Western Australian Industrial Gazette€¦ · Air Conditioning and Refrigeration Industry (Construction and Servicing) Award No. 10 of 1979 20 Artworkers Award 20 Bakers’ (Country)

1657

Western Australian

Industrial GazettePUBLISHED BY AUTHORITY

Sub-Part 1 WEDNESDAY, 23 JULY, 2003 Vol. 83—Part 2

THE mode of citation of this volume of the Western Australian Industrial Gazette will be as follows:—83 W.A.I.G.

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CUMULATIVE CONTENTS AND DIGEST APPEAR AT THE END OF THIS PUBLICATION———————————————

GENERAL ORDERS—2003 WAIRC 08588

RESCIND GENERAL ORDER NO 686 OF 2002 ON LOCATION ALLOWANCES ANDISSUE A NEW GENERAL ORDER PURSUANT TO SECTION 50 OF THE

INDUSTRIAL RELATIONS ACT, 1979WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

ON COMMISSION’S OWN MOTIONCORAM COMMISSION IN COURT SESSION

COMMISSIONER P E SCOTTCOMMISSIONER S WOODCOMMISSIONER J L HARRISON

DATE OF ORDER MONDAY, 30 JUNE 2003FILE NO. APPLICATION 570 OF 2003CITATION NO. 2003 WAIRC 08588_________________________________________________________________________________________________________

Result General Order Issued_________________________________________________________________________________________________________

General OrderHAVING heard Mr D Robinson on behalf of the Trades and Labor Council of Western Australia; Mr G Blyth on behalf of theChamber of Commerce and Industry of Western Australia; Ms K Taylor on behalf of the Australian Mines and Metals Association(Inc); and Mr B Entrekin on behalf of the Honourable Minister for Consumer and Employment Protection.NOW THEREFORE, the Commission in Court Session, pursuant to the powers conferred on it by the Industrial Relations Act,1979 hereby orders

(1) THAT each award, industrial agreement or order cited in Schedule A of this Order be varied by substituting forthe location allowances provisions contained in each such award, industrial agreement or order the locationallowance provisions in Schedule B of this General Order.

(2) THAT each such variation shall have effect from the beginning of the first pay period to commence on or afterthe first day of July 2003.

(3) THAT this General Order replace the General Order in Matter No 686 of 2002 which thereby shall berescinded.

(Sgd.) P. E. SCOTT,[L.S.] Commissioner,

for and on behalf of the Commission in Court Session._________

SCHEDULESCHEDULE A

Title of Award or Order Clause No.Aerated Water and Cordial Manufacturing Industry Award 1975 31Aged and Disabled Persons Hostels Award, 1987 28

1658 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 83 W.A.I.G.

