with regard to continuity to service, however noted that respondent should have a flexible approach on matters of annual and sick leave — Dismissed/ Adjourned — United Timber Yards, Sawmills and Woodworkers Employees Union v. McLeans Consolidated Pty Ltd and Pinetec Pty Ltd — Nos. CR305 and CR474 of 1989 — Beech C. — 5/12/89 — Timber Claim re contractual entitlements — Applicant claimed payment of wages and tendered evidence — No appearance on behalf of Respondent — Commission found in favour of applicant and issued order for outstanding wages — Granted — Semmler M.A. v. John Carmona — No. 2312 of 1989 — Coleman C.C. — 18/1/90 — Equestrian 2Appea! against decision of Commission (69 WAIG 3383) re claim for wages said to be due under a contract of employment — No appearance at appeal by Appellant or at original Commission hearing — From Appeal Book and transcript of Commission hearing Full Bench deduced that crux of appeal turned on allegation of bids by the Commission — Full Bench referred to the test on bias and found that as Appellant had not raised question of bias in first instance before the Commission it could not do so now — Further it was clear on the test outlined that even had bias been argued it could be sustained as there was no demonstration of bias in the legal or any other sense — Full Bench also noted that although it dealt with this appeal on its merits section 27(1 )(aXiv) gives the Commission however constituted power to dismiss proceedings at any stage in the absence of an appearance by any party — Dismissed — Structor Pty Ltd trading as Interigo v. D.N.H. Cooray — No. 2589 of 1989 — Sharkey P., Coleman C.C., Negus C Claim re unfair dismissal — Employee terminated because of an out of work hours altercation with a former employee of the Respondent — Board of Reference found sufficient connection between the altercation and the contract ofemployment of the dismissed employee — Dismissed — Carnley R. and Skytec Constructions — Board of Reference — Halliwell S.C. Chairman — 9/2/90 — Building/Construction Employee dismissed because of an altercation outside of working hours — Applicant Union claimed dismissal unfair and sought reinstatement — Commission found on evidence altercation had nothing to do with either the employerorthe employees contract of service and the employers concern as to on the job conduct to be without bias in fact — Granted — ABLF and Skytec Construction — No. CR13 of 1990 — Halliwell S.C. — 13/02/90 — Building Construction Claim re contractual entitlements — Applicant claimed two weeks' pay in lieu of notice — Respondent argued Applicant had. left without working out the two weeks' notice period hence there was no entitlement payment for work not performed — Commission found from the facts that the Respondent had not consented for the Applicant to leave work and receive wages as if at work, that the Applicant misinterpreted the Respondent's remarks and a well-intentioned act had back-fired on her— Dismissed — Vaile S.A. and Webster and Webster — No. 2594 of 1989 — Fielding C. — 15/2/90 — Clerical Employee terminated for being absent without medical certificate — Applicant Union claimed dismissal unfair and sought reinstatement — Respondent argued that the employee had a history of chronic absenteeism and poor performance — Commission found that a letter to the employee had created a term of contract between the parties as to the product of a further absence — Furthermore Commission found as a matter of merit that the Respondent was not wrong in bringing the contract of employment to a close — Dismissed — AWU v. Newmont Australia Ltd — No. CR587 of 1989 — Gregor C. — 5/1/90 — Mining Application for benefits alleged to be due under contract of employment—Applicant claimed he had not been paid commissions on sales made during the latter part of his employment — There was no appearance for Respondent — Commission noted that whilst Applicant's employment was covered by an award as the entitlement claimed was not provided by that award it was a non-award benefit and hence a matter over which the Commission had jurisdiction — Commission found application had been made out — Granted — Brian William Ramage and House of Carpets — No. 2504 of 1989 — 22/2/90 — Fielding C. — Retail (xxxiv) 70 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE CUMULATIVE DIGEST—continued CONTRACT OF SERVICE —continued Claim /-e contractual entitlement — Applicant claimed unfair dismissal and sought contractual benefits as per contract of service and compensation for premature termination ofcontract — Respondent opposed claim — Commission having regard for established principles found that applicant was entitled to payment and set amount to be paid — Claim for damages failed — Ordered Accordingly — Norstrand R.R. and Minproc Engineers Pty Ltd — No. 1956 of 1989 — Fielding C. — 24/11/89 — Construction Claim re contractual entitlement — Applicant sought payment of outstanding holiday pay — Respondent opposed claim — Commission found from evidence that applicant had established entitlement to payment of moneys in respect of holiday pay. however identity of employer could not be established — Dismissed — Sala Tenna M.R. and RJ. Galloway trading as Photogem. Primary Colour — No. 2055 of 1989 — Fielding C. — 06/11/89 — Photo Processing Claim re contractual entitlements — Applicant sought pro rata payment of annual bonus — Respondent argued bonus was an incentive payment only — Commission found that applicant had failed to show that bonus was part of his contract of employment — Dismissed — Needham M.J. v. Consolidated Construction Pty Ltd — No. 1585 of 1989 — Beech C. — 06/12/89 — Construction Claim re contractual entitlement — Applicant claimed unfair dismissal and sought contractual benefit based on average sales earnings over period of employment — Respondent argued applicant resigned — Commission found from evidence applicant had resigned and that it was inappropriate to make any findings in respect of the counterclaims — Dismissed — Reid J.L. v. Danebrook Holding Pty ltd — No. 1748 of 1989 — Fielding C. — 09/11/89 — Sales/Housing Claims re contractual entitlement — Applicants sought wages for work done and annual leave entitlements — Respondent argued it had an obligation to pay the first applicant, however disputed that amount and as for the second applicant argued that applicant had withheld work and therefore was not paid — Commission found second applicant had breached his contract of employment however he was still entitled to payment for work performed — Ordered Accordingly — Kin P. and Jackson M.H. v. Assist Computer Technology Pty Ltd — Nos. 990 and 991 of 1989 — Martin C. — 30/10/89 — Computing Claims re contractual entitlement — Applicants claimed unfair dismissal and sought payments in lieu of notice and annual leave payments — Commission found from evidence that all three applicants were terminated without notice and allowed claims for wages, however dismissed claims for annual leave — Ordered Accordingly — Black I.. Smith S., and Burns S. v. Zeus Holdings trading as "Supcrgym" — Nos. 956. 1531 and 1809 of 1989 — Martin C. — 27/10/89 — Health/Fitness Employee summarily dismissed — Applicant claimed payment in lieu of two weeks pro rata annual leave and payment of wages for two days' work — Respondent argued despite warnings, applicant had failed to carry out duties — Commission found from evidence that applicant had contravened the respondents practices and policies — Dismissed — Janssen K. v. Lifestyle Construction — No. 837 of 1989 — Kennedy C. — 24/11/89 — Building Construction ' Claim for overtime. Sunday work and payment for use of Applicant's phone and vehicle on employer's business alleged to be due under contract of employment — Commission stated test for section 29(b)(i) matters as set out by Full Bench in Perth Finishing College v. Watts (69 WA1G 2307) — Applicant faced difficulty in showing matters claimed constituted benefits under the contract of sendee as they were not included in the written terms of employment — Commission then cited authorities and considered whetherthese benefits claimed could be implied from contract — Commission found contract provided that a vehicle be supplied and Applicant should be paid for use of his own vehicle until company vehicle was supplied — Granted in Part — Martin Littlewood v. B.A. & M.L. Wilson trading as the Wilson Business and Investment Group — No. 2534 of 1989 — Beech C. — 21/03/90 - Retail Claim for payment of commissions and hours worked alleged to be due under contract of employment — Commission found applicant's largely uncontradicted evidence as to terms of contract re payment to be convincing and his diary entries to be a fair record of hours worked — Commission was too concerned with the accuracy of the Applicant's estimate to arrive at a figure that was at all accurate itself and subsequently found claim for commission not made out — Granted in Part — Eric Purvis v. Auto Bavaria - No. 2533 of 1989 - Fielding C. - 22/03/90 - Motor Vehicle Claim re contractual entitlements — Applicant sought payment of alleged outstanding commission on a sale and pro rata annual leave — Applicant argued commission was due on delivery of goods and any bad debt problems were that of the Respondent — Commission found if there was an entitlement to extra commission then that would have an effect on the consequent payment figure for annual leave — However. Commission refrained from determining matter until it determined a question of jurisdiction due to the possibility of award coverage — Adjourned — McGuinissr. Vawn No. 4 Ptv Ltd trading as Rod Ferguson Suzuki — No. 1650 of 1989 - Kennedy C. — 13/12/89 - Vehicle Dealers Motor I I Application for three weeks' wages alleged to be due from contract of employment — The main facts were not in dispute and Commission found that agreement for remuneration was that Applicant received 50 per cent of his gross daily takings to be paid monthly — There being no entitlement to "wages" as such — Respondent refused to pay outstanding amount as Applicant had an accident in Respondent's vehicle the repair of which cost more than the amount due — Respondent also claimed Applicant was subcontractor and not an employee — Commission referred to "control" test and found that the indicia showed Applicant was an employee under a contract of sendee — Commission further found there was no contract or agreement or arrangement that remuneration would be subject to deductions in the event of motor accidents — Granted in Part — Transport — Brady A.G. and Isherwood Holdings Pty Ltd trading as Superior Courier Services — No. 2674 of 1989 — Martin C. — Transport Applications for payment of salary alleged to be due under contracts of employment — Respondent argued that as it was in liquidation Commission did not have jurisdiction to deal with matter and sought order for stay of proceedings — Commission found that section 371(2) of the Companies (Western Australia) Code prevents proceedings from being commenced or otherwise proceeded with against a company where a winding up order has been made without leave of the Supreme Court — Stay ordered unless and until leave of Supreme Court obtained — Building Construction — Pennell J.C. and Others and Manfal Pty Ltd (In Liquidation) — Nos. 2363 to 2383 of 1989 — Fielding C. — 14/2/90 — Housing Claim re contractual entitlements — Applicant claimed outstanding salary and non-payment of pro rata annual leave and tendered evidence — Respondent opposed the application on the grounds of industrial fairness in that the applicant failed in a professional manner to carry out the duties — Commission found prima facie that the applicant was entitled to be paid for work done and the onus of proof of industrial fairness was to fall on the Respondent — Granted — Gale G.B. and Paul Jones and Associates Pty Ltd — No. 2287 of 1989 — Salmon C. — 15/12/89 — Accounting Claim re allegedly denied contractual entitlements — Applicant sought payment of superannuation benefits — Respondent argued employment was not for a fixed term and superannuation was not a part of the contract of service — Commission found position of Applicant was to be determined from a sequence of events which resulted in two offers and the conduct of the parties in relation to those two offers —Commission found on evidence that there had been an implied acceptance of the second offer which did not include an implied or implicit term for superannuation — Dismissed — Rowley P. — Summit Products Pty Limited — No. 602 of 1989 - George C. — 14/2/90 - Sales Claim of unfair dismissal and for wages alleged to be due from contract of employment — Commission found on evidence that Applicant was intoxicated on Respondent's premises and as that was the reason for summary dismissal it was not unfair — Commission also found no underpayment of wages had occurred — Dismissed — Love joy C.B. and Osbornc Enterprises — No. 2838 of 1989 - Salmon C. — Restaurant Complaints alleging failure to pay wages, travelling allowance and annual leave in accordance with Award — Defendant claimed subject ofcomplaint was a subcontractor and not an employee — Magistrate found material matter for consideration was whether or not there was a master/servant relationship and referred to the authorities — Magistrate found there was no evidence to prove that the Defendant controlled the manner in which the subject worker was to do the work and thus there was no evidence to prove on the balance of probabilities that a master and servant relationship existed — Not Proven — ABLF v. P.B. and K.A. Brajkovich Pty Ltd — Complaint 328. 329 of 1989 — 2/3/90 — Walsh S.M. — Building Construction (xxxv) WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 70 W.A.LG. CUMULATIVE DIGEST—continued CONTRACT OF SERVICE —continued Application for reinstatement due to allegedly unfair dismissal and payment of wages from time of termination to time of re- employment — Commission found that Applicant had not failed to comply with a lawful order as alleged by the Respondent and in light of that and Applicant's long association with Respondent's enterprise dismissal was unfair — Commission, however, concluded that an order for reinstatement would be a "recipe for disaster" and may lead to further conflict— Granted in Part — Wainwright C. v. Biblos Nominees Pty Ltd trustee for the Palma Unit Trust trading as "Artfex Australia" — No. 2683 of 1989 — Martin C. — 14/03/90 — Clerical Claim for payment of incentive bonus said to be due under contract of employment — Commission found that there could hardly be more conflict in evidence, however, that of the Applicant was on the balance of probabilities most reliable — Commission was satisfied Applicant was told at lime of employment that he was to receive 30 per cent of an incentive bonus if it was paid to Respondent which, on evidence, it had been — Granted — Kukurs J.L. v. Allpike Honda — No. 2327 of 1989 — Fielding C. — 27/ 02.90- Car Sales - application for stay of proceedings pending hearing of appeal against decision of Commission re denial of benefits pursuant to contract of employment — Applicant claimed that it did not attend Commission hearing in first instance because its Notice of Hearing specified a different dale from that on which hearing was held — President held that whether the Appellant had a right to be heard was a serious issue to be tried and that balance of convenience favoured the Applicant/Appellant hence the granting of stay — M. Anderson trading as Heyford Holdings trading as Nashua Karratha v. Lane A. — No. 420 of 1990 — Sharkcy P. — 19/03/90 — Office Equipment Claim for payment of bonus alleged to be due from contract of employment and for money deducted for damage to employer's vehicle — Commission examined letter containing terms of contract and found that bonus was only payable after three months sendee — Commission also found no evidence that allowed Respondent to deduct moneys for damage to vehicle — Granted in Part — Lipscombe J.R. v. Safari Trek Australia Pty Ltd — No. 108 of 1989 — Parks C. — 02/02/90 — Tourism Claim re contractual entitlement — Applicant sought payment of all benefits of remuneration package for the prescribed notice period of two months —Commission from evidence found in favour of applicant with regard to part ofclaim sought — Granted in Part — Campbell T. v. Norapanel Pty Ltd — No. 924 of 1989 — Kennedy C. — 24/11/89 — Manufacturing Claim re contractual entitlement — Applicant sought payment for outstanding wages, interest, expenses and pro rota annual leave — Respondent counter claimed moves owing due to absence from work by applicant — Commission found from evidence in favour of applicant with regard to outstanding wages and expenses, however rejected claim for interest and pro rata annual leave — Ordered Accordingly — TrottR.v. StructorPty Ltd trading as Interigo and Intelectric — No. 920 of 1989 — GregorC.— 17/11/89 — Electrical Claim re contractual entitlements — Applicant sought to recover lease payments on company vehicle deducted from his salary and a further payment in lieu of notice — Furthermore applicant sought holiday pay to be calculated at actual pay rate — Commission found no dispute to facts and granted claim — Granted — Arnold B. v. Mairim Pty Ltd trading as Dolmar Chemicals — Fielding C. — 20/11/89 — Chemical Sales Claim for payment of incentive bonus said to be due under contract of employment — Commission found that there could hardly be more conflict in evidence, however, that of the Applicant was on the balance of probabilities most reliable — Commission was satisfied Applicant was told at time of employment that he was to receive 30 per cent of an incentive bonus if it was paid to Respondent which, on evidence, it had been — Granted — Kukurs J.L. v. Allpike Honda — No. 2327 of 1989 — Fielding C. — 27/ 02.90-Car Sales Conference referred for arbitration re reinstatement of employee who was allegedly unfairly dismissed — Subject employee was terminated prior to commencing work for Respondent when business changed hands — Employee told reason she was selected for dismissal was that she was not full-time — Respondent argued that as employee was dismissed before commencing work there was no contract of employment afoot and this matter was therefore not within Commission's jurisdiction — Commission found that employment contract had been offered by Respondent, accepted by employee and an employment relationship was thus in existence when employee told she was no longer required — Commission further found unfair dismissal had occurred as subject employee had not been given same consideration as other employee re future employment — Commission ordered Respondent offer contract ofemploy ment but declined to order payment ofwages between dismissal and re-employment — Granted in Part— SDA v. Jim Berry Terrace Pharmacy — No. CR1089 of 1989 — Salmon C. — 01/03/90 — Retail Pharmacy Applications for reinstatement on the grounds of unfair dismissal or allegedly denied contractual entitlements — Respondent argued employees had been dismissed due to low staff morale, non co-operation with the Head Office and one Applicant's association with the other — Commission found that although both employees were terminated without notice there was no summary dismissal due to payment in lieu of notice and that it was not for the Commission to determine whether it would have acted differently to the employer but whether the employer had acted fairly — Dismissed and Discontinued — StairmondD.andSearle K. and Capodistra Pty Ltd — Nos. 1282 and 1283 of 1988 — Parks C. — 22/12/89 — Video Hire Claim re contractual entitlements — Applicant sought payment of pro rata annual leave and leave loading — Respondent argued Applicant was at all times a subcontractor — Commission found on evidence that there had existed an employee/employer relationship between the parties, but that the contract of employment was not on foot for as long as the Applicant claimed — Granted in Part — ScrivensH. and Fernhurst Holdings Pty Ltd trading as W. Moscr Consultants — No. 819 of 1989 — Kennedy C. — 15/1/90 — Financial Services Claim re contractual entitlements — Applicant sought 21 weeks'salary, car allowance and two weeks'holiday pay on the basis that the contract of service was fora guaranteed period ofsix months and terminated prematurely — Respondent argued contract was of an indefinite nature and dependant upon the Applicant meeting a sales target — Commission noted onus ofprooflay with the Applicant — Commission found on evidence supply of car was not part of Applicant's remuneration and that the contract was terminated on one month's notice by either party — Granted in Part — Day J.M. and Sonic Souvenir Co Pty Ltd — No. 1889 of 1989 - Parks C. - 11/12/89 — Retail/Wholesale Application for allegedly denied contractual entitlements — Applicant sought payment of wages on the grounds that there had existed a fixed term contract — Commission found on evidence that the employee had been engaged under the terms and conditions of an Award and that there had been no fixed term in the contract — Commission also found therefore it was not necessary to examine further whether the dismissal was wrongful or not — Dismissed — Ranasinghe V.C.W. and Commodity and Projects Export Development Pty Limited trading for Milton Family Trust trading as Douglas Designs — No. 1271 of 1987 — George C. — 5/1/90 — Wholesale and Retail Establishments Application for allegedly denied contractual entitlements — Applicant sought payment for the equivalent ofan air fa re, annual leave, accrued sick pay, on the basis of a verbal agreement — Commission found question of implied terms did not arise — Commission found on evidence that the contract of service had charged upon the receival and implicit acceptance of a document and the Applicant was entitled only to pro rata payments for denied benefits, prior to that change — Granted in Part — Price R.J. and Berkely Challenge Corporation — No. 2360 of 1989 — GregorC. — 15/1/90 — Catering Application for allegedly denied contractual entitlements — Applicant sought payment of an aggregation for wages, overtime, payment in lieu of notice, shift penalties and allowances on the basis of a contract of service based on an Award the employer was not Respondent to — Commission found on evidence contract of service was of a standard type of arrangement made in an industry not covered by Awards — Dismissed — Burnes R. and Allwaste Ply Ltd — Gregor C. — 20/12/89 — Refuse Disposal Applications for wages said to be due under contracts of employment — Commission found submissions by Applicants as to establishment of contracts of employment were not persuasive and comments about needs to discuss further some aspects of terms suggest there was no acceptance if indeed there were offers of employment — Commission found applicants failed to establish contracts of employment were entered into — Dismissed — Stevenson I. and Stevenson B.M. v. Ellesen Pty Ltd — Nos. 1533 and 1534 of 1989 — Kennedy C. — 11/04/90 — Nursery (xxxvi) 70 W.A.LG. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE CUMULATIVE DIGEST—continued CONTRACT OF SERVICE —continued Claim re contractual entitlements — Applicant sought moneys owing from period of employment — Commission found in favour with regard to wages and accepted applicant's unchallenged evidence on entitlement to holiday pay agreed upon in conversation — Granted — Stokes P.K. and Massara S. trading as Massara Property Group — No. 1713 of 1989 — Negus C— 11/12/89 —Real Estate Application for payment of Accident Pay said to be due under terms of Professional Divers' South Pepper/North Herald Project Agreement 1987, an unregistered industrial agreement — Accident pay or "make-up" pay represents the difference between what is received as a workers' compensation payment and what employee would ordinarily have received had injury not occurred — Respondent argued that Commission did not have jurisdiction to entertain claim because section 29(b)(ii) of the Industrial Relations Act only permits an employee to claim that a benefit under a contract of employment has not been allowed and since Application was lodged Applicant has been paid all that was due — Claim, accordingly, amended to that for a declaration as to what part of payments received were workers" compensation and accident pay respectively — Commission found that directly or indirectly this matter was now about quantum of workers' compensation payable to Applicant which is the exclusive jurisdiction of the Workers' Compensation Board — Even if Commission had jurisdiction to make declaration sought for the purposes of enforcing the employment contract this would be largely academic — Commission, therefore, exercised its discretion not to make a declaration — Dismissed — Munt G.V. v. Contract Diving Service Ply Ltd — No. 1487 of 1989 — Fielding C. — 15/02/90 — Diving Claim for reinstatement on grounds of allegedly unfair dismissal, payment of wages from time of termination to time of reinstatement and one month's pay in lieu of notice — Applicant was shareholder in business and employee but after Applicant decided he wished to leave and be bought out ofthe business relations between Applicant and one ofother two shareholders became less than harmonious with Applicant consequently being dismissed — Commission found relationship between Applicant and principal director was so strained that reinstatement would be untenable and termination was not only not unfair but in the best interests of all parties — Commission also found that one week's pay in lieu of notice was reasonable — Granted in Part — Riley L.J. v. Vallcai Pty Ltd trading as Peet and Co Rockingham — No. 2252 of 1989 — Martin C. — 05/02/90 — Real Estate Application for denied contractual entitlements — Applicant Union sought payment of outstanding increments on the basis of an agreement operating within the "industry" not registered as an industrial agreement — Applicant further sought Order that its other members employed by Respondent be paid according to the Agreement — Respondent did not appear and Commission noted the Respondent's official duty as a registered organisation under the Industrial Relations Act — Commission found claim to be an industrial matter and able to be brought before the Commission by the Union on behalf ofthe employee — Commission unable to issue Order for other than the employee of the instant case and that on evidence employee had been denied contractual entitlements — Granted in Part — FCU and Merchant Service Guild — No. 2590 of 1989 — Fielding C. — 13/2/90 — Unions Application by four employees (band of musicians) for payment of wages said to be due from contract of employment — Commission noted that four members of band filed single applications which was done for convenience as dispute was common — Commission correct course ws for each band member to have filed separately, however, was prepared to use powers under section 27 ofthe Industrial Relations Act to split application and hear them together — Commission found contract existed not between band as an entity and Respondent but between individuals concerned and Respondent — Respondent submits that the band incited and encouraged actions of patrons which were detrimental to its business and constituted serious misconduct — Commission found that song complained of had been performed in the same manner on numerous other occasions at the Respondent's premises and there was no evidence of any direction given to band that they not perform this or any other song — Commission found band members had misconducted themselves and breached the contract, therefore this was no basis for withholding moncv — Granted — Lone S. and Others v. Prime Holdings Ply Ltd trading as Phoenix Hotel — No. 2396/1-4/89 — Kennedy C. - 30/01/90 — Hotel T. Claim re contractual entitlement — Applicant Union argued employee had not been given proper notice of termination and sought a further week's payment in lieu of notice — Commission with regard to prescribed clauses of Agreement found in favour of Applicant - Granted - FCU and TWU - No. CR1651 of 1988 - Parks C. - 28/11/89 - Clerical CONTRACT OUT OF AWARD - 2Appeal against decision of Commission at (69 WAIG 2780) re contractual entitlement — Appellant argued nett income per week claimed in "Contract of Employment" and whether Respondent was dismissed or "walked out" was not established —Full Bench found no reason to intervene as Commission had made no palpable error in the findings as to the facts which were made and in accepting the Applicant's evidence — Furthermore, claim was competent as it was a contract for an amount in excess of award entitlements — Dismissed — Mason P. v. Bastow P.D. — No. 2242 of 1989 — Sharkey P., Coleman C.C., Beech C. — 20/12/89 — Hospitality 19 Claims re contractual entitlements — Both applicants sought payment of outstanding wages and one applicant furthersoughtpro rata holiday pay and penalty pay for weekend work — Respondent objected on basis that employees had been disloyal —Commission found in favour of applicants in so far as payment for outstanding wages — Ordered Accordingly — Mr Markovina andT. Darby — Nos. 2199 and 2200 of 1989 — Fielding C. — 13/11/89 — Aerobic Instructors 196 CUSTOM AND PRACTICE — Conference referred for hearing and determination re Demarcation dispute — Applicant Union sought declaration that it had sole constitutional and industrial covcrge of shunting work and an order prohibiting the Respondent employer implementing "The Shunting Rationale" — CICS reviewed authorities, evidence and history of demarcation disputation between the unions — CICS found it could not be said that the employer was prescribed by the constitutional rules of any union from directing a particular employee to perform work from time to time which was not substantially the work ofthat employee's classification —Furthermore CICS found no evidence of unsafeness and that custom and practice did not preclude the right of the employer to lawfully implement changes in work practices — CICS found in the end the only question was whether there should be intervention on the grounds of unfairness or unreasonableness resulting from the changes the employer made — Dismissed —ARU and WAGRC and Another — No. CR544 of 1989 — Halliwell SC., Gregor C.. Kennedy C. — 22/1/90 — Railways 302 Claim re contractual benefit — Applicant sought payment in lieu of notice and pro rata annual leave payments — No appearance on behalf of respondent — Commission found from evidence, no terms within applicant's contract of employment which afforded the benefits which was being claimed — Dismissed — Lumbaca L. and Pentapac Ltd — No. 779 of 1988 — Parks C. — 9/11/89 — Secretarial Services 191 Claim for payment of wages and exclusive rights to work on refurbishing mooring buoys — Applicant Union claimed members were willing to work if the leadership of a foreman to organise and supervise the work had been provided — Furthermore applicant Union claimed members had been stood down by the respondent — Respondent argued custom and practise was that employees would act in higher classifications as required and their refusal to do so was unreasonable, resulting in a loss of entitlement to wages — Commission found attitude of employees in refusing to put in place the long accepted practises of "acting up" was unreasonable, and concluded that they do not have a primafacie case, to support claims — Furthermore Commission found claim of exclusive rights to refurbish mooring buoys were unfounded — Commission noted finding did not preclude either party from proceeding with an enforcement of award — Dismissed — Seamens Union of Australia and P&OTowage Services — No.CR571 and 865 of 1989 — Martin C. — 3/11/89 — Marine and Harbour Services 573 (xxxvii) WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 70 W.A.I.G. CUMULATIVE DIGEST—continued DATE OF OPERATION — Application for award variation pursuant to Structural Efficiency Principle — Parties had reached agreement on ways and means of improving efficiencies such as short leave provisions, penalty provision for employees who leave service without proper notice, spread of hours and further modernisation of the Award — Question of operative date — Commission found parties to have complied with the requirements of Structural Efficiency Principle and ordered amendments as of date of determination — Granted — ECU v. WA Coastal Shipping Commission and Others — No. P48 of 1989 — Fielding C. — 3/11/89 — Government/ Clerical ; Application for award variation pursuant to Structural Efficiency Principle — Parties were in agreement to variations sought — Question of date ofoperation —Commission found parties had demonstrated a long and abiding commitment in co-operating to meet the ends of the Structural Efficiency Principle and endorsed variations in rates — Granted — Breweries and Bottlcyards Employees Union v. Swan Brewery Co Ltd — No. 1976 of 1989 — Kennedy C. — 17/11/89 — Brewing/Malting Application to vary Award pursuant to Structural Efficiency Principle — Applicant's proposal included Broadbanding, Award Modernisation clause and pay rates aligned with a Federal Award — Respondent opposed claim on grounds that the amendments proposed were insufficient to justify a Structural Efficiency Wage Adjustment and that there was no nexus with the Federal Award as claimed — Respondents submitted their own proposals — Commission reviewed State Wage Principles and found it important to recognise the industry within a national perspective and particularly the relationship ol the Slate Award under the Structural Efficiency Principle to other State Awards — Commission stressed the need for co-ordinated initiatives to implement structural efficiency at enterprise level and Award level — Commission found Respondent's claim were not sufficiently addressed to arbitrate upon and would be the subject of future negotiations — In Supplementary Reasons for Decision Commission was not prepared to give full retrospectivity of the operative date to the last day of hearing but was prepared to accede to an earlier date than that of the order due to the progress made towards the second stage of Structural Efficiency — Granted TWU and Australian Glass Manufacturers and Others — No. 1628ofl989(R) — ColemanC.C. — 30/1/90 and 21/3/90 — Transport - - Application to vaiy Award pursuant to Structural Efficiency Principle — Parties to Award sought to introduce same measures in two stages as had been ratified for the national industry by the Australian Commission — CWAI on behalf of employers in its membership opposed the application on the grounds of certain differences between the state and national industry, particular rates proposed and sought insertion of a Structural Efficiency clause — CWAI particularly opposed retrospectively of the operative dates on the grounds that it was not possible under the Wage Fixing Principles — Commission found CWAI concerns would be well addresse'd by its participation in the State Working Party to be established under the arrangements for the industry — Commission further found parties had sufficiently satisfied the Principles to justify the first Structural Efficiency Wage increase in the same manner as the Federal Decision applied to the national industry— However, Commission also cautioned the parties as to the need to honour their commitments, and of a review before the Commission of progress prior to the application for a second increase — In so far as operative date was concerned. Commission endorsed the sentiments of the Appeal Court and Full Bench, but thought it too far to suggest that the Commission was unable to depart from them in any circumstances —Commission found it would offend the notion of equity and good conscience considering the nexus between the State and Federal Awards, the presence of those awards applying parallel within the industry in the state and the possibility of conflict therein, to apply the strict work of the principle — Finally in Supplementary Reasons for Decision Commission considered position of BMA and its particularcircumstances and found agreement satisfied Principles — Granted — BTA and Abel and Co J.C. and Others — No. 1744 of !989(R) — Beech C. — 27/9/89 — Building Construction Application for variation of Award by increasing wages in accordance with second stage of Structural Efficiency Prinicple and inclusion of Award Modernisation and Structural Efficiency Exercise clauses — Applicants tendered a Joint Statement by Building Industry Unions and employer organisations which set out further issues requiring resolution —COWAI submitted that agreement so far docs not contain changes of such substance sufficient to warrant increase — Minister for Labour expressed concern at degree of disputation within building industry and claims for introduction of 36 hour week — Commission was satisfied parties were acting within limits set down by SEP and that package as presented had capacity to address a number of the industry's problems and increase its productivity — Commission referred to significance of Federal Award and that second stage structural efficiency had been introduced (Print J2041) with the federal counterpart of this package receiving express approval of Australian Commission — For reasons of equity, good conscience and substantial merit Commission allowed same dale of operation as Federal Award — BMA specifically excluded at this lime — Granted — BTA v. AdsignsPty Ltd and Others — No. 296 of 1990 — 02/04/90 — Building Applications to vary Awards by adjusting wages for second structural efficiency — Commission reviewed issue of establishment of minimum rates and accepted that awards were paid rales awards — Commission found on whole Wage Adjustment Principal satisfied and that it was duty bound to enforce Principles in terms of Operative Date — Granted — FMWU and Hon Minister for Education and Others - No. 137, 142-4, 146, 148, 154, 178. 188, 190. 195. 597. and P20 of 1990 - Fielding C. - 10/5/90 DEMARCATION — •'Conference referred for hearing and determination re Demarcation dispute — Applicant Union sought declaration that it had sole constitutional and industrial covcrge of shunting work and an order prohibiting the Respondent employer implementing "The Shunting Rationale" — CICS reviewed authorities, evidence and history of demarcation disputation between the unions — CICS found it could not be said that the employer was prescribed by the constitutional rules of any union from directing a particular employee to perform work from time to time which was not substantially the work ofthat employee's classification—Furthermore CICS found no evidence of unsafeness and that custom and practice did not preclude the right of the employer to lawfully implement changes in work practices — CICS found in the end the only question was whetherthere should be intervention on the grounds of unfairness or unreasonableness resulting from the changes the employer made — Dismissed — ARU and WAGRC and Another — No. CR544 of 1989 — Halliwell S.C., Gregor C., Kennedy C. — 22/1/90 — Railways 'Appeals against decision of Full Bench (69 WAIG 1908) to allow the Respondent to amend its rules to allow it to enrol "wall and/or ceiling fixers" as members — Industrial Appeal Court reviewed long history of this matter and the application and meaning of sections 55,56,58(3) and 62 of Industrial Relations Act 1979 — Appellant argued an issue estoppel arose and that Full Bench was bound by previous findings of fact made by Commission — Industrial Appeal Court found that matter decided by Full Bench was very different from what Commission had to decide and in any case Full Bench did not depart from finding of Commission — Appellant also argued that the amendment to the Respondent's rules the Full Bench had ordered the Registrar to register was not the same as the amendment proposed in the application, advertised in the WAIG and brought before the Respondent's members so as to afford them the opportunity to object as required by sections 62(3) and 55(2), (3) and (4) — Industrial Appeal Court found what Full Bench ordered registered was substantially different to what had been proposed thus Full Bench could not have been satisfied as Act required it to be that those sections affording members opportunity to object etc. had been complied with — Full Bench, therefore, did not have power to authorise amendment — Upheld — CMEWU v. Operative Plasterers and Plaster Workers and Another — Industrial Appeal Court Nos. 4 and 5 of 1989 — Brinsdcn J.. Kennedy and Franklyn JJ. — Building Construction — — 'Application to alter rules re membership remitted back to Full Bench by Industrial Appeal Court for further enquiry and determination — Appeal Court had found Full Bench acted beyond power in effectively amending the application — No finding of fact was disturbed — Respondent argued for new evidence to be considered — Full Bench reviewed authorities. Industrial Relations Act and decision of Appeal Court and found that on appeal lies from the Full Bench if the decision is considered crraneous in Law or in excess of jurisdiction, but on no other grounds — Furthermore Appeal Court had not advised the Full Bench that further hearing and determination included a reconsideration of the factual position — Full Bench found question was whether the Applicant should have the right to enrol as members wall and ceiling fixers — Full Bench was not persuaded by permissible further cnquiiy and determination and with regard to unchallcngablc findings of fact at the original hearing that the application should not be granted as it was made — Granted — OPPWFandCMEU — No. 1 of 1988 — Sharkey P.. ColemanC.C.. Fielding C. — 30/3/90 — Unions (xxxviii) 70 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE CUMULATIVE D\CES1 ^continued DEMARCATION —continued Application to vary Award pursuant to Structural Efficiency Principle — Applicant Union sought to have claim processed in same manner as had been for an Award in Victoria — Respondent opposed claim on the hours ofthe quantum sought, the requirements of the Principle and argued that Commission should direct the parties to negotiate — Intervener object to particular classifications in proposed trial classification structure on the grounds of constitutional coverage — Commission reviewed Victorian case. State Wage Principles and felt compelled to follow the course set in Victoria, despite reservations, with an Award Modernisation clause and directions to negotiate a classification structure for trial in the industry — Commission refrained from determining coverage issue and split application into two to deal with remaining matters — Granted in Part and adjourned — ECU and Boans Ltd and Others — No. 1584 of 1989(R) — Parks C. — 4/12/89 — Retail and Wholesale Application to alter Union Rules re membership — Objecting Union argued granting application would result in competition and industrial disputation between the Unions over union coverage of various eligible members — Full Bench found on evidence a new trade which as practised by apprentices was more boilermaker emphasised than blacksmithing and that no one knew precisely what the apprentices would do when they complete their courses which would determine where coverage should be in the normal course of events — Furthermore, Full Bench having regard to sections 6(e), 26(1 )(a) and section 55(5) ol the Industrial Relations Act found that there was not sufficient basis on the evidence at the time that overlapping would not occur — Dismissed — ASEMFWU — No. 2269 of 1989 — Sharkey P.. Coleman C.C.. George C. — 6/4/90 — Unions Conference re demarcation dispute over installation of certain kitchen units and other fittings into apartments under construction — Commission of firm opinion that no agreement is likely so matter will be referred for hearing and determination — Commission found it necessary to issue interim Order to prevent deterioration of industrial relations until arbitration has resolved matter — Order issued to preserve status quo — UFTU v. CMEU — No. C228 of 1990 — Beech C. — 27/03/90 — Furniture Trades Dispute re industrial representation of carpenters and/or joiners and cabinet makers in buildings under construction, or near completion — From all evidence presented and history of demarcation Commission found that there was no fixed solution to issues raised and made recommendations on current issues — Furthermore future disputes should be able to be determined by reference to these reasons and desirably an application to resolve such a dispute should be made well in advance of work commencing — Ordered Accordinelv — United Furniture Trades Industrial Union and Another r. CMEU and Others — No. CR1540 of 1988. CR193, CR219, cfa'51 and CR303 of 1989 — Beech C. — 02/11/89 — Building/Construction 'Appeal against decision of Commission in Court Session (70 WAIG 662) in demarcation dispute as to whether operators ol certain equipment on building site are entitled to be represented by the Australian Builders' Labourers" Federated Union of Workers, Western Australian Branch or the Construction, Mining and Energy Workers' Union of Australia, Western Australian Branch — Industrial Appeal Court found that question to be decided is are they "builders' labourers" within the rule ofthe Australian Builders' Labourers' Federated Union of Workers, Western Australian Branch or are they "engine drivers" within the rule of the Construction. Mining and Energy Workers' Union of Australia, Western Australian Branch — Industrial Appeal Court found that to the extent that in its decision Commission in Court Session had not identified which operators of which plant identified as to operator and plant rather than the basis on which his or her employer is on a building site the Construction. Mining and Energy Workers' Union of Australia, Western Australian Branch appeal is upheld — Matter remitted to Commission in Court Session — BLF and Another — CMEWU and Another — Nos. 1 and 2 of 1990 — Kennedy J./Rowland J./Nicholson J. — 25/05/90 — Building Construction - — Conference matter referred for hearing