WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION. No. 1309 of 1986. Between Union of Australian College Academics, Western Australian Branch, Industrial Union of Workers, Applicant and Western Australian College of Advanced Education, Respondent. Order. HAVING heard Mrs J. Drimatis on behalf of the Appli- cant and Mr R.E. Cock (of Counsel) on behalf of the Respondent, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979, orders — That the application be and is hereby withdrawn by leave. Dated at Perth this 9th day of June 1987. $ (iii) two years to three years 371.90 (iv) three years to five years 376.40 (v) over five years 381.30 (2) A leading hand, i.e. an employee placed in charge of not less than three other employees, shall be paid $14.50 per week extra. (3) The determination of wage rates prescribed in this award takes into account all disabilities associated with the performance of security and other duties under the scope of this award. (4) The wage rates prescribed in this award shall be varied only to give effect to any general increase in wage rates resulting from any Wage Indexation decision or economic enquiry by the Australian Conciliation and Arbitration Commission into the level of total wages in National Wage Cases. (5) Casual employees shall be paid 20 per cent in addition to rates prescribed in this clause. A copy of the proposed amendment may be inspected at my office at 815 Hay Street, Perth. Dated at Perth this 22nd day of June 1987. K. SCAPIN, Registrar. (Sgd.) G.L. FIELDING, [L.S.] Commissioner. NOTICES — Award/agreement matters — Application No. 660 of 1987. APPLICATION FOR VARIATION OF AWARD ENTITLED "BP REFINERY (KWINANA) (SECURITY MEN'S) AWARD 1978". NOTICE is given that an application has been made to the Commission by the Federated Miscellaneous Workers' Union of Australia, Hospital, Service and Miscellaneous, WA Branch under the Industrial Relations Act 1979 for a variation of the above Award. As far as relevant, those parts of the proposed amendment which relate to area of operation or scope are published hereunder. 3.—Scope. This award shall apply to workers, engaged by BP (Kwinana) Oil Refinery in the classifications referred to in Clause 32 hereof. 32.—Wage Rates. An employer on whom this award is binding shall not increase the rate of wage payable to an employee on the 10th day of March 1987, or otherwise vary the conditions of employment applicable to an employee on that date so as to incease that employer's labour costs except to the extent that any such increase has been authorised by the Commission after that date. (1) The actual rate of pay for adult employees covered by this award shall be set out herein — Classification Rate Per Week $ Security Man (service in the classification) — (i) up to six months 362.50 (ii) six months to two years 367.30 Application No. 615 of 1987. APPLICATION FOR VARIATION OF AWARD ENTITLED THE "BUILDING TRADES CONSTRUCTION AWARD NO. 14 OF 1978". NOTICE is given that an application has been made to the Commission by the Construction, Mining and Energy Workers' Union of Australia — Western Australian Branch under the Industrial Relations Act 1979 for a variation of the above Award. As far as relevant, those parts of the proposed amend- ment which relate to area of operation or scope are published hereunder. Clause 8.—Rates of Pay: Delete paragraph (c) of subclause (12) of this clause and insert in lieu:— (c) Crane Drivers (i) Mobile Crane Driver $ 0— 8 tonnes 364.80 8— 15 tonnes 371.30 15— 40tonnes 378.80 40-— 80 tonnes 384.50 80—lOOtonnes 389.10 100— 140 tonnes 395.70 140 — 180 tonnes 404.50 180 —220 tonnes 416.80 Over 220 tonnes 431.60 (ii) Stiff Leg Crane Driver 359.50 (iii) Tower Crane Driver 398.10 Nothing in this award, nor the addition of the crane driver classifications into this award, shall in itself operate to reduce the total payment of wages and any site allowance of any such crane driver below the rate actually received by him at the date hereof. (d) Additional Payments: Workers shall be paid an additional payment at the rate of $47.40 per week in addition to the appropriate amounts in para- graphs (a) and (b) of this subclause for the purpose of the calculation in subclause (4) of this clause to compensate for the non-incidence of over award payments in the building industry. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE. 67 W.A.I.G. A copy of the proposed amendment may be inspected at my office at 815 Hay Street, Perth. Dated at Perth this 10th day of June 1987. K. SCAPIN, Registrar. 5.—Area of Operation. This agreement shall operate throughout the State of Western Australia. A copy of the agreement may be inspected at my office at 815 Hay Street, Perth. Dated at Perth this 15th day of June 1987. K. SCAPIN, Registrar. Application No. AGS of 1987. APPLICATION FOR REGISTRATION OF AN INDUSTRIAL AGREEMENT TITLED "CLERKS' (ACCOUNTANTS OFFICE AUSTRALIAN TRAINEESHIPS) INDUSTRIAL AGREEMENT". NOTICE is given that an application has been made to the Commission by the Federated Clerks' Union of Australia Industrial Union of Workers, WA Branch under the Industrial Relations Act 1979 for registration of the above Agreement. As far as relevant, those parts of the Agreement which relate to area of operation or scope are published hereunder. 4.—Scope. This agreement shall apply to any clerical trainee employed in any of the callings covered by the Clerks (Wholesale and Retail Establishments) Award No. 38 of 1947 employed in the industry of the employers named in Schedule A of this agreement. 5.