Title of Award or Order Clause No.Air Conditioning and Refrigeration Industry (Construction and Servicing) Award No. 10 of 1979 20Artworkers Award 20Bakers’ (Country) Award No. 18 of 1977 20Breadcarters (Country) Award 1976 27Building Trades Award 1968 24Building Trades (Construction) Award 1987 Appendix AChild Care (Out of School Care - Playleaders) Award 10Children’s Services (Private) Award 12Cleaners and Caretakers Award, 1969 21Cleaners and Caretakers (Car and Caravan Parks) Award 1975 22Clerks’ (Accountants’ Employees) Award 1984 23Clerks (Commercial Radio and Television Broadcasters) Award of 1970 27Clerks (Commercial, Social and Professional Services) Award No. 14 of 1972 27Clerks’ (Control Room Operators) Award 1984 25Clerks’ (Credit and Finance Establishments) Award 31Clerks’ (Customs and/or Shipping and/or Forwarding Agents) Award 30Clerks’ (Hotels, Motels and Clubs) Award 1979 22Clerks’ (Taxi Services) Award of 1970 28Clerks (Timber) Award 31Clerks’ (Wholesale & Retail Establishments) Award No. 38 of 1947 28Clothing Trades Award 1973 22Contract Cleaners Award, 1986 24Contract Cleaners’ (Ministry of Education) Award 1990 21CSBP & Farmers Award 1990 23Dental Technicians’ and Attendant/Receptionists’ Award, 1982 29The Draughtsmen’s, Tracers’, Planners’ and Technical Officers’ Award 1979 32Dry Cleaning and Laundry Award 1979 22Earth Moving and Construction Award 25Electrical Contracting Industry Award R 22 of 1978 22Electrical Trades (Security Alarms Industry) Award 1980 19Electronics Industry Award No. A 22 of 1985 24Engine Drivers’ (Building and Steel Construction) Award No. 20 of 1973 25Engine Drivers’ (General) Award 20Enrolled Nurses and Nursing Assistants (Private) Award No. 8 of 1978 23Foodland Associated Limited (Western Australia) Warehouse Award 1982 39Foremen (Building Trades) Award 1991 15Funeral Directors’ Assistants’ Award No. 18 of 1962 33Furniture Trades Industry Award 46Gate, Fence and Frames Manufacturing Award 21Golf Link and Bowling Green Employees’ Award, 1993 28Hairdressers Award 1989 31The Horticultural (Nursery) Industry Award, No. 30 of 1980 6Hospital Salaried Officers (Good Samaritan Industries) Award 1990 29Industrial Catering Workers’ Award, 1977 40Independent Schools (Boarding House) Supervisory Staff Award 22Independent Schools Administrative and Technical Officers Award 1993 22Independent Schools Psychologists and Social Workers Award 21Independent Schools’ Teachers’ Award 1976 18Jenny Craig Employees Award, 1995 28Landscape Gardening Industry Award 18Licensed Establishments (Retail and Wholesale) Award 1979 31Lift Industry (Electrical and Metal Trades) Award, 1973 20Materials Testing Employees’ Award, 1984 12Meat Industry (State) Award, 1980 8Metal Trades (General) Award 1966 22Motel, Hostel, Service Flats and Boarding House Workers’ Award, 1976 42Motor Vehicle (Service Station, Sales Establishments, Rust Prevention and Paint Protection), Industry Award No. 29 of 1980 17Nurses’ (Day Care Centres) Award 1976 22Nurses (Dentists Surgeries) Award 1977 23Nurses (Doctors Surgeries) Award 1977 22Nurses’ (Independent Schools) Award 20Nurses’ (Private Hospitals) Award 30Pastrycooks’ Award No. 24 of 1981 11Permanent Building Societies (Administrative and Clerical Officers) Award, 1975 30Pest Control Industry Award 1982 14Photographic Industry Award, 1980 29Private Hospital Employees’ Award, 1972 40Quarry Workers’ Award, 1969 19Radio and Television Employees’ Award 23

83 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1659

Title of Award or Order Clause No.Restaurant, Tearoom and Catering Workers’ Award, 1979 42The Rock Lobster and Prawn Processing Award 1978 26School Employees (Independent Day & Boarding Schools) Award, 1980 31Security Officers’ Award 24Security Officers (North West Shelf Project) 1998 Order 12Sheet Metal Workers’ Award No. 10 of 1973 26The Shop and Warehouse (Wholesale and Retail Establishments) State Award 1977 39Supermarkets and Chain Stores (Western Australia) Warehouse Award 1982 39Teachers’ Aides’ (Independent Schools) Award 1988 17Timber Yard Workers Award No. 11 of 1951 28Transport Workers (General) Award No. 10 of 1961 25Transport Workers (Mobile Food Vendors) Award 1987 18Transport Workers’ (North West Passenger Vehicles) Award, 1988 28Transport Workers’ (Passenger Vehicles) Award No. R 47 of 1978 24Title of Industrial Agreements Clause No.Altone Continental and SDA Agreement 2002 32Beverley Four Square Supermarket and SDA Agreement 2002 32Bindoon General Store and SDA Agreement 2002 32Bridgetown Mini Mart and SDA Agreement 2002 32Broadwater Mini Mart and SDA Agreement 2002 32Cadoux Traders and SDA Agreement 2002 32Caversham Store and SDA Agreement 2002 32Cherries Fine Food Super Mart and SDA Agreement 2002 32Chicken Treat Dunsborough SDA Agreement 2001 34Chicken Treat Katanning SDA Agreement 2001 34Chicken Treat Narrogin SDA Agreement 2001 34Chicken Treat Padbury SDA Agreement 2001 34Chicken Treat Rockingham SDA Agreement 2001 34Chidlow Growers Mart and SDA Agreement 2002 32Cranberries and SDA Agreement 2002 32Crisp’s Corner Store & Newsagency and SDA Agreement 2002 32Essentials Supermarket of South Perth and SDA Agreement 2002 32Foodland Amelia Heights and SDA Agreement 2002 32Foodland Bayswater (Beechboro Road) and SDA Agreement 2002 32Foodland Bayswater (Whatley Crescent) and SDA Agreement 2002 32Foodland Bindoon and SDA Agreement 2002 32Foodland Boddington and SDA Agreement 2002 32Foodland Dowerin and SDA Agreement 2002 32Foodland Lesmurdie and SDA Agreement 2002 32Foodland Manning and SDA Agreement 2002 32Foodland Merredin and SDA Agreement 2002 32Foodland Mukinbudin and SDA Agreement 2002 32Foodland Ravensthorp and SDA Agreement 2002 32Foodland Tarcoola and SDA Agreement 2002 32Foodland Toodyay and SDA Agreement 2002 32Foodland Wagin and SDA Agreement 2002 32Foodys Express and SDA Agreement 2002 32Fresh Food Corner Supermarket and SDA Agreement 2002 32Glen Forrest Supermarket and SDA Agreement 2002 32Hall’s Creek Caravan Park and SDA Agreement 2002 32Hannan’s Foodmart and SDA Agreement 2002 32John’s Food and Liquor and SDA Agreement 2002 32Kam Food & News Centre and SDA Agreement 2002 32Kendenup Stores and SDA Agreement 2002 32Kimberley Super Value and SDA Agreement 2002 32Kirkwood Foodland & Delicatessen and SDA Agreement 2002 32Laverton Stores and SDA Agreement 2002 32Lionel St Markets and SDA Agreement 2002 32Little Bucks Supermarket and SDA Agreement 2002 32Mariella’s Continental Deli and SDA Agreement 2002 32McDonald Wholesalers and SDA Agreement 2002 32Midland Junction Fresh Markets and SDA Agreement 2002 32MJ and VD Quinlan and SDA Agreement 2002 32Muir’s Fresh Food Supermarkets and SDA Agreement 2002 32Murdoch Drive Continental Super Deli and SDA Agreement 2002 32Noakes Store Denmark and SDA Agreement 2002 32P.R. & B.M. Harrington and SDA Agreement 2002 32Pemberton General Store and SDA Agreement 2002 32Perenjori Supermarket and SDA Agreement 2002 32Pioneer Store and SDA Agreement 2002 32