and determination re demarcation dispute — Unions argued respectively that their Union had constitutional coverage and industrial coverage of work in question — C1CS noted irony in one Union arguing for a broad interpretation of its own rules and a narrow interpretation ofits competitor — CICS reviewed authorities, rules, the interpretation of Builders Labourer. Awards and found in the absence of exclusive constitutional and industrial coverage by either Union, it was important to note the Unions commitments to Structural Efficiency in determining the matter pursuant to section 26 of the Industrial Relations Act — CICS found on evidence; having examined the circumstances within the industry and noting the attempts of an employer's organisation to resolve the conflict that the interests of both organisations would be served by awarding the right to industrially represent the workers in question to the CMEU except where the employee is employed by a builder or building subcontractor — CICS further drew attention to powers under section 46 — Ordered Accordingly — ABLF and Another and Civil and Civic Pty Ltd and Others — No. CR1511 of 1988 — Coleman C.C.. FieldingC. and Beech C. — 1/12/89 — Building Construction DISABILITIES — Claim re payment of site disability allowance — Applicant Union claimed noise, exposed and oppressive conditions, wet underfoot and discomfort from iron ore dust — Respondent objected to payment and quantum claimed — Commission found award docs not adequately compensate for the disabilities experienced — Ordered Accordingly — AMWSU v. Thiess Contractors Pty Ltd No. CR907 of 1989 — George C. — 19/12/89 — Metal Trades ..... Claim re site allowance — Applicant Union claimed excessive dust, noise and dirty nature of demolition work and difficulty with access from site to various points — Respondent argued onus was on applicant to provide proof that disabilities encountered on site exceeded the disabilities already compensated under relevant awards — Commission found from inspection in favour of respondent — Dismissed — Building Trades Association and Geraldton Building Co — Nos. C844andC845ofl989 — GregorC. — 20/12/89 — Building/Construction Claim re site allowance — Parties in dispute over level to be paid — Commission found site to be, inter alia, difficult to work due to weather conditions, compact with limited lay down areas and that an appropriate allowance was 1.20 per hour — Ordered Accordingly — BTA and Jaxon Constructions Pty Ltd — No. CR44 of 1990 — Gregor C. — 9/4/90 — Building/ Construction Conference referred for hearing re site allowance to be paid in lieu of pay for confined space, wet work, dusty work and the use of second hand timber — Parties drew attention of Commission to Decisions of Commission that they believed were appropriate — Commission stated criteria to be followed have been set out in MBA v. John Holland (67 WAIG 1731) — Commission found that in the assessment of disabilities of each site must stand alone but once an assessment has been made there is no prohibition from using previous decisions of Commission as guide to level of those disabilities as opposed to agreements specifically proscribed by dicta in Sapri decision (Print F1957) — Commission took guidance from decisions presented by Applicant — Granted in Part — Building Trades Association and Jaxon Construction Pty Ltd — No. CR704 of 1989 — Gregor C. — Building Construction ... Claim re site allowance — Respondent argued disabilities were accounted for in allowances and special provisions clauses of the applicable Award — Commission found on inspection and evidence no allowance should be issued in consideration of the isolation ofthe site and that there were adequate amenities — Confined space was limited to electrical fitters and accounted for in the Award — However Commission found disabilities associated with weather conditions warranted an allowance ofSOcentsper hour and that there would be no likely flow on — Granted in Part — BTA and Others and SECWA — No. CR589 of 1989 — Salmon C. — 20/10/89 — Electricity Supply Claim re site allowance — Commission found on evidence two disabilities, ground problem during wet period, flies during the warm period warranting an allowance of 80 cents per hour under Allowances Principle — Commission found induction problem could be rectified through safety measures — Restrospectivity granted — Ordered Accordingly — AMWSU and Others and SEC — Nos. CR795 and CR980 of 1989 - Salmon C. - 24/1/90 - Energy Supply DISCRIMINATION - Claim re unfair dismissal seeking reinstatement — Applicant Union claimed employees had been discriminated against and terminated as a result of Union membership — Respondent argued termination was on "last on, first off policy — Commission found termination was effected in manner consistent with practices in the industry and was not contrived by respondent to discrimination against members ofthe applicant Union — Dismissed—The Construction, Mining and Energy Workers Union v. Design Ceilings — No. CR1095 of 1989 — Coleman C.C. — 13/12/89 — Building Construction 234 (xxxix) WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 70 W.A.I.G. CUMULATIVE DIGEST—continued EMPLOYEE - Applications for new Awards to cover employees of the Houses of Parliament for the first time — Commission reviewed tortuous path of the attempts to establish Award Coverage for the employees concerned — Moreover, Commission reviewed authorities pertaining to the question of who was employer and the Commission's jurisdiction in relation to Parliamentary employees — Commission found all three Unions party to the Applications had constitutional coverage, at least within their respective areas — Commission further found the Award finally proposed by agreement of all parties complied with the Wage Fixing Principles, allowed for the peculiarities of employment in the Houses of Parliament and despite misgivings, should issue — Granted — CSA and Others and the Governor in Council and Others — Nos.AlSof 1987, A4 and A7 of 1988 and A7 of 1989 — FieldingC. — 27/10/ 89 — Government Administration Application for three weeks' wages alleged to be due from contract of employment — The main facts were not in dispute and Commission found that agreement for remuneration was that Applicant received 50 per cent of his gross daily takings to be paid monthly — There being noentitlement to "wages" as such — Respondent refused to pay outstanding amount as Applicant had an accident in Respondent's vehicle the repair of which cost more than the amount due — Respondent also claimed Applicant was subcontractor and not an employee — Commission referred to "control" test and found that the indicia showed Applicant was an employee under a contract of service — Commission further found there was no contract or agreement or arrangement that remuneration would be subject to deductions in the event of motor accidents — Granted in Part — Transport — Brady A.G. and Isherwood Holdings Pty Ltd trading as Superior Courier Services — No. 2674 of 1989 — Martin C. — Transport Complaints alleging failure to pay wages, travelling allowance and annual leave in accordance with Award — Defendant claimed subject ofcomplaint was a subcontractor and not an employee — Magistrate found material matter forconsideration was whether or not there was a master/servant relationship and referred to the authorities — Magistrate found there was no evidence to prove that the Defendant controlled the manner in which the subject worker was to do the work and thus there was no evidence to prove on the balance of probabilities that a master and servant relationship existed — Not Proven — ABLF v. P.B. and K.A. Brajkovich Pty Ltd — Complaint 328, 329 of 1989 — 2/3/90 — Walsh S.M. — Building Construction Conference referred for arbitration re reinstatement of employee who was allegedly unfairly dismissed — Subject employee was terminated prior to commencing work for Respondent when business changed hands — Employee told reason she was selected for dismissal was that she was not full-time — Respondent argued that as employee was dismissed before commencing work there was no contract of employment afoot and this matter was therefore not within Commission's jurisdiction — Commission found that employment contract had been offered by Respondent, accepted by employee and an employment relationship was thus in existence when employee told she was no longer required — Commission further found unfair dismissal had occurred as subject employee had not been given same consideration as other employee re future employment — Commission ordered Respondent offercontractofemploymenl but declined to order payment ofwages between dismissal and re-employment —Granted in Part — SDA v. Jim Berry Terrace Pharmacy — No. CR1089 of 1989 — Salmon C. — 01/03/90 — Retail Pharmacy Claim re contractual entitlements — Applicant sought payment of pro rata annual leave and leave loading — Respondent argued Applicant was at all times a subcontractor — Commission found on evidence that there had existed an employee/employer relationship between the parties, but that the contract of employment was not on foot for as long as the Applicant claimed — Granted in Part — Scrivens H. and Fernhurst Holdings PtyLtdtradingasW. MoserConsultants — No. 819 of 1989 — Kennedy C. — 15/1/90 — Financial Services ■••••■• Application by four employees (band of musicians) for payment of wages said to be due from contract of employment — Commission noted that four members of band Filed single applications which was done for convenience as dispute was common — Commission correct course ws for each band member to have Filed separately, however, was prepared to use powers under section 27 of the Industrial Relations Act to split application and hear them together —Commission found contract existed not between band as an entity and Respondent but between individuals concerned and Respondent — Respondent submits that the band incited and encouraged actions of patrons which were detrimental to its business and constituted serious misconduct — Commission found that song complained of had been performed in the same manner on numerous other occasions at the Respondent's premises and there was no evidence of any direction given to band that they not perform this or any other song — Commission found band members had misconducted themselves and breached the contract, therefore this was no basis for withholding money — Granted — Long S. and Others t>. Prime Holdings Pty Ltd trading as Phoenix Hotel — No. 2396/1-4/89 — Kennedy C. — 30/01/90 — Hotel ENFORCEMENT OF AWARDS/ORDERS - 2 Appeal against decision of Industrial Magistrate (Complaint No. 104 of 1989) — Claim for overtime and bans imposed on overtime — Breach of Wage Fixing Principles and award — Industrial Magistrate ruled no case to answer — Admissions made by union ofFicer that claim was being pursued outside the wage principles — Vicarious liability — Prima facie evidence of breach of evidence — Full Bench found all grounds made out and there was a case to a nswer—Matter Remitted — Upheld — Registrar and AMWSU — No. 1747 fo 1989 — Sharkey P., Halliwell C.C., Fielding C. — 17/11/89 — Construction 29 Application for Enforcement of Act — Full Bench found, on the admission ofthe Respondent, a failure to comply with a summons of the Commission and accepted the undertaking given in accordance with section 84A(a) of the Industrial Relations Act—Ordered Accordingly — Registrar and Brenzi D.C. — No. 110 of 1990 — Sharkey P., Coleman C.C., Gregor C. — 13/3/90 1293 Complaint that wages had not been paid in accordance with Award — Magistrate found that Respondent came within scope of Award by virtue of common rule, employee concerned was on the balance of probabilities employed in the classiFication claimed and on a casual basis as claimed — Proven — Wilkins, OIR v. Verticordia Holdings Pty Ltd trading as Bernies — Walsh S.M. —12/01/90 — Proven — Restaurant 892 Complaint of failure to pay wages in accordance with Award — Complainant argued that boners should have been paid under a tally system rather than for time worked — Magistrate found construction of relevant clauses is Award allowed employer option of employing on either a tally system or for time worked — Evidence clearly showed workers subject to complaints were employed on an hourly basis and were paid overtime so there was no breach ofthe Award — Not Proven — Meat Industry Employees Union v. Valley Meats - Nos. 250, 251, 252, 259 and 260 of 1989 - Walsh S.M. - 12/02/90 - Meat 889 Application for enforcement of Act re order of Commission to cease industrial Act — Full Bench found on evidence Union had contravened or failed to comply by not taking all necessary steps which allowed the union membership to stay on strike in disregard of the order and their obligations under the Industrial Relations Act — Full Bench adjourned proceedings so that submissions could be made under section 84A(5) of the Act — Proven and Adjourned — Registrar and CSA — No. 666 of 1989 — Sharkey P., Coleman C.C., Kennedy C. — 7/2/90 — Unions 981 ENTRY RIGHT OF - Application for a new Award — Parties sought award on the grounds that the industry awards were unsuited to their operations — Commission judged application in accordance with State Wage Principles and stated that for an award to be used as a vehicle for the introduction of Structural Efficiency that award must be a reflection of the actual conditions observed by the parties Commission arbitrated on matters disputed, at the request of the parties, including Hours of Work, Annual Leave, Allowances and the inclusion of Over Award Payments — Award issued — Swan Portland Cement Ltd and AWU — No. A26 of 1988 — Beech C. — 28/11/89 — Cement Manufacturing (xl) 70 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE CUMULATIVE DIGEST—continued HOURS OF WORK - Application to vary Award pursuant to Structural Efficiency Principle — Parties disputed only a $15.00 rather than a $12.50 wage claim for a wage classification grouping by the Applicant Union —Respondent argued that the work of the Wage Group had to be assessed as at least equivalent to that of a tradesperson to qualify for the increase claimed as specified under the State Wage Principles and that the skills and training required by tradespersons substantially exceeded that of the Wage Group — Commission found on inspections, authorities and evidence that the Applicant had failed to prove that equality existed but recommended the issue be addressed in further restructuring negotiations — Commission found remainder of Award amendments sought fulfilled initial requirements of State Wage Principles however included a clause to reinforce the commitment to Award modernisation — Granted in Part — FMWU v. CSR Limited — No. 1383on989 — Parks C. — 30/10/89 — Building Materials Manufacture 2Appeal against decision ofCommission at (68 WAIG 1957)/'eorderregisteringan Industrial Agreement — Appellant granted leave to appeal — Appellant granted leve to appeal — Appellant argued that by registering an agreement that varied from that which was annexed to Application, Commission had erred in law and exceeded its jurisdiction — Furthermore Commission had denied natural justice in failing to fix a time and place at which the Appellant might be heard — Full Bench found from principles set out in the cases cited that the discretion of Commission at first instance did not miscarry nor did it err in law or exceed its jurisdiction — Full Bench found grounds of appeal not made out — Dismissed —ABEU and FCU and Others — No. 870 of 1989 — Sharkey P.. Salmon C., Gregor C. — 29/11/89 — Financial Services Applicant Union claimed unfair treatment of employees re reduction of hours — Union sought declaration from Commission to re- establish hours of work to that which had previously applied — Respondent argued reduction in hours was a compromise when employee refused to accept transfer to another department and also to meet budget constraints imposed — Commission found it was the respondent's prerogative in determining how it would reduce cost so long as employees affected by such a decision have been treated fairly in the execution of that decision — Dismissed — FCU and K-Mart — No. CR1647 of 1988 — 5/12/89 Application for variation to award — Applicant Union sought insertion of two new classifications in wages clause — Commission found prima facie that classification would fall within the industry contemplated by the scope of award — Furthermore Commission answered question of working hours — Granted — FMWU v. St John of God Hospital and Others — No. 898 of 1989 - Fielding C. — 28/11/89 — Medical Claim re unfair constructive dismissed seeking reinstatement — Applicant claimed change in roster from permanent night shift to a rotating shift amounted to constructive dismissal — Respondent argued injury sustained by applicant resulted in applicant being able to do light duties available only in the day shift — Furthermore due to changes in the Hospital work was only available on a rotating roster — Commission found from evidence provided in favour of respondent and noted even though case law cited by Counsel was relevant, each unfair dismissal case has to be treated in accordance with its own facts — Dismissed — McDowell E. and Swan Cottage Home Inc — No. 830 of 1989 — Gregor C. — 17/11/89 — Nursing Applications for new Awards to cover employees of the Houses of Parliament for the first time — Commission reviewed tortuous path of the attempts to establish Award Coverage for the employees concerned — Moreover, Commission reviewed authorities pertaining to the question of who was employer and the Commission's jurisdiction in relation to Parliamentary employees — Commission found all three Unions party to the Applications had constitutional coverage, at least within their respective areas — Commission further found the Award finally proposed by agreement of all parties complied with the Wage Fixing Principles, allowed for the peculiarities of employment in the Houses of Parliament and despite misgivings, should issue — Granted — CSA and Others and the Governor in Council and Others — Nos. Ai5 of 1987. A4and A7of 1988 and A7 of 1989 — Fielding C. — 27/10/ 89 — Government Administration Interpretation of an Award re was an employer required to pay an officer who is absent on sick leave the shift and weekend penalties the officer would have received had the officer would in accordance with his/her shift roster — Applicant Union agreed that the word "wages" was to be read in its widest and general sense in determining the payment due — Respondent argued paragraph of clause in Award in question was inserted as part of implementation of 38 hour week and intended confine payment to the ordinary payment or wages the employee would have received i.e. 7.6 hours rather than eight and adjust the accrued entitlement to paid sick leave similarly — Commission received Authorities and found in favour of Respondent — Declared Accordingly — FMWU and Wormald International (Australia) Pty Ltd and Others — No. 725 of 1989 — Martin C. — 3/11/89 — Security Application for a new Award — Parties sought award on the grounds that the industry awards were unsuited to their operations — Commission judged application in accordance with State Wage Principles and stated that for an award to be used as a vehicle for the introduction of Structural Efficiency that award must be a reflection of the actual conditions observed by the parties — Commission arbitrated on matters disputed, at the request of the parties, including Hours of Work, Annual Leave, Allowances and the inclusion of Over Award Payments — Award issued — Swan Portland Cement Ltd and AWU — No.A26ofl988 — Beech C. — 28/11/89 — Cement Manufacturing Claim re increased manning levels of a fire station — Applicant Union argued existing manning placed an unfair burden on existing station officer— Respondent agreed with claim in principle not argued it could not be implemented for some time due to lack of funds and the opposition of a city council — Respondent further argued claim was not an industrial matter —Commission held preliminary hearing to determine question of jurisdiction and on authorities against the Respondent — On material before Commission relating to inter alia Fire Brigades Act Commission found it had limitations upon it in determining the matter — Commission found, however, on evidence of agreements recommendations made, and the concept of reasonable overtime in favour of Applicant, had made considerations for costs — Granted in Part — WAFBU and WA Fire Brigades Board — No. CR925 of 1989 — Martin C. — 24/11/89 — Emergency Services INDUSTRY — Application for a new Award heard to deal with objections — Applicant Union sought to fill gap in Award coverage, as had been indicated by Appeal Court for an occupational grouping — Respondents saw a ward as desirable but further sought extension of coverage — Objector Respondent also supporting intervener. argued that it was covered by another award, was not in the industry to which the proposed award sought to cover and cited its previous case before the Australian Commission — Commission found in essence proposed award could be seen to be "roping in" the Respondents into the Building Trades (Construction) Award — Commission found it would strike out the objector and vary comparable employer unless the final determination of the application was not a construction type Award — Adjourned — OPDU and Abrasive Blasting Services Pty Ltd and Others — No. A33 of 1987 — Martin C. — 30/3/90 — Spray Painting and Sandblasting 1351 INDUSTRY ALLOWANCE - Application for a new Award — Parties sought award on the grounds that the industry awards were unsuited to their operations — Commission judged application in accordance with State Wage Principles and stated that for an award to be used as a vehicle for the introduction of Structural Efficiency that award must be a reflection of the actual conditions observed by the parties — Commission arbitrated on matters disputed, at the request of the parties, including Hours of Work, Annual Leave, Allowances and the inclusion of Over Award Payments — Award issued — Swan Portland Cement Ltd and AWU — No. A26 of 1988 — Beech C. — 28/11/89 — Cement Manufacturing 1326 (xli) CUMULATIVE DIGEST—continued INDUSTRIAL ACTION - 2 Appeal against decision of Government School Teachers Tribunal at (69 WAIG 3437) r? Order for pay claim — Industrial disputation — section 44 proceeding — Education Act and IR Act referred to for definition of "industrial matter" with regard to teacher — Applicants tendered as a record of conference proceeding — Opportunity given to Appellant to be heard on all material matters — Industrial action peripheral to salary claim — section 44(6) orders not final — Orders made not determinative — Full Bench found Orders were made within power there was no miscarriage of justice — No grounds made out — Dismissed — SSTU and Hon Minister for Education — No. 2330 of 1989 — Sharkey P., Salmon C., George C. — 21/12/89 — Education Conference referred — Applicant Unions claimed payment for days not worked due to arsenic fall-out — Respondent denied the existence of a legitimate safety concern on behalf of the employees in relation to the days upon which alleged strike action occurred as the Respondent had taken action to alleviate as much as possible, the existence of any such concern — Commission reviewed authorities and found it was not for the Commission to determine whether arsenic has long term detrimental effects to health but whether there was a genuine and reasonable apprehension of unsafeness and whether the workers had a reasonable cause to believe that it was unsafe for the whole ofthe work force such that there was no work at all that they could safely perform — Granted — AWU and Others and Western Mining Corporation Limited — No.CR649of 1989 — GregorC.— 12/12/89 — Mining (Nickel) 2 Appeal against decision of Industrial Magistrate (Complaint No. 104 of 1989) — Claim for overtime and bans imposed on overtime — Breach of Wage Fixing Principles and award — Industrial Magistrate ruled no case to answer — Admissions made by union officer that claim was being pursued outside the wage principles — Vicarious liability — Prima facie evidence of breach of evidence —Full Bench found all grounds made out and there was a case to answer— Matter Remitted — Upheld — Registrar and AMWSU — No. 1747 fo 1989 — Sharkey P.. Halliwell C.C., Fielding C. — 17/11/89 — Construction Claim for payment of wages and exclusive rights to work on refurbishing mooring buoys — Applicant Union claimed members were willing to work if the leadership of a foreman to organise and supervise the work had been provided — Furthermore applicant Union claimed members had been stood down by the respondent — Respondent argued custom and practise was that employees would act in higher classifications as required and their refusal to do so was unreasonable, resulting in a loss of entitlement to wages — Commission found attitude of employees in refusing to put in place the long accepted practises of "acting up" was unreasonable, and concluded that they do not have a prima facie case to support claims — Furthermore Commission found claim of exclusive rights to refurbish mooring buoys were unfounded — Commission noted finding did not preclude either party from proceeding with an enforcement of award — Dismissed — Seamens Union of Australia and P&OTowage Services — No.CR571 and 865 of 1989 — Martin C. — 3/11/89 — Marine and Harbour Services Conciliation Order issued out of Conference on Commission's own motion re treatment of an employee and prevention of industrial action pending decision of Punishment Appeals Board and determination of referred dispute — Commission outlined background of dispute — Ordered Accordingly — SEC and Another and ETU and Others — No. C1066 of 1989 — Salmon C. — 27/11/89 — Electricity Supply Application to vaiy Award pursuant to Structural Efficiency Principle — Commission reviewed background to application and was dissatisfied with industrial record ofthe parties — Commission found only Metal Unions to have shown any commitment to the principles in the case to justify an Award Variation — Commission further found need to include an Award Modernisation subclause in compulsory terms and directed the Australian Workers Union to enter into negotiations with the Respondent for the purposes of the Structural Efficiency Principle — Subsequently, in Supplementary Reasons for Decision. Commission was satisfied after hearing further submissions that it was able to ratify the arrangement as it stood after negotiations as it was consistent with undertakings given by the other parties to the Award — Granted — AMWSU and Others v. Cargil! Australia — No. 1660 of 1989(R) — Gregor C. — 23/10/89 — Mining (Salt) Application to vary Award pursuant to Structural Efficiency Principle by consent — Commission carefully considered the terms of the Memorandum of Agreement, other exhibits and proposed amendments to Award, including the concept of security of supply, part progression towards Structural Efficiency and future agendas — Commission found agreement met the tests required under the Structural Efficiency Principle and encapsulated changes which embodied both greater flexibility in the organisation of work and urealcr opportunity for employee so far as the development of skills and exercises of progression were concerned — Granted — H.I. Pty Ltd and CMEU — No. 426 of 1990(R) — Kennedy C. — 5/4/90 — Iron Ore Joint Federal and Stale proceedings re Unions refusal to attend work due to picket line of a Federal Union — Applicant employers sought order to remove picket line — Commission found it could join Federal Union to a conference by virtue ofscclions27(l)(j) and 44(1) of the Industrial Relations Act. as the Federal Union was a "person" by virtue ofthe Interpretation Act and Federal Industrial Relations Act 1988 — Commission reviewed definitions of an industrial matter, the power to make orders pursuant to section 44 and found the removal ofthe picket line was a matter of fundamental significance to the resolution of the dispute — Granted — MBA and CMEU and Others — No. C34f 1) of 1990 — Beech C. — 2/2/90 — Building Construction Claim re payment for lost time — Commission reviewed authorities and applied test as to whether there was a hazard of sufficient moment to cause employees to fear for their safety of if on the facts, they were normally entitled to believe that a hazard existed so as to justify the action taken by them — Commission found on evidence inter alia the employees were availble and ready for work, the employees had a bona fide belief that areas of the site were unsafe, but unsure as to which, that the employer's direction to work was unreasonable in the employees' knowledge of breaches of the Occupational Health, Safety and Welfare Act and that one particular day claimed for was usually worked on an overtime basis — Granted in Part — BTAand Others and DeVaugh and Sons and Another - No. CR581 of 1989 — Halliwell S.C. — 14/9/89 — Construction Application for enforcement of Act re order of Commission to cease industrial Act — Full Bench found on evidence Union had contravened or failed to comply by not taking all necessary steps which allowed the union membership to stay on strike in disregard of the order and their obligations under the Industrial Relations Act — Full Bench adjourned proceedings so that submissions could be made under section 84A(5) of the Act — Proven and Adjourned — Registrar and CSA — No. 666 of 1989 — Sharkey P.. Colcman C.C., Kennedy C. — 7/2/90 — Unions INDUSTRIAL MATTER - . 2Appeal against decision ofGovernment School Teachers Tribunal at (69 WAIG 3437) re Order for pay claim —Industrial disputation — section 44 proceeding — Education Act and IR Act referred to for definition of "industrial matter" with regard to teacher — Applicants tendered as a record ofconference proceeding — Opportunity given to Appellant to be heard on all material matters Industrial action peripheral to salary claim — section 44(6) orders not final — Orders made not determinative — Full Bench found Orders were made within power there was no miscarriage of justice — No grounds made out — Dismissed — SSTU and Hon Minister for Education - No. 2330 of 1989 - Sharkey P., Salmon C, George C. - 21/12/89 - Education 2Appeal against decision of Commission (70 WAIG 537) insofar as it relates to the Appellant re conciliation Order pending determintion of dispute over dismissal — Appellant argued that it was not the employer concerned and not a party to any industrial matter properly before the Commission — Full Bench reviewed the circumstances of the case. Authorities and Legislation and found that although the summoning ofthe Appellant was within the Commission's power, making the Appellant subject to the Order was not — Upheld — Hon Minister for Mines. Fuel and Energy and the Mid-West and ETU — Appeal No. 2795 of 1989 — Sharkey P.. Colcman C.C., GregorC. — 17/5/90 — Electricity Supply - Joint Federal and State proceedings re Unions refusal to attend work due to picket line of a Federal Union — Applicant employers sought order to remove picket fine — Commission found it could join Federal Union to a conference by virtue of sections 27(1 )(j) and 44(1) of the Industrial Relations Act. as the Federal Union was a "person" by virtue of the Interpretation Act and Federal Industrial Relations Act 1988 — Commission reviewed definitions of an industrial matter, the power to make orders pursuant to section 44 and found the removal ofthe picket line was a matter of fundamental significance to the resolution ofthe dispute — Granted — MBA and CMEU and Others — No. C34f 1) of 1990 — Beech C. — 2/2/90 — Building Construction (xlii) 70 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE CUMULATIVE DIGEST—continued Page INDUSTRIAL MATTER —continued Application for denied contractual entitlements — Applicant Union sought payment of outstanding increments on the basis of an agreement operating within the "industry" not registered as an industrial agreement — Applicant further sought Order that its other members employed by Respondent be paid according to the Agreement — Respondent did not appear and Commission noted the Respondent's official duty as a registered organisation under the Industrial Relations Act — Commission found claim to be an industrial matter and able to be brought before the Commission by the Union on behalf of the employee — Commission unable to issue Order for other than the employee of the instant case and that on evidence employee had been denied contractual entitlements — Granted in Part — ECU and Merchant Service Guild — No. 2590 of 1989 — Fielding C. — 13/2/90 — Unions 896 INTERPRETATION - WORDS AND PHRASES — Application for an interpretation of an Award re entitlement to sick leave — Commission found compliance with regulations to be deficient and required Applicant Union to elaborate on the facts giving rise to the Application — Commission reviewed authorities and found that where an employee had provided medical certification for absences, for which sick leave was claimed, as and when they occurred, the entitlement to payment for sick leave without provision of medical certification remained after the first two absences of two days or less during each year of service, unless after those absences the employer had notified the employee in writing that a certificate from a medical practitioner would be required for further absences in that year — Granted — Transport Workers Union v. Portius Pty Ltd trading as Flash Foods Canteen — No. 298 of 1989 — Parks C. — 9/11/89—Transport Mobile Food Venders Interpretation of an Award re was an mployer required to pay an officer who is absent on sick leave the shift and weekend penalties the officer would have received had the officer would in accordance with his/her shift rosier — Applicant Union agreed that the word "wages" was to be read in its widest and general sense in determining the payment due — Respondent argued paragraph of clause in Award in question was inserted as part of implementation of 38 hour week and intended confine payment to the ordinary payment or wages the employee would have received i.e. 7.6 hours rather than eight and adjust the accrued entitlement to paid sick leave similarly — Commission received Authorities and found in favourof Respondent — Declared Accordingly — FMWU and Wormald International (Australia) Pty Ltd and Others — No. 725 of 1989 — Martin C. — 3/11/89 — Security Application for a new Award heard to deal with objections — Applicant Union sought to fill gap in Award coverage, as had been indicated by Appeal Court for an occupational grouping — Respondents saw award as desirable but further sought extension of coverage — Objector Respondent also supporting intervener, argued that it was covered by another award, was not in the industry to which the proposed award sought to cover and cited its previous case before the Australian Commission — Commission found in essence proposed award could be seen to be "roping in" the Respondents into the Building Trades (Construction) Award — Commission found it would strike out the objector and vary comparable employer unless the final determination of the application was not a construction type Award — Adjourned — OPDU and Abrasive Blasting Services Pty Ltd and Others — No. A33 of 1987 — Martin C. — 30/3/90 — Spray Painting and Sandblasting ■"Complaint re Breach of Union Rules — Applicant sought election to be declared void and previous committees to stand pending new elections — Respondent Union sought matter be dealt with as trivial and discontinued as it had not and would be causing the complained ofcommittees to meet prior to the new executive taking office — President considered undertaking of Respondent to be significant — President found no breach of the rules, though custom and practice was to hold elections, as the committees in question were not "offices" and there was no evidence of an irregularity as defined by section 7 of the Industrial Relations Act — Dismissed — Pratt R.D.R. and SSTU and Another — No. 108 of 1990 — Sharkey P. — 26/3/90 — Unions Application for interpretation of an Award re whether relief crews were entitled to a penalty under the shift work provisions and whether the award required amendment to avoid confusion — Background of dispute centred around giving of notice of roster changes — Respondent argued no penalty applied under proper construction of Award — Commission reviewed authorities on the principles of interpretation — Commission found employees were not entitled to shift penalty and that it was not a matter of ambiguity but a perceived anomaly on the part of the Applicant and that the cause for remedying any perceived deficiency in an Award must be pursuant to section 40of the Industrial Relations Act — CMEU and H.I. Pty Ltd — No. 778 of 1989 — Kennedy C. — 28/2/90 — Mining (Iron Ore) 'Appeal against decision of Commission in Court Session (70 WAIG 662) in demarcation dispute as to whether operators of certain equipment on building site are entitled to be represented by the Australian Builders' Labourers' Federated Union of Workers. Western Australian Branch or the Construction, Mining and Energy Workers' Union of Australia, Western Australian Branch — Industrial Appeal Court found that question to be decided is are they "builders' labourers" within the rule of the Australian Builders' Labourers' Federated Union ofWorkcrs, Western Australian Branch or are they "engine drivers" within the rule of the Construction, Mining and Energy Workers'Union of Australia, Western Australian Branch — Industrial Appeal Court found tht to the extent that in its decision Commission in Court Session had not identified which operators of which plant identified as to operator and plant rather than the basis on which his or her employer is on a building site the Construction, Mining and Energy Workers' Union of Australia. Western Australian Branch appeal is upheld — Matter remitted to Commission in Court Session — BLF and Another—CMEWU and Another—Nos. 1 and 2of 1990 — Kennedy J./Rowland J./NicholsonJ. — 25/05/90—Building Construction Conference matter referred forbearing and determination re demarcation dispute — Unions argued respectively that their Union had constitutional coverage and industrial coverage of work in question — CICS noted irony in one Union arguing for a broad interpretation of its own rules and a narrow interpretation of its competitor — CICS reviewed authorities, rules, the interpretation of Builders Labourer, Awards and found in the absence of exclusive constitutional and industrial coverage by either Union, it was important to note the Unions commitments to Structural Efficiency in determining the matter pursuant to section 26 of the Industrial Relations Act — CICS found on evidence; having examined the circumstances within the industry and noting the attempts of an employer's organisation to resolve the conflict that the interests of both organisations would be served by awarding the right to industrially represent the workers in question to the CMEU except where the employee is employed by a builder or building subcontractor— CICS further drew attention to powers under section 46 — Ordered Accordingly — ABLF and Another and Civil and Civic Pty Ltd and Others — No. CR1511 of 1988 — Coleman C.C.. Fielding C. and Beech C. — 1/12/89 — Building Construction INTERVENTION — Application to vary Award by consent re a new classification — CSA sought leave to intervene on the grounds of previoius industrial coverage and its membership rule — CSA argued that it was not precluded by its rules to cover the employoees in question as the Award was. it was argued, invalid on the basis that the Respondent had no authority to employ — Commission found CSA Rules precluded it from seeking to cover any employee properly covered by the Award, that section 34(4) of the Industrial Relations Act prevented any credence being given to the Association's argument and therefore that the CSA had no proper interest in the matter — Commission further found after examining Structural Efficiency measures between the parties, no impediment to granting the application proper, and allowed for negotiation to proceed on the appropriate wage — Adjourned — PKIU and the Government Printer — No. 1256 of 1988 — Negus C. — 16/10/89 — Printing 130 (xliii) WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 70 W.A.I.G. CUMULATIVE DIGEST—continued Page INTERVENTION —continued Applicant Union claimed unfair treatment of employees re reduction of hours — Union sought declaration from Commission to re- establish hours of work to that which had previously applied — Respondent argued reduction in hours was a compromise when employee refused to accept transfer to another department and also to meet budget constraints imposed — Commission found it was the respondent's prerogative in determining how it would reduce cost so long as employees affected by such a decision have been treated fairly in the execution of that decision — Dismissed — ECU and K-Mart — No. CR1647 of 1988 — 5/12/89 240 Claim re unfair dismissal — Applicant Union sought reinstatement of employee to at least comparable position held prior to maternity leave was now redundant — Respondent opposed claim — Commission found as there was no comparable position available it would be wrong to interfere with the employer's decision — Dismissed — ECU v. George Moss Ltd — No. CR388 of 1989 — Parks C. — 07/12/89 - Clerical 238 Application for a new Award heard to deal with objections — Applicant Union sought to fill gap in Award coverage, as had been indicated by Appeal Court for an occupational grouping — Respondents saw award as desirable but further sought extension of coverage — Objector Respondent also supporting intervenes argued that it was covered by another award, was not in the industry to which the proposed award sought to cover and cited its previous case before the Australian Commission — Commission found in essence proposed award could be seen to be "roping in" the Respondents into the Building Trades (Construction) Award — Commission found it would strike out the objector and vary comparable employer unless the final determination of the application was not a construction type Award — Adjourned — OPDU and Abrasive Blasting Services Pty Ltd and Others — No. A33 of 1987 — Martin C. — 30/3/90 — Spray Painting and Sandblasting 1351 ISOLATION ALLOWANCE - Application to vary Award pursuant to Structural Efficiency Principle and allowances — Commission found Structural Efficiency Agreement, to include a review of classifications structure, and the wage increases proposed for each classification level to comply with the spirit of Principles — Commission sustained increases in allowances in line with CPI movements — For reasons ofequity and consistency with employees covered by a Federal Award Commission was prepared to include a new set of location allowances with but ratheras an isolation allowance — Granted — WAGHSOA and CBH — No. 2411 of 1989 — Fielding C. — 22/ 12/89 — Grain Handling 412 JURISDICTION — ■•Application for interpretation of union rules re whether the Respondent Union had the ability to enrol the Applicants or not — Respondent Union claimed President did not have jurisdiction to deal with matter under section 66 of I ndustrial Relations Act as Applicants were not eligible to be members of the Union — President found Applicants clearly past members of the Respondent Union and able to seek relief under section 66 — Moreover that a declaration of the Commission (65 WAIG 2300 at 2306) applied, that the Applicants were not eligible to be members of the Respondent and should be refunded fees collected — Ordered accordingly - Martin J.M. and Rayner S.B. and CMEU - No. 2132-2138 of 1989 - Sharkey P. - 30/10/89 - Unions "Application for an orderre non compliance with Union rules and a previous order of the President — Respondent Union denied that it had failed to comply with the previous order and claimed that section 66 of the Industrial Relations Act provided no jurisdiction for enforcement of orders — President reviewed Industrial Relations Act. Rules and internal disputation in the Union — President found that there had been reasonable opportunity for a committee to meet and report on certain issues in accordance with the order — However President also found other matters had been dealt with through a Union conference contrary to the Respondent's policy, there had been a breach of Rules and the previous order — Granted in Part — Farrell K.M. v. SSTU — No. 2432 of 1989 — Sharkey P. — 28/11/89 — Unions 2 Appeal against decision ofCommission at(69 WAIG 3123)rejurisdiction to deal with claimsof unfair dismissal — Appellant argued that Commission had erred in holding that it had jurisdiction to hear the claims as section 23(3)(d) of the Industrial Relations Act and section 73 of the Government Railways Act prohibited it from so doing — Full Bench reviewed authorities and found that the right of Appeal to the Railways Appeal Board extended only to dismissal for misconduct and therefore there was no exclusion of jurisdiction under section 23(3)(d) of the IR Act —■ Dismissed — ARU v. WAGRC — No. 2401 and 2403 of 1989 Sharkey P., Gregor and Parks C. — 13/12/89 — Railways 2Appeal against decision ofCommission at (68 WAIG 1957)reorderregisteringan Industrial Agreement —Appellant granted leave to appeal — Appellant granted leve to appeal — Appellant argued that by registering an agreement that varied from that which was annexed to Application, Commission had erred in law and exceeded its jurisdiction — Furthermore Commission had denied natural justice in failing to fix a time and place at which the Appellant might be heard —Full Bench found from principles set out in the cases cited that the discretion ofCommission at first instance did not miscarry nor did it err in law or exceed its jurisdiction — Full Bench found grounds of appeal not made out — Dismissed — ABEU and FCU and Others — No. 870 of 1989 Sharkey P., Salmon C, Gregor C. — 29/11/89 — Financial Services Application re enforcement of Improvement Notice and Prohibition Notice pursuant to OHSW Act — Applicant sought a further extension of time in order to obtain funds to comply with the Improvement Notice — Commission found suspension of Notice an exercise in futility as time to comply with Notice has long since expired — Furthermore Commission has no jurisdiction to extend its future — Dismissed — A1 Auto Spray Painters and Department of Occupational Health, Safety and Welfare — No. OHSW 12 of 1989 — Fielding C. — 13/12/89 — Spray Painting Claim re inequitable redundancy package due to deduction of money awarded in lieu of shift penalties — Applicant argued agreement on payment of shift penalties was because of special circumstances applicable and a once only lump sum payment, quite separate from the voluntary retrenchment package offered at a later date — Therefore no deductions should have been made if the latter package was accepted — Respondent challenged the jurisdiction of the Commission to entertain the claim and failing that, argued, deduction from payment i.e. (End of Shift Agreement) produced an "equitable voluntary retrenchment payment and "avoids double dipping on shift penalty payment" — Commission concluded from evidence presented and cases cited that it is without jurisdiction to entertain claim, however if the reverse is found to be true then the applicants claim would have been successful — Dismissed — M.A. Lang and Telecom Australia — No. 845 of 1989 — 15/12/89 — Fielding C. — Telecommunications Applications for new Awards to cover employees of the Houses of Parliament for the first time — Commission reviewed tortuous path of the attempts to establish Award Coverage for the employees concerned — Moreover. Commission reviewed authorities pertaining to the question of who was employer and the Commission's jurisdiction in relation to Parliamentary employees Commission found all three Unions party to the Applications had constitutional coverage, at least within their respective areas Commission further found the Award finally proposed by agreement of all parties complied with the Wage Fixing Principles, allowed for the peculiarities ofemployment in the Houses of Parliament and despite misgivings, should issue — Granted — CSA and Others and the Governor in Council and Others — Nos. A15 of 1987, A4and A7 of 1988 and A7 of 1989 Fielding C. 27/10/ 89 — Government Administration (xliv) 70 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE CUMULATIVE mGEST—continued JURISDICTION _continued 2Appeal against decision of Commission (70 WAIG 537) insofar as it relates to the Appellant re conciliation Order pending determintion of dispute over dismissal — Appellant argued that it was not the employer concerned and not a party to any industrial matter properly before the Commission — Full Bench reviewed the circumstances of the case. Authorities and Legislation and found that although the summoning of the Appellant was within the Commission's power, making the Appellant subject to the Order was not — Upheld — Hon Minister for Mines, Fuel and Energy and the Mid-West and ETU — Appeal No. 2795 of 1989 — Sharkey P.. Coleman C.C., Gregor C. — 17/5/90 — Electricity Supply 2Appeal against decision of Commission (68 WAIG 891)—Appellant sought to discontinue appeal Full Bench found it was unable to discontinue appeal under section 49 of the Industrial Relations Act — Appeal dismissed by consent at request of parties — Dismissed — EPT Fochi Joint Venture and AMWSU — Sharkey P., Coleman C.C., Gregor C. — 8/12/89 — Construction Application for registration as an employer organisation — An Intcrvcner supported the application — Objector/Intervener argued that there would be overlapping of membership and confusion in representation before the Commission — Full Bench reviewed authorities. Industrial Relations Act, and found where overlapping of membership was likely to occur the Full Bench can only register a new organisation where there is good reason to do so — Majority of Full Bench found on evidence that there were good reasons in accordance with section 6 of the Act to register the applicant, including the role it had already played in industrial relations in the Building and Construction Industries and its registration before other Inudstrial Commissions — Furthermore majority of Full Bench (bund there was on evidence an absence of problems arising out of the overlap in membership —Granted — AFCC — No. 2185 of 1989 — Sharkey P.. Fielding C. Beech C. — 14/3/90 — Construction Claim re contractual entitlements — Applicant sought payment of alleged outstanding commission on a sale and pro rata annual leave — Applicant argued commission was due on delivery of goods and any bad debt problems were that of the Respondent — Commission found if there was an entitlement to extra commission then that would have an effect on the consequent payment figure for annual leave — However. Commission refrained from determining matter until it determined a question of jurisdiction due to the possibility of award coverage — Adjourned — McGuiniss v. VawnNo. 