—Area of Operation. This agreement shall operate throughout the State of Western Australia. A copy of the agreement may be inspected at my office at 815 Hay Street, Perth. Dated at Perth this 15th day of June 1987. K. SCAPIN, Registrar. Application No. AG7 of 1987. APPLICATION FOR REGISTRATION OF AN INDUSTRIAL AGREEMENT TITLED "CLERKS' (HOTELS, MOTELS AND CLUBS) AWARD ". NOTICE is given that an application has been made to the Commission by the Federated Clerks' Union of Australia Industrial Union of Workers, WA Branch under the Industrial Relations Act 1979 for registration of the above Agreement. As far as relevant, those parts of the Agreement which relate to area of operation or scope are published hereunder. 4.—Scope. This agreement shall apply to any clerical trainee employed in any of the callings covered by the Clerks (Hotels, Motels and Clubs) Award No. R7 of 1977 employed in the industry of the employers named in Schedule A of this agreement. 5.—Area of Operation. This agreement shall operate throughout the State of Western Australia. A copy of the agreement may be inspected at my office at 815 Hay Street, Perth. Dated at Perth this 15th day of June 1987. K. SCAPIN, Registrar. Application No. AG9 of 1987. Application No. AG11 of 1987. APPLICATION FOR REGISTRATION OF AN INDUSTRIAL AGREEMENT TITLED "CLERKS' COMMERCIAL INDUSTRIES AUSTRALIAN TRAINEESHIPS INDUSTRIAL AGREEMENT". NOTICE is given that an application has been made to the Commission by the Federated Clerks' Union of Australia Industrial Union of Workers, WA Branch under the Industrial Relations Act 1979 for registration of the above Agreement. As far as relevant, those parts of the Agreement which relate to area of operation or scope are published hereunder. 4.—Scope. This agreement shall apply to any clerical trainee employed in any of the callings covered by the Clerks (Commercial, Social and Professional Services) Award No. 14 of 1972 employed in the industry of the employers named in Schedule A of this agreement. APPLICATION FOR REGISTRATION OF AN INDUSTRIAL AGREEMENT TITLED "CLERKS' (MEDICAL SECRETARY RECEPTIONIST AUSTRALIAN TRAINEESHIPS) INDUSTRIAL AGREEMENT ". NOTICE is given that an application has been made to the Commission by the Federated Clerks' Union of Australia Industrial Union of Workers, WA Branch under the Industrial Relations Act 1979 for registration of the above Agreement. As far as relevant, those parts of the Agreement which relate to area of operation or scope are published hereunder. 4.—Scope. This agreement shall apply to any clerical trainee employed in any of the callings covered by the Clerks (Commercial, Social and Professional Services) Award No. 14 of 1972 employed in the industry of the employers named in Schedule A of this agreement. 67 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE. 1209 5.—Area of Operation. This agreement shall operate throughout the State of Western Australia. A copy of the agreement may be inspected at my office at 815 Hay Street, Perth. Dated at Perth this 15th day of June 1987. K. SCAPIN, Registrar. 4.—Area. This award shall apply throughout the State of Western Australia for Dry Cleaning and Linen Repairers and outside of the South West Industrial Division of Western Australia. A copy of the proposed amendment may be inspected at my office at 815 Hay Street, Perth. Dated at Perth this 3rd day of July 1987. K. SCAPIN, Registrar. Application No. AGIO of 1987. APPLICATION FOR REGISTRATION OF AN INDUSTRIAL AGREEMENT TITLED "CLERKS' (WHOLESALE AND RETAIL ESTABLISHMENTS)". NOTICE is given that an application has been made to the Commission by the Federated Clerks' Union of Australia Industrial Union of Workers, WA Branch under the Industrial Relations Act 1979 for registration of the above Agreement. As far as relevant, those parts of the Agreement which relate to area of operation or scope are published hereunder. 4.—Scope. This agreement shall apply to any clerical trainee employed in any of the callings covered by the Clerks (Wholesale and Retail Establishments) Award employed in the industry of the employers named in Schedule A of this agreement. 5.—Area of Operation. This agreement shall operate throughout the State of Western Australia. A copy of the agreement may be inspected at my office at 815 Hay Street, Perth. Dated at Perth this 15th day of June 1987. K. SCAPIN, Registrar. Application No. A10 of 1987. APPLICATION FOR AN AWARD ENTITLED "HOSPITAL SALARIED OFFICERS (PATHOLOGY, RADIOLOGY AND RESEARCH SERVICES) AWARD ". NOTICE is given that an application has been made to the Commission by the Hospital Salaried Officers Association of Western Australia (Union of Workers) under the Industrial Relations Act 1979 for the above Award. As far as relevant, those parts of the proposed Award which relate to area of operation or scope are published hereunder. 1.—Area. This Award shall operate throughout the State of Western Australia. 2.