Title of Industrial Agreements Clause No.Port Hedland Truck Stop and SDA Agreement 2002 32R & E General and SDA Agreement 2002 32Retail Food Establishments Employees Agreement 1992 34Retail Food Services Employees’ Agreement 1991 39South Perth Food Mart and SDA Agreement 2002 32Supa Valu Capel and SDA Agreement 2002 32Supa Valu Dongara and SDA Agreement 2002 32Supa Valu Hamilton Hill and SDA Agreement 2002 32Supa Valu High Wycombe and SDA Agreement 2002 32Supa Valu Huntingdale and SDA Agreement 2002 32Supa Valu Innaloo and SDA Agreement 2002 32Supa Valu Kelmscott and SDA Agreement 2002 32Supa Valu Ocean Reef and SDA Agreement 2002 32Supa Valu Stirling and SDA Agreement 2002 32Supa Valu Willeton and SDA Agreement 2002 32Three Springs General Store and SDA Agreement 2002 32Top Valu Supermarket and SDA Agreement 2002 32Trade Winds Supermarket and SDA Agreement 2002 32Wundowie One Stop and SDA Agreement 2002 32Wyndham Supermarket and SDA Agreement 2002 32York Mini Mart and SDA Agreement 2002 32

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SCHEDULE BSubject to the provisions of this clause, in addition to the rates prescribed in the wages clause of this award, an employee shall bepaid the following weekly allowances when employed in the towns prescribed hereunder. Provided that where the wages areprescribed as fortnightly rates of pay, these allowances shall be shown as fortnightly allowances.

TOWN PER WEEKAgnew $17.00Argyle $44.50Balladonia $17.00Barrow Island $29.00Boulder $7.10Broome $27.10Bullfinch $8.00Carnarvon $13.80Cockatoo Island $29.70Coolgardie $7.10Cue $17.30Dampier $23.50Denham $13.80Derby $28.20Esperance $5.10Eucla $18.90Exmouth $24.40Fitzroy Crossing $34.10Goldsworthy $15.10Halls Creek $39.00Kalbarri $5.90Kalgoorlie $7.10Kambalda $7.10Karratha $28.00Koolan Island $29.70Koolyanobbing $8.00Kununurra $44.50Laverton $17.20Learmonth $24.40Leinster $17.00Leonora $17.20Madura $18.00Marble Bar $42.70Meekatharra $14.90