4Pty Ltd trading as Rod Ferguson Suzuki — No. 1650 of 1989 — Kennedy C. — 13/12/89 — Vehicle Dealers Motor Application to alter rules re membership remitted back to Full Bench by Industrial Appeal Court for further enquiry and determination — Appeal Court had found Full Bench acted beyond power in effectively amending the application — No finding of fact was disturbed — Respondent argued for new evidence to be considered — Full Bench reviewed authorities. Industrial Relations Act and decision of Appeal Court and found that on appeal lies from the Full Bench if the decision is considered erraneous in Law or in excess of jurisdiction, but on no other grounds — Furthermore Appeal Court had not advised the Full Bench that further hearing and determination included a reconsideration of the factual position — Full Bench found question was whether the Applicant should have the right to enrol as members wall and ceiling fixers — Full Bench was not persuaded by permissible further enquiry and determination and with regard to unchallengable findings of fact at the original hearing that the application should not be granted as it was made — Granted — OPPWF andCMEU — No. 1 of 1988 — Sharkey P., Coleman C.C., Fielding C. — 30/3/90 — Unions Application to vary Award pursuant to Structural Efficiency Principle — Applicant Union sought to have claim processed in same manner as had been for an Award in Victoria — Respondent opposed claim on the hoursof the quantum sought, the requirements of the Principle and argued that Commission should direct the parties to negotiate — Intervener object to particular classifications in proposed trial classification structure on the grounds of constitutional coverage — Commission reviewed Victorian case. State Wage Principles and felt compelled to follow the course set in Victoria, despite reservations, with an Award Modernisation clause and directions to negotiate a classification structure for trial in the industry — Commission refrained from determining coverage issue and split application into two to deal with remaining matters — Granted in Part and adjourned — FCU and Boans Ltd and Others — No. 1584 of 1989(R) — Parks C. — 4/12/89 — Retail and Wholesale Claim by employer against a requirement that it register as an employer pursuant to the Construction Industry Portable Paid Long Service Leave Act — Board of Reference found, inter alia, that the applicant was not engaged as an employer in the construction industry and the employees concerned were not covered by the Electrical Contracting Industry Award for the purposes of the said Act — Positron Ply Ltd and the Construction Long Service Leave Payments Board — Carrigg Registrar, Latter, Jones — 6/4/90 — Construction Joint Federal and State proceedings re Unions refusal to attend work due to picket line of a Federal Union — Applicant employers sought order to remove picket line — Commission found it could join Federal Union to a conference by virtue of sections 27( 1 )(j) and 44(1) of the Industrial Relations Act, as the Federal Union was a "person" by virtue of the Interpretation Act and Federal Industrial Relations Act 1988 — Commission reviewed definitions of an industrial matter, the power to make orders pursuant to section 44 and found the removal of the picket line was a matter of fundamental significance to the resolution of the dispute — Granted — MBA and CMEU and Others — No. C34(l) of 1990 — Beech C. — 2/2/90 — Building Construction Claim re increased manning levels of a fire station — Applicant Union argued existing manning placed an unfair burden on existing station officer — Respondent agreed with claim in principle not argued it could not be implemented for some time due to lack of funds and the opposition of a city council — Respondent further argued claim was not an industrial matter —Commission held preliminary hearing to determine question of jurisdiction and on authorities against the Respondent — On material before Commission relating to inter alia Fire Brigades Act Commission found it had limitations upon it in determining the matter — Commission found, however, on evidence of agreements recommendations made, and the concept of reasonable overtime in favour of Applicant, had made considerations for costs — Granted in Part — WAFBU and WA Fire Brigades Board — No. CR925 of 1989 — Martin C. — 24/11/89 — Emergency Services ■Appeal against decision of Full Bench (70 WAIG 1) to dismiss appeal — Appellant claimed Commission did not have jurisdiction to hear matter in first instance because section 23(3)(d) oflndustrial Relations Act excludes Commission from having jurisdiction over various industrial matters if any other Act provides that that matter may be appealed — There is provision for appeal under section 73 and 77 of Government Railways Act 1904 if a permanent employee is dismissed as a punishment and although the termination in this instance was not as a punishment the Respondent argued that as another Act deals with dismissals and appeals it is to be assumed that that Act has covered the field and the Commission may not deal with it — Further, if that other Act provides for termination of employee but not an appeal it must be assumed legislature intended there be no appeal — Industrial Appeal Court found only if there is an appeal under provisions of some other Act is the power of the Commission restricted — Dismissed — WAGRC and ARU — No. 15 of 1989 — Brinsden J.. Kennedy and Rowland J.J. — 30/3/90 — Railways Application for payment of Accident Pay said to be due under terms of Professional Divers" South Pepper/North Herald Project Agreement 1987, an unregistered industrial agreement — Accident pay or "make-up" pay represents the difference between what is received as a workers' compensation payment and what employee would ordinarily have received had injury not occurred — Respondent argued that Commission did not have jurisdiction to entertain claim because section 29(b)(ii) of the Industrial Relations Act only permits an employee to claim that a benefit under a contract of employment has not been allowed and since Application was lodged Applicant has been paid all that was due — Claim, accordingly, amended to that for a declaration as to what part of payments received were workers'compensation and accident pay respectively — Commission found that directly or indirectly this matter was now about quantum of workers' compensation payable to Applicant which is the exclusive jurisdiction of the Workers' Compensation Board — Even if Commission had jurisdiction to make declaration sought for the purposes of enforcing the employment contract this would be largely academic — Commission, therefore, exercised its discretion not to make a declaration — Dismissed — Munt G.V. v. Contract Diving Service Pty Ltd — No. 1487 of 1989 — Fielding C. — 15/02/90 — Diving (xlv) WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 70 W.A.I.G. CUMULATIVE DIGEST-continued Page JURISDICTION —continued Conference matter referred for hearing and determination re demarcation dispute — Unions argued respectively that their Union had constitutional coverage and industrial coverage of work in question — CICS noted irony in one Union arguing for a broad interpretation of its own rules and a narrow interpretation of its competitor — CICS reviewed authorities, rules, the interpretation of Builders Labourer. Awards and found in the absence of exclusive constitutional and industrial coverage by either Union, it was important to note the Unions commitments to Structural Efficiency in determining the matter pursuant to section 26 of the Industrial Relations Act — CICS found on evidence; having examined the circumstances within the industry and noting the attempts of an employer's organisation to resolve the conflict that the interests of both organisations would be served by awarding the right to industrially represent the workers in question to the CMEU except where the employee is employed by a builder or building subcontractor — CICS further drew attention to powers under section 46 — Ordered Accordingly — ABLE and Another and Civil and Civic Ply Ltd and Others — No. CR1511 of 1988 — ColcmanC.C, Fielding C. and Beech C. — 1/12/89 — Building Construction 662 Application for denied contractual entitlements — Applicant Union sought payment of outstanding increments on the basis of an agreement operating within the "industry" not registered as an industrial agreement — Applicant further sought Order that its other members employed by Respondent be paid according to the Agreement — Respondent did not appear and Commission noted the Respondent's official duty as a registered organisation under the Industrial Relations Act — Commission found claim to be an industrial matter and able to be brought before the Commission by the Union on behalf of the employee — Commission unable to issue Order for other tha n the employee of the instant case and that on evidence employee had been denied contractual entitlements — Granted in Part — FCU and Merchant Service Guild — No. 2590 of 1989 — Fielding C. — 13/2/90 — Unions — - - 896 2 Appeal against refusal by Industrial Magistrate of an application by Complainant/Appellant to amend compalinl to include a claim for interest on amount by which it was alleged employee was underpaid in breach of award matter — Full Bench referred to Anker Anderson and Ohters v. Pope (66 WAIG 1563) and section 84{ 1) and (2) of the Industrial Relations Act and found that it did not have jurisdiction to entertain the appeal as what is being appealed is not a final decision on the authorities and therefore not a "decision" able to be appealed — Dismissed — McGorry C. v. Como Investments Pty Ltd — No. 2358 of 1989 — Sharkey P./ Fielding C./Parks C. - 20/12/89 — Restaurant .'. 658 LONG SERVICE LEAVE - . Claim re long service leave entitlements — Applicant sought determination as to entitlement — Board found business had been transmitted at various times, however confirmed employment of applicant had been continuous lor a period of i 1 years and therefore has a right for payment in lieu of long service leave — Granted — Thomson G.B. and Nimoola Nominees Pty Ltd trading as Industrial Enamcllers — Board of Reference ; Consent application for variation pursuant to Structural Efficiency Principle — Parties sought amendments to definition, various clauses and deletion ofobsolele clauses — Commission found amendments and implementation agreement complied with State Wage Principles — Granted — PKIU and WA Newspapers and Others —No. 2151 of 1989(R) — Negus C. — 23/3/90 — Priming (Newspapers) Claim by employer against a requirement that it register as an employer pursuant to the Construction Industry Portable Paid Long Service Leave Act"— Board of Reference found, inter alia, that the applicant was not engaged as an employer in the construction industry and the employees condcrned were not covered by the Electrical Contracting Induslry Award lorthe purposes ol the said Act — Positron Ply Ltd and the Construction Long Service Leave Payments Board — Carrigg Registrar. Latter, Jones — 6/4/90 — Construction Claim for pro rata Ions service leave remitted back to Board of Reference for further hearing and determination — Board of Reference reviewed evidence and found that there had not been a lawful transfer of employment between the Respondent and another company, hence the applicants were entitled to payment — Granted — Purvis L. and Others and Verbatim Reportcrs(1980) — No. 51 of 1988 — Pope Deputy Registrar. Jones, Latter — 14/5/90 — Court Reporting Services MANAGERIAL PREROGATIVE - Conference referred for hearing and determination re transfer of employees for refusing to work overtime on Rostercd Days Off and the said requirement to work overtime — Union claimed transfer of employees was unjust and inequitable and sought order to return employees to original work depot — Respondent argued on the basis of industry needs and custom and practice — Commission "weighed" the claim with the rights of the Respondent to manage its business with the utmost efficiency in mind — Commission found timetabling of maintenance work l be at the behest of the client and that the employees had not been as constructive as they might have in seeking a solution to their problem of working on RDO's — Moreover. Commission found the proposition that the decision to relocate employees rests with the employees themselves, even in the most liberal co-operalive process, was seriously open to question — Dismissed — SEC v. ASEMFWU and Another — No.CR841 of i989 — SaimonC. —14/ 11/89 — Electricity Supply 723 Conference referred for hearing and determination — Appiicant Union claimed Respondent had acted unreasonably and unfair in all (he circumstances in not having crane and rigging work done by qualified and competent workers in its employ —Respondent argued it had acted within its rights as expressed in an Award — Commission found that the referred to clause of the Award formed the basis of fair dealing and reasonableness between the parties on the subject in question and could not find reason for the employees to fear termination — Dismissed — AMWSU and Another v. Hamersley Iron Pty Ltd — No. CR965(1) of 1989 — Salmon C. — 1/12/89 — Mining (Iron Ore) 214 Applicant Union claimed unfair treatment of employees re reduction of hours — Union sought declaration from Commission to re- establish hours of work to thai which had previously applied — Respondent argued reduction in hours was a compromise when employee refused to accept transfer to another department and also to meet budget constraints imposed — Commission found it was the respondent's prerogative in determining how it would reduce cost so long as employees affected by such a decision have been treated fairly in the execution of that decision — Dismissed — FCU and K-Mart — No. CR1647 of 1988 — 5/12/89 240 'Conference referred for hearing and determination re Demarcation dispute — Applicant Union sought declaration that it had sole constitutional and industrial coverge of shunting work and an order prohibiting the Respondent employer implementing "The Shunting Rationale" — CICS reviewed authorities, evidence and history of demarcation disputation between the unions — CICS found it could not be said that the employer was prescribed by the constitutional rules of any union from directing a particular employee to perform work from time to time which was not substantially the work of that employee's classification —Furthermore CICS found no evidence of unsafeness and thai custom and practice did not preclude the right of the employer to lawfully implement changes in work practices — CICS found in the end the only question was whether there should be intervention on the "rounds of unfairness or unreasonableness resulting from the changes the employer made — Dismissed —ARU and WAGRC and Another — No. CR544 of 1989 — Halliwell S.C.. Gregor C. Kennedy C. — 22/1/90 — Railways 302 (xlvi) 70 W.A.IG. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE CUMULATIVE DIGEST—continued MANAGERIAL PREROGATIVE —continued Conference referred re question of right to transfer employees to duties within their sphere of competence and if refused be declared redundant — Applicant argued ability to transfer employees as per second tier — Restructuring and Efficiency Agreement would allow for maximum efficiency and economic effect in managing the enterprise — Respondent Union submitted employees were being asked to take new and different jobs which amounted to being redundant — Furthermore new jobs in some cases meant unfair share of heavy tasks, while in others the work was seen as demeaningand lacking in job satisfaction — Commission having considered all of the submissions and the Termination. Change and Redundancy case, reaffirmed the right of employer to organise and direct activities of the workforce for maximum efficiency provided employees involved remain protected by the provisions of the relevant awards — Ordered Accordingly — Anglican Homes (Inc) and FMWU — CR898 of 1989 — Negus C. — 1/12/89 — Nursing Homes Claim re dismissal — Applicant sought relief in the form of a statement from the Respondent to protect employment opportunities in the district — Respondent argued and tendered evidence to prove that applicant had not followed set procedures — Commission found applicant had not discharged onus of proof in this case — Dismissed — Ishmael S.A. v. Elverston Nominees — No. 2233 of 1989 — Salmon C. — 07/12/89 — Computer Operator Conference matter referred for hearing and determination re Declaration sought that employees assisting in on the job training of other employees on a new machine is implicate duty present to the contract ofemployment of the employees concerned — Union argued that the payment of an employee at instructor rate on an earlier occasion constituted the status quo for any subsequent training on the machine and that the Applicant was prohibited from doing what it proposed by Occupational Health, Safety and Welfare Regulations — Commission found safety issue had been addressed and no difference between the common practice of a co-worker assisting another employee in a new area on a new machine — However Commission did note that were the situation to prove to be beyond that then provided the Wage Fixing Principles were met there would be a remedy as the Printing Industry case demonstrated — Granted — WAGRC and ARU — No. CR678 of 1989 — Kennedy C. — 11/10/89 — Railways Conference matters referred for hearing and determination re utilisation of contractors — Union argued there were sufficiently trained employees, that manning levels were low in light of work load and safety — Union sought Order that company employees to rectify situation — Employer argued on the grounds of managerial prerogative and award provision — Commission found most of dispute was concerned with perceived fears regarding casual employment and de-skilling — Commission however found on evidence no sufficient cause to intervene but recommended a course of discussions between the parties — Hamersley Iron Pty Ltd and AMWSU and Another — No. CR965 of 1989 — Kennedy C. — 4/12/89 — Iron Ore MANNING — Conference referred for hearing and determination re transfer of employees for refusing to work overtime on Rostered Days Off and the said requirement to work overtime — Union claimed transfer of employees was unjust and inequitable and sought order to return employees to original work depot — Respondent argued on the basis of industry needs and custom and practice — Commission "weighed" the claim with the rights of the Respondent to manage its business with the utmost efficiency in mind — Commission found timetabling of maintenance work t be at the behest of the client and that the employees had not been as constructive as they might have in seeking a solution to their problem of working on RDO's — Moreover, Commission found the proposition that the decision to relocate employees rests with the employees themselves, even in the most liberal co-operative process, was seriously open to question — Dismissed — SEC v. ASEMFWU and Another—No.CR84i of 1989 — Salmon C.—14/ 11/89 — Electricity Supply 223 Conference referred for hearing and determination re Demarcation dispute — Applicant Union sought declaration that it had sole constitutional and industrial coverge of shunting work and an order prohibiting the Respondent employer implementing "The Shunting Rationale" — CICS reviewed authorities, evidence and history of demarcation disputation between the unions — CICS found it could not be said that the employer was prescribed by the constitutional rules of any union from directing a particular employee to perform work from time to time which was not substantially the work of that employee's classification —Furthermore CICS found no evidence of unsafeness and that custom and practice did not preclude the right of the employer to lawfully implement changes in work practices — CICS found in the end the only question was whether there should be intervention on the grounds of unfairness or unreasonableness resulting from the changes the employer made — Dismissed —ARU and WAGRC and Another — No. CR544 of 1989 — Halliwell SC., Gregor C, Kennedy C. — 22/1/90 — Railways 302 Claim re increased manning levels of a fire station — Applicant Union argued existing manning placed an unfair burden on existing station officer — Respondent agreed with claim in principle not argued it could not be implemented for some time due to lack of funds and the opposition of a city council — Respondent further argued claim was not an industrial matter — Commission held preliminary hearing to determine question of jurisdiction and on authorities against the Respondent — On material before Commission relating to inter alia Fire Brigades Act Commission found it had limitations upon it in determining the matter — Commission found, however, on evidence of agreements recommendations made, and the concept of reasonable overtime in favour of Applicant, had made considerations for costs — Granted in Part — WAFBU and WA Fire Brigades Board — No. CR925 of 1989 — Martin C. — 24/11/89 — Emergency Services 928 MATERNITY LEAVE — Application to vary two Awards by including maternity leave provisions for the first time into one and to remedy a defect in maternity leave clause in other — Commission found proposed changes to come within ambit of Wage Fixing Principles and do no more than add what is a Commission standard to Awards — Granted — Salaried Pharmacists and HSOA v. Pharmacy 777 and Others; Silver Chain Nursing Association — Nos. 1051 of 1989; 2514 of 1989 — Fielding C. — 20/03/90 — Retail Pharmacy 1543 Consent application for variation pursuant to Structural Efficiency Principle — Parties sought amendments to definition, various clauses and deletion of obsolete clauses — Commission found amendments and implementation agreement complied with State Wage Principles — Granted — PKIU and WA Newspapers and Others — No. 2151 of 1989(R) — Negus C. — 23/3/90 — Printing (Newspapers) 1532 MEAL MONEY - Application for variation to award re meal allowance — Applicant union sought increase pursuant to Allowances Principle and quantum in relation to food component ofCPI as an indicator — Respondent agreed to increase, however argued that it should be assessed in accordance to paragraph of the Principle that deals with existing allowance which related to work or conditions — Commission found in favourof respondents argument — Granted in Part — FCU and Boans Ltd and Others — No. 811 of 1989 — Parks C. - 6/12/89 - Clerical Applications to vary Award by consent re Allowances — Public Service Arbitrator found increase in Travelling and like allowances to be consequent upon adjustments to similar provisions in Public Service and had application across public sector — Public Service Arbitrator found Meal Allowance claim accorded with a 5.5 per cent in the Consumer Price Index and within the State Wage Principles — Granted — WA Police Union and Hon Minister for Police — Nos. 606 and 607 of 1990 — Fielding C. —14/5/90 — Police Complaint re Breach of Award — Applicant claimed Respondent had failed to pay correct moneys for overtime, meal allowances and work done ofholidays — Industrial Magistrate found employee to be covered by Award by common rule and in the absence of any evidence to the contrary the complaints proven — Granted — TWU v. Fresh West Corporation Pty Ltd — Complaints 356-362 of 1989 — Walsh S.M. — 15/2/90 - Transport (xlvii) WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 70 W.A.I.G. CUMULATIVE DIGEST—continued MEAL MONEY —continued Application to vary Award pursuant to Structural Efficiency Principle — Applicant's proposal included Broadbanding. Award Modernisation clause and pay rates aligned with a Federal Award — Respondent opposed claim on grounds that the amendments proposed were insufficient to justify a Structural Efficiency Wage Adjustment and that there was no nexus with the Federal Award as claimed — Respondents submitted their own proposals — Commission reviewed State Wage Principles and found it important to recognise the industry within a national perspective and particularly the relationship of the Stale Award under the Structural Efficiency Principle to other State Awards — Commission stressed the need for co-ordinated initiatives to implement structural efficiency at enterprise level and Award level — Commission found Respondent's claim were not sufficiently addressed to arbitrate upon and would be the subject of future negotiations — In Supplementary Reasons for Decision Commission was not prepared to give full relrospectivity of the operative date to the last day of hearing but was prepared to accede to an earlier date than that of the order due to the progress made towards the second stage of Structural Efficiency — Granted XWU and Australian Glass Manufacturers and Others — No. 1628 of 1989(R) — Coleman C.C. — 30/1/90 and 21/3/90 — Transport Application to vary Award pursuant to Structural Efficiency Principle and allowances — Commission found Structural Efficiency Agreement, to include a reviewofclassifications structure, and the wage increases proposed for each classification level to comply with the spirit of Principles — Commission sustained increases in allowances in line with CP! movements — For reasons of equity and consistency with employees covered by a Federal Award Commission was prepared to include a new set of location allowances with but rather as an isolation allowance — Granted — WAGHSOA and CBH — No. 2411 of 1989 — Fielding C. — 22/ 12/89 —Grain Handling MISCONDUCT — Employee summarily dismissed for misconduct, involving drunkenness and breach of security on mine site — Applicant Union claimed dismissal unfair and sought reinstatement without loss of entitlements — Commission applied dicta of Bond Brewing Case and found from evidence that the employees had been aware of the Respondent's policy as to controlled access to a particular work site and though partially intoxicated at the time in question was aware that "there would be trouble" over the incident — Dismissed — AWU v. Argyle Diamond Mines Ply Limited — No. CR901 of 1989 — Halliwell S.C. — 20/11/89 — Mining Employee dismissed for breach of Respondent's policy by allowing free meals to a particular group of customers — Applicant Union claimed dismissal unfair and sought reinstatement on the basis that the employee had not instigated the practice and had sought to rectify the situation — Commisison found employee had violated the trust put in her to the extent of repudiating the fundamental terms of her relationship with the employer and that there was no evidence of any action taken by the employee to terminate the practice of allowing free meals — Dismissed — FLAIEU and Observation City Resort Hotel — No. CR746of 1989 — Parks C. 21/12/89 - Hospitality Claims re contractual entitlement — Applicants sought wages for work done and annual leave entitlements — Respondent argued it had an obligation to pay the first applicant, however disputed that amount and as for the second applicant argued that applicant had withheld work and therefore was not paid — Commission found second applicant had breached his contract ofcmploymcnt however he was still entitled to payment for work performed — Ordered Accordingly — Kin P. and Jackson M.H. v. Assist Computer Technology Ply Ltd — Nos. 990 and 991 of 1989 — Martin C. — 30/10/89 — Computing Employees summarily dismissed for alleged misconduct — Applicant Union sought orders of re-employment and that thcircontracts be deemed continuous — Respondent objects to issuance of such order — Commission found from evidence that employees had been unjustifiably, unjustly and unfairly dismissed by the Respondent — Granted — Merchant Service Guild and Another and Stirling Marine Services Pty Ltd — No. CR1012 of 1989 — Martin C. — 11/12/89 — Marine and Harbour Claim of unfair dismissal and for wages alleged to be due from contract of employment — Commission found on evidence that Applicant was intoxicated on Respondent's premises and as that was the reason for summary dismissal it was not unfair — Commission also found no underpayment of wages had occurred — Dismissed — Lovejoy C.B. and Osborne Enterprises — No. 2838 of 1989 — Salmon C. — Restaurant Employee terminated for damaging a vehicle while driving in a restricted area at excessive speed — Applicant Union claimed dismissal was unfair and sought re-employment without loss of entitlements — Applicant argued that employee had no history of that type of incident and j'nter alia, the Respondent could have applied a lesser penalty as in other cases, if a penalty was required — Respondent denied that an alleged involvement of the employee in a demarcation issue was a factor in the dismissal and described the incident, herein, as a "joy ride" — Commission stated that it was trite Law to say that each case involving unfair dismissal must be treated in accordance with its own facts and on evidence found no unfairness in the actions of the company — Dismissed - AMWSU and H.I. Pty Ltd - No. CR1184 of 1989 - Gregor C. - 8/3/90 - Mining (Iron Ore) Claim for reinstatement as remedy for allegedly unfair dismissal — Respondent claimed Applicant dismissed for divulging private personnel information to other staff whilst in a position of trust after previous warning—Commission found no credible evidence that Applicant said anything untoward or passed on confidential information — Commission declared dismissal to be unfair, however, as it was satisfied that Respondent had lost confidence in Applicant's ability to keep and maintain the necessary confidences it was not prepared to order reinstatement — Granted in Part — Thobaven L.J.J. v. Albany Dog Rock Hotel — No. 2336 of 1989 - Fielding C. — 14/03/90 - Motel Application by four employees (band of musicians) for payment ofwages said to be due from contract of employment — Commission noted that four members of band filed single applications which was done for convenience as dispute was common — Commission correct course ws (breach band member to have filed separately, however, was prepared to use powers under section 27 of the Industrial Relations Act to split application and hear them together —Commission found contract existed not between band as an entity and Respondent but between individuals concerned and Respondent — Respondent submits that the band incited and encouraged actions of patrons which were detrimental to its business and constituted serious misconduct — Commission found that song complained of had been performed in the same manner on numerous other occasions at the Respondent's premises and there was no evidence of any direction given to band that they not perform this or any other song — Comrfiission found band members had misconducted themselves and breached the contract, therefore this was no basis for withholding money — Granted — Long S. and Others v. Prime Holdings Pty Ltd trading as Phoenix Hotel — No. 2396/1-4/89 — Kennedy C. — 30/01/90 — Hotel MIXED FUNCTIONS — Conference referred re question of right to transfer employees to duties within their sphere of competence and if refused be declared redundant — Applicant argued ability to transfer employees as per second tier — Restructuring and Efficiency Agreement would allow for maximum efficiency and economic effect in managing the enterprise — Respondent Union submitted employees were being asked to take new and different jobs which amounted to being redundant — Furthermore new jobs in some cases meant unfair share of heavy tasks, while in others the work was seen as demeaning and lacking in job satisfaction — Commission having considered all of the submissions and the Termination, Change and Redundancy case, reaffirmed the right of employer to organise and direct activities of the workforce for maximum efficiency provided employees involved remain protected by the provisions of the relevant awards — Ordered Accordingly — Anglican Homes (Inc) and FMWU — CR898 of 1989 — Negus C. — 1/12/89 — Nursing Homes 247 (xlviii) 70 W.A.LG. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE CUMULATIVE DIGEST—continued MIXED FUNCTIONS —continued Claim for payment of wages and exclusive rights to work on refurbishing mooring buoys — Applicant Union claimed members were willing to work if the leadership of a foreman to organise and supervise the work had been provided — Furthermore applicant Union claimed members had been stood down by the respondent — Respondent argued custom and practise was that employees would act in higher classifications as required and their refusal to do so was unreasonable, resulting in a loss of entitlement to wages — Commission found attitude of employees in refusing to put in place the long accepted practises of'acting up" was unreasonable, and concluded that they do not have aprimafacie case to support claims — Furthermore Commission found claim of exclusive rights to refurbish mooring buoys were unfounded — Commission noted finding did not preclude either party from proceeding with an enforcement of award — Dismissed — Seamens Union of Australia and P&OTowage Services — No.CR571 and 865 of 1989 — Martin C. — 3/11/89 — Marine and Harbour Services 573 NATURAL JUSTICE - 2 Appeal against decision of Government School Teachers Tribunal at (69 WAIG3437)rc Order for pay claim — Industrial disputation — section 44 proceeding — Education Act and IR Act referred to for definition of "industrial matter" with regard to teacher — Applicants tendered as a record ofconference proceeding — Opportunity given to Appellant to be heard on all material matters — Industrial action peripheral to salary claim — section 44(6) orders not final — Orders made not determinative — Full Bench found Orders were made within power there was no miscarriage of justice — No grounds made out — Dismissed — SSTU and Hon Minister for Education — No. 2330 of 1989 — Sharkcy P., Salmon C.. George C. — 21/12/89 — Education 21 2 Appeal against decision of Commission at (68 WAIG 1957)reorderregisteringan Industrial Agreement — Appellant granted leave to appeal — Appellant granted leve to appeal — Appellant argued that by registering an agreement that varied from that which was annexed to Application, Commission had erred in law and exceeded its jurisdiction — Furthermore Commission had denied natural justice in failing to fix a time and place at which the Appellant might be heard — Full Bench found from principles set out in the cases cited that the discretion of Commission at first instance did not miscarry nor did it err in law or exceed its jurisdiction — Full Bench found grounds of appeal not made out — Dismissed — ABEU and FCU and Others — No. 870 of 1989 — Sharkcy P., Salmon C, Gregor C. — 29/11/89 — Financial Services 8 Applications for payment of salary alleged to be due under contracts of employment — Respondent argued that as it was in liquidation Commission did not have jurisdiction to deal with matter and sought order for stay of proceedings — Commission found that section 371(2) of the Companies (Western Australia) Code prevents proceedings from being commenced or otherwise proceeded with against a company where a winding up order has been made without leave of the Supreme Court Stay ordered unless and until leave of Supreme Court obtained — Building Construction — Pennell J.C. and Others and Manfal Pty Ltd (In Liquidation) — Nos. 2363 to 2383 of 1989 — Fielding C. — 14/2/90 — Housing 945 Conference referred for hearing and determination re dismissal of an employee — Applicant Union claimed dismissal unfair and sought reinstatement — Respondent argued employee had broken Aboriginal law. breached confidence and that reinstatement was untenable — Commission reviewed lengthy conciliation proceedings in the matter and the ill-feeling that developed in a small community — Commission found that the principle of natural justice and fair play cut across differences in culture and tradition and the employee as a member of the Applicant had every moral and legal right to seek it in accordance with the Industrial Relations Act — Furthermore that reinstatement, on Pepler's Case, was the only proper remedy for unfair dismissal — Commission found a prima facie case of unfair or wrongful dismissal reinforced by the evidence, and that there had been a partly understandable comedy of errors — Commission found to punish an employee for the sins of a spouse could not be fair or reasonable by any standards — Granted — FMWU v. Mawarnkarra Health Service Aboriginal Corporation — CR807 of 1989 — Negus C. — 20/12/89 — Medical Services 565 NEXUS — Application to vary Award pursuant to Structural Efficiency Principle — Disputed only. Applicant Union claim for a $15.00 quantum wage increase for a particular classification — Applicant expressed concern that an anomaly would be created via the no extra claims commitment if a nexus Award received the higher quantum increase where the instant Award did not — Commission viewed Structural Efficiency measures including an agreed programme of award re-drafting with the assistance of a Legal Practitioner — Commission found that, to the particular classification, the increase of $12.50 should be applied, but did not preclude any consideration of changed circumstances — Granted in Part — LEDFCU and WAG RC — No. 1530 of 1989 (R) — Kennedy C. — 30/11/89 — Railways U2 Application to vary Award pursuant to Structural Efficiency Principle — Applicant's proposal included Broadbanding, Award Modernisation clause and pay rates aligned with a Federal Award — Respondent opposed claim on grounds that the amendments proposed were insufficient to justify a Structural Efficiency Wage Adjustment and that there was no nexus with the Federal Award as claimed — Respondents submitted their own proposals — Commission reviewed State Wage Principles and found it important to recognise the industry within a national perspective and particularly the relationship of the State Award under the Structural Efficiency Principle to other State Awards — Commission stressed the need for co-ordinated initiatives to implement structural efficiency at enterprise level and Award level — Commission found Respondent's claim were not sufficiently addressed to arbitrate upon and would be the subject of future negotiations — In Supplementary Reasons for Decision Commission was not prepared to give full retrospectivity of the operative date to the last day of hearing but was prepared to accede to an earlier date than thai of the order due to the progress made towards the second stage of Structural Efficiency — Granted TWU and Australian Glass Manufacturers and Others — No. 1628 of 1989(R) — ColemanC.C. — 30/1/90 and 21/3/90 — Transport 1909 3Consent application to vary Award pursuant to Structural Efficiency Principle, as a Special Case — Parties sought wage increase above that allowed by Wage AdjustmentPrincipleand argued that it was necessary for Structural Efficiency within the Industry — CWAI intervening argued that a rigorous scrutiny was necessary to satisfy special case status and as did other section 50 parties addressed matters of public interest as related to the Principles — CICS found there was no need to consider the public interest in the context of the case and that the parlies were committed to achieve an offset of the total package of costs — CICS included a reviewof the economic conditions within the industry — CICS found wage rates established in conformity with the Work Value Principle in the context of the Structural Efficiency Principle had satisfied a fundamental requirement of a Special Case —CICS however did not accept format in which wage rates were expressed and specified how the relativities should be determined against the rates of an Award in the industry, previously granted Structural Efficiency Wage Increases — Granted in Part — AWU and Associated Minerals Consolidated and Others — No. 1839of 1989(R) — ColemanC.C.. GregorC.. George C.