—Scope. This Award shall apply to employees engaged in Clerical, Technical, Supervisory, Administrative or Professional capacities by the operators of Pathology, Radiology and Research Services and to the operators of Pathology, Radiology and Research Services. A copy of the proposed Award may be inspected at my office at 815 Hay Street, Perth. Dated at Perth this 8th day of July 1987. K. SCAPIN, [L.S.] Registrar. DRY CLEANERS AND LAUNDRY. Award No. 35 of 1978. Application No. 760 of 1987. APPLICATION FOR VARIATION OF AWARD ENTITLED "DRY CLEANING AND LAUNDRY AWARD". NOTICE is given that an application has been made to the Cojnmission by the Western Australian Clothing and Allied Trades' Industrial Union of Workers, Perth under the Industrial Relations Act 1979 for a variation of the above Award. As far as relevant, those parts of the proposed amend- ment which relate to area of operation or scope are published hereunder. Application No. 609 of 1987. APPLICATION FOR VARIATION OF AWARD ENTITLED "MINERAL SANDS MINING AND PROCESSING AWARD NO. 38 OF 1981". NOTICE is given that an application has been made to the Commission by the Australian Workers' Union, West Australian Branch, Industrial Union of Workers under the Industrial Relations Act 1979 for a variation of the above Award. As far as relevant, those parts of the proposed amend- ment which relate to area of operation or scope are published hereunder. Clause 27.—Wages subclause (1): insert the following classifications:— Dredge Operator Linertex Operator Rubber Worker 1210 Quality Control Operator Panel Operator Senior Storeman Kiln Control Operator (SR Plants) Laboratory Employee Grade I Laboratory Employee Grade II Laboratory Employee Grade III Experienced Storeman A copy of the proposed amendment may be inspected at my office at 815 Hay Street, Perth. Dated at Perth this 10th day of June 1987. K. SCAPIN, Registrar. Application No. A6 of 1987. APPLICATION FOR REGISTRATION OF AN INDUSTRIAL AGREEMENT ENTITLED "TECHNICAL ASSISTANT SURVEY TRAIN EESHIP AGREEMENT 1987". NOTICE is given that an application has been made to the Commission by the Association of Draughting, Supervisory and Technical Employees Western Australian Branch under the Industrial Relations Act 1979 for registration of the above Agreement. As far as relevant, those parts of the Agreement which relate to area of operation or scope are published hereunder. 4.—Scope. This agreement shall apply to all technical assistant survey trainees undertaking a traineeship as part of the Australian Traineeship System employed in the industry of the employers named in Schedule A of this agreement. 5.—Area of Operation. This agreement shall operate throughout the State of Western Australia. A copy of the agreement may be inspected at my office at 815 Hay Street, Perth. Dated at Perth this 10th day of June 1987. K. SCAPIN, Registrar. Application No. A9 of 1987. APPLICATION FOR AN AWARD ENTITLED "TELFER GOLD MINE (PRODUCTION AND MAINTENANCE EMPLOYEES') AWARD 1987". NOTICE is given that an application has been made to the Commission by Newmont Australia Limited under the Industrial Relations Act 1979 for the above Award. As far as relevant, those parts of the proposed Award which relate to area of operation or scope are published hereunder. 4.—Scope. (1) This Award shall apply to employees, members of the appropriate union, employed in classifications men- tioned in Clause 6.—Wages of this award in the area occupied and operated upon by Newmont Australia Limited at Telfer. 67 W.A.I.G. (2) This Award shall replace the Telfer Gold Mine (Production and Maintenance) Workers Award No. A13 of 1985, Order Nos. C445 of 1977 and CR523 of 1978 and the Building Trades (Goldmining) Award Nos. 29 and 32 of 1965 and 4 of 1966 as varied, the Electrical Trades (Goldmining) Award No. 57 of 1968 as varied, the Engineering Trades (Goldmining) Award No. 26 of 1947 as varied, and the Goldmining Award No. 21 of 1967 as varied, in so far as those awards applied to employees employed at Telfer. 6.—Wages. The weekly wage rates payable under the provisions of this Award shall be: Classification (1) Mine Section: (a) Plant Operators (i) not exceeding 410kw (e.g. Cat 992B Loader, Cat 623B Scraper, Cat 16G Grader, Cat D9L Bulldozer). . . (ii) exceeding 410kw but not exceeding 485kw . . . (iii) exceeding 485kw (e.g. Cat 992C Loader) . . . (iv) Bulldozer Driver engaged on highwall, ore or selvedge batter cutting . . . (b) Truck Drivers (i) Rear Dump Ore Truck Driver up to 50 tonnes . . . (ii) Rear Dump Ore Truck Driver over 50 tonnes . . . (iii) Water Truck Driver up to 10 tonnes . . . (iv) Water Truck Driver over 10 tonnes . . . (c) Drillers (i) Sample . . . (ii) Blast Hole . . . (d) Other (i) Powder Monkey . . . (ii) Shot Firer . . . (2) Ore Treatment Mill Section: (a) Crusher Operator (i) less than three months experience . . . (ii) more than three months experience . . . (b) Ore Treatment Plant Operator (i) Grade 1 — less than three months experience . . . (ii) Grade 2 — more than three months experience . . . (iii) Grade 3 — after 12 months service and when classified as such . . . (iv) Grade 4 — Mill Shift Operator — Who shall have satisfactorily supervised a mill shift crew for a minimum of one continuous week and Have passed both oral and practical examinations relating to the mill . . . (c) Labourer . . . (d) Re-agent Mixing . . . (3) Laboratory Section: (a) Laboratory Assistant . . . (b) Sample Preparer . . . (c) Fire Assay Assistant . . . (d) Technical Assistant . . . (4) Engineering Section: (a) Greaser . . . (b) Tradesman's Assistant. . . (c) Lube and Fuel Serviceman . . . (d) Tyre Fitter . . . WESTERN AUSTRALIAN INDUSTRIAL GAZETTE. 