WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION CITATION : 2019 WAIRC 00078 CORAM :Commissioner T B Walkington HEARD : Wednesday, 6 February 2019 DELIVERED : Wednesday, 20 February 2019 FILE NO. : B 138 OF 2018 BETWEEN : Ms Georgina Rockett Applicant AND Merlin Diamonds Limited (ABN 86 009 153 119) Respondent CatchWords : Denied contractual benefits – Unpaid wages and entitlements – Parties reached an agreement to compromise the applicant’s claim – Unimpeached compromise agreement – Commission can make orders in terms of the agreement – No appearance by respondent Legislation : Industrial Relations Act 1979 (WA) s 6(b), s 6(c), s 23(1), s 23A, s 26(1)(a), s 27(1)(d), s 29(1)(b)(ii), s 32, s 32A; Industrial Relations Commission Regulations 2005 (WA) reg 24(2). Result : Order Issued Representation: Counsel: Applicant : Ms M Corbould of counsel Solicitors: Applicant : Hammond Legal Cases referred to in reasons: Beverly McLeod v Paulownia Trees Pty Ltd (1997) 78 WAIG 1057 Diana Elizabeth Downs-Stoney v Derbarl Yerrigan Health Service [2004] WAIRC 11100; (2004) 84 WAIG 2612 Maurice Bradbury v Jos van Baren, John Dewick, Paul Gangemi and Ivan Hill, Management Agent, Proprietor of Great Western Real Estate (1995) 75 WAIG 2927 Prudential Assurance Company Ltd v McBains Cooper (A Firm) and Others [2000] 1 WLR 2000; [2001] 3 All ER 1014 === REASONS FOR DECISION === ¶1 The applicant, Ms Georgina Rockett, worked as a Senior Exploration Geologist for the respondent, Merlin Diamonds Limited (Merlin Diamonds) from 27 April 2009 to 31 May 2018. ¶2 On 8 November 2018 Ms Rockett made an application under s 29(1)(b)(ii) Industrial Relations Act 1979 (WA) (IR Act) for: unpaid salary for the period 1 May - 31 May 2018 totalling $11,666.00; accrued annual leave of $5,577.37; accrued long service leave of $19,928.79; superannuation for the period 1 October 2017 to 31 May 2018 of $8,866.64; and 16 weeks of redundancy payments totalling $43,076.80. ¶3 On 4 December 2018 Mr Gutnick filed a Form 5 – Notice of answer on behalf of Merlin Diamonds. The respondent’s answer asserted that a redundancy had been discussed and agreed to between the parties and was calculated as of 30 April 2018, therefore, no salary payment was due for the period 1 May - 31 May 2018. ¶4 On 7 December 2018 my Associate wrote to the parties by email and letter to inform them that a conciliation conference was listed for 10:30 am on Tuesday, 18 December 2018. ¶5 At 9.06 am on 18 December 2018, Mr Lee, on behalf of the respondent, telephoned my Associate to advise that he had injured himself and was unable to attend work to access the papers he required to participate in the conciliation conference. He requested that the conciliation conference be adjourned. Subsequently Mr Lee confirmed his request for adjournment by email and advised that he would be available on Thursday of the same week. On 18 December 2018, my Associate informed the parties by email that the conciliation conference was adjourned until 10.00 am on Thursday, 20 December 2018. ¶6 On Thursday, 20 December 2018 Ms Rockett participated in the conciliation conference by telephone and was represented by counsel, who appeared in person. Mr Lee appeared on behalf of the respondent, participating by telephone. An agreement to compromise application B 138/2018 (Agreement) was reached by the parties. ¶7 The Agreement was recorded in an email from my Associate to the parties set out below: ¶8 Dear Ms Corbould / Mr Lee ¶9 APPLICATION NO B 138 OF 2018 ¶10 MS GEORGINA ROCKETT ¶11 V ¶12 MERLIN DIAMONDS LIMITED (ABN 86 009 153 119) ¶13 RE: Outcome of conference ¶14 I refer to the abovementioned application and write to confirm the outcome of the conference convened on 20 December 2018 by Commissioner Walkington. ¶15 At the conclusion of the conference, the parties agreed that: Merlin Diamonds Limited will pay Ms Georgina Rockett $51,665.00. This will be paid in two instalments, the first sum of $25,832.50 on 15 January 2019 and the second sum of $25,832.50 on 15 February 2018. These payments reflect the sum of 5 weeks' notice, salary for the month of May and accrued annual and long service leave based on the calculations supplied by the respondent. The matter will remain open until the applicant receives the total amount payable. At that time the Applicant will discontinue her claim. ¶16 Should you have any questions, please do not hesitate to contact me. ¶17 Yours faithfully ¶18 E Roberts Associate to Commissioner T B Walkington ¶19 On 16 January 2019 counsel for the applicant informed my Associate that despite attempts to contact the respondent, Ms Rockett had not received the first instalment payment. On the same day, my Associate advised the parties, by email, that the matter would be relisted for conciliation conference and requested the parties’ availability. ¶20 On 17 January 2019, Mr Gutnick advised my Associate that Mr Lee would no longer represent the respondent and