— 16/2/90 — Mining and Processing (Mineral Sands) 670 Application to vary Award re Availability and On-Call — Disputed only was Applicant Union's claim with respect to On-Call provision, including question of On-Call Allowance — Commission found agreed part of claim, within the Wage Fixing Principles — Commission found both parties' arguments on the issue of unfair discrepcncy with respect of disputed claim to be inconsistent — Commission applied principles of Appeal Court Decision in determining matter under the Wage Fixing Principles particularly re structuring and efficiency and in light of public interest — Granted in Part — ASEMFWU and Others v. SECWA — No. 2206 of 1989 — Salmon C. — 06/02/90 — Electricity Supply 846 (xlix) WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 70 W.A.I.G. CUMULATIVE DIGESI—continued ON CALL — Application for award variation pursuant to Structural Efficiency Principle — Applicant Association sought three per cent wage increase, an increase in on-call allowance and call-back substitute allowance — Parties are in agreement on a number of reforms and propose a tidying up of award — Commission found in favour of application being amended — Granted — Australian Medical Association Inc v. Boards of Management of Royal Perth Hospital and Others — No. P46and P49of 1989 — Fielding C. — 21/12/89 — Medical Services ORDERS — 2 Appeal against decision of Government School Teachers Tribunal at (69 WAIG 3437) re Order for pay claim — Industrial disputation — section 44 proceeding — Education Act and IR Act referred to for definition of "industrial matter" with regard to teacher — Applicants tendered as a record of conference proceeding—Opportunity given to Appellant to be heard on all material matters — Industrial action peripheral to salary claim — section 44{6) orders not final — Orders made not determinative — Full Bench found Qrders were made within power there was no miscarriage of justice — No grounds made out — Dismissed — SSTU and Hon Minister for Education — No. 2330 of 1989 — Sharkey P., Salmon C., George C. — 21/12/89 — Education "•Liberty to apply — Application re clarification of Orders — Date of election — Timetable for election — Ordered Accordingly — Baxter W.T. and Fry E.L. and FLAIEU — No. 2238 of 1989 - Sharkey P. — 16/11/89 - Unions Application re enforcement of Improvement Notice and Prohibition Notice pursuant to OHSW Act — Applicant sought a further extension of time in order to obtain funds to comply with the Improvement Notice — Commission found suspension ofNotice an exercise in futility as time to comply with Notice has long since expired — Furthermore Commission has no jurisdiction to extend its future — Dismissed — A1 Auto Spray Painters and Department of Occupational Health, Safety and Welfare —No. OHSW 12 of 1989 — Fielding C. — 13/12/89 — Spray Painting Conciliation Order issued out of Conference on Commission's own motion re treatment of an employee and prevention of industrial action pending decision of Punishment Appeals Board and determination of referred dispute — Commission outlined background of dispute — Ordered Accordingly — SEC and Another and ETU and Others — No. C1066 of 1989 — Salmon C. — 27/11/89 — Electricity Supply Joint Federal and State proceedings re Unions refusal to attend work due to picket line of a Federal Union — Applicant employers sought order to remove picket line — Commission found it could join Federal Union to a conference by virtue of sections 27(1 )(j) and 44(1) of the Industrial Relations Act, as the Federal Union was a "person" by virtue of the Interpretation Act and Federal Industrial Relations Act 1988 — Commission reviewed definitions of an industrial matter, the power to make orders pursuant to section 44 and found the removal of the picket line was a matter of fundamental significance to the resolution of the dispute — Granted — MBA and CMEU and Others — No. C34(l) of 1990 — Beech C. — 2/2/90 — Building Construction Complaint of failure to pay wages in accordance with Award — Complainant argued that boners should have been paid under a tally system rather than for time worked — Magistrate found construction of relevant clauses is Award allowed employer option of employingon either a tally system or for time worked —Evidence clearly showed workers subject to complaints were employed on an hourly basis and were paid overtime so there was no breach of the Award — Not Proven — Meat Industry Employees Union v. Valley Meats - Nos. 250, 251, 252, 259 and 260 of 1989 - Walsh S.M. - 12/02/90 - Meat OVER AWARD PAYMENT - Claim re Wages — Union sought increase in pay rates on the basis of the rates being paid by the Respondent on other necessities and isolation — Commission conducted inspections, reviewed evidence and reviewed the establishment of the different rates under the Awards in question — Commission found no justification in paying the higher rate as the conditions of the employees were, some travelling, equivalent to those on a mine site upon which the lower Paddington rate was based — Furthermore, Commission found workers had the advantage of living in a city environment — Commission found what Union sought was an over award payment and of rates which had been applied by the company at its own discretion over many years — Dismissed — Leighton Contractors Pty Ltd and AWU — No. CR889 of 1989 — Gregor C. — 20/12/89 — Gold Mining 543 Application for a new Award — Parties sought award on the grounds that the industry awards were unsuited to their operations — Commission judged application in accordance with State Wage Principles and stated that foran award to be used as a vehicle for the introduction of Structural Efficiency that award must be a reflection of the actual conditions observed by the parties — Commission arbitrated on matters disputed, at the request of the parties, including Hours of Work, Annual Leave, Allowances and the inclusion of Over Award Payments — Award issued — Swan Portland Cement Ltd and AWU — No. A26 of 1988 — Beech C. — 28/11/89 — Cement Manufacturing 1326 Application for allegedly denied contractual entitlements — Applicant sought payment of an aggregation for wages, overtime, payment in lieu of notice, shift penalties and allowances on the basis of a contract of service based on an Award the employer was not Respondent to — Commission found on evidence contract of service was of a standard type of arrangement made in an industry not covered by Awards — Dismissed — Burnes R. and Allwaste Pty Ltd — Gregor C. — 20/12/89 Refuse Disposal '373 OVERTIME — Application to vary Award pursuant to Slrucutrual Efficiency Principle — Application split to accommodate Arbitration of claim in so far as a group of opposing Respondents were concerned — Commission dealt with that part of application pertaining to consenting parties — Commission found proposed amendments complied with requirements of State Wage Decision subject to the insertion of an Award Modernisation clause — Granted in Part and Adjourned — WAM1EU and Action Food Barns and Others — No. 2115 of 1989 (R) and 2115A of 1989 (R) — Parks C. — 19/12/89 — Meat Complaint re Breach of Award — Applicant claimed Respondent had failed to pay correct moneys for overtime, meal allowances and work done of holidays — Industrial Magistrate found employee to be covered by Award by common rule and in the absence ofany evidence to the contrary the complaints proven — Granted — TWU v. Fresh West Corporation Pty Ltd — Complaints 356-362 of 1989 — Walsh S.M. — 15/2/90 - Transport PART-TIME - Application to vary Award pursuant to Structural Efficiency Principle — Applicant's proposal included Broadbanding, Award Modernisation clause and pay rates aligned with a Federal Award — Respondent opposed claim on grounds that the amendments proposed were insufficient to justify a Structural Efficiency Wage Adjustment and that there was no nexus with the Federal Award as claimed — Respondents submitted their own proposals — Commission reviewed State Wage Principles and found it important to recognise the industry within a national perspective and particularly the relationship of the State Award under the Structural Efficiency Principle to other State Awards — Commission stressed the need for co-ordinated initiatives to implement structural efficiency at enterprise level and Award level — Commission found Respondent's claim were not sufficiently addressed to arbitrate upon and would be the subject of future negotiations — In Supplementary Reasons for Decision Commission was not prepared to give full retrospectivily of the operative date to the last day of hearing but was prepared to accede to an earlier date than that of the order due to the progress made towards the second stage of Structural Efficiency — Granted TWU and Australian Glass Manufacturers and Others — No. 1628 of 1989(R) — ColemanC.C. — 30/1/90 and 21/3/90 — Transport (1) 70 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE CUMULATIVE DIGEST—continued PENALTY RATES - Application for interpretation of an Award re whether relief crews were entitled to a penalty under the shift work provisions and whether the award required amendment to avoid confusion — Background of dispute centred around giving of notice of roster changes — Respondent argued no penally applied under proper construction of Award — Commission reviewed authorities on the principles of interpretation — Commission found employees were not entitled to shift penalty and that it was not a matter of ambiguity but a perceived anomaly on the part of the Applicant and that the cause for remedying any perceived deficiency in an Award must be pursuant to section 40 of the Industrial Relations Act — CMEU and Hi. Pty Ltd — No. 778 of 1989 — Kennedy C. — 28/2/90 — Mining (Iron Ore) PRINCIPLES - Application to vary Award pursuant to Structural Efficiency Principle — Parties disputed only a $15.00 rather than a S12.50 wage claim for a wage classification grouping by the Applicant Union — Respondent argued that the work of the Wage Group had to be assessed as at least equivalent to that of a tradesperson to qualify for the increase claimed as specified under the State Wage Principles and that the skills and training required by tradespersons substantially exceeded that of the Wage Group — Commission found on inspections, authorities and evidence that the Applicant had failed to prove that equality existed but recommended the issue be addressed in further restructuring negotiations — Commission found remainder of Award amendments sought fulfilled initial requirements of State Wage Principles however included a clause to reinforce the commitment to Award modernisation — Granted in Part — FMWU v. CSR Limited — No. 1383 of 1989 — Parks C. — 30/10/89 — Building Materials Manufacture 2Appeal against decision of Industrial Magistrate (Complaint No. 104of 1989) — Claim for overtime and bans imposed on overtime — Breach of Wage Fixing Principles and award — Industrial Magistrate ruled no case to answer — Admissions made by union officer that claim was being pursued outside the wage principles — Vicarious liability — Prima facie evidence ol breach ot evidence — Full Bench found all grounds made out and there was a case to answer— Matter Remitted — Upheld — Registrar and AMWSU — No. 1747 fo 1989 — Sharkcy P.. Haiiiweli C.C.. Fielding C. — 17/11/89 — Construction 'Application to vary Award as a Special Case remitted to CICS by Appeal Court (69 WAIG 3219) for further hearing and determination — CWAI submitted that CICS was required to reconsider matters of shift allowances and weekend penalty rates and properly apply the specific tests inherent in the Anomalies and Inequities Principle — CWAI further argued that the agreement in question relied upon the doctrine of comparative condition justice and as such should be rejected — CICS examined principles and found it a strange application of equity and good conscience to reconsider the question in the light ol a State Wage Decision published after the earlier decision — Moreover. CICS considered questions in light of comparisons which were concomitant with the Incquitites Principle, found the existence of an inequity worthy of rectification and that the improvement in the conditions was justified as a matter of merit — Granted — FMWU and Board of Management. Royal Perth Hospital and Others — Halliwell S.C.. Negus C., George C. — 16/11/89 — Health Application to vaiy Award pursuant to Strucutrual Efficiency Principle — Application split to accommodate Arbitration ol claim in so far as a group of opposing Respondents were concerned — Commission dealt with that part of application pertaining to consenting parlies — Commission found proposed amendments complied with requirements of State Wage Decision subject to the insertion of an Award Modernisation clause — Granted in Part and Adjourned — WAMIEU and Action Food Barns and Others - No. 2115 of 1989 (R) and 2115A of 1989 (R) — Parks C. — 19/12/89 - Meat 'Application to vary Award by consent re Wages — Parties sought increase in rates of wages as a special case with a Structural Efficiency wage adjusmcnt to be applied for in addition to it — Parties argued that the increase sought was justified under the Work Value Principle to reflect significant net additions to work requirements — CICS granted leave for application to be varied to incorporate the necessary increase in rates under the Structural Efficiency Principle — CICS found the requirements of the Work Value Principle had been met —However, after reviewing Authorities CICS would not finally determine the matter until the Parties presented their Structural Efficiency Package — Adjourned — WA Journalists Union and Community Newspapers (1985) Ltd and Another — No. 1899 of 1989 — Martin C. Negus C.. Kennedy C. — 18/12/89 — Media (Newspapers) Application to vary Award pursuant to Structural Efficiency Principle — Disputed only. Applicant Union claim fora SI 5.00 quantum wage increase for a particular classification — Applicant expressed concern that an anomaly would be created via the no extra claims commitment if a nexus Award received the higher quantum increase where the instant Award did not — Commission viewed Structural Efficiency measures including an agreed programme of award re-drafting with the assistance of a Legal Practitioner — Commission found that, to the particular classification, the increase of $12.50 should be applied, but did not preclude any consideration of changed circumstances — Granted in Part — LEDFCU and WAGRC — No. 1530 of 1989 (R) — Kennedy C. — 30/11/89 — Railways Applications to vary Awards/Agreements pursuant to Structural Efficiency Principle, by consent — Commission's Reasons for Decision to be read in conjunction with those of another application due to common background — Commission found Principles to be satisfied, however determined quantum increase in rates for some classifications and dismissed a submission to include a "test" classification structure on the basis that the Commission was obliged by the State Wage Decision to adopt a decision of another Commission — Granted in Part — CMEU and Others and Swan Brewery Co Ltd — Nos. 2028.2100.2120.2453 of 1989 (R) — Kennedy C. — 17/11/89 — Brewing Industry Claim re Award variation pursuant to Second Tier Principle— Parties were in agreement to offsets in return for four per cent increase in wage rates, with one exception — Respondent sought application of four percent to the rates which applied prior to three per cent adjustment — Commission adopted standard of no retrospectivity. and found calculation of four per cent to be based on existing rates — Granted — Clothing and Allied Trades and Fullin Tailoring Co and Others — No. 461 A/89 — Kennedy C. — 27/ 9/89 —Clothing Application for variation to award re meal allowance — Applicant union sought increase pursuant to Allowances Principle and quantum in relation to food component ofCPI as an indicator— Respondent agreed to increase, however argued that it should be assessed in accordance to paragraph of the Principle that deals with existing allowance which related to work or conditions — Commission found in favour of respondents argument — Granted in Part — FCUand Boans Ltd and Others — No. 811 of 1989 — Parks C. — 6/12/89 — Clerical Application for award variation re district allowance — Parties were in agreement and sought increases based on the CP! movements — Commission found increase in allowance to reflect additional costs were within the Principles — Granted — CS A v. Kalgoorlie College and Others — No. P57 of 1989 — Fielding C. — 4/12/89 — Education Application for award variation pursuant to Structural Efficiency Principle — Parties gave undertakings to examine the award and implement the terms of the Structural Efficiency Principle — Commission found approach of parties on this occasion was sufficient conformity with the Principles to permit the first increases — Granted — CMEU v. Civil and Civic and Others — No. 1822 of 1989(R) — Beech C. — 17/10/89 — Building/Construction Application for award variation pursuant to Structural Efficiency Principle — Application principally to provide for classification broadbanding. thus providing employees to be appointed to levels rather than positions and if nothing else, enhance the concept ofmulti-skilling—Commission found claim lobe within guidelines however noted that there are certain matters to be attended to before the second limb of the salary adjustments in particular positions that fall across the borders ofthe new bands — Granted — HSOA v. Activ Foundation Inc — No. 2079 of 1989 — Fielding C. — 11/12/89 — Clerical Application for variation of award re various allowances — Applicant Union sought increases in line with CPI movement from and including March 1985 for two of the allowances and others to be increased based on wage movements since they were last fixed — Respondent consented to claim — Commission answered question as to whether allowance was reimbursement of expenses or an allowance relating to conditions of work — Commission found claim to be within guidelines — Granted — FMWU v. Canine Security and Others — No. 1504 of 1989 — Fielding C. — 11/12/89 — Security Cli) WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 70 W.A.LG. CUMULATIVE DIGEST—continued PRINCIPLES —continued Application for award variation re reimbursement of costs associated with travelling — Applicant Union claimed specialisation of occupation, requirement to work shift work all year, to be on call or to work overtime as required and as a matter of equity, all officers should receive the payment — Respondent objected and argued matter had been dismissed by the Commission previously and cannot be granted in accordance with the State Wage Fixing Principles — Commission cited other matters similar in claim and found in favour of respondent— Dismissed — WA Prison Officers Union v. Hon Minister for Corrective Services — No. 157 of 1989 — Gregor C. — 7/12/89 — Goal/Security Application for award variation pursuant to Structural Efficiency Principle — Parties had reached agreement on ways and means of improving efficiencies such as short leave provisions, penalty provision for employees who leave service without proper notice, spread of hours and further modernisation of the Award — Question of operative date — Commission found parties to have complied with the requirements of Structural Efficiency Principle and ordered amendments as of date of determination — Granted — FCU v. WA Coastal Shipping Commission and Others — No. P48 of 1989 — Fielding C. — 3/11/89 — Government/ Clerical Application to vary award pursuant to Restructuring and Efficiency Principle — Parties sought Commissions' approval to vary award by consent to increase wage rates and other amendments to conditions contained therein — Intervener sought two specific commitments, however Applicant Union refused and only confirmed commitment as required by State Wage Principles — Commission found parties recognised corner stone to award restructuring and proposed new clause to make their commitment more binding — Ordered Accordingly — Meat Industry Employees Union and WA Meat Commission — No. 2112 of 1989(R) — Parks C. — 30/11/89 — Meat Industry Application to vary award pursuant to Restructuring and Efficiency Principle — Parties sought Commission's approval to vary award by consent to increase wage rates and other amendments to conditions contained therein — Intervener sought two specific commitments, however Applicant Union refused and only confirmed commitment as required by State Wage Principles — Commission found parties recognised cornerstone to award restructuring and proposed new clause to make their commitment more binding — Ordered Accordingly — Meat Industry Employees Union and WA Meat Marketing Corporation — No. 2113 of 1989(R) — Parks C. — 30/11/89 — Meat Industry - - Application to vary award pursuant to Restructuringand Efficiency Principle — Parties sought Commission's approval to vary award by consent to increase wage rates and other amendments to conditions contained therein — Intervener sought two specific commitments, however Applicant Union refused and only confirmed commitment as required by State Wage Principles — Commission found parties recognised corner stone to Award Restructuring and proposed newclause to make their commitment more binding — Ordered Accordingly — Meat Industry Employees Union v. WA Meat Commission and Others — No. 2114 of 1989(R) — Parks C. — 30/11/89 — Meat Industry Application for variation to award pursuant to Restructuring and Efficiency Principle — Parties were in agreement to variation —- Inclusion of new clause 'Award Modernisation' to deal with enterprise negotiations — Commission found that application should be split — Granted — Federated Clerks Union v. Permanent Investment Building Society and Others — No. 2034 and 2034A of 1989(R) — Parks C. — 4/12/89 and 8/12/89 — Financial/Clerical and Administration Application to vary award pursuant to Structural Efficiency Principle — Commission noted award has nexus with Federal Award however agreed that parties were entitled to proceed with claim, pursuant to State Wage Principles — Parties recognised that there could be further adjustments in a manner consistent with the corresponding amendments to Federal award in order to preserve consistency — Commission found proposed amendments were within the Structural Efficiency Principle — Granted — CMEU v. Archibald and Thorpe and Others — No. 1821 of 1989(R) — Beech C. — 30/11/89 — Earthmoving/Construction Application for award variation pursuant to Structural Efficiency Principle — Parties were in agreement to variations sought — Question of date ofoperation — Commission found parties had demonstrated a long and abiding commitment in co-operating to meet the ends of the Structural Efficiency Principle and endorsed variations in rates — Granted — Breweries and Botllcyards Employees Union v. Swan Brewery Co Ltd — No. 1976 of 1989 — Kennedy C. — 17/11/89 — Brewing/Malting Claim re payment of site disability allowance — Applicant Union claimed noise, exposed and oppressive conditions, wet underfoot and discomfort from iron ore dust — Respondent objected to payment and quantum claimed — Commission found award does not adequately compensate for the disabilities experienced — Ordered Accordingly — AMWSU v. Thiess Contractors Pty Ltd — No. CR907 of 1989 — George C. — 19/12/89 — Metal Trades Application for award variation pursuant to Structural Efficiency Principle — Application sought order to reflect an agreement between the company and one union party to award — History and background to application were summarised — Commission found claim has merit so far as the twin objectives of flexibility and opportunity for employees are concerned — Ordered Accordingly — Hamersley Iron Pty Ltd v. AMWSU and Others — No. 2747 of 1989(R) — Kennedy C. 11/1/90 —■ Mining/Iron Ore - Applications for new Awards to cover employees of the Houses of Parliament for the first time — Commission reviewed tortuous path of the attempts to establish Award Coverage for the employees concerned — Moreover, Commission reviewed authorities pertaining to the question of who was employer and the Commission's jurisdiction in relation to Parliamentary employees — Commission found all three Unions party to the Applications had constitutional coverage, at least within their respective areas — Commission further found the Award finally proposed by agreement of all parties complied with the Wage Fixing Principles, allowed for the peculiarities of employment in the Houses of Parliament and despite misgivings, should issue — Granted — CSA and Others and the Governor in Council and Others — Nos.AlSof 1987, A4 and A7of 1988 and A7 of 1989 — FieldingC. — 27/10/ 89 — Government Administration Application for award variation pursuant to Structural Efficiency Principle — Applicant Association sought three per cent wage increase, an increase in on-call allowance and call-back substitute allowance — Parties are in agreement on a number of reforms and propose a tidying up of award — Commission found in favour of application being amended — Granted — Australian Medical Association Inc v. Boards of Management of Royal Perth Hospital and Others — No. P46 and P49of 1989 — FieldingC. — 21/12/89 — Medical Services Application for variation to award — Applicant Union sought insertion of two new classifications in wages clause — Commission found prima facie that classification would fall within the industry contemplated by the scope of award — Furthermore Commission answered question ofworking hours — Granted — FMWU v. St John of God Hospital and Others — No. 898 of 1989 — Fielding C. — 28/11/89 — Medical 3Application to vary Award pursuant to Structural Efficiency Principle — Commission in Court Session had previously determined special case states — Commission in Court Session found parties entitled to first wage adjustment under Structural Efficiency Principle to be applied to first increment of work value adjustment and that consideration of the second adjustment would not require further debate or determination of Work Value or Special Cases — Granted — WA Journalists Union and Community Newspapers and Another — No. 1899 of 1989 — Martin C., Negus C., Kennedy C. — 20/12/89 — Media (Newspapers) Application for first wage increase under Structural Efficiency Principle — Structural Efficiency Agreement concluded between parties addressing issues of work practices. Award restructuring, cost time due to industrial disputes and forward planning and training — Commission stressed substantial part of Agreement involved the future and put the parties on notice that more than agreement would be required to achieve the second increase under Structural Efficiency Principle — Granted — AMSWU and Othersand Hon Minister for Works and Services and Others — Nos. 1655,1722,1742,2357,2385,2361 of 1989(R) — Beech C. — 6/ 11/89 — Building/Government Applications to vary Awards in relation to structural efficiency — Parties placed sufficient material before Commission to satisfy it there was positive co-operation in a fundamental review ofthe Award and implementation of measures to improve the efficiency ofthe industry and provide employees with access to more varied, fulfilling and better paid jobs in accordance with the Structural Efficiency Principle — Commission expressed hope that second stage structural efficiency applications would incorporate the necessary opportunities for training — Granted — FBTPU v. Midland Brick and Others — No. 1958 of 1989, 1959 and 1961 of 1989(R) — Beech C. — 2/11/89 — Brick, Cement, Rope, Tile and Pottery Manufacturing (lii) 70 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE CUMULATIVE DIGEST—continued PRINCIPLES —continued Application to vary Award pursuant to Structural Efficiency Principle — Applicant Union sought to have claim processed in same manneras had been for an Award in Victoria — Respondent opposed claim on the hours of the quantum sought, the requirements of the Principle and argued that Commission should direct the parties to negotiate — Intervener object to particular classifications in proposed trial classification structure on the grounds of constitutional coverage — Commission reviewed Victorian case. State Wage Principles and felt compelled to follow the course set in Victoria, despite reservations, with an Award Modernisation clause and directions to negotiate a classification structure for trial in the industry — Commission refrained from determining coverage issue and split application into two to deal with remaining matters — Granted in Part and adjourned — ECU and Boans Ltd and Others — No. 1584 of 1989(R) — Parks C. — 4/12/89 — Retail and Wholesale Application to vary Award by Consent by increasing wages and changing title of Assistant Head Orderlies on basis of significant increase in responsibilities and work load — Commission found this was a unique situation with little likelihood of flow-on and was in accordance with Principles — Granted retrospectively — FMWU and Royal Perth Hospital — No. 1592 of 1988 — Negus C. — Public Hospital Application to vary Award pursuant to Structural Efficiency Principle — Commission reviewed background to application and was dissatisfied with industrial record of the parties — Commission found only Metal Unions to have shown any commitment to the principles in the case to justify an Award Variation — Commission further found need to include an Award Modernisation subclause in compulsory terms and directed the Australian Workers Union to enter into negotiations with the Respondent for the purposes of the Structural Efficiency Principle — Subsequently, in Supplementary Reasons for Decision. Commission was satisfied after hearing further submissions that it was able to ratify the arrangement as it stood after negotiations as it was consistent with undertakings given by the other parties to the Award — Granted — AMWSU and Others v. Cargill Australia — No. 1660 of 1989(R) — Gregor C. — 23/10/89 — Mining (Salt) .1 Application to vary Award by changing tally rate for dead rail slaughtering — Matter remitted to Commission for hearing and determination following Full Bench Appeal (69 WAIG 1884) — Commission further elaborated on its reasons for initial decision and acknowledged that these had not been made clear in initial Reasons — Commission adopted calculation for tally described by Full Bench but was still of view that Abbatoirs would now be processing different quality of sheep than those seen during inspections and on which this tally based — Commission, therefore, allowed parties opportunity to gather additional evidence and made a liberty to apply available to employers — AMIEU r. Action Food Barns and Others — No. 694 of 1987 — G regor C. — 07/09/89 - Meat Application for consent variation to Award in accordance with Structural Efficiency Principle — Application was opposed by ETU — Commission referred to previous SEP decisions for varying subject Award — Respondent reiterated its concern that unions party to Award had not been able to reach joint position and Commission too expressed concern at fragmented approaches to SEP — Granted — Hamersley Iron Pty Ltd r. ASEMFWU — No. 214 of 1990(R) — Kennedy C. — 27/02/90 — Iron ore Mining Consent application for new Award to apply to manufacturing industry of monumental masonary including fixing work performed in a cemetry — Parties claimed Award would facilitate the objectives of structural efficiency and conditions of service proposed reflected standards accepted by Commission in respect of the Building Trades Award 31 of 1966 and the Metal Trades (General) Award 13 of 1965 which a survey conducted by the parties found employers in the industry looked to establish current conditions — Commission referred to some issues not addressed by parlies which needed consideration and found that subject to that consideration proposed Award was consistent with First Awards and Extension to Existing Awards Principle — Monumental Masonry Industry v. Bcllevue Monumental Works and Others — No. A36 of 1987 — George C. — 01/03/90 — Monumental Masonry Application to vary Award pursuant to Structural Efficiency Principle — Applicant's proposal included Broadbanding. Award Modernisation clause and pay rates aligned with a Federal Award — Respondent opposed claim on grounds that the amendments proposed were insufficient to justify a Structural Efficiency Wage Adjustment and that there was no nexus with the Federal Award as claimed — Respondents submitted their own proposals — Commission reviewed State Wage Principles and found it important to recognise the industry within a national perspective and particularly the relationship of the State Award under the Structural Efficiency Principle to other State Awards — Commission stressed the need for co-ordinated initiatives to implement structural efficiency at enterprise level and Award level — Commission found Respondent's claim were not sufficiently addressed to arbitrate upon and would be the subject of future negotiations — In Supplementary Reasons for Decision Commission was not prepared to give full retrospcclivity of the operative date to the last day of hearing but was prepared to accede to an earlier date than that of the order due to the progress made towards the second stage of Structural Efficiency — GrantedTWU and Australian Glass Manufacturers and Others — No. 1628 of 1989(R) — Coleman C.C. — 30/1/90 and 21/3/90 — Transport Application to vary Award pursuant to Structural Efficiency Principle —Parties to Award sought to introduce same measures in two stages as had been ratified for the national industry by the Australian Commission — CWA1 on behalf of employers in its membership opposed the application on the grounds of certain differences between the state and national industry, particular rates proposed and sought insertion of a Structural Efficiency clause — CWAI particularly opposed retrospectively of the operative dates on the grounds that it was not possible under the Wage Fixing Principles — Commission found CWAI concerns would be well addressed by its participation in the State Working Party to be established under the arrangements for the industry — Commission further found parties had sufficiently satisfied the Principles to justify the first Structural Efficiency Wage increase in the same manneras the Federal Decision applied to the national industry — However, Commission also cautioned the parties as to the need to honour their commitments, and of a review before the Commission of progress prior to the application for a second increase — In so far as operative date was concerned. Commission endorsed the sentiments of the Appeal Court and Full Bench, but thought it too far to suggest that the Commission was unable to depart from them in any circumstances —Commission found it would offend the notion of equity and good conscience considering the nexus between the State and Federal Awards, the presence of those awards applying parallel within the industry in the state and the possibility of conflict therein, to apply the strict work of the principle — Finally in Supplementary Reasons for Decision Commission considered position of BMA and its particularcircumstances and found agreement satisfied Principles — Granted — BTA and Abel and Co J.C. and Others — No. 1744 of 1989(R) — Beech C. — 27/9/89 — Building Construction Application for variation of Award by consent to increase wages pursuant to Structural Efficiency Principle and various other changes including casuals, hours, new working arrangements and meal times — Commission was satisfied variations would increase work place flexibility and was in accordance with what SEP required — Granted — UFT and Allwood Furniture Industries and Others — No. 2457 of 1989(R) — Beech C. — 21/12/89 — Furniture Trades Application to vary Award by consent to increase wages in accordance with Structural Efficiency Principle and other substantial changes — Commission noted details of changes to go into Award arc contained in exhibit the record also contains matters that will form basis for continued negotiations — Commission found changes and negotiations undertaken satisfy SEP — Granted — Timber Industry Union v. Bunnings Forest Products and Others — No. 1934 of 1989(R) — Beech C. — Timber Industry Application for new Award which will set out all the conditions of employment for the bulk of Government officers and will replace 53 existing Awards — Application forms part of Respondent's undertaking made when it was granted increases under Structural Efficiency Principle and is one step towards Award Modernisation — Granted — Agriculture Protection Board ofWA and CSA — No. PSA A3 of 1989 — Fielding C. — Public Administration Application to vary Award pursuant to Structural Efficiency Principle — Commission reviewed initiatives in the industry by Committees, Memorandum of Agreement, claim for increased allowances based on wages movements and a claim for a special payment earlier determined by Commission in Court Session — Commission found special payment was not intended to be included in the base rate until the second Structural Efficiency Increase — Commission was satisfied commitments and proposed variation, save some amendments, were consistent with the State Wage Principles — Granted in Part — AMWSU and Associated Minerals Consolidated and Others — No. 1754 of 1989(R) — George C. — 27/12/89 — Mining and Processing (Mineral Sands) (liii) WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 70 W.A.I.G. CUMULATIVE mGEST—continued PRINCIPLES —continued Application to vary Award by consent by increasing rates of pay pursuant to Structural Efficiency Principle — Other variations relating to conditions of employment and arising out of agreement known as Miscellaneous Workers Private Sector Memorandum of Agreement 1989 were also sought — Commission found this restructuring agreement to contain some changes of substance to the Award which incline towards added efficiencies and flexibility — Granted — FMWU v. Carine Glades Health Studio and Others — No. 1413 of 1989 — Fielding C. — 08/02/90 — Health and Fitness Seven applications to vary Awards by increasing rates of pay pursuant to Structural Efficiency Principle — One matter was not ready so adjourned — Parties had reached agreement embodied in Private Health Care Industry Restructuring Memorandum of Agreement 1990 — Commission was satisfied that parties had complied with SEP sufficiently to warrant at least a first stage increase — Granted —HSOA v. RedCross Society and Others — No.2976—2082of 1989 — FicldingC. 20/03/90— Private Health Care Application for variation of Award by increasing wages in accordance with second stage of Structural Efficiency Prinicple and inclusion of Award Modernisation and Structural Efficiency Exercise clauses — Applicants tendered a Joint Statement by Building Industry Unions and employer organisations which set out further issues requiring resolution — COWAI submitted that agreement so far does not contain changes of such substance sufficient to warrant increase — Minister for Labour expressed concern at degree of disputation within building industry and claims for introduction of 36 hour week — Commission was satisfied parties were acting within limits set down by SEP and that package as presented had capacity to address a numbcrof the industry's problems and increase its productivity — Commission referred to significance of Federal Award and that second stage structural efficiency had been introduced (Print 32041) with the federal counterpart of this package receiving express approval of Australian Commission — For reasons of equity, good conscience and substantial merit Commission allowed same date of operation as Federal Award — BM A specifically excluded at this time — Granted — BTAv. AdsignsPty Ltd and Others —No. 296 of 1990 - 02/04/90 - Building 3Application for new Award to apply to employers conducting and employed in licensed private psychiatric hostels — Application came to Commission in Court Session as arguable case from an Anomalies Conference — First question posed by parties to Commission in Court Session was whether in principle the applicant should have an award for the area of activities to which the claims are directed — Commission in Court Session found Applicant may have award coverage for its members as specified, such award should reflect rales of wages and conditions of employment presently applicable to such employees and in the case of persons employed in the callings of Supervisor and Assistant Supervisor that First Awards and Extensions to existing Awards Principles must be applied as well — Adjourned to allow parties to process matter in accordance with their findings — Adjourned — FMWU v, Casson House and Others — A7 of 1987 — Martin C./Negus C./Gregor C. — Health Care 3 Application for variation to Award by incrcsing wages by insertion of new provision —Applicants submitted that proposed variation would simply formalise an over award payment that had been in existence since 1977 and would result in no extra costs for employers — Applicants were able to demonstrate that payments had been regularly indexed in accordance with general wage movements and have been applied for all purposes of the Award — Commission in Court Session found Applicants had discharged onus of proof and endorsing claim would not offend Wage Fixing Principles — Commission in Court Session found over award payment should be included in Award but in an additional clause so as not to prejudice award restructuring Granted — CMEU and Another v. Kalgoorlic Lake View Pty Ltd — Coleman C.C./Gregor C./Kennedy C. — 29/09/89 — Gold Mining Applications to vary Awards pursuant to Structural Efficiency Principle — Parties sought to vary Awards and wage increases consistent with the Federal Metal Industry Award Decision — Commission determined or commented on matters of difference between the parlies in terms of wage and classification structure and those arising out of Memoranda of Understanding — Issues raised out of Memoranda of Understanding were, inter alia, implementation time tables, enterprise agreements — Commission directed parties to address matter of enterprise ncgotiaiton as a matter of priority, particularly considcringof the Unions concerns and legitimate role — Commission would make note of question of a checklist for parties to follow as CICS had not — Commission further reviewed commitments of Unions — Commission varied Awards with respect to those Unions whose commitment was given under the Wage Fixing Principles, the Principles otherwise being satisifed in that it would be unrealistic to demand that the parties at State level deliver more tha what has been achieved at Federal level, particularly given the close relationship between the one State Award and its parent — Granted in Part — AMWSU and Others and Anodisers WA and Others — Nos. 1656, 1658 and 1797 of 1989 — George C. — 10/10/89 — Various Application to vary Award re allowance for tradespersons performing in charge duties as a special case — Applicant Union argued work value change was reasonable in terms of the extra responsibilities undertaken as to safety — Respondent argued wage structure incorporated experience component — CICS reviewed authorities and OHSW Act and found employees had a duty of care with respect to training issues and skills, also conditions of employment were more readily susceptible to re-evaluation than skills and responsibilities — Furthermore in one word what needed to be demonstrated was a significant net addition to work value and more onerous responsibilities — Dismissed — ETUand Others and SECWA — Nos.CR262,322.322A, 557Aand618ol 1989 — Halliwcll S.C.. Salmon C, George C. — 7/3/90 — Electricity Supply Application to vary Award pursuant to Structural Efficiency Principle — Commission dealt with issue arising out of Memorandum of Agreement such as proposed new Award, classification structure, wages, respondent specific issues, service pay and the exclusion of Government Hospitals from the Order to issue — Commission found agreement in accordance with principles — Granted in Part — AMWSU and Others and Hon Minister for Works and Others — No. 1722(1) of 1989(R) — George C. — 14/11/89 — Engineering (Government) 3Application for variation of Award by inserting provision for a new allowance for electrical tradesmen who hold and use an additional licence — Mattercomes before Commission in Court Session as a "Special Case" pursuant toWage Fixing Principles — Majority of Commission in Court Session found that having regard to Work Value Change Principle and the Structural Efficiency Principle which talks of establishing skill related career paths and better paid jobs there should be a newclassificalion for an electrical tradesperson. being a tradesperson trained in and licenced to perform both electrical installing and electrical fitting and required by the employer so to do so at a higher rate of wage than for those callings rather than an allowance — Granted in Part — Electrical Trades Union \\ Minister for Works — No. 1567 of 1989 — Martin C.. George C, Beech C. — 24/01/90 — Engineering Trades Complaint of breach of Award by Development's alleged pursuit of claim outside State Wage Principles — Matter remitted to Industrial Magistrate following Full Bench ruling of a case to answer following appeal — Magistrate found that while workers on site had pursued claim outside Principles Defendant Union was not pursuing or authorising claim so there was no fault on part of Union — Not Proven — Carrigg J. v. AMWSU — No. 104 of 1989 — Maigstrate Walsh — 08/03/90 — Metal Trades Construction Application for variation to Award by increasing wages in accordance with Structural Efficiency Principle and changes to number of other clauses as outlined in Structural Efficiency Memorandum of Agreement — Parlies submitted they did not yet wish to proceed with determination of casual employee provisions so Commission split application so that may be dealt with later — Applicant claimed salary rates for a 11 adult workers should be increased by $15.00 in line with previous decision of Commission in this industry in line with national approach — Respondent claimed blanket approach too rigid and failed to allow for the idiosyncraeicsof an Award as it relates to a particular grading structure with related salary levels which are not aligned with other clerical Awards — Commission ordered that some adult workers receive $12.50 increase and balance $15.00 — Commission was not convinced there were anv special circumstances to gram retrospeclivity as claimed by Applicant — Granted in Part — FCU and Co-Opcralive Bulk Handling Ltd - No. 69A of 1990 - Parks C. — 15/3/90 - Grain Handling 70 W.A.LG. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE CUMULATIVE DIGEST—continued PRINCIPLES —continued Application for new Award which will create one Award for whole of Applicant's operations and replace existing Awards — Matter referred to Commission in Court Session as special case pursuant to State Wage Principles — CICS noted the current vague position of parties re intended scope and parties to Award — Applicant gave evidence that introduction of proposed Award was critical to continued future of company — section 50 parties were generally supportive of application — CICS noted that application involved wage increases in excess of that allowed by Principles hence special case status, however, evidence was given that cost of these increases would be largely offset by the operational advantages the Applicant would gain — CICS found the method parties had chosen to implement Structural Efficiency Principle is appropriate and was prepared to approve in principle the proposed Award on understanding that Award finally presented to Commission is agreed and fully understood between parties —Adjourned —CSBP and Farmers Ltd and Anothcrv. AMWSU — No. A19of 1989 — Halliwell SC.. GeorgeC.. Beech C. — 17/1/90 — Superphosphate and Chemical PROCEDURAL MATTERS - Application for Stay of Order re $15.00 per week Structural Efficiency Wage Adjustment to a Common Rule Award — Applicants submitted that a serious issue was to be tried which involved consideration of Structural Efficiency Principle and the question of jurisdiction — President found appeal involved a member of employers and a large member of their employees — President applied reasoning of O'Dea P. and found the balance of convenience did not favour the Applicants — However, President allowed on abridgment of time, declared sufficient interest and waived negotiations for appeal to proceed — Ordered Accordingly - Coles New World Supermarkets and Others and ECU — No. 2784 of 1989 - Sharkey P. - 6/2/90 - Retail/Wholesale (Clerical) Appeal against decision ofCommission (68 WAIG 891) — Appellant sought to discontinue appeal — Full Bench found it was unable to discontinue appeal under section 49 of the Industrial Relations Act — Appeal dismissed by consent at request of parties — Dismissed — EPT Fochi Joint Venture and AMWSU — Sharkey P.. Coleman C.C.. Gregor C. — 8/12/89 — Construction Application for Stay of Order of Industrial Magistrate pending appeal — There was no appearance by the Respondent — President found balance of convenience in favour of Applicant — Further that there wasaseriousmattertriedasto whether criminal or civil practice and procedure was applicable in the original proceedings subject of the appeal — Granted — Verticordia Holdings Pty Ltd trading as Bernies and G.R. Wilkins - No. 220 of 1990 — Sharkey P. - 15/2/90 - Fast Food Appeal against decision of Commission re Dispute Settlement Order issued pending hearing and determintion of matters referred out of conference — Appellant argued that in denying the Appellant an adjournment sought to consider the minutes of the Order, the Commission had adequately complied with section 35 of the Industrial Relations Act and hence procedural fairness — Respondent advised Full Bench in writing that it would not appear — Full Bench extensively reviewed authorities and found Commission was not bound to keep Full Bench of section 44 conferences and that notes on the conference proceedings submitted as evidence by the Appellant should have been verified by Affidavit — Full Bench further found the Order was of a temporary routine, represented a finding, did not finally decide the matter and that the matter was not of such importance that an appeal should be — Dismissed — WALEDFCU and WAGRC —Nos. 2202 and 2203 of 1989 — Sharkey P., Salmon C, Parks C —22/12/ 89 — Railways Application to alter rules re membership remitted back to Full Bench by Industrial Appeal Court for further enquiry and determination — Appeal Court had found Full Bench acted beyond power in effectively amending the application — No finding of fact was disturbed — Respondent argued for new evidence to be considered — Full Bench reviewed authorities. Industrial Relations Act and decision of Appeal Court and found that on appeal lies from the Full Bench if the decision is considered erraneous in Law or in excess of jurisdiction, but on no other grounds — Furthermore Appeal Court had not advised the Full Bench that further hearing and determination included a reconsideration of the factual position — Full Bench found question was whether the Applicant should have the right to enrol as members wall and ceiling fixers — Full Bench was not persuaded by permissible further enquiry and determination and with regard to unchallengable findings of fact at the original hearing that the application should not be granted as it was made — Granted — OPPWFandCMEU — No. 1 of 1988 — Sharkey P., Coleman C.C., Fielding C. — 30/3/90 — Unions PROCEDURES - Application for an interpretation of an Award re entitlement to sick leave — Commission found compliance with regulations to be deficient and required Applicant Union to elaborate on the facts giving rise to the Application — Commission reviewed authorities and found that where an employee had provided medical certification for absences, for which sick leave was claimed, as and when they occurred, the entitlement to payment for sick leave without provision of medical certification remained after the first two absences of two days or less during each year of service, unless after those absences the employer had notified the employee in writing that a certificate from a medical practitioner would be required for further absences in that year—Granted — Transport Workers Union v. Portius Pty Ltd trading as Flash Foods Canteen — No. 298 of 1989 — Parks C. — 9/11/89 — Transport Mobile Food Venders Application for expedited hearing of matter remitted to Full Bench for further hearing and determintion by Industrial Appeal Court following appeal — Respondent counter proposed that proceedings be adjourned sine die pending the outcome of Australian Industrial Relations Commission matter Print C26198 of 1989 — Full Bench was not persuaded that the merits and justice of application would be served if adjournment order issued — In opinion of Full Bench where matter is remitted by Industrial Appeal Court or Full Bench in the interests of expeditious determination of litigation should be relisted as soon as possible — Granted — Building Construction Appeal against decision of Full Bench (69 WAIG 2653) to dismiss appeal — In original proceedings in Industrial Magistrate Court Magistrate had allowed complaints for breach of Award to be amended to reflect defendan'ts correct name at which point Counsel for Appellants suggested complaints should be dismissed — Industrial Appeal Court referred to Strata Title Act and found that the original defendant cited was the "Council" which exercises the company's function but has no relevant legal identity for the purposes of being sued and no separae legal corporate existence apart from the strata company (Appellant) — Industrial Appeal Court found Magistrate's decision to substitute names was entirely proper as it was simply a case of getting the proper defendant's name right and sections 46,47 and 48 of the Justices Act empowered him to do so — Dismissed — Owners of Johnston Court Strata Plan No. 5493 and Dumancic A. — No. 10 of 1989 — 1/3/90 — Strata Company Application for Applicant to be removed as respondent to section 66 application — Applicant argued that it should not be party to section 66 proceedings which relate to organisations registered under Industrial Relations Act as it was not such an organisation — President found this to be the case and consequently no orders could be made against the Applicant in such proceedings — Granted — Building Management Authority v. Ion V. — No. 431 of 1990 — Sharkey P. — 19/3/90 — Building/ Construction WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 70 W.A.I.G. CUMULATIVE DIGEST—continued PROCEDURES —continued Employee dismissed for inability to continue to perform the duties of the position — Applicant Union sought reinstatement on the grounds of unfair dismissal — Commission found on evidence including confidential transcript, that there had been a continuation of unsafe driving practises which could lead to a conclusion that there was a duty to remove the employee from the duties of the position under the Mines Regulations Act and that the employer had ascertained whether there was alternative employment — Commission also found the employee at all times had acted properly, had been honest with the employer — However, Commission in applying dicta ofSavic'scase and the Undercliffe case found there was not a harsh and unjust exercise of the employers right to dismiss because the ultimate reason for the employee's dismissal was a back injury sustained in the employment — Commission though it wrong of the Respondent not honour its promise to favourably consider a future application for employment — Dismissed — AWU v. Newmont Australia Ltd — No. Cr972 of 1989 Gregor C. 15/01/90 — Mining ; ; 2Appeal against refusal by Industrial Magistrate of an application by Complainant/Appellant to amend compalmt to include a claim for interest on amount by which it was alleged employee was underpaid in breach of a ward matter Full Bench referred to Anker Anderson and Others v. Pope (66 WAIG 1563) and section 84(1) and (2) of the Industrial Relations Act and found that it did not have jurisdiction to entertain the appeal as what is being appealed is not a final decision on the authorities and therefore not a "decision" able to be appealed — Dismissed — McGorry C. v. Como Investments Pty Ltd — No. 2358 of 1989 — Sharkey P./ Fielding C./Parks C. — 20/12/89 — Restaurant PROMOTION APPEALS - Promotion Appeal — PAB found recommended Applicant did not match the essential selection criteria m terms of qualification and that there was no injustice in upholding the appeal to any other applicant for the position as it was open to them to lodge appeals pursuant tothelndustrial Relations Act — Upheld — Patrick G.A. and Evans L.R. — No. PAB 34of 1990—NegusC. Chairman — 7/5/90 — Occupational Health and Safety Co-Ordinator Level 5 — WAAIHP Appeal against recommendation of appointment to advertised vacancy — Recommended Applicant argued that Appellant had not applied for position now under appeal — Commission reviewed relevant sections and definitions of Industrial Relations Act and found that while three positions were advertised jointly as vacancies Appellant applied for only two of them and not the one under appeal — Thus Appellant has no right of appeal pursuant to section 80ZA of Act — Dismissed — Cantrill R.L. v. Morcos L. — No. PAB300 of 1988 - Parks C. - 12/06/89 - Railways PUBLIC INTEREST — Application for a new award — Applicant Union sought award to provide superannuation benefits to members in pension fund — Commission from evidence concluded that cost to the employers of the benefits paid to members of the pension fund is considerably higher than that paid in relation to current Superannuation Fund — Furthermore it would not be an exercise of equity or good conscience to further improve a scheme that has been demonstrated to be more generous that the other available scheme — Dismissed — CSA v. Public Service Commission — No. A3 of 1988 — Negus C. — 25/1/90 — State Government 332 3Consent application to vary Award pursuant to Structural Efficiency Principle, as a Special Case — Parties sought wage increase above that allowed by Wage Adjustment Principle and argued that it was necessary for Structural Efficiency within the Industry — CWAI intervening argued that a rigorous scrutiny was necessary to satisfy special case status and as did other section 50 parties addressed matters of public interest as related to the Principles — CICS found there was no need to consider the public interest in the context of the case and that the parties were committed to achieve an offset of the total package of costs — CICS included a review of the economic conditions within the industry — CICS found wage rates established in conformity with the Work Value Principle in the context of the Structural Efficiency Principle had satisfied a fundamental requirement of a Special Case — CICS however did not accept format in which wage rates were expressed and specified how the relativities should be determined against the rates of an Award in the industry, previously granted Structural Efficiency Wage Increases — Granted in Part — AWU and Associated Minerals Consolidated and Others — No. 1839of 1989(R) — ColemanC.C, Gregor C.,GeorgeC.— 16/2/90 — Mining and Processing (Mineral Sands) 670 REDUNDANCY/RETRENCHMENT — Claim re inequitable redundancy package due to deduction of money awarded in lieu of shift penalties — Applicant argued agreement on payment of shift penalties was because of special circumstances applicable and a once only lump sum payment, quite separate from the voluntary retrenchment package offered alalalerdate — Therefore no deductions should have been made if the latter package was accepted — Respondent challenged the jurisdiction of the Commission to entertain the claim and failing that, argued, deduction from payment i.e. (End of Shift Agreement) produced an "equitable" voluntary retrenchment payment and "avoids double dipping on shift penally payment" — Commission concluded from evidence presented and cases cited that it is without jurisdiction to entertain claim, however if the reverse is found to be true then the applicants claim would have been successful — Dismissed — M.A. Lang and Telecom Australia — No. 845 of 1989 — 15/12/89 — Fielding C. — Telecommunications Conference referred re question of right to transfer employees to duties within their sphere of competence and if refused be declared redundant — Applicant argued ability to transfer employees as per second tier — Restructuring and Efficiency Agreement would allow for maximum efficiency and economic effect in managing the enterprise — Respondent Union submitted employees were being asked to take new and different jobs which amounted to being redundant — Furthermore new jobs in some cases meant unfair share of heavy tasks, while in others the work was seen as demeaning and lacking in job satisfaction — Commission having considered all of the submissions and the Termination, Change and Redundancy case, reaffirmed the right of employer to organise and direct activities of the workforce for maximum efficiency provided employees involved remain protected by the provisions of the relevant awards — Ordered Accordingly — Anglican Homes (Inc) and FMWU — CR898 of 1989 — Negus C. — 1/12/89 — Nursing Homes Claim re continuity of service and redundancy payments — Applicant Union sought Order to ensure continuity of services of its members due to sale of business as an ongoing concern and certain redundancy payments for some members not re-employed — Respondent objected and opposed claim — Commission adjourned claim for redundancy payment, as question of its jurisdiction was currently the subject of an appeal — Commission from evidence found in favour of respondent with regard to continuity to service, however noted that respondent should have a flexible approach on matters of annual and sick leave — Dismissed/ Adjourned — United Timber Yards, Sawmills and Woodworkers Employees Union v. McLeans Consolidated Pty Ltd and Pinetec Pty Ltd — Nos. CR305 and CR474 of 1989 — Beech C. — 5/12/89 — Timber Application for a new Award — Parties sought award on the grounds that the industry awards were unsuited to their operations — Commission judged application in accordance with State Wage Principles and stated that for an award to be used as a vehicle for the introduction of Structural Efficiency that award must be a reflection of the actual conditions observed by the parties — Commission arbitrated on matters disputed, at the request of the parties, including Hours of Work, Annual Leave, Allowances and the inclusion of Over Award Payments — Award issued — Swan Portland Cement Ltd and AWU — No. A26 of 1988 — Beech C. — 28/11/89 — Cement Manufacturing (Ivi) 70 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE CUMULATIVE mGEST-continued REDUNDANCY/RETRENCHMENT —continued 2Appeal against decision of Commission (69 WAIG 3132) re dispute over redundancy payments — Amongst many other claims Appellant argued that Commission did not have jurisdiction to deal with redundancy matters as they involved awarding compensation which was contrary to decision in Pepler's Case — Full Bench rejected that argument because this was not a claim for compensation for dismissal but a claim for a better redundancy package to effect proper job protection measures based on a formula to be prescribed and approved by Commission — Full Bench found, however, that Commission acted out of power by purporting to make orders it did under section 44of the Act and erred in placing weight it did on Government Employees Consent General Order without affording parties opportunity to adduce evidence thereon — Full Bench also found that it was not for it to substitute its own decision so matter remitted to Commission for further hearing and determination in accordance with its directions and observations — Upheld— Tip Top Bakeries (Canning Vale)?. Federated Clerks Union and Others — Full Bench — 22/12/89 - Baker (Food) REINSTATEMENT - Employee terminated due to negligence causing financial loss — Applicant union sought re-employment and that contract be deemed continuous — Respondent objected as termination was in accordance with contract of employment — Commission found employee to have had a long and fair employment with respondent and that termination should not prejudice employee's future employment prospects in the trade — Dismissed — WA Bakers, Pastrycooks and Confectioners Union and Brynwood Pty Ltd trading as "Peters Bakeries" — No. CR897 of 1989 — 1/12/89 — (Bakery) Food Claim re unfair dismissal — Applicant sought reinstatement and secondly, but alternatively, compensation as a consequence of his failure to receive contractual benefits for the guaranteed period of employment — However, if employment was not guaranteed, then reasonable notice of termination should have been given — Respondent argued no persons had fixed term contract other than persons employed for a few weeks — Commission found from evidence that applicant's termination was not an unfair act — Commission, however found that applicant had not received benefits to which he was entitled by his recompense — Ordered Accordingly — J.A. Margio v. Fremantle Arts Centre Press — No. 713 of 1988 — Parks C. — 17/11/89 — Printing/Artwork Claim re unfair constructive dismissed seeking reinstatement — Applicant claimed change in roster from permanent night shift to a rotating shift amounted to constructive dismissal — Respondent argued injury sustained by applicant resulted in applicant being able to do light duties available only in the day shift — Furthermore due to changes in the Hospital work was only available on a rotating roster — Commission found from evidence provided in favour of respondent and noted even though case law cited by Counsel was relevant, each unfair dismissal case has to be treated in accordance with its own facts — Dismissed — McDowell E. and Swan Cottage Home Inc — No. 830 of 1989 — Gregor C. — 17/11/89 — Nursing Employee dismissed because of an altercation outside of working hours — Applicant Union claimed dismissal unfair and sought reinstatement — Commission found on evidence altercation had nothing to do with either the employer or the employees contract of service and the employers concern as to on the job conduct to be without bias in fact — Granted — ABLF and Skytec Construction — No. CR13 of 1990 — Halliwell S.C. — 13/02/90 — Building Construction Claim re unfair dismissal — Applicant Union sought reinstatement of employee to at least comparable position held prior to maternity leave was now redundant — Respondent opposed claim — Commission found as there was no comparable position available it would be wrong to interfere with the employer's decision — Dismissed — ECU v. George Moss Ltd — No. CR388 of 1989 - Parks C. — 07/12/89 — Clerical Employees summarily dismissed for alleged misconduct — Applicant Union sought orders of re-employment and that theircontracts be deemed continuous — Respondent objects to issuance of such order — Commission found from evidence that employees had been unjustifiably, unjustly and unfairly dismissed by the Respondent — Granted — Merchant Service Guild and Another and Stirling Marine Services Pty Ltd — No. CR1012 of 1989 — Martin C. — 11/12/89 — Marine and Harbour "■Application for stay of orderre re-employment of a dismissed employee, pending hearing and determination of appeal to Full Bench — President applied dicta of Stolt's Case in evaluating the balance of convenience against the principle of the successful litigant's entitlement to the fruits of his labour — President found safety issues were not established, there was more to lose for the individual than the employer who might suffer disruption by the reinstatement and or subsequent dismissal, and the employee would presumably render services in consideration of payment than reducing the inconvenience of recovering moneys should the appeal be successful — Dismissed — RRIA and AWU — No. 729 of 1990 — Sharkey P. — 24/5/90 — Mining (Iron Ore) Employee terminated due to unsatisfactory work performance — Appellant appealed against decision citing all consideration and proper weight to all of the circumstances had not been given and action of respondent was harsh and severe — Respondent traced appellant's teaching history — Tribunal found from material presented that appellant had exhibited severe weaknesses in fundamental areas as a teacher — Dismissed — Shepherd C.E. v. Hon Minister for Education — No. T4 of 1989 — Martin C.. Rodway, Reeves — 08/12/89 — Education Claim for reinstatement as remedy for allegedly unfair dismissal — Respondent claimed Applicant dismissed for divulging private personnel information to other staff whilst in a position of trust after previous warning—Commission found no credible evidence that Applicant said anything untoward or passed on confidential information — Commission declared dismissal to be unfair, however, as it was satisfied that Respondent had lost confidence in Applicant's ability to keep and maintain the necessary confidences it was not prepared to order reinstatement — Granted in Part — Thobaven L.J.J. v. Albany Dog Rock Hotel — No. 2336 of 1989 — Fielding C. — 14/03/90 — Motel Application for reinstatement due to allegedly unfair dismissal — Respondent claimed has used offensive and "vile and foul" language to ReliefManager and Managing Directorwhich was reason for dismissal — After hearing evidence Commission found Applicant's actions and language showed a complete disregard for authority and Respondent action of terminating the contract was not unfair— Dismissed — Federated Liquor and Allied Industrial Employees Union v. Criterion Douglas Hotel — No.CR87 of 1989 — Parks C. — 19/12/89 — Hotel Application for reinstatement due to allegedly unfair dismissal and payment of wages from time of termination to time of re- employment — Commission found that Applicant had not failed to comply with a lawful order as alleged by the Respondent and in light of that and Applicant's long association with Respondent's enterprise dismissal was unfair — Commission, however, concluded that an order for reinstatement would be a "recipe for disaster" and may lead to further conflict — Granted in Part — Wainwright C. v. Biblos Nominees Pty Ltd trustee for the Palma Unit Trust trading as "Artfex Australia" — No. 2683 of 1989 — Martin C. - 14/03/90 — Clerical Appeal against decision of order of dismissal of employee pursuant to Education Act — Tribunal from evidence presented found appellant's manner, style, language and behaviour quite incompatible with a position in the respondent's school — Dismissed — Anderson W.D. v. Hon Minister for Education — No. T3 of 1988 — Martin C, Rodway, Reeves — 15/12/89 — Education Conference re claim for reinstatement of employee on basis that he was unfairly dismissed referred for hearing and determination — Respondent claimed employee was dismissed following counselling and a series of warnings re unsatisfactory performance — Despite conflicting evidence Commission found on balance that of Respondent was to be preferred and thus Applicant's case had not been made out — Dismissed — Amalgamated Metal Workers and Shipwrights Union of Western Australia v. Alloytech Pty Ltd — No. CR33 of 1989 — George C. — 02/03/90 — Mining Claim for reinstatement by employee alleging to have been unfairly dismissed — Applicant and another employee were summarily dismissed after a fist fight at work — Applicant claimed he was the aggrieved party as any reasonable investigation would have shown — During proceedings Applicant in answer to Respondent's Counsel's questions admitted he no longer wanted reinstatement — Hearing was adjourned to allowparties to discuss matters, however, on resumption Applicant again wished to be reinstated — Commission expressed puzzlement as to why Applicant changed his mind after adjournment and indicated it was close to view that litigation was vexatious — Commission found Respondent's evidence far more credible and that Applicant had not made out a case — Dismissed — Lesley James Leverence v. Auto Trans Express trading as West Brothers — No. 1917 of 1989 — Gregor C. — 20/03/90 — Transport WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 70 W.A.LG CUMULATIVE DIGEST—continued REINSTATEMENT —continued Conference referred for arbitration re reinstatement of employee who was allegedly unfairly dismissed — Subject employee was terminated prior to commencing work for Respondent when business changed hands — Employee told reason she was selected for dismissal was that she was not full-time — Respondent argued that as employee was dismissed before commencing work there was no contract of employment afoot and this matter was therefore not within Commission's jurisdiction — Commission found that employment contract had been offered by Respondent, accepted by employee and an employment relationship was thus in existence when employee told she was no longer required — Commission further found unfair dismissal had occurred as subject employee had not been given same consideration as other employee re future employment — Commission ordered Respondent offer contract of employment but declined to order payment of wages between dismissal and re-employment—Granted in Part — SDA v. Jim Berry Terrace Pharmacy — No. CR1089 of 1989 — Salmon C. — 01/03/90 — Retail Pharmacy Employee terminated due to inefficiency — Applicant union claimed unfair dismissal and sought re-employment without loss of pre- existing entitlements— Respondent denied allegation of unfair dismissal — Commission having regard for law relating to unfair dismissals and from evidence found no act of unfairness towards employee to warrant intervention — Dismissal — Federated Clerks Union v. Donhad Forgings Pty Ltd — No. CR1354 of 1988 — Parks C. — 27/11/89 — Clerical Claim re unfair dismissal seeking reinstatement — Applicant Union claimed employees had been discriminated against and terminated as a result of Union membership — Respondent argued termination was on "last on. First off policy — Commission found termination was effected in manner consistent with practices in the industry and was not contrived by respondent to discrimination against membersofthe applicant Union — Dismissed — The Construction, Mining and Energy Workers Union v. Design Ceilings — No. CR1095 of 1989 — Coleman C.C. — 13/12/89 — Building Construction Conference referred for hearing and determination re dismissal of an employee — Applicant Union claimed dismissal unfair and sought reinstatement — Respondent argued employee had broken Aboriginal law. breached confidence and that reinstatement was untenable — Commission reviewed lengthy conciliation proceedings in the matter and the ill-feeling that developed in a small community — Commission found that the principle of natural justice and fair play cut across differences in culture and tradition and the employee as a member of the Applicant had every moral and legal right to seek it in accordance with the Industrial Relations Act — Furthermore that reinstatement, on Pcpler's Case, was the only proper remedy for unfair dismissal — Commission found a primo facie case of unfair or wrongful dismissal reinforced by the evidence, and that there had been a partly understandable comedy of errors — Commission found to punish an employee for the sins of a spouse could not be fair or reasonable by any standards — Granted — FMWU v. Mawarnkarra Health Service Aboriginal Corporation — CR807 of 1989 — Negus C. — 20/12/89 — Medical Services Application for re-employment on grounds of unfair dismissal — After hearing evidence Commission found Applicant's job performance was unsatisfactory, he was advised but did not improve and subsequent tcrminlion was not unfair— Dismissed — Carlyon P. v. Dulville Pty Ltd trading as Ross Squire Kit Homes — No. 2502 of 1989 — Halliwell S.C. — 02/02/90 — Building Construction Application for reinstatement on grounds of allegedly unfair dismissal — Respondent claimed Applicant dismissed due to causing disharmony at work place, using excessively bad language and threatening violence against other staff members — After hearing evidence in which there was substantial conflict Commission found it totally rejected that ofthe Applicant where it conflicted with that of Respondent's witnesses — Commission satisfied on balance there wasgood reason for Respondent to dismiss Applicant — Dismissed — Walsh A.J.v. Farmers Federation Investment Co Ltd trading as Farmers Weekly — No. 2675 of 1989 — Fielding C.— 27/03/90 — Newspaper Application for re-employment and payment of wages between date of dismissal and re-employment on grounds that dismissal was unfair and unjust — Commission found Applicant's employment was of a temporary nature and his work habits were incompatible with those required by the Respondent — Commission concluded application was without foundation — Dismissed — Ballamy R.T. v. Federated Municipal and Shire Employees Union — No. 2311 of 1989 — Martin C. — 26/01/89 — Unions Claim for reinstatement on grounds of allegedly unfair dismissal, payment of wages from time of termination to time of reinstatement and one month's pay in lieu of notice — Applicant was shareholder in business and employee but after Applicant decided he wished to leave and be bought out of the business relations between Applicant and one of other two shareholders became less than harmonious with Applicant consequently being dismissed — Commission found relationship between Applicant and principal director was so strained that reinstatement would be untenable and termination was not only not unfair but in the best interests of all parties —Commission also found that one week's pay in lieu of notice was reasonable—Granted in Part — Riley LJ.v. Vallcai Pty Ltd trading as Peet and Co Rockingham — No. 2252 of 1989 — Martin C. — 05/02/90 — Real Estate RETRENCHMENT- Application for a new Award — Parties sought award on the grounds that the industry awards were unsuited to their operations — Commission judged application in accordance with State Wage Principles and stated that for an award to be used as a vehicle for the introduction of Structural Efficiency that award must be a reflection of the actual conditions observed by the parties — Commission arbitrated on matters disputed, at the request of the parties, including Hours of Work, Annual Leave, Allowances and the inclusion of Over Award Payments —Award issued —Swan Portland Cement Ltd and AWU —No. A26 of 1988 —Beech C. — 28/11/89 — Cement Manufacturing SAFETY — Conference referred — Applicant Unions claimed payment for days not worked due to arsenic fall-out — Respondent denied the existence of a legitimate safety concern on behalf of the employees in relation to the days upon which alleged strike action occurred as the Respondent had taken action to alleviate as much as possible, the existence of any such concern — Commission reviewed authorities and found it was not for the Commission to determine whether arsenic has long term detrimental effects to health but whether there was a genuine and reasonable apprehension ofunsafeness and whether the workers had a reasonable cause to believe that it was unsa fe for the whole of the work force such that there was no work at all that they could sa fely perform — Granted — AWU and Others and Western Mining Corporation Limited — No.CR649of 1989 — GregorC.— 12/12/89 — Mining (Nickel) 2 Application re enforcement of Improvement Notice and Prohibition Notice pursuant to OHSW Act — Applicant sought a further extension of time in order to obtain funds to comply with the Improvement Notice — Commission found suspension ofNotice an exercise in futility as time to comply with Notice has long since expired — Furthermore Commission has no jurisdiction to extend its future — Dismissed — A1 Auto Spray Painters and Department of Occupational Health, Safety and Welfare — No. OHSW 12 of 1989 — Fielding C. — 13/12/89 — Spray Painting 2 Claim re unfair dismissal — reinstatement sought — Applicant Union claimed employee sustained injury due to an alleged failure to properly maintained equipment and that termination was harsh and unjust when the employee wished to continue working and that the "Model Code of Practice for RSI Prevention Management" should have been implemented in the Respondent's workplace — Commission found Respondent was genuinely concerned for the welfare ofthe employee who's injury reoccurred notwithstanding a work routine designed to give relief and that as the available alternative was not acceptable to the employee, no reasonable option remained — Dismissed — Clothing and Allied Trades Union and Femfield Pty Ltd Trustee for the Lawson Family Trust trading as Ultra Care Dry Cleaners — No. CR1413 of 1988 — Parks C. — 22/12/89 — Dry Cleaning i (Iviii) 70 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE CUMULATIVE DIGEST—continued SAFETY —continued 'Conference referred for hearing and determination re Demarcation dispute — Applicant Union sought declaration that it had sole constitutional and industrial coverge of shunting work and an order prohibiting the Respondent employer implementing "The Shunting Rationale" — CICS reviewed authorities, evidence and history ofdemarcation disputation between the unions — CICS found it could not be said that the employer was prescribed by the constitutional rules of any union from directing a particular employee to perform work from time to time which was not substantially the work of that employee's classification — Furthermore CICS found no evidence of unsafeness and that custom and practice did not preclude the right of the employer to lawfully implement changes in work practices — CICS found in the end the only question was whether there should be intervention on the grounds of unfairness or unreasonableness resulting from the changes the employer made — Dismissed — ARU and WAGRC and Another — No. CR544 of 1989 — Halliwell S.C., Gregor C.. Kennedy C. — 22/1/90 — Railways Employee terminated for damaging a vehicle while driving in a restricted area at excessive speed — Applicant Union claimed dismissal was unfair and sought re-employment without loss of entitlements — Applicant argued that employee had no history of that type of incident andjnteralia, the Respondent could have applied a lesser penalty as in other cases, if a penalty was required — Respondent denied that an alleged involvement of the employee in a demarcation issue was a factor in the dismissal and described the incident, herein, as a "joy ride" — Commission stated that it was trite Law to say that each case involving unfair dismissal must be treated in accordance with its own facts and on evidence found no unfairness in the actions of the company — Dismissed — AMWSU and H.I. Pty Ltd — No. CR1184 of 1989 — Gregor C. — 8/3/90 — Mining (Iron Ore) Claim re payment for lost time — Commission reviewed authorities and applied test as to whether there was a hazard of sufficient moment to cause employees to fear for their safety of if on the facts, they were normally entitled to believe that a hazard existed so as to justify the action taken by them — Commission found on evidence inter alia the employees were available and ready for work, the employees had a bonafide belief that areas of the site were unsafe, but unsure as to which, that the employer's direction to work was unreasonable in the employees' knowledge of breaches of the Occupational Health. Safety and Welfare Act and that one particular day claimed for was usually worked on an overtime basis —Granted in Part — BTA and Others and DeVaugh and Sons and Another — No. CR581 of 1989 — Halliwell S.C. — 14/9/89 — Construction Claim re increased manning levels of a fire station — Applicant Union argued existing manning placed an unfair burden on existing station officer— Respondent agreed with claim in principle not argued it could not be implemented for.some time due to lack of funds and the opposition of a city council — Respondent further argued claim was not an industrial matter — Commission held preliminary hearing to determine question of jurisdiction and on authorities against the Respondent — On material before Commission relating to inter alia Fire Brigades Act Commission found it had limitations upon it in determining the matter — Commission found, however, on evidence of agreements recommendations made, and the concept of reasonable overtime in favourof Applicant, had made considerations forcosts — Granted in Part — WAFBU and WA Fire Brigades Board — No. CR925 of 1989 — Martin C. — 24/11/89 — Emergency Services Conference matter referred for hearing and determination re Declaration sought that employees assisting in on the job training of other employees on a new machine is implicate duty present to the contract of employment of the employees concerned — Union argued that the payment of an employee at instructor rate on an earlier occasion constituted the status quo for any subsequent training on the machine and that the Applicant was prohibited from doing what it proposed by Occupational Health. Safety and Welfare Regulations — Commission found safety issue had been addressed and no difference between the common practice of a co-worker assisting another employee in a newarcaon a new machine — However Commission did note that were the situation to prove to be beyond that then provided the Wage Fixing Principles were met there would be a remedy as the Printing Industry case demonstrated — Granted — WAGRC and ARU — No. CR678 of 1989 — Kennedy C. — 11/10/89 — Railways Complaint that employees had not been paid wages in accordance with Award — Defendant sought to withhold payment due to stoppage by employees over safety issue — Industrial Magistrate found Defendant had failed to comply with Regulation 327 of Occupational Health, Safety and Welfare Regulations 1988 and employees had right to stop work as their safety was at risk — Magistrate found employees to be entitled to be paid for time of stoppage — Proven — ARU v. WAGRC — Nos 289and401 of 1989 — Walsh S.M. - 16/11/89 — Railways Employee dismissed for inability to continue to perform the duties of the position — Applicant Union sought reinstatement on the grounds of unfair dismissal — Commission found on evidence including confidential transcript, that there had been a continuation of unsafe driving practises which could lead to a conclusion thauhere was a duty to remove the employee from the duties of the position under the Mines Regulations Act and that the employer had ascertained whether there was alternative employment Commission also found the employee at all times had acted properly, had been honest with the employer — However, Commission in applying dicta of Savic's case and the Undercliffe case found there was not a harsh and unjust exercise of the employer's right to dismiss because the ultimate reason for the employee's dismissal was a back injury sustained in the employment Commission though it wrong of the Respondent not honour its promise to favourably consider a future application for employment — Dismissed — AWU v. Newmont Australia Ltd — No. CR972 of 1989 — Greeor C. — 15/01/90 — Mining ~ Conference matters referred for hearing and determination re utilisation of contractors — Union argued there were sufficiently trained employees, that manning levels were low in light of work load and safety — Union sought Order that company employees to rectify situation — Employer argued on the grounds of managerial prerogative and award provision — Commission found most of dispute was concerned with perceived fears regarding casual employment and de-skilling — Commission however found on evidence no sufficient cause to intervene but recommended a course of discussions between the parties — Hamerslcy Iron Pty Ltd and AMWSU and Another — No. CR965 of 1989 — Kennedy C. — 4/12/89 — Iron Ore Application to vary Award re allowance for tradespersons performing in charge duties as a special case — Applicant Union argued work value change was reasonable in terms of the extra responsibilities undertaken as to safety — Respondent argued wage structure incorporated experience component — CICS reviewed authorities and OHSW Act and found employees had a duty of care with respect to training issues and skills, also conditions of employment were more readily susceptible to re-evaluation than skills and responsibilities — Furthermore in one word what needed to be demonstrated was a significant net addition to work value and more onerous responsibilities — Dismissed — ETU and Others and SECWA — Nos. CR262.322.322A. 557A and 618 of 1989 — Halliwell S.C.. Salmon C. George C. — 7/3/90 — Electricity Supply SHIFT WORK - Application for a new Award — Parties sought award on the grounds that the industry awards were unsuited to their operations — Commission judged application in accordance with State Wage Principles and stated that for an award to be used as a vehicle for the introduction of Structural Efficiency that award must be a reflection of the actual conditions observed by the parties — Commission arbitrated on matters disputed, at the request of the parties, including Hours of Work. Annual Leave, Allowances and the inclusion of Over Award Payments — Award issued — Swan Portland Cement Ltd and AWU — No. A26 of 1988 — Beech C. — 28/11/89 — Cement Manufacturing Application for interpretation of an Award re whether relief crews were entitled to a penalty under the shift work provisions and whether the award required amendment to avoid confusion — Background of dispute centred around giving of notice of roster changes — Respondent argued no penalty applied under proper construction of Award — Commission reviewed authorities on the principles of interpretation — Commission found employees were not entitled to shift penalty and that it was not a matter of ambiguity but a perceived anomaly on the part of the Applicant and that the cause for remedying any perceived deficiency in an Award must be pursuant to section 40 of the Industrial Relations Act — CMEU and H.I. Pty Ltd — No. 778 of 1989 — Kennedy C. — 28/2/90 — Mining (Iron Ore) (lix) WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 70 W.A.I.G. CUMULATIVE DIGEST—continued SICK LEAVE — Application for an interpretation of an Award re entitlement to sick leave — Commission found compliance with regulations to be deficient and required Applicant Union to elaborate on the facts giving rise to the Application — Commission reviewed authorities and found that where an employee had provided medical certification for absences, for which sick leave was claimed, as and when they occurred, the entitlement to payment for sick leave without provision of medical certification remained after the first two absences of two days or less during each year of service, unless after those absences the employer had notified the employee in writing that a certificate from a medical practitioner would be required for further absences in that year—Granted — Transport Workers Union v. PortiusPty Ltd trading as Flash Foods Canteen — No. 298 of 1989 — Parks C. — 9/11/89 — Transport Mobile Food Venders Interpretation of an Award re was an employer required to pay an officer who is absent on sick leave the shift and weekend penalties the officer would have received had the officer would in accordance with his/her shift roster— Applicant Union agreed that the word "wages" was to be read in its widest and general sense in determining the payment due — Respondent argued paragraph of clause in Award in question was inserted as part of implementation of 38 hour week and intended confine payment to the ordinary payment or wages the employee would have received i.e. 7.6 hours rather than eight and adjust the accrued entitlement to paid sick leave similarly — Commission received Authorities and found in favour of Respondent — Declared Accordingly — FMWU and Wormaki International (Australia) Pty Ltd and Others — No. 725 of 1989 — Martin C. — 3/11/89 — Security STANDDOWN - Claim for payment of wages and exclusive rights to work on refurbishing mooring buoys — Applicant Union claimed members were willing to work if the leadership of a foreman to organise and supervise the work had been provided — Furthermore applicant Union claimed members had been stood down by the respondent — Respondent argued custom and practise was that employees would act in higher classifications as required and their refusal to do so was unreasonable, resulting in a loss of entitlement to wages — Commission found attitude of employees in refusing to put in place the long accepted practises of "acting up" was unreasonable, and concluded that they do not have a primafacie case to support claims — Furthermore Commission found claim of exclusive rights to refurbish mooring buoys were unfounded — Commission noted finding did not preclude cither party from proceeding with an enforcement of award — Dismissed — Seamens Union of Australia and P &OTowage Services — No. CR571 and 865 of 1989 — Martin C. — 3/11/89 — Marine and Harbour Services STAY OF PROCEEDINGS - application for Stay of Order re $15.00 per week Structural Efficiency Wage