67 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE. 1211 (e) Tradesman . . . (f) Linesman . . . (g) Crane Driver (i) 8-14 tonnes lifting capacity . . . (ii) 15-40 tonnes lifting capacity . . , (5) Leaching Plant Operation: (a) Agglomerator Operator Heap Attendant (i) Grade 1 — less than three months experience . . . (ii) Grade 2 — more than three months experience . . . (iii) Grade 3 — after 12 months experience and when classified as such . . . (b) Clamshell Operator . . . (6) General: (a) Gardener . . . (b) Labourer . . . (c) Janitor . . . (d) Storeman . . . (e) Back Hoe Operator . . . (f) Mine Sampler . . . Dated at Perth this 15th day of June 1987. K. SCAPIN, Registrar. BOARDS OF REFERENCE — Decisions of — BOARD OF REFERENCE. Industrial Relations Act 1979 Section 48 — unfair termination of employment. The Construction, Mining and Energy Workers' Union of Australia — Western Australian Branch and Heinz Weber trading as WA Formwork. No. 43 of 1985. BEFORE A BOARD OF REFERENCE Mr K. Scapin — Chairman, Mr M.G. Maslij — Employer's Representative, and Mr D.H. Schapper — Employee's Representative. Perth 22nd day of June 1987. Termination of employment — unfair dismissal — dis- crimination against shop steward — reinstatement granted. Decision. MR SCAPIN: In this matter, the Construction, Mining and Energy Workers' Union of Australia — Western Australian Branch, seek the reinstatement in employ- ment of Mr F whose contract of service was terminated by the respondent employer with effect from the completion of work on 11 June 1987. No evidence was called before the Board but submis- sions were made by the advocates for each party. The applicant cited the following authority: (1) The Western Australian Carpenters and Joiners, Bricklayers and Stoneworkers Industrial Union of Workers v. John Holland Constructions Pty Ltd 50 WAIG 472. and the following were cited by the respondent: (2) Queensland Country Agents v. The Australasian Meat Industry Employees' Union 91 CAR p. 208. (3) The Western Australian Carpenters and Joiners, Bricklayers and Stoneworkers Industrial Union of Workers v. James Hardie and Co Pty Ltd 61 WAIG 1321. (4) The Australian Builders' Labourers' Federated Union of Workers — Western Australian Branch v. Collier Constructions Pty Ltd 66 WAIG 741. It is the fundamental right of a worker to choose his employer and of an employer to select his employees. The employer's right to dismiss an employee has been modified somewhat by industrial authorities when it has been demonstrated that the employer has acted unfairly but it does not follow that an employee once engaged has an inherent right to retain employment. Mr F's services were terminated by proper notice in accordance with the "Building Trades (Construction) Award 1979" No. 14 of 1978. As a result, the Board is not concerned with the lawfulness of the termination of service, but rather with its fairness. The onus in this case is on the applicant to establish on the balance of probabilities that his services have been unfairly terminated. To deprive an employer of his right to terminate an employee's services is a serious matter. An application for reinstatement is not an appeal from the action of the employer, no such right is conferred by the Industrial Relations Act 1979. Neither is it open to the Board to substitute its own opinion for that of the employer in the termination of an employee's services. The proper test is — has there been unfair dealing on the part of the employer towards the employee? The facts are these. WA Formwork commenced work on its contract associated with extensions to the law library building at the University of Western Australia on 16 October 1986. The main contractor was GKW Building Industries Pty Ltd. Mr F commenced his employment with WA Formwork as a formwork carpenter on 1 December 1986. On 5 January 1987, WA Formwork was informed that Mr F had been elected as job steward. At the height of its activity on the "GKW" contract, WA Formwork employed some 15 carpenters and a number of labourers. On 9 March 1987, WA Formwork commenced work on a contract with Interstruct Pty Ltd associated with construction work at the School of Architecture, Univer- sity of Western Australia. As the amount of work on the "GKW" contract decreased, WA Formwork transferred its workforce to the "Interstruct" site on the University of WA campus. By 8 June, Mr F was the only WA Formwork employee left on the "GKW" site. All of the other employees of WA Formwork (with the exception of Mr B, about whom more will be said later) comprising some 14 or more employees, including carpenters and labourers, had by that time been transferred to the "Interstruct" site. Mr B had been earlier dismissed because of his inability to demonstrate the standard of workmanship required to carry out "off-form" formwork. On 9 June, "GKW" terminated WA Formwork's contract on the law library building, without (it was said) any prior warning. By letter dated 10 June 1987 (Exhibit A), WA Formwork terminated Mr F's services with effect from the close of work on Thursday 11 June 1987, for the reason that WA Formwork had lost the "GKW" contract and as a result could not offer Mr F continuing employment. Such notice being in accordance with the award. Mr F was paid his entitlements on termination in accordance with the award. From this amount he withdrew his wages, the balance he paid into his union's trust account pending the decision of the Board of Reference. 