WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION. No. 1157 of 1984. Between Simon Clifford, Applicant and Sorrento Cartage Contractors, Respondent. Before Mr Commissioner O.K. Salmon. The 29th day of July 1985. Mr S. Clifford in person. Mr J. Birman on behalf of the Respondent. Reasons for Decision. THE COMMISSIONER: This matter concerns an application pursuant to section 29 (b) (ii) of the Industrial Relations Act 1979. Simon Clifford (the Applicant) claims the sum of $1 725 as payment for overtime and pro rata annual leave entitlements. The Respondent opposes the claim and raises matters of a preliminary kind going to jurisdiction. He also relies upon a failure of the Applicant to discharge the evidentiary burden necessary for the claim to be successful. The issues of fact need not be canvassed here in any detail because the circumstances are such as to make dismissal of the case inevitable. If the issues in dispute are the subject of an award 1 am prevented from dealing with the case becasue of the jurisdictional limitations imposed by the section under which the application is made. However, an application for enforcement can be heard by the Industrial Magistrate in proceedings pursuant to section 82. If the issues are not subject to an award, no jurisdictional problem prevents me from dealing with them, but I must reach my conclusions on the evidence before me. The evidence of the Applicant was that the annual leave entitlement negotiated between himself and the Respondent was that four weeks paid annual leave would be allowed after 12 months employment. Nothing was agreed between them on the subject of pro rata annual leave entitlement and the Applicant merely assumed that these entitlements applied. As to overtime, the Applicant's evidence was that overtime was contracted on the basis of time and a half for the first two hours and double time thereafter. Some two weeks after commencing employment he discovered that overtime was being paid for at ordinary rates. He said he objected to this at the time but nevertheless continued to work overtime and to be paid for it at the ordinary rate. This evidence allows the conclusion that the overtime arrangement was changed and that consent of the Applicant is proven by performance. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE. 1463 65 W.A.I.G Given that the burden of proof lies upon the Applicant and that on the basis of the balance of probability there is insufficient evidence to establish that contractual entitlements have been denied, the Respondent has no case to answer on both issues and the Applicant's claim is dismissed. BEFORE THE