Adjustment to a Common Rule Award — Applicants submitted that a serious issue was to be tried which involved consideration of Structural Efficiency Principle and the question of jurisdiction — President found appeal involved a member of employers and a large member of their employees — President applied reasoning of O'Dea P. and found the balance of convenience did not favour the Applicants — However, President allowed on abridgment of lime, declared sufficient interest and waived negotiations for appeal to proceed —Ordered Accordingly — Coles New World Supermarkets and Others and FCU — No. 2784 of 1989 — Sharkcy P. — 6/2/90 — Retail/Wholesale (Clerical) * 4Application for Stay of Order re re-cmploymcnt arising out of unfair dismissal, pending hearing and determintion of an appeal to Full Bench —President found there was a serious issue of fact to be tried only —President found balance ofconvenience favoured the Respondent whose member would be out of work and would not enjoy the fruits of judgment for five or six months — Dismissed — Jim Berry Terrace Pharmacy and SDA — No. 493 of 1990 — Sharkey P. — 10/4/90 — Retail (Pharmacy) 4Application to slay operative date of Order re variation of common rule award pursuant to Structural Efficiency Principle, pending hearing and determination of Appeal to Full Bench — President found on alleged miscarriage of the discretion of the Commission with regards to Structural Efficiency in an important and widespread industry a serious issue to be tried on appeal and the balance ofconvenience to favour the Applicants — Granted — Australian Glass Manufacturers andTWU — No. 698 of 1990 — Sharkey P. — 22/5/90 — Transport Application for slay of proceedings pending hearing and determination of appeal to Full Bench — President referred to principles re granting of stay and found, firstly, there was no serious issue to be tried and, secondly, the balance ofconvenience favoured the Respondent — President found also that it would be wrong under the authorities to deprive the Respondent of the fruits of his judgment — Dismissed — Structor Pty Ltd trading as Interigo and D.N.H. Cooray — No. 2735 of 1989 — Sharkey P •'Application for Stay of Order of Industrial Magistrate pending appeal — There was no appearance by the Respondent — President found balance ofconvenience in favour of Applicant —Further that there was a serious matter tried as to whether criminal or civil practice and procedure was applicable in the original proceedings subject ofthe appeal — Granted — Verticordia Holdings Pty Ltd trading as Bernies and G.R. Wilkins — No. 220 of 1990 — Sharkey P. — 15/2/90 — Fast Food Application for Stay of Order pending hearing and determination of Appeal of Full Bench — Respondents did not appear or oppose — President found that there was a.serious issue to be tried, at least on fact, that the balance ofconvenience favoured the Applicant and that the applicant's submissions constituted an undertaking to pay moneys if the appeal was to be successful — Granted — Western Mining Corporation Ltd and AWU and Others — No. 2810 of 1989 — Sharkey P. — 14/2/90 — Gold Mining Application for Stay of Order of Government School Teachers'Tribunal dismissing appeals by teachers who were not applicants for the recommendation of the Director General to a new office or vacancy in the teaching staff pending Full Bench appeal — Industrial Relations Act 1979 states section 49 shall not apply to a decision ofthe Tribunal on an appeal under section 78(1 )(b) — As decision being appealed to Full Bench under section 49 arose from appeal pursuant to section 78(l)(b) — Whilst not purporting to determine jurisdiction of Full Bench President found no serious issue to be tried and the balance of convenience re granting the stay favoured Respondent — P. Hampson and N. Ritchie v. Ministry of Education — No. 2770 and 2780 of 1989 — Sharkey P. - 15/2/90 - Education Application for Stay of proceedings pending hearing of appeal against decisions of Commission (70 WAIG 250) re demarcation — Respondent conceded there was a serious issue to be tried and President found balance ofconvenience favoured Respondent — Granted - United Furniture Trades Union v. CMEWU — No. 2724 of 1989 - Sharkey P. — 20/12/89 - Building Construction Application for stay oforderre re-employment of a dismissed employee, pending hearingand determination of appeal to Full Bench — President applied dicta of Stolt's Case in evaluating the balance ofconvenience against the principle ofthe successful litigant's entitlement to the fruits of his labour — President found safely issues were not established, there was more to lose for the individual than the employer who might suffer disruption by the reinstatement and or subsequent dismissal, and the employee would presumably render services in consideration of payment than reducing the inconvenience of recovering moneys should the appeal be successful - Dismissed - RRIA and AWU - No. 729 of 1990 - Sharkey P. - 24/5/90 - Mining (Iron Ore) Application for slay of proceedings pending hearing of appeal against decision of Commission re denial of benefits pursuant to contract of employment — Applicant claimed that it did not attend Commission hearing in first instance because its Notice of Hearing specified a different dale from that on which hearing was held — President held that whether the Appellant had a right to be heard was a serious issue to be tried and that balance ofconvenience favoured the Applicant/Appellent hence the granting of stay — M. Anderson trading as Heyford Holdings trading as Nashua Karratha v. Lane A. — No. 420 of 1990 — Sharkey P. — 19/03/90 — Office Equipment Application for Stay of proceedings pending appeals against decision of Industrial Magistrate (70 WAIG 890) — Applicant claimed that the wrong principle for determining coverage by the Award was used and that moneys could not be readily recovered from employee subject of Magistrate's decision if appeals were successful — President found there was a serious issue to be tried and that balance ofconvenience just favoured Applicant/Appellant — Granted — Freshwest Corporation Pty Ltd v. TWU — No. 417 of 1990 — Sharkcy P. — 20/3/90 — Transport (Ix) 70 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE CUMULATIVE DIGEST—continued SUPERANNUATION - Application for a new award — Applicant Union sought award to provide superannuation benefits to members in pension fund — Commission from evidence concluded that cost to the employers of the benefits paid to members of the pension fund is considerably higher than that paid in relation to current Superannuation Fund — Furthermore it would not be an exercise of equity or good conscience to further improve a scheme that has been demonstrated to be more generous that the other available scheme — Dismissed — CSA v. Public Service Commission — No. A3 of 1988 — Negus C. — 25/1/90 — State Government Claim re allegedly denied contractual entitlements — Applicant sought payment of superannuation benefits — Respondent argued employment was not for a fixed term and superannuation was not a part of the contract of service — Commission found position of Applicant was to be determined from a sequence ofevents which resulted in two offers and the conduct of the parties in relation to those two offers — Commission found on evidence that there had been an implied acceptance of the second offer which did not include an implied or implicit term for superannuation — Dismissed — Rowley P. — Summit Products Pty Limited — No. 602 of 1989 — George C. — 14/2/90 — Sales Applications to vary Award by allowing employees choice of more than one superannuation fund that they join — Applicants advanced a host of "in principle" arguments including "right of choice", the emergence of a new standard in Western Australia at variance to existing provision in subject Award and that broad public policy as espoused by Trade Practices Act 1974 is that of a need for competition which is not met by an Award provision prescribing that employees' superannuation contributions must go into a particular superannuation fund — Commission found, amongst other things, that Applicants did not wish employees to have a free choice as such but merely the option to choose the fund the Applicants/employers wanted them in or that employer should choose fund — Commission also found that freedom of choice as far as Award conditionsgo is not a principle espoused in the Industrial Relations Act 1979 especially in light of section 114 and that most employees do not really know much about superannuation — Further, superannuation is part of employees' minimum conditions of employment and apart from considerations of convenience there is no good reason that employers should be involved in choosing superannuation funds — Dismissed — Wesfarmers Ltd and Others and SDA — Nos. 1690 of 1988. 1782 and 1891 of 1989 — Salmon C. — 26/2/90 — Wholesale and Retail SUPPLEMENTARY AND SERVICE PAYMENTS - A claim seeking increase to travel allowance — Commission detailed history of allowance and found it to be partial reimbursement of the cost to the shift work employees providing their own transport — Commission determined amount from evidence provided with regard to present day costof private transport — Ordered Accordingly — CMEU v. SEC — No. 795 of 1988 — Halliwell S.C. — 20/11/89 — Power/Energy 156 Application for award variation re reimbursement of costs associated with travelling — Applicant Union claimed specialisation of occupation, requirement to work shift work all year, to be on call or to work overtime as required and as a matter of equity, all officers should receive the payment — Respondent objected and argued matter had been dismissed by the Commission previously and cannot be granted in accordance with the State Wage Fixing Principles — Commission cited other matters similar in claim and found in favourof respondent — Dismissed — WA Prison Officers Union v. Hon Minister forCorrective Services — No. 157 of 1989 — Gregor C. — 7/12/89 — Goal/Security 160 TALLIES — Application to vary Award by changing tally rate for dead rail slaughtering — Matter remitted to Commission for hearing and determination following Full Bench Appeal (69 WAIG 1884) — Commission further elaborated on its reasons for initial decision and acknowledged that these had not been made clear in initial Reasons — Commission adopted calculation for tally described by Full Bench but was still of view that Abbatoirs would now be processing different quality of sheep than those seen during inspections and on which this tally based — Commission, therefore, allowed parties opportunity to gather additional evidence and made a liberty to apply available to employers — AM1EU v. Action Food Barns and Others — No. 694 of 1987 — Gregor C. — 07/09/89 - Meat 1109 Complaint of failure to pay wages in accordance with Award — Complainant argued that boners should have been paid under a tally system rather than for time worked — Magistrate found construction of relevant clauses is Award allowed employer option of employing on either a tally system or for time worked — Evidence clearly showed workers subject to complaints were employed on an hourly basis and were paid overtime so there was no breach of the Award — Not Proven — Meat Industry Employees Union v. Valley Meats — Nos. 250. 251. 252, 259 and 260 of 1989 — Walsh S.M. — 12/02/90 — Meat 889 TECHNOLOGICAL CHANGE — Application to vary Award pursuant to Strucutrual Efficiency Principle — Application split to accommodate Arbitration of claim in so far as a group of opposing Respondents were concerned — Commission dealt with that part of application pertaining to consenting parties — Commission found proposed amendments complied with requirements of State Wage Decision subject to the insertion of an Award Modernisation clause — Granted in Part and Adjourned — WAMIEU and Action Food Barns and Others - No. 2115 of 1989 (R) and 2115A of 1989 (R) - Parks C. - 19/12/89 - Meat Application to vary award pursuant to Restructuring and Efficiency Principle — Parties sought Commissions' approval to vary award by consent to increase wage rates and other amendments to conditions contained therein — Intervener sought two specific commitments, however Applicant Union refused and only confirmed commitment as required by State Wage Principles — Commission found parties recognised corner stone to award restructuring and proposed new clause to make their commitment more binding — Ordered Accordingly — Meat Industry Employees Union and WA Meat Commission — No. 2112 of 1989(R) — Parks C. — 30/11/89 — Meat Industry Application to vary award pursuant to Restructuring and Efficiency Principle — Parties sought Commission's approval to vary award by consent to increase wage rates and other amendments to conditions contained therein — Intervener sought two specific commitments, however Applicant Union refused and only confirmed commitment as required by State Wage Principles — Commission found parties recognised corner stone to award restructuring and proposed new clause to make their commitment more binding — Ordered Accordingly — Meat Industry Employees Union and WAMeat Marketing Corporation — No. 2113 of 19891 Ri - Parks C. — 30/11/89 — Meat Industry Application to vary award pursuant to Restructuring and Efficiency Principle — Parties sought Commission's approval to vary award by consent to increase wage rates and other amendments to conditions contained therein — Intervener sought two specific commitments, however Applicant Union refused and only confirmed commitment as required by State Wage Principles — Commission found parties recognised corner stone to Award Restructuring and proposed newclause to make their commitment more binding — Ordered Accordingly — Meat Industry Employees Union v. WA Meat Commission and Others — No. 2114 of 1989(R) - Parks C. — 30/11/89 — Meat Industry (Ixi) WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 70 W.A.LG. CUMULATIVE DIGEST—continued Page TECHNOLOGICAL CHANGE —continued 3Conscnt application to vary Award pursuant to Structural Efficiency Principle, as a Special Case — Parties sought wage increase above that allowed by Wage Adjustment Principle and argued that it was necessary for Structural Efficiency within the Industry — CWAI intervening argued that a rigorous scrutiny was necessary to satisfy special case status and as did other section 50 parties addressed matters of public interest as related to the Principles — CICS found there was no need to consider the public interest in the context of the case and that the parties were committed to achieve an olTset of the total package of costs — CICS included a review of the economic conditions within the industry — CICS found wage rates established in conformity with the Work Value Principle in the context of the Structural Efficiency Principle had satisfied a fundamental requirement of a Special Case — CICS however did not accept formal in which wage rales were expressed and specified how the relativities should be determined against the rales of an Award in the industry, previously granted Structural Efficiency Wage Increases — Granted in Part — AWU and Associated Minerals Consolidated and Others — No. 1839 of 1989(R) — ColemanC.C.GregorC,, George C.— 16/2/90 — Mining and Processing (Mineral Sands) 670 TERMINATION — Conference referred re unfair dismissal claims — question of jurisdiction previously determined — Applicant Union claimed dismissal of two employees was unfair as the stated reason, a lack of work, was allegedly not true — Commission found on agreed facts that employees had been employed as temporary employees — Dismissed — ARU v. WAGRC CR701 of 1989 and CR702of 1989 Kennedy C. — 12/12/89 — Railways Employee summarily dismissed for misconduct, involving drunkenness and breach of security on mine site — Applicant Union claimed dismissal unfair and sought reinstatement without loss of entitlements — Commission applied dicta of Bond Brewing Case and found from evidence that the employees had been aware of the Respondent's policy as to controlled access to a particular work site and though partially intoxicated at the time in question was aware that "there would be trouble" over the incident - Dismissed - AWU v. Argyle Diamond Mines Ply Limited — No. CR901 of 1989 — Halliweii S.C. - 20/11/89 - Mining Employee dismissed for failing to give assurances of future loyalty to employer after having been absent from work to attend to a duty arising out of a "secondary" employment — Applicant Union claimed dismissal unfair and sought reinstatement without loss of entitlements — Commission found that the Applicant was basically "the author of his own termination" and that no unfairness had been shown on the part of the Respondent — Dismissed — ECU and Action Food Barns (WA) Pty Ltd — No. CRIOOOof 1989 — Halliweii S.C. — 25/1/90 — Grocery — Administration Employee dismissed for breach of Respondent's policy by allowing free meals to a particular group of customers — Applicant Union claimed dismissal unfair and sought reinstatement on the basis that the employee had not instigated the practice and had sought to rectify the situation — Commisison found employee had violated the trust put in her to the extent of repudiating the fundamental terms of her relationship with the employer and that there was no evidence of any action taken by the employee to terminate the practice of allowing free meals — Dismissed — FLA1EU and Observation City Resort Hotel — No.CR746of 1989 — Parks C. 21/12/89 — Hospitality Claim re unfair dismissal — reinstatement sought — Applicant Union claimed employee sustained injury due to an alleged failure to properly maintained equipment and that termination was harsh and unjust when the employee wished to continue working and that the "Model Code of Practice for RSI Prevention Management" should have been implemented in the Respondent's workplace — Commission found Respondent was genuinely concerned for the welfare of the employee who's injury reoccurred notwithstanding a work routine designed to give relief and that as the available alternative was not acceptable to the employee, no reasonable option remained — Dismissed — Clothing and Allied Trades Union and Femfield Pty Ltd Trustee for the Lawson Family Trust trading as Ultra Care Dry Cleaners — No. CR1413 of 1988 — Parks C. — 22/12/89 — Dry Cleaning Employee terminated due to negligence causing financial loss — Applicant union sought re-employment and that contract be deemed continuous — Respondent objected as termination was in accordance with contract of employment — Commission found employee to have had a long and fair employment with respondent and that termination should not prejudice employee's future employment prospects in the trade — Dismissed — WA Bakers, Pastrycooks and Confectioners Union and Brynwood Pty Ltd trading as "Peters Bakeries" - No. CR897 of 1989 — 1/12/89 — (Bakery) Food Claim re unfair dismissal — Applicant sought reinstatement and secondly, but alternatively, compensation as a consequence of his failure to receive contractual benefits for the guaranteed period of employment — However, if employment was not guaranteed, then reasonable notice of termination should have been given — Respondent argued no persons had fixed term contract other than persons employed (bra few weeks — Commission found from evidence that applicant's termination was not an unfair act — Commission, however found that applicant had not received benefits to which he was entitled by his recompense — Ordered Accordingly — J.A. Margio v. Fremantle Arts Centre Press — No. 713 of 1988 — Parks C. — 17/11/89 — Printing/Artwork Claim re contractual benefit — Applicant sought payment in lieu of notice and pro rata annual leave payments — No appearance on behalf of respondent — Commission found from evidence, no terms within applicant's contract of employment which afforded the benefits which was being claimed— Dismissed— Lumbaca L. and Pentapac Ltd — No. 779of 1988 — Parks C. — 9/11/89 — Secretarial Services Claim re unfair constructive dismissed seeking reinstatement — Applicant claimed change in rosier from permanent night shift to a rotating shift amounted to constructive dismissal —Respondent argued injury sustained by applicant resulted in applicant being able to do light duties available only in the day shift — Furthermore due to changes in the Hospital work was only available on a rotating rosier — Commission found from evidence provided in favour of respondent and noted even though case law cited by Counsel was relevant, each unfair dismissal case has to be treated in accordance with its own facts — Dismissed — McDowell E. and Swan Cottage Home Inc — No. 830 of 1989 — Gregor C. — 17/11/89 — Nursing Claim re unfair dismissal — Applicant sought outstanding wages and declaration of unfair dismissal — Respondent denied allegations — Commission found that applicant was unfairly dismissed, however advised applicant to seek advice from appropriate authorities to clarify provisions under which he was covered — Ordered Accordingly — Morgan S.A. v. Bruining Hcdlam Computers Pty Ltd - No. 756 of 1989 — Martin C. — 23/11/89 Claims^contractual entitlements — Both applicants sought payment ofoutstanding wages and one applicant further soughlpro rata holiday pay and penalty pay for weekend work — Respondent objected on basis that employees had been disloyal — Commission found in favour of applicants in so far as payment for outstanding wages — Ordered Accordingly — MrMarkovina andT. Darby — Nos. 2199 and 2200 of 1989 — Fielding C. — 13/11/89 — Aerobic Instructors Claim re contractual entitlements — Applicants sought payment in lieu of notice and a pro rata payment in lieu of annual leave. including a loading thereon — Respondent argued no entitlements existed as nature of employment was casual — Commission found no arrangement was established and noted that terms of contract of employment cannot be assumed can they be implied — Dismissed — R. Batlaile and K.M. Council v. Connor Refrigerated Transport Pty Ltd — Nos. 822 and 960 of 1988 — Parks C.— 12/ 12/88 Claim re unfair dismissal — Employee terminated because of an out of work hours altercation with a former employee of the Respondent — Board of Reference found sufficient connection between the altercation and the contract of employment of the dismissed employee — Dismissed — Carnlcy R. and Skytee Constructions — Board of Reference — Halliweii S.C. Chairman — 9/2/90 — Building/Construction Employee dismissed because of an altercation outside of working hours — Applicant Union claimed dismissal unfair and sought reinstatement — Commission found on evidence altercation had nothing to do with either the employer or the employees contract of service and the employers concern as to on the job conduct to be without bias in fact — Granted — ABLF and Skytec Construction — No. CR13 of 1990 — Halliweii S.C. — 13/02/90 — Building Construction (Ixii) 70 W.AI.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE CUMULATIVE DIGEST—continued TERMINATION —continued Claim re contractual entitlements — Applicant claimed two weeks" pay in lieu of notice — Respondent argued Applicant had left without working out the two weeks* notice period hence there was no entitlement payment for work not performed — Commission found from the facts that the Respondent had not consented for the Applicant to leave work and receive wages as if at work, that the Applicant misinterpreted the Respondent's remarks and a well-intentioned act had back-fired on her — Dismissed — Vaile SA. and Webster and Webster — No. 2594 of 1989 — Fielding C. — 15/2/90 — Clerical Employee terminated for being absent without medical certificate — Applicant Union claimed dismissal unfair and sought reinstatement — Respondent argued that the employee had a history of chronic absenteeism and poor performance — Commission found that a letter to the employee had created a term of contract between the parties as to the product of a further absence — Furthermore Commission found as a matter of merit that the Respondent was not wrong in bringing the contract of employment to a close — Dismissed — AWU v. Newmont Australia Ltd — No. CR587 of 1989 — Gregor C. — 5/1/90 — Mining Claim re contractual entitlement — Applicant claimed unfair dismissal and sought contractual benefits as per contract of service and compensation for premature termination ofcontract — Respondent opposed claim — Commission having regard for established principles found that applicant was entitled to payment and set amount to be paid — Claim for damages failed — Ordered Accordingly — Norstrand R.R. and Minproc Engineers Pty Ltd — No. 1956 of 1989 — Fielding C. — 24/11/89 — Construction Claim re contractual entitlement — Applicant sought payment of outstanding holiday pay — Respondent opposed claim — Commission found from evidence that applicant had established entitlement to payment of moneys in respect of holiday pay. however identity of employer could not be established — Dismissed — Sala Tenna M.R. and R.J. Galloway trading as Photogem. Primary Colour — No. 2055 of 1989 — Fielding C. — 06/11/89 — Photo Processing Claim re unfair dismissal — Applicant Union sought reinstatement of employee to at least comparable position held prior to maternity leave was now redundant — Respondent opposed claim — Commission found as there was no comparable position available it would be wrong to interfere with the employer's decision — Dismissed — FCU v. George Moss Ltd — No. CR388 of 1989 — Parks C. — 07/12/89 — Clerical Claim re contractual entitlement — Applicant claimed unfair dismissal and sought contractual benefit based on average sales earnings over period of employment — Respondent argued applicant resigned — Commission found from evidence applicant had resigned and that it was inappropriate to make any findings in respect of the counterclaims — Dismissed — Reid J.L. v. Danebrook Holding Pty Ltd — No. 1748 of 1989 — Fielding C. — 09/11/89 — Sales/Housing Claims re contractual entitlement — Applicants claimed unfair dismissal and sought payments in lieu of notice and annual leave payments — Commission found from evidence that all three applicants were terminated without notice and allowed claims for wages, however dismissed claims for annual leave — Ordered Accordingly — Black I., Smith S., and Burns S. v. Zeus Holdings trading as "SupergynT —• Nos. 956. 1531 and 1809 of 1989 — Martin C. — 27/10/89 — Health/Fitness Employee summarily dismissed — Applicant claimed payment in lieu of two weeks pro rata annual leave and payment of wages for two days' work — Respondent argued despite warnings, applicant had failed to carry out duties — Commission found from evidence that applicant had contravened the respondents practices and policies — Dismissed — Janssen K. v. Lifestyle Construction — No. 837 of 1989 — Kennedy C. — 24/11/89 — Building Construction Employees summarily dismissed for alleged misconduct — Applicant Union sought orders of re-employment and that their contracts be deemed continuous — Respondent objects to issuance of such order — Commission found from evidence that employees had been unjustifiably, unjustly and unfairly dismissed by the Respondent — Granted — Merchant Service Guild and Another and Stirling Marine Services Pty Ltd — No. CR10I2 of 1989 — Martin C. — 11/12/89 — Marine and Harbour Claim of unfair dismissal and for wages alleged to be due from contract of employment — Commission found on evidence that Applicant was intoxicated on Respondent's premises and as that was the reason for summary dismissal it was not unfair — Commission also found no underpayment of wages had occurred — Dismissed — Lovejoy C.B. and Osborne Enterprises — No. 2838 of 1989 — Salmon C. — Restaurant Employee terminated for damaging a vehicle while driving in a restricted area at excessive speed — Applicant Union claimed dismissal was unfair and sought re-employment without loss of entitlements — Applicant argued that employee had no history of that type of incident and Jnter alia, the Respondent could have applied a lesser penalty as in other cases, if a penalty was required — Respondent denied that an alleged involvement of the employee in a demarcation issue was a factor in the dismissal and described the incident, herein, as a "joy ride" — Commission slated that it was trite Law to say that each case involving unfair dismissal must be treated in accordance with its own facts and on evidence found no unfairness in the actions of the company— Dismissed — AMWSU and H.I. Pty Ltd — No. CR1184 of 1989 — Gregor C. — 8/3/90 — Mining (Iron Ore) Employee terminated due to unsatisfactory work performance — Appellant appealed against decision citing all consideration and . proper weight to all of the circumstances had not been given and action of respondent was harsh and severe — Respondent traced appellant's teaching history — Tribunal found from material presented that appellant had exhibited severe weaknesses in fundamental areas as a teacher — Dismissed — Shepherd C.E. v. Hon Minister for Education — No. T4 of 1989 — Martin C, Rodway, Reeves — 08/12/89 — Education Claim for reinstatement as remedy for allegedly unfair dismissal — Respondent claimed Applicant dismissed for divulging private personnel information to other staff whilst in a position of trust after previous warning — Commission found no credible evidence that Applicant said anything untoward or passed on confidential information — Commission declared dismissal to be unfair, however, as it was satisfied that Respondent had lost confidence in Applicant's ability to keep and maintain the necessary confidences it was not prepared to order reinstatement — Granted in Part — Thobaven L.JJ. v. Albany Dog Rock Hotel — No. 2336 of 1989 — Fielding C. — 14/03/90 - Motel Application for reinstatement due to allegedly unfair dismissal — Respondent claimed has used offensive and "vile and foul" language to Relief Manager and Managing Director which was reason for dismissal — After hearing evidence Commission found Applicant's actions and language showed a complete disregard forauthority and Respondent action ofterminating the contract was not unfair — Dismissed — Federated Liquor and Allied Industrial Employees Union v. Criterion Douglas Hotel — No. CR87 of 1989 - Parks C. - 19/12/89 - Hotel Application for reinstatement due to allegedly unfair dismissal and payment of wages from time of termination to time of re- - employment Commission found that Applicant had not failed to comply with a lawful order as alleged by the Respondent and in light of that and Applicant s long association with Respondent's enterprise dismissal was unfair — Commission, however, concluded that an order for reinstatement would be a "recipe for disaster" and may lead to further confiict — Granted in Part — Wainwright C. v. Biblos Nominees Pty Ltd trustee for the Palma Unit Trust trading as "Artfex Australia" — No. 2683 of 1989 — Martin C. — 14/03/90 — Clerical Appeal against decision of order of dismissal of employee pursuant to Education Act — Tribunal from evidence presented found appellants manner, style, language and behaviour quite incompatible with a position in the respondent's school — Dismissed — Anderson W.D. v. Hon Minister for Education — No. T3 of 1988 — Martin C, Rodway, Reeves — 15/12/89 — Education Claim re dismissal Applicant sought relief in the form of a statement from the Respondent to protect employment opportunities in the district — Respondent argued and tendered evidence to prove that applicant had not followed set procedures — Commission found applicant had not discharged onus of proof in this case — Dismissed — Ishmael S.A v. Elverston Nominees — No. 2233 of 1989 — Salmon C. — 07/12/89 — Computer Operator Conference re claim for reinstatement of employee on basis that he was unfairly dismissed referred forbearing and determination — Respondent claimed employee was dismissed following counselling and a series of warnings re unsatisfactory performance — Despite conflicting evidence Commission found on balance that of Respondent was to be preferred and thus Applicant's case had not been made out — Dismissed — Amalgamated Metal Workers and Shipwrights Union of Western Australia v. Alloytech Pty Ltd - No. CR33 of 1989 - George C. - 02/03/90 - Mining (Ixiii) WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 70 W.A.I.G. CUMULATIVE DIGEST—continued TERMINATION —continued Claim for reinstatement by employee alleging to have been unfairly dismissed — Applicant and another employee were summarily dismissed after a fist fight at work — Applicant claimed he was the aggrieved party as any reasonable investigation would have shown — During proceedings Applicant in answer to Respondent's Counsel's questions admitted he no longer wanted reinstatement — Hearing was adjourned to allow parties to discuss matters, however, on resumption Applicant again wished to be reinstated — Commission expressed puzzlement as to why Applicant changed his mind after adjournment and indicated it was close to view that litigation was vexatious — Commission found Respondent's evidence far more credible and that Applicant had not made out a case — Dismissed — LcsleyJamesLcvercnccr. Auto Trans Express trading as West Brothers — No. 1917 ofl989 — Grcgor C. — 20/03/90 — Transport Conference referred for arbitration re reinstatement of employee who was allegedly unfairly dismissed — Subject employee was terminated prior to commencing work for Respondent when business changed hands — Employee told reason she was selected for dismissal was that she was not full-time — Respondent argued that as employee was dismissed before commencing work there was no contract of employment afoot and this matter was therefore not within Commission's jurisdiction — Commission found that employment contract had been offered by Respondent, accepted by employee and an employment relationship was thus in existence when employee told she was no longer required — Commission further found unfair dismissal had occurred as subject employee had not been given same consideration as other employee re future employment — Commission ordered Respondent offer contract ofemployment but declined to order paymentof wages between dismissal and re-employment — Granted in Part— SDA v. Jim Berry Terrace Pharmacy — No. CR1089 of 1989 — Salmon C. — 01/03/90 — Retail Pharmacy Employee terminated due to inefficiency — Applicant union claimed unfair dismissal and sought re-employment without lossof pre- existing entitlements—Respondent denied allegation of unfair dismissal—Commission having regard for law relating to unfair dismissals and from evidence found no act of unfairness towards employee to warrant intervention — Dismissal — Federated Clerks Union v. Donhad Forgings Pty Ltd — No. CR1354 of 1988 — Parks C. — 27/11/89 — Clerical Applications for reinstatement on the grounds of unfair dismissal or allegedly denied contractual entitlements — Respondent argued employees had been dismissed due to low staff morale, non co-operation with the Head Office and one Applicant's association with the other — Commission found that although both employees were terminated without notice there was no summary dismissal due to payment in lieu of notice and that it was not for the Commission to determine whether it would have acted differently to the employerbut whetherthecmpioyer had acted fairly — Dismissed and Discontinued — Stairmond D. and Searlc K. and Capodistra Pty Ltd — Nos. 1282 and 1283 of 1988 — Parks C. — 22/12/89 — Video Hire Claim re unfair dismissal seeking reinstatement — Applicant Union claimed employees had been discriminated against and terminated as a result of Union membership — Respondent argued termination was on "last on, first off' policy — Commission found termination was effected in manner consistent with practices in the industry and was not contrived by respondent to discrimination against members of the applicant Union — Dismissed — The Construction. Mining and Energy Workers Union v. Design Ceilings — No. CR1095 of 1989 — Coleman C.C. — 13/12/89 — Building Construction Claim recontractual entitlements — Applicant sought 21 weeks'salary, car allowance and two weeks'holiday pay on the basis that the contract of service was for a guaranteed period of six months and terminated prematurely — Respondent argued contract was of an indefinite nature and dependant upon the Applicant meeting a sales target — Commission noted onus of proof lay with the Applicant — Commission found on evidence supply of car was not part of Applicant's remuneration and that the contract was terminated on one month's notice by either party — Granted in Part — Day J.M. and Sonic Souvenir Co Pty Ltd — No. 1889 of 1989 — Parks C. — 11/12/89 — Retail/Wholesale Conference referred for hearing and determination re dismissal of an employee — Applicant Union claimed dismissal unfair and sought reinstatement — Respondent argued employee had broken Aboriginal law, breached confidence and that reinstatement was untenable — Commission reviewed lengthy conciliation proceedings in the matter and the ill-feeling that developed in a small community — Commission found that the principle of natural justice and fair play cut across differences in culture and tradition and the employee as a member of the Applicant had every moral and legal right to seek it in accordance with the Industrial Relations Act — Furthermore that reinstatement, on Pepler's Case, was the only proper remedy for unfair dismissal — Commission found a prima facie case of unfair or wrongful dismissal reinforced by the evidence, and that there had been a partly understandable comedy of errors — Commission found to punish an employee for the sins of a spouse could not be fair or reasonable by anv standards — Granted — FMWU v. Mawarnkarra Health Service Aboriginal Corporation — CR807 of 1989 — Negus C. — 20/12/89 — Medical Services 'Appeal against decision of Full Bench (70 WAIG 1) to dismiss appeal — Appellant claimed Commission did not have jurisdiction to hear matter in first instance because section 23(3)(d) oflndustrial Relations Act excludes Commission from having jurisdiction over various industrial matters if any other Act provides that that matter may be appealed — There is provision for appeal under section 73 and 77 of Government Railways Act 1904 if a permanent employee is dismissed as a punishment and although the termination in this instance was not as a punishment the Respondent argued that as another Act deals with dismissals and appeals it is to be assumed that that Act has covered the field and the Commission may not deal with it — Further, if that other Act provides for termination of employee but not an appeal it must be assumed legislature intended there be no appeal — Industrial Appeal Court found only if there is an appeal under provisions of some other Act is the power of the Commission restricted — Dismissed — WAGRC and ARU — No. 15 of 1989 — Brinsden J., Kennedy and Rowland J.J. — 30/3/90 — Railways Employee dismissed for inability to continue to perform the duties of the position — Applicant Union sought reinstatement on the grounds of unfair dismissal — Commission found on evidence including confidential transcript, that there had been a continuation of unsafe driving practises which could lead to a conclusion that there was a duty to remove the employee from the duties of the position under the Mines Regulations Act and that the employer had ascertained whether there was alternative employment — Commission also found the employee at all times had acted properly, had been honest with the employer — However, Commission in applying dicta of Savic's case and the Undercliffc case found there was not a harsh and unjust exercise of the employer s right to dismiss because the ultimate reason for the employee's dismissal was a back injury sustained in the employment — Commission though it wrong of the Respondent not honour its promise to favourably consider a future application for employment — Dismissed — AWU v. Newmont Australia Ltd — No. Cr972 of 1989 — GregorC. — 15/01/90 — Mining ; ;••••; Application for re-cmployment on grounds of unfair dismissal — After hearing evidence Commission found Applicants job performance was unsatisfactory, he was advised but did not improve and subsequent termintion was not unfair — Dismissed — Carlyon P. v. Dulvillc Pty Ltd trading as Ross Squire Kit Homes — No. 2502 of 1989 — Halliwcll S.C. — 02/02/90 — Building Construction Application for reinstatement on grounds of allegedly unfair dismissal — Respondent claimed Applicant dismissed due to causing disharmony at work place, using excessively bad language and threatening violence against other staff members — After hearing evidence in which there was substantial conflict Commission found it totally rejected that ofthe Applicant where it conflicted with that of Respondent's witnesses — Commission satisfied on balance there wasgood reason for Respondent to dismiss Applicant — Dismissed —Walsh A.J. v. Farmers Federation Investment Co Ltd trading as Farmers Weekly — No. 2675 of 1989 — FieldingC. — 27/03/90 — Newspaper Claim that decision to terminate employment of Job Steward should be set aside on basis that it was unfair and that failing that employee should be paid up to date of determination — Respondent claimed that employee was dismissed due to insufficient work — Majority of Board of Reference determined that while there were some elements of unfairness in the way the termination was handled it was not sufficiently harsh or oppressive that Board should upset Respondent's decision — Majority of Board also found employee was entitled to be paid up to date of determination — Granted in Part — McParland K. v. Matvale Pty Ltd — No. 43 of 1985 — Board of Reference — 10/01/90 — Building Construction Application for re-employment and payment of wages between date of dismissal and re-employment on grounds that dismissal was unfair and unjust — Commission found Applicant's employment was of a temporary nature and his work habits were incompatible with those required by the Respondent — Commission concluded application was without foundation — Dismissed — Ballamy R.T. v. Federated Municipal and Shire Employees Union — No. 2311 of 1989 — Martin C. — 26/01/89 — Unions 70 W.A.LG. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE CUMULATIVE DIGEST—continued Page TERMINATION —continued Claim for reinstatement on grounds ofallegedly unfair dismissal, payment of wages from time of termination to time of reinstatement and one month's pay in lieu of notice — Applicant was shareholder in business and employee but after Applicant decided he wished to leave and be bought out of the business relations between Applicant and one ofother two shareholders became less than harmonious with Applicant consequently being dismissed — Commission found relationship between Applicant and principal director was so strained that reinstatement would be untenable and termination was not only not unfairbut in the best interests of all parties — Commission also found that one week's pay in lieu of notice was reasonable — Granted in Part — Riley LJ. v. Vallca i Pty Ltd trading as Peet and Co Rockingham — No. 2252 of 1989 — Martin C. — 05/02/90 — Real Estate 912 TRAINING - Application to vary Award pursuant to Structural Efficiency Principle — Disputed only. Applicant Union claim for a $15.00 quantum wage increase for a particular classification — Applicant expressed concern that an anomaly would be created via the no extra claims commitment if a nexus Award received the higher quantum increase where the instant Award did not — Commission viewed Structural Efficiency measures including an agreed programme of award re-drafting with the assistance of a Legal Practitioner — Commission found that, to the particular classification, the increase of S12.50 should be applied, but did not preclude any consideration of changed circumstances — Granted in Part — LEDFCU and WAGRC — No. 1530 of 1989 (R) — Kennedy C. — 30/11/89 — Railways 112 Applications to vary Awards pursuant to Structural Efficiency Principle — Applications by consent subject to determination of rates to apply to six classifications — Both parties involved claimed their respective method of calculation most accurately established the skills rate— Commission reviewed Structural Efficiency measures including broadbanding. measures to resolve demarcation disputes and training. So far as the rates were concerned Commission found the problem was that rates specified for service did not of themselves denote skill — Commission, with regards to skills audits, restructuring commitments and the parties obligation to establish correct relativities found in favour of Applicant, provided that it did not establish that the same level of increase would apply for the second phase — Granted — Australian Railways Union v. Western Australian Government Railways Commission and Others — No. 1715 of 1989(R) and No. 2469 of 1989(R) — Kennedy C. — 24/11/89 — Railways 442 TRANSFER - Conference referred for hearing and determination re transfer of employees for refusing to work overtime on Rostered Days Off and the said requirement to work overtime — Union claimed transfer of employees was unjust and inequitable and sought order to return employees to original work depot — Respondent argued on the basis of industry needs and custom and practice — Commission "weighed" the claim with the rights of the Respondent to manage its business with the utmost efficiency in mind — Commission found timetabling of maintenance work to be at the behest of the client and thai the employees had not been as constructive as they might have in seeking a solution to their problem of working on RDO's — Moreover. Commission found the proposition that the decision to relocate employees rests with the employees themselves, even in the most liberal co-operative process, was seriously open to question — Dismissed — SEC v. ASEMFWU and Another—No.CR841 of 1989 — Salmon C. —14/ 11/89- Electricity Supply 223 Conference referred re question of right to transfer employees to duties within their sphere of competence and if refused be declared redundant — Applicant argued ability to transfer employees as per second tier — Restructuring and Efficiency Agreement would allow for maximum efficiency and economic effect in managing the enterprise — Respondent Union submitted employees were being asked to take new and different jobs which amounted to being redundant — Furthermore new jobs in some cases meant unfair share of heavy tasks, while in others the work was seen as demeaning and lacking in job satisfaction — Commission having considered all of the submissions and the Termination, Change and Redundancy case, reaffirmed the right of employer to organise and direct activities of the workforce for maximum efficiency provided employees involved remain protected by the provisions of the relevant awards — Ordered Accordingly — Anglican Homes (Inc) and FMWU — CR898of 1989 — Negus C.