1212 W IT 67 W.A.I.G. On Thursday 11 June 1987, the said union notified WA Formwork that it disputed the decision to terminate the services of Mr F the job steward. At 10.30 a.m. on Friday 12 June [that is, within three days of notifying WA Formwork — In accordance with Clause 37 (2) of the award), the union requested the Registrar in writing to appoint a Board of Reference to deal with the matter. The Board was convened and heard the matter on Tuesday 16 June, and delivered its decision the same day. At the hearing before the Board, mention was made by the advocate for the applicant that, to use his words "there was a lot of to-ing and fro-ing" between the union, WA Formwork, "GKW", and "Interstruct" as to whether or not Mr F would be permitted on the "GKW" and/or the "Interstruct" sites, after the termination of his services. Not any of that was relevant to the question which the Board was asked to determine. It was argued on behalf of the applicant that Mr F could be gainfully employed on the "Interstruct" site and to have Mr F remain as the last employee on the "GKW" site was contrived by WA Formwork to discriminate against him. The applicant's claim is for re-instatement by WA Formwork; all time lost since termination date be made good, and termination pay be refunded by the applicant to WA Formwork. In reply it was argued on behalf of the respondent that the reason for the retention of Mr F on the "GKW" site was in order to comply with the agreed policy of both the respondent and the union that the job steward on each job is the last to be terminated. The reasons given to the Board, on behalf of the respondent, for the termination of Mr F's services were his unpunctual attendance, absenteeism, and the sub-quality of his workmanship on "off-form" formwork, and the fact that there was insufficient work available for another carpenter on the "Interstruct" site. In relation to the "Interstruct" project, the Board was informed that the amount of work involved would justify the employment of eight carpenters, however, because the contract was behind schedule, WA Formwork were currently employing 13 carpenters on site. It was expected that this "peak" workforce would be maintained until about the end of August, at which time there would probably be work available for perhaps six carpenters and three labourers. The contract would conclude about mid-December. The Board has no information before it as to whether Mr F was warned that his unpunctual attendance could lead to dismissal. As regards Mr F's absenteeism, I note from the employer's record of absences (Exhibit 3) that one other employee has had more than the average number of absences, yet he is still employed by the respondent. Again the Board has no information before it as to whether Mr F was warned that his absenteeism could lead to dismissal. I note that Mr B's employment was terminated because of his poor standard of workmanship on "off- form" formwork. However, despite the fact that it is claimed by the respondent employer that Mr F's standard of workmanship on "off-form" formwork is not satisfactory, and that he has on a number of occasions been informed of that, yet, unlike Mr B, Mr F's services were retained even after such admonitions. It was admitted on behalf of the respondent that the employer had no complaints about the way in which Mr F carried out his duties as shop steward. I do not accept that the reason advanced by the respondent for retaining Mr F as the last employee on the "GKW" site was for the purpose of complying with an "agreed" practice. The Board's attention was drawn to correspondence between the applicant union in this case, and the Master Builders' Association of WA (the MBA), relating to the principle of "last on — first off" in the matter of terminations of employment (Exhibit 2). I do not inter- pret the MBA's letter as being an acceptance of the proposition that with respect to job stewards, the principle referred to is modified to the extent that the job steward on each job is the last to be terminated. On the contrary, the MBA's letter states "Accredited job stewards, by award prescription, are primarily employed to perform work within the scope of competence of their classifications, and should be treated in the same manner as other employees". True, the MBA's letter admits that the award provisions prescribe different procedures for the termination of employment of job stewards, but the award provisions do not go so far as to prescribe the sequence of terminations. The Board's decision is dependent upon the quality of the relevant evidence produced. Advocates who rely on submissions in lieu of evidence (which can be tested) and who fail to call witnesses to give evidence, run the risk of failing to produce sufficient evidence upon which the Board can make a proper assessment of the claim. Unless the best evidence is presented, then parties must accept the consequences flowing therefrom. The reasons of unpunctual attendance, long record of absenteeism, and poor workmanship, put forward to justify the termination of Mr F's employment, strike me as being unacceptable in that if the employer was so con- cerned at the alleged deficiencies in the applicant's performance, the respondent could have caused the contract of service to be terminated at an earlier date, as he did in the case of Mr B. This contention suffers in plausibility from not having been advanced earlier. It is in my view, a dredging up of matters for the sake of a defence. In view of the fact that all employees of WA Formwork, employed on the "GKW" contract were transferred to the "Interstruct" site, with the exception of Mr F, and the fact that WA Formwork was prepared to employ 13 carpenters on the "Interstruct" project, in lieu of the normal complement of eight (because the job was behind schedule), but was not prepared to employ a 14th carpenter (Mr F) because there was insufficient work, stretches ordinary credibility to breaking point. Where the Board has conflicting submissions before it, I see it as the Board's primary function to make an assess- ment of these submissions and decide which version is to be accepted, on the balance of probabilities. In my view, the probabilities are in favour of the