TOWN PER WEEKMount Magnet $18.60Mundrabilla $18.50Newman $16.20Norseman $14.60Nullagine $42.60Onslow $29.00Pannawonica $22.00Paraburdoo $21.80Port Hedland $23.30Ravensthorpe $9.00Roebourne $32.20Sandstone $17.00Shark Bay $13.80Shay Gap $15.10Southern Cross $8.00Telfer $39.50Teutonic Bore $17.00Tom Price $21.80Whim Creek $27.80Wickham $26.90Wiluna $17.20Wittenoom $37.80Wyndham $41.90

(2) Except as provided in subclause (3) of this clause, an employee who has—(a) a dependent shall be paid double the allowance prescribed in subclause (1) of this clause;(b) a partial dependent shall be paid the allowance prescribed in subclause (1) of this clause plus the difference

between that rate and the amount such partial dependent is receiving by way of a district or location allowance.(3) Where an employee—

(a) is provided with board and lodging by his/her employer, free of charge; or(b) is provided with an allowance in lieu of board and lodging by virtue of the award or an order or agreement made

pursuant to the Act;such employee shall be paid 662/3 per cent of the allowances prescribed in subclause (1) of this clause.The provisions of paragraph (b) of this subclause shall have effect on and from the 24th day of July, 1990.

(4) Subject to subclause (2) of this clause, junior employees, casual employees, part time employees, apprentices receivingless than adult rate and employees employed for less than a full week shall receive that proportion of the locationallowance as equates with the proportion that their wage for ordinary hours that week is to the adult rate for the workperformed.

(5) Where an employee is on annual leave or receives payment in lieu of annual leave he/she shall be paid for the period ofsuch leave the location allowance to which he/she would ordinarily be entitled.

(6) Where an employee is on long service leave or other approved leave with pay (other than annual leave) he/she shall onlybe paid location allowance for the period of such leave he/she remains in the location in which he/she is employed.

(7) For the purposes of this clause—(a) “Dependant” shall mean—

(i) a spouse or defacto partner; or(ii) a child where there is no spouse or defacto partner;who does not receive a location allowance or who, if in receipt of a salary or wage package, receives noconsideration for which the location allowance is payable pursuant to the provisions of this clause.

(b) “Partial Dependant” shall mean a “dependent” as prescribed in paragraph (a) of this subclause who receives alocation allowance which is less than the location allowance prescribed in subclause (1) of this clause or who, ifin receipt of a salary or wage package, receives less than a full consideration for which the location allowance ispayable pursuant to the provisions of this clause.

(8) Where an employee is employed in a town or location not specified in this clause the allowance payable for the purposeof subclause (1) of this clause shall be such amount as may be agreed between Australian Mines and Metals Association,the Chamber of Commerce and Industry of Western Australia and the Trades and Labor Council of Western Australia or,failing such agreement, as may be determined by the Commission.

(9) Subject to the making of a General Order pursuant to s.50 of the Act, that part of each location allowance representingprices shall be varied from the beginning of the first pay period commencing on or after the 1st day in July of each year inaccordance with the annual percentage change in the Consumer Price Index (excluding housing), for Perth measured tothe end of the immediately preceding March quarter, the calculation to be taken to the nearest ten cents.


FULL BENCH—Appeals against decision of Commission—2003 WAIRC 08509

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSIONPARTIES THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS,

APPELLANTandFIELDWAY ENTERPRISES PTY LTD, RESPONDENT

CORAM FULL BENCHHIS HONOUR THE PRESIDENT P J SHARKEYCHIEF COMMISSIONER W S COLEMANCOMMISSIONER S WOOD

DELIVERED THURSDAY, 19 JUNE 2003FILE NO/S. FBA 25 OF 2002CITATION NO. 2003 WAIRC 08509_________________________________________________________________________________________________________

Decision Appeal dismissed for want of prosecutionAppearancesAppellant Ms K Scoble (of Counsel), by leaveRespondent Mr M E Jensen (of Counsel), by leave_________________________________________________________________________________________________________

Reasons for Decision

THE PRESIDENT AND CHIEF COMMISSIONER W S COLEMAN—INTRODUCTION

1 These are the joint reasons for decision of Chief Commissioner W S Coleman and myself.2 On 8 May 2002 a notice of appeal was filed in the Commission on behalf of the above-named appellant, which is an

organisation of employees, hereinafter called “the CFMEU”.3 The appeal was brought under s.49 of the Industrial Relations Act 1979 (as amended) (hereinafter called “the Act”), and was

against the decision of the Commission constituted by a single member of the Commission given on 17 April 2002 in MatterNo. CR 277 of 2001 on the grounds set forth in the attached schedule.