— 1/12/89 — Nursing Homes 247 Claim re continuity of service and redundancy payments — Applicant Union sought Order to ensure continuity of services of its members due to sale of business as an ongoing concern and certain redundancy payments for some members not re-employed — Respondent objected and opposed claim — Commission adjourned claim for redundancy payment, as question of its jurisdiction was currently the subject of an appeal — Commission from evidence found in favour of respondent with regard to continuity to service, however noted that respondent should have a flexible approach on matters of annual and sick leave — Dismissed/ Adjourned — United Timber Yards. Sawmills and Woodworkers Employees Union v. McLeans Consolidated Pty Ltd and Pinetcc Pty Ltd - Nos. CR305 and CR474 of 1989 - Beech C. - 5/12/89 - Timber 577 TRAVELLING - 2Appeal against decision of Commission at (69 WAIG 2507 and 2784) re contract of service — Claims contractual benefits, motor vehicle, travel — Financial arrangements in relation to motor vehicle altered — Refinancing of motor vehicle did not alter original benefits due to Appellant — Admission made by Respondent re travel claim — Full Bench granted claim in relation to travel, however found grounds in relation to motor vehicle not made out — Upheld in Part — P.M. Chernoff and Stastra Page and Associates Pty Ltd — No. 1609 of 1989 — Sharkcy P., Kennedy C., George C. — 16/11/89 — Engineering A claim seeking increase to travel allowance — Commission detailed history of allowance and found it to be partial reimbursement of the cost to the shift work employees providing their own transport — Commission determined amount from evidence provided with regard to present day cost of private transport — Ordered Accordingly — CMEU v. SEC — No. 795 of 1988 — Halliwell S.C. — 20/11/89 — Power/Energy Application for award variation re reimbursement of costs associated with travelling — Applicant Union claimed specialisation of occupation, requirement to work shift work all year, to be on call or to work overtime as required and as a matter of equity, all officers should receive the payment — Respondent objected and argued matter had been dismissed by the Commission previously and cannot be granted in accordance with the State Wage Fixing Principles — Commission cited other matters similar in claim and found in favour of respondent — Dismissed — WA Prison Officers Union v. Hon Minister for Corrective Services — No. 157 of 1989 — Gregor C. — 7/12/89 — Goal/Security Claim for award variation re annual leave and travel time — History of Award outlined — Commission found travel time should only be provided once in any 12 month period and as a matter of merit approved application — Granted — Port Hedland Port Authority and Merchant Service Guild of Australia — No. P13 of 1989 — Negus C. — 20/12/89 — Marine/Harbour Applications to vary Award by consent re Allowances —Public Service Arbitrator found increase in Travelling and like allowances to be consequent upon adjustments to similar provisions in Public Service and had application across public sector — Public Service Arbitrator found Meal Allowance claim accorded with a 5.5 per cent in the Consumer Price Index and within the State Wage Principles — Granted — WA Police Union and Hon Minister for Police — Nos. 606 and 607 of 1990 — Fielding C— 14/5/90 — Police Application to vary Award pursuant to Structural Efficiency Principle and allowances — Commission found Structural Efficiency Agreement, to include a reviewofclassifications structure, and the wage increases proposed for each classification level to comply with the spirit of Principles — Commission sustained increases in allowances in line with CP! movements — For reasonsof equity and consistency with employees covered by a Federal Award Commission was prepared to include a new set of location allowances with but rather as an isolation allowance — Granted — WAGHSOA and CBH — No. 2411 of 1989 —Fielding C. —22/ 12/89-Grain Handling 01587-3 (Ixv) WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 70 W.A.I.G. CUMULATIVE DIGEST—continued UNFAIR DISCREPANCY - Application to vary Award re Availability and On-Call — Disputed only was Applicant Union's claim with respect to On-Call provision, including question of On-Call Allowance — Commission found agreed part of claim, within the Wage Fixing Principles — Commission found both parties' arguments on the issue of unfair discrepency with respect of disputed claim to be inconsistent — Commission applied principles of Appeal Court Decision in determining matter under the Wage Fixing Principles particularly re structuring and efficiency and in light of public interest — Granted in Part — ASEMFWU and Others v. SECWA — No. 2206 of 1989 — Salmon C. — 06/02/90 — Electricity Supply 846 UNIONS — ''Application for interpretation of union rules re whether the Respondent Union had the ability to enrol the Applicants or not — Respondent Union claimed President did not have jurisdiction to deal with matter under section 66 of Industrial Relations Act as Applicants were not eligible to be members of the Union — President found Applicants clearly past members of the Respondent Union and able to seek relief under section 66 — Moreover that a declaration of the Commission (65 WAIG 2300 at 2306) applied, that the Applicants were not eligible to be members of the Respondent and should be refunded fees collected — Ordered accordingly — Martin J.M. and Rayner S.B. and CMEU — No. 2132—2138 of 1989 — Sharkey P. — 30/10/89 — Unions ........ "Application for an orderre non compliance with Union rules and a previous order of the President — Respondent Union denied that it had failed to comply with the previous order and claimed that section 66 of the Industrial Relations Act provided no jurisdiction for enforcement of orders — President reviewed Industrial Relations Act, Rules and internal disputation in the Union — President found that there had been reasonable opportunity for a committee to meet and report on certain issues in accordance with the order — However President also found other matters had been dealt with through a Union conference contrary to the Respondent's policy, there had been a breach of Rules and the previous order — Granted in Part — Farrell K.M. v. SSTU — No. 2432 of 1989 — Sharkey P. — 28/11/89 — Unions ..... Application to vary Award by consent re a new classification — CSA sought leave to intervene on the grounds of previoius industrial coverage and its membership rule — CSA argued that it was not precluded by its rules to cover the employoees in question as the Award was, it was argued, invalid on the basis that the Respondent had no authority to employ — Commission found CSA Rules precluded it from seeking to cover any employee properly covered by the Award, that section 34(4) of the Industrial Relations Act prevented any credence being given to the Association's argument and therefore that the CSAhad no proper interest in the matter — Commission further found after examining Structural Efficiency measures between the parties, no impediment to granting the application proper, and allowed for negotiation to proceed on the appropriate wage — Adjourned — PKIU and the Government Printer — No. 1256 of 1988 — Negus C. — 16/10/89 — Printing 2Application to alter Registered Rules re name change — Full Bench found Industrial Relations Act Rules complied with — further more the name letter reflected the Applicant's eligibility rule — Granted — Western Australian Hotels Association — No. 2155 of 1988 — Sharkey P., Martin C., Negus C. — 20/12/89 — Unions Application to amend Union Rules re Honorary membership — Applicant Union sought that Honorary members be appointed rather than elected on the grounds that it had always been the intention of the rule and administrative efficiency — Full Bench — required Applicant to show through evidence that the Industrial Relations Act and Union rales had been complied with — Granted — SSTU — No. 1543 of 1988 — Sharkey P., Martin C, Kennedy C. — 20/12/89 — Unions 'Conference referred for hearing and determination re Demarcation dispute — Applicant Union sought declaration that it had sole constitutional and industrial coverge of shunting work and an order prohibiting the Respondent employer implementing "The Shunting Rationale" — CICS reviewed authorities, evidence and history ofdemarcation disputation between the unions — CICS found it could not be said that the employer was prescribed by the constitutional rules of any union from directing a particular employee to perform work from time to time which was not substantially the workofthatemployee'sclassification—Furthermore CICS found no evidence of unsafeness and that custom and practice did not preclude the right of the employer to lawfully implement changes in work practices — CICS found in the end the only question was whether there should be intervention on the grounds of unfairness or unreasonableness resulting from the changes the employer made — Dismissed —ARU and WAGRC and Another — No. CR544 of 1989 — Halliwell S.C., Gregor C., Kennedy C. — 22/1/90 — Railways Applications for new Awards to cover employees ofthe Houses of Parliament for the first time — Commission reviewed tortuous path of the attempts to establish Award Coverage for the employees concerned — Moreover, Commission reviewed authorities pertaining to the question of who was employer and the Commission's jurisdiction in relation to Parliamentary employees — Commission found all three Unions party to the Applications had constitutional coverage, at least within their respective areas — Commission further found the Award finally proposed by agreement of all parties complied with the Wage Fixing Principles, allowed for the peculiarities ofemployment in the Houses of Parliament and despite misgivings, should issue — Granted — CSA and Others and the Governor in Council and Others — Nos.A15of 1987, A4 and A7 of 1988 and A7 of 1989 — Fielding C. — 27/10/ 89 — Government Administration "Application by Union member re complaint over forthcoming union elections — President found that union's role re elections was contrary to section 56(i)(d)(ii)(aa) of the Industrial Relations Act and could be remedied under section 66 — Granted — McDonald R.A. and CSA — No. 773 of 1990 Sharkey P. - 18/5/90 - Unions 'Proceedings for enforcement of Act — Supplementary Reasons for Decision — Full Bench found Union had committed serious contravention oflndustrial Relations Act — Full Bench took into account undertakings as to future conduct poor record of the Union and mitigating circumstances as required by sections 26( l)(a) and 84A(4)(a) of the Act — Ordered Accordingly — Registrar and CSA — No. 666 of 1989 — Sharkey P., Coleman C.C., Kennedy C. — 24/4/90 — Unions 'Application to amend membership rale of Unions' constitution — Union submitted that amendments sought to clearly spell out the entitlement to membership of employees it had always covered — Full Bench found this to be this case and that Union had complied with its constitution and the Industrial Relations Act — Granted — WAROU — No. 2201 of 1990 — Sharkey P., FieldingC, Kennedy C Application for registration as an employer organisation — An Intervener supported the application — Objector/lntervener argued that there would be overlapping of membership and confusion in representation before the Commission — Full Bench reviewed authorities. Industrial Relations Act, and found where overlapping of membership was likely to occur the Full Bench can only register a new organisation where there is good reason to do so — Majority of Full Bench found on evidence that there were good reasons in accordance with section 6 of the Act to register the applicant, including the role it had already played in industrial relations in the Building and Construction Industries and its registration before other Inudstrial Commissions — Furthermore majority of Full Bench found there was on evidence an absence of problems arising out of the overlap in membership — Granted — AFCC — No. 2185 of 1989 — Sharkey P., Fielding C, Beech C. — 14/3/90 — Construction Application to alter Union rules re Honorary Membership and membership — Two Unions objected to application insofar as membership was concerned — Full Bench found changes sought to Honorary Membership provisions satisfied in particular sections 62 and 55 of the Industrial Relations Act and adjourned the remainder of the application — Granted in Part/Adjourned — ANF — No. 485 of 1989 — Sharkey P., Halliwell S.C., Negus C. — 24/10/89 — Unions (Ixvi) 70 W.AJ.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE CUMULATIVE DIGEST—continued UNIONS —continued Application for new Award to cover Ambulance Superintendents and Deputy Superintendents — HSOA granted leave to intervene on basis that it and not Applicant had constitutional coverage of employees in question — In order to obtain Award it was necessary that Applicant have constitutional right to enrol as members those employees to be covered by scope of proposed Award — Applicant claimed coverage under that section of its constitution which included "eligibility of persons who were employed by a body which was not a public authority but in which the State Government had an interest" — Commission extensively reviewed the authorities and found that to be an instrumentality or authority of the kind in question there needed to be some governmental character in its function and substantial governmental control over its activities — The Respondent had none of these attributes, therefore the subject employees were not eligible for membership ofthe Applicant and the application must fail — Commission was also inclined to view that Intervener was not eligible to enrol employees in question — Dismissed — CSA v. St John Ambulance Association — No. A6 of 1988 — Fielding C. — 11/12/89 — Ambulance Services 'Appeals against decision of Full Bench (69 WAIG 1908) to allow the Respondent to amend its rules to allow it to enrol "wall and/or ceiling fixers" as members — Industrial Appeal Court reviewed long history of this matter and the application and meaning of sections 55,56.58(3) and 62 of Industrial Relations Act 1979 — Appellant argued an issue estoppel arose and that Full Bench was bound by previous findings of fact made by Commission — Industrial Appeal Court found that matter decided by Full Bench was very different from what Commission had to decide and in any case Full Bench did not depart from finding of Commission — Appellant also argued that the amendment to the Respondent's rules the Full Bench had ordered the Registrar to register was not the same as the amendment proposed in the application, advertised in the WAIG and brought before the Respondent's members so as to afford them the opportunity to object as required by sections 62(3) and 55(2), (3) and (4) — I ndustrial Appeal Court found what Full Bench ordered registered was substantially different to what had been proposed thus Full Bench could not have been satisfied as Act required it to be that those sections affording members opportunity to object etc. had been complied with — Full Bench, therefore, did not have power to authorise amendment — Upheld — CMEWU v. Operative Plasterers and Plaster Workers and Another — Industrial Appeal Court Nos. 4 and 5 of 1989 — Brinsden J., Kennedy and Franklyn JJ. — Building Construction application to alter rules re membership remitted back to Full Bench by Industrial Appeal Court for further enquiry and determination — Appeal Court had found Full Bench acted beyond power in effectively amending the application — No finding of fact was disturbed — Respondent argued for new evidence to be considered — Full Bench reviewed authorities. Industrial Relations Act and decision of Appeal Court and found that on appeal lies from the Full Bench if the decision is considered crraneous in Law or in excess of jurisdiction, but on no other grounds — Furthermore Appeal Court had not advised the Full Bench that further hearing and determination included a reconsideration ofthe factual position — Full Bench found question was whether the Applicant should have the right to enrol as members wall and ceiling fixers — Full Bench was not persuaded by permissible further enquiry and determination and with regard to unchallengable findings of fact at the original hearing that the application should not be granted as it was made — Granted — OPPWFandCMEU — No. 1 of 1988 — Sharkey P..CoIemanC.C.. Fielding C. - 30/3/90 - Unions Application to vary Award pursuant to Structural Efficiency Principle — Applicant Union sought to have claim processed in same mannerashad been for an Award in Victoria — Respondent opposed claim on the hours ofthe quantum sought, the requirements of the Principle and argued that Commission should direct the parties to negotiate — Intervener object to particular classifications in proposed trial classification structure on the grounds of constitutional coverage — Commission reviewed Victorian case. State Wage Principles and felt compelled to follow the course set in Victoria, despite reservations, with an Award Modernisation clause and directions to negotiate a classification structure for trial in the industry — Commission refrained from determining coverage issue and split application into two to deal with remaining matters — Granted in Part and adjourned — FCU and Boans Ltd and Others — No. 1584 of 1989(R) — Parks C. — 4/12/89 — Retail and Wholesale application to alter Union Rules re membership — Objecting Union argued granting application would result in competition and industrial disputation between the Unions over union coverage of various eligible members — Full Bench found on evidence a new trade which as practised by apprentices was more boilermaker emphasised than blacksmilhing and that no one knew precisely what the apprentices would do when they complete their courses which would determine where coverage should be in the normal course of events — Furthermore. Full Bench having regard to sections 6(e), 26( 1 )(a) and section 55(5) of the Industrial Relations Act found that there was not sufficient basis on the evidence at the lime that overlapping would not occur— Dismissed — ASEMFWU — No. 2269 of 1989 — Sharkey P., Coleman C.C., George C. — 6/4/90 — Unions 4Application for urgent interim order to render null and void the alleged irregular nomination and voting procedures used by Respondent Union to select Executivemember to be on national body and of delegates to conference — President found that if he were to make order sought due to the limited time available before the conference it would be, effectively, a final order without his having heard submissions and evidence — Due to the irreversible nature of the interim order President found making of such order was not practicable — Dismissed — M. Gurgone v. President and Executive of State School Teachers Union of Western Australia — No. 2753 of 1989 — Sharkey P. — 18/12/89 — Education 2 Application for expedited hearing of matter remitted to Full Bench for further hearing and determinlion by Industrial Appeal Court following appeal — Respondent counter proposed that proceedings be adjourned sine die pending the outcome of Australian Industrial Relations Commission matter Print C26198 of 1989 — Full Bench was not persuaded that the merits and justice of application would be served if adjournment order issued — In opinion of Full Bench where matter is remitted by Industrial Appeal Court or Full Bench in the interests of expeditious determination of litigation should be relisted as soon as possible — Granted — Building Construction 4Complaint re Breach of Union Rules — Applicant sought election to be declared void and previous committees to stand pending new elections — Respondent Union sought matter be dealt with as trivial and discontinued as it had not and would be causing the complained of committees to meet prior to the newexecutive taking office — President considered undertaking of Respondent to be significant — President found no breach of the rules, though custom and practice was to hold elections, as the committees in question were not "offices" and there was no evidence of an irregularity as defined by section 7 of the Industrial Relations Act — Dismissed — Pratt R.D.R. and SSTU and Another — No. 108 of 1990 — Sharkey P. — 26/3/90 — Unions Application for enforcement of Act re order of Commission to cease industrial Act — Full Bench found on evidence Union had contravened or failed to comply by not taking all necessary steps which allowed the union membership to stay on strike in disregard of the order and their obligations under the Industrial Relations Act — Full Bench adjourned proceedings so that submissions could be made under section 84A(5) of the Act — Proven and Adjourned — Registrarand CSA — No. 666 of 1989 — Sharkey P., Coleman C.C.. Kennedy C. — 7/2/90 — Unions Conference re demarcation dispute over installation of certain kitchen units and other fittings into apartments under construction — Commission of firm opinion that no agreement is likely so matter will be referred for hearing and determination — Commission found it necessary to issue interim Order to prevent deterioration of industrial relations until arbitration has resolved matter — Order issued to preserve status quo — UFTU v. CMEU — No. C228 of 1990 — Beech C. — 27/03/90 — Furniture Trades Dispute re industrial representation of carpenters and/or joiners and cabinet makers in buildings under construction, or near completion — From all evidence presented and history of demarcation Commission found that there was no fixed solution to issues raised and made recommendations on current issues — Furthermore future disputes should be able to be determined by reference to these reasons and desirably an application to resolve such a dispute should be made well in advance of work commencing — Ordered Accordingly — United Furniture Trades Industrial Union and Another v. CMEU and Others — No. CR1540 of 1988, CR193, CR219, CR251 and CR303 of 1989 — Beech C. - 02/11/89 - Building/Construction (Ixvii) WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 70 W.A.I.G. CUMULATIVE DIGEST—continued UNIONS 'Appeal against decision of Commission in Court Session (70 WAIG 662) in demarcation dispute as to whether operators of certain equipment on building site are entitled to be represented by the Australian Builders* Labourers' Federated Union of Workers, Western Australian Branch or the Construction, Mining and Energy Workers'Union of Australia, Western Australian Branch — Industrial Appeal Court found that question to be decided is arc they "builders' labourers" within the rule of the Australian Builders' Labourers' Federated Union of Workers, Western Australian Branch or are they "engine drivers" within the rule of the Construction, Mining and Energy Workers' Union of Australia, Western Australian Branch — Industrial Appeal Court found tht to the extent that in its decision Commission in Court Session had not identified which operators of which plant identified as to operator and plant rather than the basis on which his or her employer is on a building site the Construction, Mining and Energy Workers' Union of Australia, Western Australian Branch appeal is upheld — Matter remitted to Commission in Court Session — BLF and Another — CMEWU and Another — Nos. 1 and 2 of 1990 — Kennedy J./Rowland L/Nicholson J. — 25/05/90 — Building Construction application that Union election be declared null and void because of alleged irregularities — Applicant claimed elections should have been conducted in accordance with different rule than they were or, alternatively, election should have been conducted in accordance with commonn law of elections and also that there was a campaign of lobbying by paid appointed officials of the Union against some of the Applicants which gave some candidates an unfair advantage — President found an irregularity had occurred, that the Union's rules were defective and that the Union's Council had acted ultra vires the rules and contrary to the Industrial Relations Act — President exercised his discrection to invalidate election and ordered offending rules disallowed and altered — Granted — Jan Herman Kaub and Others — v. The Civil Service Association ofWA(Inc) — No.2194of 1989 — Sharkey P. — 7/12/89 — Unions ••••• •••• Conference matter referred for hearing and determination re demarcation dispute — Unions argued respectively that their Union had constitutional coverage and industrial coverage of work in question — CICS noted irony in one Union arguing for a broad interpretation of its own rules and a narrow interpretation of its competitor — CICS reviewed authorities, rules, the interpretation of Builders Labourer, Awards and found in the absence of exclusive constitutional and industrial coverage by either Union, it was important to note the Unions commitments to Structural Efficiency in determining the matter pursuant to section 26 of the Industrial Relations Act — CICS found on evidence; having examined the circumstances within the industry and noting the attempts of an employer's organisation to resolve the conflict that the interests of both organisations would be served by awarding the right to industrially represent the workers in question to the CMEU except where the employee is employed by a builder or building subcontractor—CICS further drew attention to powers under section 46 — Ordered Accordingly — ABLF and Another and Civil and Civic Pty Ltd and Others — No. CR15] 1 of 1988 — Coleman C.C.. Fielding C. and Beech C. — 1/12/89 — Building Construction Complaint of breach of Award by Development's alleged pursuit of claim outside State Wage Principles — Matter remitted to Industrial Magistrate following Full Bench ruling of a case to answer following appeal — Magistrate found that while workers on site had pursued claim outside Principles Defendant Union was not pursuing or authorising claim so there was no fault on part of Union — Not Proven — Carrigg J. v. AMWSU — No. 104 of 1989 — Maigstrate Walsh — 08/03/90 — Metal Trades Construction 4 Application for interpretation of Union's rules and striking out of rules said to be inconsistent with democratic control of union by members — President found rules complained of allow persons no longer holding office to which they had been previously elected to continue to hold that office as a member of the Executive — President found this to be clearly contrary to sections 52 and 56 of the Industrial Relations Act and unequivocally inconsistent with democratic control of the Union by its members — The fundamental vice is that a person who has not even nominated for office, or (even more seriously), has been defeated in an election, is entitled without election to become a member of the Executive on the same footing as elected members and elected ex- offtcio members — Granted — Harken E. and Another and Pratt R. and Ohters — No. 92 of 1990 — Sharkey P. — 22/2/90 — Unions ••Application for Orders to invalidate any nominations for election to Union's Executive if they did not comply with section 52 of the Industrial Relations Act as Applicants' nomination was rejected by Returning Officeron that basis — President found that if rules were valid then they had been contravened by failure to accept nomination of Applicant and Ohters — President found sections 52 and 56 had been contravened by the nominations that were accepted being accepted and this constituted a serious irregularity — President also found rules were contrary to Act and election tainted by those rules constituting an irregularity — President disallowed rules and ordered a further ballot — Granted in Part — President also subsequently made Supplementary Reasons for Decision and Reasons for Decision Relating to Further Orders — Doherty J.A. — v. Fazio B.T., SSTU — No. 2239 of 1989 — Sharkey P. - 6/10/89 - Unions UTLISATION OF CONTRACTORS - Conference referred for hearing and determination — Applicant Union claimed Respondent had acted unreasonably and unfair in all the circumstances in not having crane and rigging work done by qualified and competent workers in its employ — Respondent argued it had acted within its rights as expressed in an Award — Commission found that the referred to clause of the Award formed the basis of fair dealing and reasonableness between the parties on the subject in question and could not find reason for the employees to fear termination — Dismissed — AMWSU and Another v. Hamersley Iron Pty Ltd —No. CR965(l)of 1989 — Salmon C. — 1/12/89 - Mining (Iron Ore) 214 Conference matters referred for hearing and determination re utilisation of contractors — Union argued there were sufficiently trained employees, that manning levels were low in light of work load and safety — Union sought Order that company employees to rectify situation — Employer argued on the grounds of managerial prerogative and award provision — Commission found most of dispute was concerned with perceived fears regarding casual employment and de-skilling — Commission however found on evidence no sufficient cause to intervene but recommended a course of discussions between the parties — Hamersley Iron Pty Ltd and AMWSU and Another — No. CR965 of 1989 — Kennedy C. — 4/12/89 — Iron Ore 215 VICTIMISATION - Employee terminated due to inefficiency — Applicant union claimed unfair dismissal and sought re-employment without loss of pre- existing entitlements Respondent denied allegation of unfair dismissal —■ Commission having regard for law relating to unfair dismissals and from evidence found no act of unfairness towards employee to warrant intervention — Dismissal — Federated Clerks Union v. Donhad Forgings Pty Ltd — No. CR1354 of 1988 — Parks C. — 27/11/89 — Clerical 235 WAGES — 2 Appeal against decision of Government School Teachers Tribunal at (69 WAIG 3437) reOrder for pay claim — Industrial disputation — section 44 proceeding — Education Act and IR Act referred to for definition of "industrial matter" with regard to teacher — Applicants tendered as a record ofconference proceeding — Opportunity given to Appellant to be heard on all material matters Industrial action peripheral to salary claim — section 44(6) orders not final — Orders made not determinative — Full Bench found Orders were made within power there was no miscarriage of justice — No grounds made out — Dismissed — SSTU and Hon Minister for Education — No. 2330 of 1989 — Sharkey P., Salmon C,, George C. — 21/12/89 — Education (Ixviii) 70 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE CUMULATIVE DIGEST—continued WAGES —continued Application to vary Award pursuant to Structural Efficiency Principle — Parties disputed only a $15.00 rather than a $12.50 wage claim for a wage classification grouping by the Applicant Union — Respondent argued that the work of the Wage Group had to be assessed as at least equivalent to that of a tradesperson to qualify for the increase claimed as specified under the State Wage Principles and that the skills and training required by tradespersons substantially exceeded that of the Wage Group — Commission found on inspections, authorities and evidence that the Applicant had failed to prove that equality existed but recommended the issue be addressed in further restructuring negotiations — Commission found remainder of Award amendments sought fulfilled initial requirements of State Wage Principles however included a clause to reinforce the commitment to Award modernisation — Granted in Part — FMWU v. CSR Limited —No. 1383 of 1989 — Parks C — 30/10/89 — Building Materials Manufacture Application to vary Award pursuant to Strucutrual Efficiency Principle — Application split to accommodate Arbitration of claim in so far as a group of opposing Respondents were concerned — Commission dealt with that part of application pertaining to consenting parties — Commission found proposed amendments complied with requirements of State Wage Decision subject to the insertion of an Award Modernisation clause — Granted in Part and Adjourned — WAMIEU and Action Food Barns and Others - No. 2115 of 1989 (R) and 2115A of 1989 (R) - Parks C. — 19/12/89 - Meat 3Application to vary Award by consent re Wages — Parties sought increase in rates of wages as a special case with a Structural Efficiency wage adjusment to be applied for in addition to it — Parties argued that the increase sought was justified under the Work Value Principle to reflect significant net additions to work requirements — CICS granted leave for application to be varied to incorporate the necessary increase in rates under the Structural Efficiency Principle — CICS found the requirements of the Work Value Principle had been met — However, after reviewing Authorities CICS would not finally determine the matter until the Parties presented their Structural Efficiency Package — Adjourned — WA Journalists Union and Community Newspapers (1985) Ltd and Another — No. 1899 of 1989 — Martin C.. Negus C., Kennedy C. — 18/12/89 — Media (Newspapers) Application to vary Award pursuant to Structural Efficiency Principle — Disputed only. Applicant Union claim for a $15.00 quantum wage increase for a particular classification — Applicant expressed concern that an anomaly would be created via the no extra claims commitment if a nexus Award received the higher quantum increase where the instant Award did not — Commission viewed Structural Efficiency measures including an agreed programme of award re-drafting with the assistance of a Legal Practitioner — Commission found that, to the particular classification, the increase of $12.50 should be applied, but did not preclude any consideration of changed circumstances — Granted in Part — LEDFCU and WAGRC — No. 1530 of 1989 (R) — Kennedy C. — 30/11/89 — Railways Application to vary Award by consent pursuant to Structural Efficiency Principle — Commission found Award had in it. and operational many of the features of Structural Efficiency and proposals for further improvements — Granted — AMWSU and Others and Argyle Diamond Mines Ply Limited and Another — No. 2023 of 1989 (R) — Halliwell S.C. — 10/11/89 — Diamond Mining and Production Application to vary Award by consent pursuant to Structural Efficiency Principle and allowances — Commission viewed agreement, including introduction of broadbanding and ratified the variations sought subject to an agreement to further documentation regarding training and skills matters by the second phase of wage increases — Granted — WAROU v. WAGRC — No. RCB 4 of 1989 — Railways Classification Board. Kennedy C., Chairperson — 4/12/89 — Railways Applications to vary Awards/Agreements pursuant to Structural Efficiency Principle, by consent — Commission's Reasons for Decision to be read in conjunction with those of another application due to common background — Commission found Principles to be satisfied, however determined quantum increase in rates for some classifications and dismissed a submission to include a "test" classification structure on the basis that the Commission was obliged by the State Wage Decision to adopt a decision ofanotherCommission — Granted in Part — CMEU and Others and Swan Brewery Co Ltd — Nos. 2028,2100,2120,2453 of 1989 (R) — Kennedy C. — 17/11/89 — Brewing Industry Claim re Award variation pursuant to Second Tier Principle — Parties were in agreement to offsets in return for four per cent increase in wage rates, with one exception — Respondent sought application of four per cent to the rates which applied prior to three per cent adjustment — Commission adopted standard of no retrospectivity. and found calculation of four per cent to be based on existing rales — Granted — Clothing and Allied Trades and Fullin Tailoring Co and Others — No. 461 A/89 — Kennedy C. — 27/ 9/89 —Clothing I Applications to vary Awards pursuant to Structural Efficiency Principle — Applications by consent subject to determination of rates to apply to six classifications — Both parties involved claimed their respective method of calculation most accurately established the skills rate —Commission reviewed Structural Efficiency measures including broadbanding, measures to resolve demarcation disputes and training. So far as the rates were concerned Commission found the problem was that rates specified for service did not of themselves denote skill — Commission, with regards to skills audits, restructuring commitments and the parties obligation to establish correct relativities found in favour of Applicant, provided that it did not establish that the same level of increase would apply for the second phase — Granted — Australian Railways Union v. Western Australian Government Railways Commission and Others — No. 1715 of 1989(R) and No. 2469 of 1989(R) — Kennedy C. — 24/11/89 - Railways Application for variation of award re various allowances — Applicant Union sought increases in fine with CPI movement from and including March 1985 for two of the allowances and others to be increased based on wage movements since they were last fixed — Respondent consented to claim — Commission answered question as to whether allowance was reimbursement ofexpenses or an allowance relating to conditions of work — Commission found claim to be within guidelines — Granted — FMWU v. Canine Security and Others — No. 1504 of 1989 — Fielding C. — 11/12/89 — Security Claims re contractual entitlements — Both applicants sought payment ofoutstanding wages and one applicant further son^txiprorata holiday pay and penalty pay for weekend work — Respondent objected on basis that employees had been disloyal — Commission found in favour of applicants in so far as payment for outstanding wages — Ordered Accordingly — Mr Markovina and T. Darby — Nos. 2199 and 2200 of 1989 — Fielding C. — 13/11/89 — Aerobic Instructors Interpretation of an Award re was an employer required to pay an officer who is absent on sick leave the shift and weekend penalties the officer would have received had the officer would in accordance with his/her shift roster — Applicant Union agreed that the word "wages" was to be read in its widest and general sense in determining the payment due — Respondent argued paragraph of clause in Award in question was inserted as part of implementation of38 hour week and intended confine payment to the ordinary payment or wages the employee would have received i.e. 7.6 hours rather than eight and adjust the accrued entitlement to paid sick leave similarly — Commission received Authorities and found in favour of Respondent — Declared Accordingly — FMWU and Wormald International (Australia) Pty Ltd and Others — No. 725 of 1989 — Martin C. — 3/11/89 — Security 4Appficaiion for Stay of Order re $15.00 per week Structural Efficiency Wage Adjustment to a Common Rule Award — Applicants submitted that a serious issue was to be tried which involved consideration of Structural Efficiency Principle and the question of jurisdiction — President found appeal involved a member of employers and a large member of their employees — President applied reasoning of O'Dea P. and found the balance of convenience did not favour the Applicants — However, President allowed on abridgment of time, declared sufficient interest and waived negotiations for appeal to proceed — Ordered Accordingly — Coles New World Supermarkets and Others and FCU — No. 2784 of 1989 — Sharkey P. — 6/2/90 — Retail/Wholesale (Clerical) application to vary Award pursuant to Structural Efficiency Principle — Commission in Court Session had previously determined special case states — Commission in Court Found parties entitled to first wage adjustment under Structural Efficiency Principle to be applied to first increment of work value adjustment and that consideration of the second adjustment would not require further debate or determination of Work Value or Special Cases — Granted — WA Journalists Union and Community Newspapers and Another — No. 1899 of 1989 — Martin C./Negus C./Kennedy C. — 20/12/89 — Media (Newspapers) (Lxix) WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 70 W.A.I.G. CUMULATIVE DIGEST—conlinued WAGES —continued 2Appcat against decision of Commission (69 WAIG 3383} re claim for wages said to be due under a contract of employment — No appearance at appeal by Appellant or at original Commission hearing — From Appeal Book and transcript of Commission hearing Full Bench deduced that crux of appeal turned on allegation of bids by the Commission — Full Bench referred to the test on bias and found that as Appellant had not raised question of bias in first instance before the Commission it could not do so now — Further it was clear on the test outlined that even had bias been argued it could be sustained as there was no demonstration of bias in the legal or any other sense — Full Bench also noted that although it dealt with this appeal on its merits section 27(1 )(a)(iv) gives the Commission however constituted power to dismiss proceedings at any stage in the absence of an appearance by any party — Dismissed — Structor Pty Ltd trading as Interigo v. D.N.H. Cooray — No. 2589 of 1989 — Sharkey P., Colcman C.C., Negus Application for first wage increase under Structural Efficiency Principle — Structural Efficiency Agreement concluded between parties addressing issues of work practices. Award restructuring, cost time due to industrial disputes and forward planning and training — Commission stressed substantial part of Agreement involved the future and put the parties on notice that more than agreement would be required to achieve the second increase under Structural Efficiency Principle — Granted — AMSWU and Others and Hon Minister for Works and Services and Others — Nos. 1655,1722,1742,2357,2385,2361 of 1989(R) — Beech C. — 6/ 11/89 — Building/Government Application for benefits alleged to be due under contract of employment — Applicant claimed he had not been paid commissions on sales made during the latter part of his employment — There was no appearance for Respondent — Commission noted that whilst Applicants employment was covered by an award as the entitlement claimed was not provided by that award it was a non-award benefit and hence a matter over which the Commission had jurisdiction — Commission found application had been made out — Granted — Brian William Ramage and House of Carpets — No. 2504 of 1989 — 22/2/90 — Fielding C. — Retail Claim for payment of commissions and hours worked alleged to be due under contract of employment — Commission lound applicants largely uncontradicted evidence as to terms of contract re payment to be convincing and his diary entries to be a fair record of hours worked — Commission was too concerned with the accuracy of the Applicant's estimate to arrive at a figure that was at all accurate itself and subsequently found claim for commission not made out — Granted in Part — Eric Purvis v. Auto Bavaria — No. 2533 of 1989 - Fielding C. - 22/03/90 — Motor Vehicle Application for three weeks' wages alleged to be due from contract of employment — The main facts were not in dispute and Commission found that agreement for remuneration was that Applicant received 50 per cent of his gross daily takings to be paid monthly —There being no entitlement to "wages" as such —Respondent refused to pay outstanding amount as Applicant had an accident in Respondent's vehicle the repair of which cost more than the amount due — Respondent also claimed Applicant was subcontractor and not an employee — Commission referred to "control" test and found that the indicia showed Applicant was an employee under a contract of service — Commission further found there was no contract or agreement or arrangement that remuneration would be subject to deductions in the event of motor accidents — Granted in Part— Transport — Brady A.G. and Isherwood Holdings Pty Ltd trading as Superior Courier Services — No. 2674 of 1989 — Martin C. — Transport Applications to vary Awards in relation to structural efficiency — Parties placed sufficient material before Commission to satisfy it there was positive co-operation in a fundamental review of the Award and implementation of measures to improve the efficiency of the industry and provide employees with access to more varied, fulfilling and better paid jobs in accordance with the Structural Efficiency Principle — Commission expressed hope that second stage structural efficiency applications would incorporate the necessary opportunities for training — Granted — FBTPU v. Midland Brick and Others — No. 1958 of 1989, 1959 and 1961 of 1989(R) — Beech C. — 2/11/89 — Brick. Cement, Rope, Tile and Pottery Manufacturing Applications for payment of salary alleged to be due under contracts of employment — Respondent argued that as it was in liquidation Commission did not have jurisdiction to deal with matter and sought order for stay of proceedings — Commission found that section 371(2) of the Companies (Western Australia) Code prevents proceedings from being commenced or otherwise proceeded with against a company where a winding up order has been made without leave of the Supreme Court — Stay ordered unless and until leave of Supreme Court obtained — Building Construction — Pennell J.C. and Others and Manfal Pty Ltd (In Liquidation) — Nos. 2363 to 2383 of 1989 — Fielding C. — 14/2/90 — Housing Applications for wages said to be due under contracts of employment — Commission found submissions by Applicants as to establishment of contracts of employment were not persuasive and comments about needs to discuss further some aspects of terms suggest there was no acceptance if indeed there were offers of employment — Commission found applicants failed to establish contracts of employment were entered into — Dismissed — Stevenson 1. and Stevenson B.M. v. Ellesen Pty Ltd — Nos. 1533 and 1534 of 1989 — Kennedy C. — 11/04/90 — Nursery •••-- Application to vary Award by consent by increasing rates of pay pursuant to Structural Efficiency Principle — Other variations relating to conditions of employment and arising out of agreement known as Miscellaneous Workers Private Sector Memorandum of Agreement 1989 were also sought —Commission found this restructuring agreement to contain some changes of substance to the Award which incline towards added efficiencies and flexibility — Granted — FMWU v. Carine Glades Health Studio and Others — No. 1413 of 1989 — Fielding C. — 08/02/90 — Health and Fitness Seven applications to vary Awards by increasing rates of pay pursuant to Structural Efficiency Principle — One matter was not ready so adjourned — Parties had reached agreement embodied in Private Health Care Industry Restructuring Memorandum of Agreement 1990 — Commission was satisfied that parties had complied with SEP sufficiently to warrant at least a first stage increase — Granted — HSOAv. Red Cross Society and Others — No. 2976—2082 of 1989—FieldingC. 