applicant. The applicant has therefore discharged its onus to demon- strate that the employer's decision to terminate Mr F's services was unfair. I have reached the conclusion that there has been unfair dealing on the part of the employer toward Mr F. I would reinstate Mr F without loss of entitlements. His service shall be continuous. He is to repay to WA Form- work all payments made to him on account of the termination of his services, excepting of course his ordinary wage. MR SCHAPPER: I agree with the decision of the Chairman and have nothing further to add. MR MASLIJ: In this matter a Mr F who was employed by the respondent, WA Formwork, as a Carpenter and who was also a job steward of the union to which he belongs, had his employment terminated by his employer pursuant to the provisions of Clause 37 (2) of the Building Trades (Construction) Award 1979. Pursuant to this same provision this Board of Reference is asked to determine whether the employer's decision to terminate the employment of Mr F is unduly harsh, unjust or unreasonable. There is no material dispute on the legality of the termination, it remains to be determined solely on merit. The employer in this case is a formwork sub- contractor who up until 9 June had a contract with a principal contractor being "GKW" Industries Pty Ltd for work on extensions to the University of WA Law School. The employer also has a contract with a separate principal being Interstruct Pty Ltd for work on the University of WA School of Architecture. 67 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE. 1213 The reason given by the employer to the employee for termination is the cancellation by the principal con- tractor of the University Law School contract on which the employee was working and a consequent lack of vacancy elsewhere for the employee. The background to this matter is briefly that in the weeks preceding 10 June 1987 the employer had progressively transferred his employees from the Law School project to the Architectural School project as the former project approached completion. It appears that on 9 June 1987 Mr F and a labourer employee were the only WA Formwork employees remaining on the Law School site. It also appears that on this day the principal contractor on the Law School project had advised the employer that his contract on this project was being cancelled with immediate effect. The employer was then faced with a decision whether to terminate the remaining employees or to transfer them to other projects on which he was contracted either on the Architectural School at University of WA or a distant job near Kalgoorlie, seven hundred kilometres from Perth. In the assessment of this situation a decision was made by the employer to retain the services of the labourer and terminate the services of Mr F. Formal advice of the termination was given to Mr F on 10 June 1987. The main thrust of the applicant union's opposition to this termination was argued on two grounds. Firstly that there was and is gainful employment for Mr F on the employer's Architectural School contracted project. Secondly the circumstances whereby Mr F being the last person to be considered for transfer or termination was a contrived arrangement and is discriminatory against Mr F because he did not have an equal opportunity of being continuously employed in the same manner as the other employees. The respondent's initial submission was that the employer legally terminated the employment of Mr F and there was no dispute over the legality of the termination. The respondent denied any victimisation of Mr F submit- ting that the employer had tried to accommodate the union's own policy on terminations with particular reference to job stewards being the last person to be terminated on each job. The applicant disputed this submission, arguing emphatically that the policy was used to discriminate against the employee. In my view it is immaterial whether either the union's policy or the employer's own policy or the policy of another organisation is complied with, the key issue for determination is whether in all the circum- stances of a particular case an employee has been treated in a fair and reasonable manner. The respondent further submitted that the decision to terminate Mr F's employment was based on a number of other factors. These include an assessment that there was already more than a sufficient number of carpenters on the Architectural School and another would result in no net benefit to the business; the employer's assessment that Mr F's workskills are not up to the level required; and Mr F has demonstrated an excessive level of absenteeism and unsatisfactory punctuality. In addition the respondent submitted that the award which applied in this case makes provision under Clause 8 subclause (4) for an additional pay factor known as "Follow the Job Loading" to compensate for periods of unemployment between jobs, and there are things such as the Construc- tion Industry Portable Long Service Act which ensures that an employee's accrued entitlements are not lost due to, periods of unemployment between jobs. Finally the respondent submitted that a job steward has no greater right to employment than others other then the award requires an additional day's notice of termination, and that the union had failed to carry the burden of proof required to satisfy the Board that the employer's decision to terminate was unduly unfair. In assessing this matter I adopt the approach of Mr Commissioner Fielding in matter No. CR164 of 1981 between the Western Australian Carpenters and