requested that the conciliation conference be rescheduled for a later time. In reply to Mr Gutnick’s email, on the same day, counsel for the applicant emailed my Associate to request that the matter be relisted for conciliation conference as soon as possible. ¶21 On 17 January 2019 my Associate informed the parties by email and letter that a conciliation conference was listed for 2.15 pm on Wednesday, 23 January 2019. On the same day, Mr Gutnick contacted my Associate by email requesting that the conciliation conference be delayed until a later date. ¶22 On 18 January 2019 my Associate advised the parties by email and letter that the conciliation conference had been adjourned and re-listed for Thursday, 24 January 2019. ¶23 On Thursday, 24 January 2019 Ms Rockett participated in the conciliation conference by telephone and was represented by counsel, who appeared in person. Mr Gutnick appeared on behalf of the respondent, participating by telephone. The outcome of the conciliation conference was that the applicant requested the matter be listed for hearing. On the same day, a Form 15 - Notice of hearing was emailed and posted to the parties informing them that the matter was listed for hearing at 1.00 pm on Wednesday, 6 February 2019. ¶24 The respondent did not attend the hearing listed on Wednesday, 6 February 2019. Counsel for the applicant attended the hearing, in person. ¶25 The Commission has the power to proceed to hear and determine a matter in the absence of any party who has been duly served with notice of the proceedings: s 27(1)(d) IR Act. Service on the respondent in this matter may be affected by leaving the notice at, or sending it be pre-paid post to the principal place of business: Industrial Relations Commission Regulations 2005 (WA) reg 24(2). ¶26 I am satisfied that the respondent was duly served with notice of these proceedings and the Commission may proceed with the hearing in the absence of the respondent in the circumstances. The Applicant’s Case ¶27 Counsel for the applicant submitted that the parties had reached an Agreement to compromise her claim for denied contractual benefits at the conciliation conference on 20 December 2018. The terms of the Agreement were set out in the email from my Associate in [7]. Counsel for the applicant confirmed that payment of the first instalment had not yet been made and therefore the respondent had not complied with the Agreement. Consideration ¶28 The Agreement made between the parties is an unimpeached compromise which represents the end of the dispute or disputes from which it arose: Prudential Assurance Company Ltd v McBains Cooper (A Firm) and Others [2000] 1 WLR 2000; [2001] 3 All ER 1014, 1019 [19] (Brooke LJ); Beverly MacLeod v Paulownia Trees Pty Ltd (1997) 78 WAIG 1057. ¶29 In this case the Agreement reached by the parties has overtaken Ms Rockett’s claim for denied contractual benefits: Maurice Bradbury v Jos van Baren, John Dewick, Paul Gangemi and Ivan Hill, Management Agent, Proprietor of Great Western Real Estate (1995) 75 WAIG 2927. ¶30 I agree with the reasoning of Smith C (as she was then) in Diana Elizabeth Downs-Stoney v Derbarl Yerrigan Health Service [2004] WAIRC 11100; (2004) 84 WAIG 2612 [52] referring to the IR Act: I am of the view that the Commission has the power to make orders in terms of a compromise agreement providing that the orders it makes could otherwise be made expressly under ss 23(1), 23A and 32 of the Act. The power to do so is implied in the Act when regard is had to objects in s 6(b) and (c) as the grant of power in ss 23(1), 32 and 32A carries with it everything necessary for the effective exercise of the power. ¶31 I am of the view that the Commission has the power to make orders in the terms of a compromise agreement and I adopt the reasoning of Beech C (as he was then) in Beverly McLeod v Paulownia Trees Pty Ltd in the present circumstances: [If] the Commission does not issue an order in the terms of the parties’ agreement, it calls into question the value of agreements reached before the Commission, certainly in s.32 proceedings. ¶32 I find that the parties reached an Agreement to compromise Ms Rockett’s claim in the terms set out at [7] and that Merlin Diamonds has not complied with the Agreement. ¶33 I find that Mr Lee was represented Merlin Diamonds, understood the terms, and freely entered into the Agreement at the time the compromise agreement was made. ¶34 I find that Merlin Diamonds has not complied with the Agreement and the Commission may make an order in the terms of the Agreement consistent with s 26(1)(a) IR Act. ¶35 I am of the view that Merlin Diamonds owes Ms Rockett $51,665.00 and that the first instalment of the two payments ought to have been affected on 15 January 2019 and the second instalment is to be paid on 15 February 2019. Accordingly, I will order that Merlin Diamonds pay the first instalment immediately and the second instalment on 15 February 2019.