20/03/90 — Private Health Care 3 Application for variation to Award by incresing wages by insertion of new provision —Applicants submitted that proposed variation would simply formalise an over award payment that had been in existence since 1977 and would result in no extra costs for employers — Applicants were able to demonstrate that payments had been regularly indexed in accordance with general wage movements and have been applied for all purposes of the Award — Commission in Court Session found Applicants had discharged onus of proof and endorsing claim would not offend Wage Fixing Principles — Commission in Court Session found over award payment should be included in Award but in an additional clause so as not to prejudice award restructuring — Granted — CMEU and Another v. Kalgoorlie Lake View Pty Ltd — Coleman C.C./Gregor C./Kennedy C. — 29/09/89 — Gold Mining Applications to vary Awards pursuant to Structural Efficiency Principle — Parties sought to vary Awards and wage increases consistent with the Federal Metal Industry Award Decision — Commission determined or commented on matters of difference between the parties in terms of wage and classification structure and those arising out of Memoranda of Understanding — Issues raised out of Memoranda of Understanding were, inter alia, implementation time tables, enterprise agreements — Commission directed parties to address matter ofenterprise negotiaiton as a matter of priority, particularly considering of the Unions concerns and legitimate role — Commission would make note of question of a checklist for parties to follow as CICS had not — Commission further reviewed commitments of Unions — Commission varied Awards with respect to those Unions whose commitment was given under the Wage Fixing Principles, the Principles otherwise being satisifed in that it would be unrealistic to demand that the parlies at Stale level deliver more than what has been achieved at Federal level, particularly given the close relationship between the one State Award and its parent — Granted in Part — AMWSU and Others and Anodisers WA and Others - Nos. 1656, 1658 and 1797 of 1989 - George C. - 10/10/89 - Various Application to vary Award re allowance for tradespersons performing in charge duties as a special case — Applicant Union argued work value change was reasonable in terms of the extra responsibilities undertaken as to safety — Respondent argued wage structure incorporated experience component — CICS reviewed authorities and OHSW Act and found employees had a duty of care with respect to training issues and skills, also conditions of employment were more readily susceptible to re-evaluation than skills and responsibilities — Furthermore in one word what needed to be demonstrated was a significant net addition to work value and more onerous responsibilities — Dismissed — ETU and Others and SECWA — Nos.CR262,322.322A, 557Aand618of 1989 — Halliwell S.C., Salmon C. George C. — 7/3/90 — Electricity Supply (Ixx) WESTERN AUSTRALIAN INDUSTRIAL GAZETTE CUMULATIVE DIGEST- WAGES —continued Application to vary Award pursuant to Structural Efficiency Principle — Applicant Union sought to have claim processed in same manner as had been for an Award in Victoria — Respondent opposed claim on the hours of the quantum sought, the requirements of the Principle and argued that Commission should direct the parties to negotiate — Intervener object to particular classifications in proposed trial classification structure on the grounds of constitutional coverage — Commission reviewed Victorian case. State Wage Principles and felt compelled to follow the course set in Victoria, despite reservations, with an Award Modernisation clause and directions to negotiate a classification structure for trial in the industry — Commission refrained from determining coverage issue and split application into two to deal with remaining matters — Granted in Part and adjourned — ECU and Boans Ltd and Others — No. 1584 of 1989(R) — Parks C. — 4/12/89 — Retail and Wholesale Application to vary Award by Consent by increasing wages and changing title of Assistant Head Orderlies on basis of significant increase in responsibilities and work load — Commission found this was a unique situation with little likelihood of fiow-on and was in accordance with Principles — Granted retrospectively — FMWU and Royal Perth Hospital — No. 1592of 1988 —Negus C. - Public Hospital ® Application to vary Award pursuant to Structural Efficiency Principle — Commission reviewed background to application and was dissatisfied with industrial record of the parties — Commission found only Metal Unions to have shown any commitment to the principles in the case to justify an Award Variation — Commission further found need to include an Award Modernisation subclause in compulsory terms and directed the Australian Workers Union to enter into negotiations with the Respondent for the purposes of the Structural Efficiency Principle — Subsequently, in Supplementary' Reasons for Decision, Commission was satisfied after hearing further submissions that it was able to ratify the arrangement as it stood after negotiations as it was consistent with undertakings given by theother parties to the Award —Granted —AMWSU and Others v. Cargill Australia —No. 1660 of 1989(R) — Grcgor C. - 23/10/89 - Mining (Salt) .T. Consent application for variation pursuant to Structural Efficiency Principle — Parties sought amendments to definition, various clauses and deletion of obsolete clauses — Commission found amendments and implementation agreement complied with State Wage Principles — Granted — PKIU and WA Newspapers and Others — No. 2151 of 1989(R) — Negus C. — 23/3/90 — Printing (Newspapers) Claim re Wages Union sought increase in pay rates on the basis of the rates being paid by the Respondent on other necessities and isolation Commission conducted inspections, reviewed evidence and reviewed the establishment of the different rates under the Awards in question Commission found no justification in paying the higher rate as the conditions of the employees were, some travelling, equivalent to those on a mine site upon which the lower Paddington rate was based — Furthermore, Commission found workers had the advantage of living in a city environment — Commission found what Union sought was an over award payment and ol rates which had been applied by the company at its own discretion over many years — Dismissed — Leighton Contractors Pty ltd and AWU — No. CR889 of 1989 — Gregor C. — 20/12/89 — Gold Mining -'Consent application to vary Award pursuant to Structural Efficiency Principle, as a Special Case — Parties sought wage increase above that allowed by Wage Adjustment Principle and argued that it was necessary for Structural Efficiency within the Industry — CWAI intervening argued that a rigorous scrutiny was necessary to satisfy special case status and as did other section 50 parties addressed matters of public interest as related to the Principles — CICS found there was no need to consider the public interest in the context of the case and that the parties were committed to achieve an offset of the total package of costs — CICS included a review ot the economic conditions within the industry — CICS found wage rates established in conformity with the Work Value Principle in the context ofthc Structural Efficiency Principle had satisfied a fundamental requirement of a Special Case — CICS however did not accept format in which wage rates were expressed and specified howthc relativities should be determined against the rates of an Award in the industry, previously granted Structural Efficiency Wage Increases — Granted in Part — AWU and Associated Minerals Consolidated and Others —No. 1839of 1989(R) — ColcmanC.C.,GrcgorC.,GcorgeC.— 16/2/90—Mining and Processing (Mineral Sands) I Claim re payment for lost time — Commission reviewed authorities and applied test as to whether there was a hazard of sufficient moment to cause employees to fear for their safety of if on the facts, they were normally entitled to believe that a hazard existed so as to justify the action taken by them — Commission found on evidence inter alia the employees were availble and ready for work, the employees had a bonafide belief that areas of the site were unsafe, but unsure as to which, that the employer's direction to work was unreasonable in the employees' knowledge of breaches of the Occupational Health. Safely and Welfare Act and that one particular day claimed for was usually worked on an overtime basis — Granted in Part — BTA and Others and Dc Vaugh and Sons and Another — No. CR581 of 1989 — Halliwell S.C. — 14/9/89 — Construction Application for variation of Award by consent to increase wages pursuant to Structural Efficiency Principle and various other changes including casuals, hours, new working arrangements and meal times — Commission was satisfied variations would increase work place flexibility and was in accordance with what SEP required — Granted — UFT and Allwood Furniture Industries and Others — No. 2457 of 1989(R) — Beech C. — 21/12/89 — Furniture Trades Conference matter referred for hearing and determination re Declaration sought that employees assisting in on the job training of other employees on a new machine is implicate duty present to the contract ofemployment of the employees concerned -— Union argued that the payment of an employee at instructor rate on an earlier occasion constituted the status quo for any subsequent training on the machine and that the Applicant was prohibited from doing what it proposed by Occupational Health. Safety and Welfare Regulations — Commission found safety issue had been addressed and no difference between the common practice of a co-worker assisting another employee in a new area on a new machine — However Commission did note that were the situation to prove to be beyond that then provided the Wage Fixing Principles were met there would be a remedy as the Printing Industry case demonstrated — Granted — WAGRC and ARU — No. CR678 of 1989 — Kennedy C. — 11/10/89 — Railways". Application to vary Award by consent to increase wages in accordance with Structural Efficiency Principle and other substantial changes — Commission noted details of changes to go into Award are contained in exhibit the record also contains matters that will form basis for continued negotiations — Commission found changes and negotiations undertaken satisfy SEP — Granted — Timber Industry Union v. Bunnings Forest Products and Others — No. 1934 of 1989(R) — Beech C. — Timber Industry Application to vary Award pursuant to Structural Efficiency Principle and allowances — Commission found Structural Efficiency Agreement, to include a review of classifications structure, and the wage increases proposed for each classification level to comply with the spirit of Principles — Commission sustained increases in allowances in line with CPI movements — For reasons of equity and consistency with employees covered by a Federal Award Commission was prepared to include a new set of location allowances with but rather as an isolation allowance — Granted — WAGHSOA and CBH — No. 2411 of 1989 — Fielding C. — 22/ 12/89 — Grain Handling Application to vary Award pursuant to Structural Efficiency Principle — Commission reviewed initiatives in the industry by Committees. Memorandum of Agreement, claim for increased allowances based on wages movements and a claim for a special payment earlier determined by Commission in Court Session — Commission found special payment was not intended to be included in the base rate until the second Structural Efficiency Increase — Commission was satisfied commitments and proposed variation, save some amendments, were consistent with the State Wage Principles — Granted in Part — AMWSU and Associated Minerals Consolidated and Others — No. 1754 of 1989(R) — George C. — 27/12/89 — Mining and Processing (Mineral Sands) Complaint that employees had not been paid wages in accordance with Award — Defendant sought to withhold payment due to stoppage by employees over safety issue — Industrial Magistrate found Defendant had failed to comply with Regulation 327 of Occupational Health. Safety and Welfare Regulations 1988 and employees had right to stop work as their safety was at risk — Magistrate found employees to be entitled to be paid for time of stoppage — Proven — ARU v. WAGRC — Nos. 289 and 401 of 1989 — Walsh S.M. — 16/11/89 — Railways (Ixxi) WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 70W.AXG. CUMULATIVE DIGEST—continued Page WAGES —continued Application to vary Award pursuant to Structural Efficiency Principle — Commission dealt with issue arisingout ot Memorandum of Agreement such as proposed new Award, classification structure, wages, respondent specific issues, service pay and the exclusion of Government Hospitals from the Order to issue — Commission found agreement in accordance with principles — Granted in Part — AMWSU and Others and Hon Minister for Works and Others — Nop. 1722(1) of 1989(R) — George C. — 14/11/89 — Engineering (Government) 783 Application by four employees (band of musicians) for payment ofwages said to be due from contract ofemploymcnt — Commission noted that four members of band filed single applications which was done for convenience as dispute was common Commission correct course ws for each band member to have filed separately, however, was prepared to use powers under section 27 of the Industrial Relations Act to split application and hear them together — Commission found contract existed not between band as an entity and Respondent but between individuals concerned and Respondent — Respondent submits that the band incited and encouraged actions of patrons which were detrimental to its business and constituted serious misconduct — Commission found that song complained of had been performed in the same manner on numerous other occasions at the Respondent's premises and there was no evidence of any direction given to band that they not perform this or any other song — Commission found band members had misconducted themselves and breached the contract, therefore this was no basis for withholding money — Granted — Long S. and Others v. Prime Holdings Pty Ltd trading as Phoenix Hotel — No. 2396/1-4/89 — Kennedy C. - 30/01/90 - Hotel •;•••• ; 906 Consent Application for variation of Award pursuant to Structural Efficiency Principle — Commission commended parties on their efforts towards Structural Efficiency — Granted — Timber Industry Union and Wesfi Pty Ltd — No. 1933 ofl 989(R) — Beech C. — 03/01/90 — Particle Board Manufacture 831 'Application for new Award which will create one Award for whole of Applicant's operations and replace existing Awards — Matter referred to Commission in Court Session as special case pursuant to State Wage Principles — CICS noted the current vague position of parties re intended scope and parties to Award — Applicant gave evidence that introduction of proposed Award was critical to continued future of company — section 50 parties were generally supportive of application — CICS noted that application involved wage increases in excess of that allowed by Principles hence special case status, however, evidence was given that cost of these increases would be largely offset by the operational advantages the Applicant would gain — CICS found the method parties had chosen to implement Structural Efficiency Principle is appropriate and was prepared to approve in principle the proposed Award on understanding that Award finally presented to Commission is agreed and fully understood between parties — Adjourned — CSBP and Farmers Ltd and Another v. AMWSU — No. A19 ofl989 — Halliwell S.C., George C, Beech C. — 17/1/90 — Superphosphate and Chemical ; 986 Applications to vary Awards by adjusting wages for second structural efficiency — Commission reviewed issue of establishment of minimum rates and accepted that awards were paid rates awards — Commission found on whole Wage Adjustment Principal satisfied and that it was duty bound to enforce Principles in terms of Operative Date — Granted — FMWU and Hon Minister for Education and Others - No. 137, 142-4, 146, 148, 154, 178, 188, 190. 195, 597. and P20 of 1990 — Fielding C. — 10/5/90 1762 WORK VALUE - . 'Application to vary Award by consent re Wages — Parties sought increase in rates of wages as a special case with a Structural Efficiency wage adjusment to be applied for in addition to it — Parties argued that the increase sought was justified under the Work Value Principle to reflect significant net additions to work requirements — CICS granted leave for application to be varied to incorporate the necessary increase in rates under the Structural Efficiency Principle — CICS found the requirements of the Work Value Principle had been met — However, after reviewing Authorities CICS would not finally determine the matter until the Parties presented their Structural Efficiency Package — Adjourned — WA Journalists Union and Community Newspapers (1985) Ltd and Another — No. 1899 of 1989 — Martin C, Negus C, Kennedy C. — 18/12/89 — Media (Newspapers) 309 'Application to vary Award pursuant to Structural Efficiency Principle — Commission in Court Session had previously determined special case states — Commission in Court Found parties entitled to first wage adjustment under Structural Efficiency Principle to be applied to first increment of work value adjustment and that consideration of the second adjustment would not require further debate or determination of Work Value or Special Cases — Granted — WA Journalists Union and Community Newspapers and Another — No. 1899 of 1989 — Martin C./Negus C./Kennedy C. — 20/12/89 — Media (Newspapers) 1673 Application to vary Award by Consent by increasing wages and changing title of Assistant Head Orderlies on basis of significant increase in responsibilities and work load — Commission found this was a unique situation with little likelihood of flow-on and was in accordance with Principles — Granted retrospectively — FMWU and Royal Perth Hospital — No. 1592 ofl988 — Negus C. — Public Hospital 7"7".": Claim repayment for extra work done — Applicant Union argued duties performed and responsibilities undertaken by employee warrant remuneration at a higher rale — Respondent raised jurisdictional points — Commission from evidence found on balance of probabilities major and substantial duties and responsibilities were performed by employee — Granted in Part — AMSWU v. WA Government Railways Commission — No. CR596 of 1989 — Halliwell S.C. — 13/10/89 — Railways 221 Application to vary Award re allowance for tradespersons performing in charge duties as a special case — Applicant Union argued work value change was reasonable in terms of the extra responsibilities undertaken as to safety — Respondent argued wage structure incorporated experience component — CICS reviewed authorities and OHSW Act and found employees had a duty of care with respect to training issues and skills, also conditions ofemployment were more readily susceptible to re-evaluation than skills and responsibilities — Furthermore in one word what needed to be demonstrated was a significant net addition to work value and more onerous responsibilities — Dismissed ■— ETU and Others and SECWA ■— Nos. CR262,322,322A, 557A and 618 of 1989 — Halliwell S.C., Salmon C, George C. — 7/3/90 — Electricity Supply 989 'Application for variation of Award by inserting provision for a new allowance for electrical tradesmen who hold and use an additional licence — Mattercomes before Commission in Court Session as a "Special Case" pursuant to Wage Fixing Principles — Majority of Commission in Court Session found that having regard to Work Value Change Principle and the Structural Efficiency Principle which talks of establishing skill related career paths and better paid jobs there should be a new classification for an electrical tradesperson, being a tradesperson trained in and licenced to perform both electrical installing and electrical fittingandrequiredbytheemploycrsotodosoatahigherrateofwage than for those callings rather than an allowance —Granted in Part — Electrical Trades Union v. Minister for Works — No. 1567 of 1989 — Martin C., George C., Beech C. — 24/01/90 — Engineering Trades '711 WORKERS'COMPENSATION - . . Claim re unfair constructive dismissed seeking reinstatement — Applicant claimed change in roster from permanent night shi t o a rotating shift amounted to constructive dismissal — Respondent argued injury sustained by applicant resulted in applicant being able to do light duties available only in the day shift — Furthermore due to changes in the Hospital work was only available on a rotating roster — Commission found from evidence provided in favour of respondent and noted even though case law cited by Counsel was relevant, each unfair dismissal case has to be treated in accordance with its own facts — Dismissed — McDowell E. and Swan Cottage Home Inc - No. 830 of 1989 - Gregor C. - 17/11/89 - Nursing (Ixxii) 70 W.A.LG. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE CUMULATIVE DIGEST—continued WORKERS" COMPENSATION —continued Employee dismissed for inability to continue to perform the duties of the position — Applicant Union sought reinstatement on the grounds of unfair dismissal — Commission found on evidence including confidential transcript, that there had been a continuation of unsafe driving practises which could lead to a conclusion that there was a duty to remove the employee from the duties of the position under the Mines Regulations Act and that the employer had ascertained whether there was alternative employment — Commission also found the employee at all times had acted properly, had been honest with the employer — However, Commission in applying dicta of Savics case and the Undercliffe case found there was not a harsh and unjust exercise of the employers right to dismiss because the ultimate reason for the employee's dismissal was a back injury sustained in the employment — Commission though it wrong of the Respondent not honour its promise to favourably consider a future application for employment — Dismissed — AWU v. Newmont Australia Ltd — No. Cr972 of 1989 — Gregor C. — 15/01/90 — Mining Application for payment of Accident Pay said to be due under terms of Professional Divers' South Pepper/North Herald Project Agreement 1987, an unregistered industrial agreement — Accident pay or "make-up" pay represents the difference between what is received as a workers* compensation payment and what employee would ordinarily have received had injury not occurred — Respondent argued that Commission did not have jurisdiction to entertain claim because section 29(b)(ii) of the Industrial Relations Act only permits an employee to claim that a benefit under a contract of employment has not been allowed and since Application was lodged Applicant has been paid all that was due — Claim, accordingly, amended to that for a declaration as to what part of payments received were workers' compensation and accident pay respectively — Commission found that directly or indirectly this matter was now about quantum of workers' compensation payable to Applicant which is the exclusive jurisdiction of the Workers' Compensation Board — Even if Commission had jurisdiction to make declaration sought for the purposes of enforcing the employment contract this would be largely academic — Commission, therefore, exercised its discretion not to make a declaration — Dismissed — Munt G.V. v. Contract Diving Service Pty Ltd — No. 1487 of 1989 — Fielding C. — 15/02/90 — Diving (Ixxiii) .idustrial Gazett© PUBLISHED BY AUTHORITY Sub-Part 1 WEDNESDAY, 25th JULY, 1990 Vol. 70—Part 2 THE mode of citation of this volume of the Western Australian Industrial Gazette will be as follows: - 70 W.A.I.G. CUMULATIVE CONTENTS AND DIGEST APPEAR AT THE END OF THIS PUBLICATION LONG SERVICE LEAVE— Standard Provisions— (As Consolidated at a Hearing before the Commission in Court Session on 15 December 1977)* 1. — Right to Leave. A worker shall, as herein provided, be entitled to leave with pay in respect of long service. 2. — Long Service. (1) The long service which shall entitle a worker to such leave shall, subject as herein provided, be continuous service with one and the same employer. (2) Such service shall include service prior to the 1st day of April 1958, if it continued until such time but only to the extent of the last 20 completed years of continuous service. (3) (a) Where a business has, whether before or after the coming into operation hereof, been transmitted from an employer (herein called "the transmittor") to another employer (herein called "the transmittee") and a worker who at the time of such transmission was an employee of the transmittor in that business becomes an employee of the transmittee the period of the continuous service which the worker has had with the transmittor, (including any such service with any prior transmittor shall be deemed to be service of the worker with the transmittee. (b) In this subclause "transmission" includes transfer, conveyance, assignment or succession whether voluntai7 or by agreement or by operation of law and "transmitted" has a corresponding meaning. (4) Where, over a continuous period, a worker has been employed by two or more companies each of which is a related company within the meaning of section 6 of the Companies Act 1961 the period of the continuous service which the worker has had with each of those companies shall be deemed to be service of the worker with the company by whom he is last employed. Section 6 reads— (1) For the purposes of this Act, a coiporation shall, subject to the provisions of subsection (3) of this section, be deemed to be a subsidiary of another corporation, if, (a) that other corporation— (i) controls the composition of the board of directors of the first mentioned corporation; (ii) controls more than half of the voting power in the first mentioned corporation; or (iii) holds more than half of the issued share capital of the first mentioned corporation excluding any part thereof which carries no right to participate beyond a specified amount in a distribution of either profits or capital; or (b) the first mentioned corporation is a subsidiary of any corporation which is that other corporation's subsidiary (2) For the purpose of subsection (1) of this section, the composition of a corporation's board of directors shall be deemed to be controlled by another corporation if that other corporation by the exercise of some power exercisable by it without the consent or concurrence of any other person can appoint or remove all or a majority of the directors; and for the purposes of this provision that other corporation shall be deemed to have power to make such an appointment if— (a) a person cannot be appointed as a director without the exercise in his favour' by that other corporation of such power; or (b) a person's appointment as a director follows necessarily from his being a director or other officer of that other corporation. A76511-1 20! ;o WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 70 W.A.I.G. (3) In determining whether one corporation is subsidiary of another corporation— (a) any shares held or power exercisable by that other corporation in a fiduciary capacity shall be treated as not held or exercisable by it; (b) subject to paragraphs (c) and (d) of this subsection, any shares held or power exercisable— (i) by any person as a nominee for that other corporation (except where that other corporation is concerned only in a fiduciary capacity); or (ii) by, or by a nominee for, a subsidiary of that other corporation, not being a subsidiary which is concerned only in a fiduciary capacity, shall be treated as held or exercisable by that other corporation; (c) any shares held or power exercisable by any person by virtue of the provisions of any debentures of the first mentioned corporation or of a trust deed for securing any issue of such debentures shall be disregarded; and (d) any shares held or power exercisable by, or by a nominee for, that other corporation or its subsidiary (not being held or exercisable as mentioned in paragraph (c) of this subsection) shall be treated as not held or exercisable by that other corporation if the ordinary business of that other corporation or its subsidiary, as the case may be, includes the lending of money and the shares are held or power is so exercisable by way of security only for the purposes of a transaction entered into in the ordinary course of that business. (4) A reference in this Act to the holding company of a company or other corporation shall be read as a reference to a corporation of which that last mentioned company or corporation is a subsidiary. (5) Where a corporation— (a) is the holding company of another corporation; (b) is a subsidiary of another corporation; (c) is a subsidiary of the holding company of another corporation, that first mentioned corporation and that other corporation shall for the purposes of this Act be deemed to be related to each other. (5) Such service shall include — (a) any period of absence from duty on any annual leave or long service leave; (b) any period of absence from duty necessitated by sickness of or injury to the worker but only to the extent of 15 working days in any year of his employment; (c) any period following any termination of the employment by the employer if such termination has been made merely with the intention of avoiding obligations hereunder in respect of long service leave or obligations under any award in respect of annual leave; (d) any period during which the service of the worker was or is interrupted by service — (i) as a member of the Naval, Military or Air Forces of the Commonwealth of Australia other than as a member of the British Commonwealth Occupation Forces in Japan and other than as a member of the Permanent Forces of the Commonwealth of Australia except in the circumstances referred to in section 31 (2) of the Defence Act 1903-1956, and except in Korea or Malaya after 26 June 1950; (ii) as a member of the Civil Construction Corps established under the National Security Act 1939-1946; (iii) in any of the Armed Forces under the National Service Act 1951 (as ° amended). Provided that the worker as soon as reasonably practicable on the completion of any such service resumed or resumes employment with the employer by whom he was employed immediately before the commencement of such service. (6) Service shall be deemed to be continuous notwithstanding — (a) the transmission of a business as referred to in paragraph (3) of this subclause; (b) the employment with related companies as referred to in paragraph (4) of this subclause; (c) any interruption of a class referred to in paragraph (5) of this subclause; (d) any absence from duty authorised by the employer; (e) any standing down of a worker in accordance with the provisions of an award, industrial agreement, order or determination under either Commonwealth or State law; (f) any absence from duty arising directly or indirectly from an industrial dispute if the worker returns to work in accordance with the terms of settlement of the dispute; (g) any termination of the employment by the employer on any ground other than slackness of trade if the worker be re-employed by the same employer within a period not exceeding two months from the date of such termination; (h) any termination of the employment by the employer on the ground of slackness of trade if the worker is re-employed by the same employer within a period not exceeding six months from the date of such termination; (i) any reasonable absence of the worker on legitimate union business in respect of which he has requested and been refused leave; (j) any absence from duty after the coming into operation of this clause by reason of any cause not specified in this clause unless the employer, during the absence or within 14 days of the termination of the absence notifies the worker in writing that such absence will be regarded as having broken the continuity of service, which notice may be given by delivery to the worker personally or by posting it by registered mail to his last recorded address, in which case it shall be deemed to have reached him in due course of post. Provided that the period of absence from duty or the period of any interruption referred to in placita (d) to (j) inclusive of this paragraph shall not (except as set out in paragraph (5) of this subclause) count as service. 3.—Period of Leave. (1) The leave to which a worker shall be entitled or deemed to be entitled shall be as provided in this subclause:— (2) Subject to the provisions of paragraphs (5) and (6) of this subclause: Where a worker has completed at least 15 years' service the amount of leave shall be — (a) in respect of 15 years' service so completed — 13 weeks'leave; (b) in respect of each 10 years' service completed after such 15 years — eight and two-thirds weeks' leave: 70 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 2081 (c) on the termination of the workers employment — (i) by his death; (ii) in any circumstances otherwise than by his employer for serious misconduct; in respect of the number of years' service with the employer completed since he last became entitled to an amount of long service leave, a proportionate amount on the basis of 13 weeks for 15 years' service. (3) Subject to the provisions of paragraph (6) of this subclause, where a worker has completed at least 10 years' service but less than 15 years service since its commencement and his employment is terminated — (i) by his death; or (ii) in any circumstances, otherwise than by his employer for serious misconduct; the amount of leave shall be such proportion of 13 weeks' leave as the number of completed years of such service bears to 15 years. (4) In the cases to which paragraphs (2) (c) and (3) of this subclause apply the worker shall be deemed to have been entitled to and to have commenced leave immediately prior to such termination. (5) A worker whose service with an employer commenced before 1 October 1964, and whose service would entitle him to long service leave under this clause shall be entitled to leave calculated on the following basis:— (a) For each completed year of service commencing before 1 October 1964, an amount of leave calculated on the basis of 13 weeks' leave for 20 years' service and (b) for each completed year of service commencing on or after 1 October 1964, an amount of leave calculated on the basis of 13 weeks' leave for 15 years' service. Provided that such worker shall not be entitled to long service leave until his completed years of service entitle him to the amount of long service leave prescribed in either paragraph (2) (a) or paragraph (2) (b) of this subclause as the case may be. (6) A worker to whom paragraphs (2) (c) and (3) of this subclause apply whose service with an employer commenced before 1 October 1964, shall be entitled to an amount of long service leave calculated on the following basis: (a) For each completed year of service commencing before 1 October 1964, an amount of leave calculated on the basis of 13 weeks' leave for 20 years' service; and (b) for each completed year of service commencing on or after 1 October 1964, an amount of leave calculated on the basis of 13 weeks' leave for 15 years' service. 4.—Payment for Period of Leave. (1) A worker shall, subject to paragraph (3) of this subclause, be entitled to be paid for each week of leave to which he has become entitled or is deemed to have become entitled the rate of pay applicable to him at the date he commences such leave. (2) Such rate of pay shall be the rate applicable to hi m for the standard weekly hours which are prescribed by this award (or agreement), but in the case of casuals and part-time workers shall be the rate for the number of hours usually worked up to but not exceeding the prescribed standard. (3) Where by agreement between the employer and the worker the commencement of the leave to which the worker is entitled or any portion thereof is postponed to meet the convenience of the worker, the rate of payment for such leave shall be at the rate of pay applicable to him at the date of accrual, or, if so agreed, at the rate of pay applicable at the date he commences such leave. (4) The rate of pay — (a) shall include any deductions from wages for board and/or lodging or the like which is not provided and taken during the period of leave; (b) shall not include shift premiums, overtime, penalty rates, special rates, disability allowances, fares and travelling allowances or the like. (5) In the case of workers employed on piece or bonus work or any other system of payment by results the rate of pay shall be calculated by averaging the workers' rate of pay for each week over the previous three monthly period. 5.—Taking Leave. (1) In a case to which placita (a) and (b) of paragraph (2) of subclause (3) apply:— (a) Leave shall be granted and taken as soon as reasonably practicable after the right thereto accrues due or at such time or times as may be agreed between the employer and the worker or in the absence of such agreement at such time or times as may be determined by the Special Board of Reference having regard to the needs of the employer's establishment and the worker's circumstances. (b) Except where the time for taking leave is agreed to by the employer and the worker or determined by the Special Board of Reference the employer shall give to a worker at least one month s notice of the date from which his leave is to be taken. (c) Leave may be granted and taken in one continuous period or if the employer and the worker so agree in not more than three separate periods in respect of the first 13 weeks' entitlement and in not more than two separate periods in respect of any subsequent period of entitlement. (d) Any leave shall be inclusive of any public holidays specified in this award (or agreement) occurring during the period when the leave is taken but shall not be inclusive of any annual leave. (e) Payment shall be made in one of the following ways:— (i) In full before the worker goes on leave; (ii) at the same time as his wages would have been paid to him if the worker had remained at work, in which case payment shall, if the worker in writing so requires, be made by cheque posted to an address specified by the worker; or (iii) in any other way agreed between the employer and the worker. (0 No worker shall, during any period when he is on leave, engage in any employment for hire or reward in substitution for the employment from which he is on leave, and if a worker breaches this provision he shall thereupon forfeit his right to leave hereunder in respect of the unexpired period of leave upon which he has entered, and the employer shall be entitled to withhold any further payment in respect of the period and to reclaim any payments already made on account of such period of leave. (2) In the case to which paragraph (2Xc) or paragraph (3) of subclause (3) applies and in any case in which the employment of the worker who has become entitled to leave hereunder is terminated before such leave is taken or fully taken the employer shall, upon, termination ofhis employment otherwise than by death pay to the worker, and upon termination of employment by death pay to the personal representative of the worker upon request by the personal representative, a sum equivalent to the amount which would have been payable in respect of 2082 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 70 W.A.I.G. the period of leave to which he is entitled to deemed to have been entitled and which would have been taken but for such termination. Such payment shall be deemed to have satisfied the obligation of the employer in respect of leave hereunder. 6. — Granting Leave in Advance and Benefits to be Brought into Account. (1) Any employer may by agreement with a worker allow leave to such a worker before the right thereto has accrued due. but where leave is taken in such case the worker shall not become entitled to any further leave hereunder in respect of any period until after the expiration of the period in respect of which such leave had been taken before it accrued due. (2) Where leave has been granted to a worker pursuant to the preceding paragraph before the right thereto has accrued due. and the employment subsequently is terminated, the employer may deduct from whatever remuneration is payable upon the termination of the employment such amount as represents payment for any period for which the worker has been granted long service leave to which he was not at the date of termination of his employment or prior thereto entitled. (3) Any leave in the nature of long service leave or payment in lieu thereof under a State Law or a long service leave scheme not under the provisions hereof granted to a worker by his employer in respect of any period of service with the employer shall be taken into account whether the same is granted before or after the coming into operation hereof and shall be deemed to have been taken and granted hereunder in the case of leave with pay to the extent of the period of such leave and in the case of payment in lieu thereof to the extent of a period of leave with pay equivalent thereof of the entitlement of the worker hereunder. 9. — State Law. (1) The provisions of any State Law to the extent to which they have before the coming into operation hereof conferred an accrued right on a worker to be granted a period of long service leave in respect of a completed period of 15 or more years' service or employment or an accrued right on a worker or his personal representative to payment in respect of long service leave shall not be affected hereby and shall not be deemed to be inconsistent with the provisions hereof. (2) The entitlement of any such worker to leave in respect of a period of service with the employer completed after the period in respect of which the long service leave referred to in paragraph (1) of this subclause accrued due shall be in accordance herewith. (3) Subject to paragraphs (1) and (2) of this subclause the entitlement to leave hereunder shall be in substitution for and satisfaction of any long service leave to which the worker may be entitled in respect of employment of the worker by the employer. (4) An employer who under any State Law with regard to long service leave is exempted from the provisions of that law as at 1 April 1958, shall in respect of the workers covered by such exemptions be exempt from the provisions hereof. 10. — Exemptions. The Special Board of Reference may subject to such conditions as it thinks fit exempt any employer from the provisions hereof in respect of its employees where there is an existing or prospective long service scheme which in its opinion, is, viewed as a whole, more favourable for the whole of the employees of that employer than the provision hereof. 7. — Records to be Kept. (1) Each employer shall during the employment and for a period of 12 months thereafter, or in the case of termination by death of the worker for a period of three years thereafter, keep a record from which can be readily ascertained the name of each worker, and his occupation, the date of the commencement of his employment and his entitlement to long service leave and any leave which may have been granted to him or in respect of which payment may have been made hereunder. (2) Such record shall be open for inspection in the manner and circumstances prescribed by this award (or agreement) with respect to the time and wages record. *Editor's Note. The Judgment and General Order as prescribed by section 94A was published in 58 WAIG Part 1 Subpart 2 at Page 116. There was no Schedule of Exemptions. 8. — Special Board of Reference. (1) There shall be constituted a Special Board of Reference for the purpose hereof to which all disputes and matters arising hereunder shall be referred and the Board shall determine all such disputes and matters. (2) There shall be assigned to such Board the functions of— (a) the settlement of disputes of any matters arising hereunder; (b) the determination of such matters as are specifically assigned to it hereunder. (3) The Board of Reference shall consist of one representative or substitute therefor nominated from time to time by the Confederation of Western Australian Industry (Incorporated) and one representative or substitute nominated from time to time by the Trades and Labor Council of Western Australia together with a chairman to be mutually agreed upon by the organisations named in this paragraph. 70 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 20! 3 INDUSTRIAL APPEAL COURT — Appeals against decision of Full Bench — IN THE