Joiners, Bricklayers and Stoneworkers Union and James Hardie and Co Pty Ltd (61 WAIG 1321) which was submitted as Exhibit No. 6 by the respondent. This case concerned a dispute over the termination of an employee in the classification of carpenter which resulted from the employer's desire to reduce the number of carpenters employed. In that case the company respondent con- cluded that there was insufficient work of the type that the employee could adequately perform and to this extent it bears some similarity to the present case. The approach of the Commission is best summarised by the following extract from the decision: Moreover, unlike the situation which obtains under the English Employment Protection (Consoli- dation) Act 1978, the onus is on the employee to establish that the Commission should interfere with the employer's decision. Again, this principle has been repeated in the cases to which I have referred [see too: Hospital Employees' Industrial Union of Workers (WA) v. Silver Chain Nursing Association Incorporated (1980) 60 WAIG 2332: and c.f. E. Cornish v. General Motors Holden Ltd (1980) AILR 290]. Where an employer exercises its right to terminate in accordance with the provisions of an award, the Commission "must start with the proposition that the termination was valid" (my emphasis) [see: Western Suburbs District Ambulance Committee v. Tipping (supra) at p. 281]. Thus, it is for the aggrieved employee to show that the right given the employer has been abused. The position is not, as Mr Young suggested that circumstances of this case create "a fair burden of responsibility on the employer to show cause why the Commission should not exercise its undoubted discretion to intervene and order an appropriate reinstatement or compensation". That is a mis- conception which all too frequently occurs in cases of this nature". (61 WAIG 1321 at 1323) Clearly this Board should start on the assumption that the termination was valid and the applicant union has the onus to establish that the Board should interfere with the employer's decision. I turn now to the key issue of whether the employer has unfairly exercised his right to terminate Mr F's employ- ment. In my view the employer has the right to determine his manpower requirements and if a decision is made that excess manpower exists, the employer may, subject to the obligations of the award, lawfully exercise his right to effect a termination or terminations. This is for the employer also to determine. The correct approach by a tribunal constituted by the Commission is put clearly in the WA Carpenters and Joiners, Bricklayers and Stoneworkers Union and James Hardie case (above) as follows:— Further, it is well to mention that applications of this nature are not to be taken as appeals against the decision of an employer to dismiss an aggrieved employee by termination of his contract of employ- ment. That is to say, it is not for the Commission to act as if it were endowed with the responsibility of making the decision to dismiss or retain an employee and thus substitute its opinion for that of the employer. The Commission is not the manager of the undertaking employing the person aggrieved. It is not enough that the Commission may disagree with the decision complained of. Rather, it must be shown that the decision is not an abuse of the power to terminate given by the contract of employment. (61 WAIG 1321 at 1322) However, if it could have been demonstrated by evidence that, in this case, alternate work of net benefit to the employer was available, and there was no evidence to show that the employee's performance was unsatis- factory, then a genuine case for the Board to interfere with the employer's decision could be seen to exist. With respect to the question of alternate work of net benefit, it is unfortunate that, for whatever reason, no evidence was put by the applicant and I am unable to 67 W.A.I.G. definitively reject the respondent's submission that there was no alternate work for Mr F within his capacity. Accordingly I accept the employers submission that there was no further requirement for a carpenter on the alternate university project. Turning now to the question of who is to be terminated and on what basis it is my view that the employer has the right to assess factors such as the worker's demonstrated skills, and performance, absenteeism record, punctuality, and general attitude to the job in assessing which, if any, individual(s) is (are) to be terminated in any given situation. Time and time again the Commis- sion has refused to interfere with the decisions of employers to terminate employee(s) as a result of these factors and only where it is shown that the employer has abused this right, will the Commission so. interfere. The submission of the respondent by way of exhibit that Mr F had a demonstratively excessive and unsatis- factory level of absenteeism was contended by the union who claimed that these absences could be explained. Unfortunately this contention was again not supported by evidence from the applicant. On this aspect I accept the evidence of the respondent that one of the factors that lead to the decision not to retain the services of Mr F was his high level of absenteeism. In saying this, I wish to make it clear that I make no judgment that this absenteeism, by itself, justifies the termination. I can only conclude that the employer legitimately took this factor into consideration in deciding which, if any of the remaining employees on the Law School job was to be terminated. With respect to the alleged punctuality problem of Mr F no evidence was put by the respondent to support the allegation and none put by the applicant to deny it, so therefore no firm conclusion can be drawn on this factor. Turning now to the question of Mr F's alleged inability to perform the work to the standard required, I accept that the employer has validly taken Mr F's past work per- formance into account in reaching the decision to terminate his services. I do not accept the applicant's objection that the matter of Mr F's work performance was not raised with the union as I am mindful that Mr F is purportedly a job steward accredited by the applicant union to represent the union on site. Further to this I accept the employer's evidence that he brought the matter of Mr F's alleged inability to perform the required work, to Mr F, on several occasions. I note that the employer's evidence on this point was objected to but not contradicted by evidence from the applicant. This evidence from the employer is particularly relevant in the light of the further evidence that another employee, a Mr B had been terminated for alleged inability to perform the work required of him, just three weeks prior to Mr F. The previous advice from the employer direct to Mr F, coupled with the termination of Mr B could hardly be said to give Mr F reason to believe that his employment was secure at the time the Law School job was winding down. In my view the applicant union has at most based its case on circumstantial evidence relying on the connota- tion of "discrimination" which frankly is unsupported by proper evidence. Tribunals will normally only inter- fere with the employer's decision on these matters in exceptional cases and in this view I draw support from the following remarks of Stanley J. in Hocking v. Public Service Association of South Australia Inc (1978) 45 SAIR 637 at p. 654: As has been stated on previous occasions by this and other tribunals exercising a like jurisdiction, the Court will only interfere with the employer's funda- mental right to dismiss an employee if it is satisfied that intervention is necessary to protect an employee, against an unfair or unjust exercise of the employers right of dismissal. It is normally only in exceptional cases that a Court interferes with the employer's right to "hire and fire". Accordingly I find in all the circumstances that the applicant union has failed to fulfil the onus to prove that the termination of Mr F was unduly unfair. I would not interfere with the employer's decision in this matter. MR SCAPIN: The decision of the Board is that the termination of Mr F's services was unfair. He shall be reinstated without loss of entitlements. He shall be paid his normal wages that he would have received had his services not been terminated during the period from the termination date to the date of the Board's decision given on 16 June. His service shall be continuous. He shall repay to WA Formwork all moneys paid to him on account of the termination of his services, excepting of course his ordinary wages. It is the unanimous decision of the Board to express the following view. The Board has noted that Mr F's absenteeism is, apart from one other employee, far and away the highest of any other worker. His late attendance has also been noted. The Board was not told the reasons for Mr F's absences or late attendances and therefore no judgment is made about them. However, it is to be clearly under- stood by everyone that when a person is elected as a job steward, that appointment does not alter the steward's contract of employment with the employer. A job steward is subject to the same conditions of employment as other workers. In other words, the position of job steward does not entitle Mr F as the steward to become unpunctual in his attendance at work or to take time off, except by agreement with the employer and in accordance with the award. Likewise on the question of skills, and again without making any judgment on the quality of Mr F's workmanship, we emphasise that the employer is entitled to expect the same standard and amount of work from a job steward as from any other employee. Appearances: Mr H.R. Johnson appeared on behalf of the Applicant. Mr D.M. Kleemann appeared on behalf of the Respondent. BEFORE A SPECIAL BOARD OF REFERENCE. In the matter of the "Farm Employees' Award 1985" No. 19 of 1984 and in the matter of a Special Board of Reference established thereunder and in the matter of a claim for payment of long service leave entitlement between Brian Steele Reed, Applicant and Bewray Pty Limited, Respondent. Before Mr K. Scapin Chairman, Mr J.A. McGinty Employees Representative, and Mr L. Girdlestone Employers Representative. The 28th day of May 1987. Mr A.M. Davies on behalf of the applicant. Mr M. Handcock (of Counsel) on behalf of the respondent. Determination. MR SCAPIN: This is the unanimous decision of the Board. The parties having conferred and reached agree- ment before the Board, the Board, pursuant to the powers conferred on it under the Commission in Court Session's Order dated 15 December 1977 and published in Volume 65 of the Western Australian Industrial Gazette at pages one to four inclusive — to settle disputes of any matters arising thereunder — hereby formally 67 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE. 1215 adopts that agreement as the decision of the Board for the payment by Bewray Pty Limited to Mr Brian Steele Reed of the sum of $4 870.16 in full settlement of the said Mr Reed's claim upon that company for long service leave entitlement. SECTION 23 — Applications dealt with —