4 By the decision, the Commission dismissed an application made by the appellant, then the applicant, alleging that there was anunfair dismissal of an employee of the respondent employer (hereinafter called “Fieldway”).

5 A declaration of service filed herein established that the notice of appeal was served upon the solicitors for the respondentemployer on 9 May 2002.

6 A further declaration of service filed on 18 October 2002 is evidence that the appeal book was served on Phillips Fox solicitorsfor the respondent on 6 June 2002. No further step has been taken in the matter since that date.

ISSUES AND CONCLUSIONS7 By notice and letter, and of its own motion pursuant to Practice Note No. 2 of 2000, the Full Bench listed the matter because it

appeared to it that no steps had been taken in the appeal for a period of 12 months.8 No step has been taken in the appeal save and except for the filing of a declaration of service of appeal books since 6 June

2002.9 This matter brought on by the Commission’s own motion was heard on 12 June 2003 and counsel appeared for both parties.10 No explanation was offered as to why this matter had not been proceeded with and counsel for the appellant merely sought an

adjournment of 14 days to get instructions from the employee concerned before discontinuing the appeal. That was opposed bycounsel for the respondent who, inter alia, advised that a solicitor representing the appellant had told him in May 2003 thatinstructions would be obtained from the appellant’s member.

11 The fact of the matter is that the party concerned is the CFMEU, not its member. The CFMEU has had ample opportunity toobtain instructions even if these were required, which they were not.

12 The determination of whether or not an appeal should be dismissed on account of a failure to prosecute the matter is adiscretionary one and the exercise of such discretion is not fettered by absolute or inflexible rules.

13 Matters going to the length of the delay, the explanation for the delay, the likely injustice to the appellant if the claim isdismissed or the prejudice faced by the respondent if the appeal proceeds, notwithstanding the delay, are relevantconsiderations. Further, the question to be asked can be put this way. Has the appellant’s default been intentional andcontinuous or has there been inordinate and inexcusable delay on the part of the appellant or her/his lawyers giving rise to asubstantial risk that a fair hearing would not be possible or would seriously prejudice the respondent? (See AWU v BarmincoPty Ltd – Plutonic Project (2000) 80 WAIG 3162 (FB) and the sort of relevant factors referred to therein, as well as Burch vOretek Ltd (2002) 82 WAIG 2853 at 2856 – 2857 (FB)).

14 The Commission and the parties have a right to expect that applications, particularly those relating to termination ofemployment, be pursued with expedition. (See Burch v Oretek Ltd (FB) (op cit)).

15 In this case, no explanation has been advanced for the delay, no hardship has been pleaded, nothing has occurred in the matterand no step been taken by or on behalf of the appellant save and except for the filing of a declaration of service for over12 months, and no attempt has been made to establish that there is any serious case to be tried or that hardship would occur.Indeed, we were told by counsel for the appellant, that the matter was not going to proceed and would be discontinued and thatit was only necessary as a matter of union and member formality, as we understood it, to contact the member to obtain hisinstructions.


16 Put another way, the appellant’s default has been both continuous, and one can properly infer from the above facts, intentional.Next, there has been an inexcusable, unexplained, inordinate delay of just over 12 months since a step, with the exception ofthe filing of a declaration of service, was taken by the appellant in the appeal. The justice of the matter requires that therespondent not be subjected to any further delay. (See Burch v Oretek Ltd (FB) (op cit)).

17 A proper exercise of the discretion requires in this case, particularly having regard to the fact that a substantial amount of timehas passed and having regard to the proper consideration of the interests of the parties, the equity, good conscience andsubstantial merits of the case, as well as s.27(1)(a)(ii) of the Act, that the matter be dismissed. More particularly, for thosereasons too, it is in the public interest that a matter which has not been prosecuted for such an inordinate period of time shouldbe dismissed. (See s.27(1)(a)(ii)).

FINALLY18 For those reasons we agreed with our colleague to dismiss the appeal for want of prosecution.COMMISSIONER S WOOD—19 I have read the reasons of His Honour the President and Chief Commissioner W S Coleman, I agree with those reasons and

have nothing to add.THE PRESIDENT—20 For those reasons the Full Bench dismissed the appeal.

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2003 WAIRC 08474WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS,APPELLANTandFIELDWAY ENTERPRISES PTY LTD, RESPONDENT

CORAM FULL BENCHHIS HONOUR THE PRESIDENT P J SHARKEYCHIEF COMMISSIONER W S COLEMANCOMMISSIONER S WOOD

DELIVERED THURSDAY, 12 JUNE 2003FILE NO/S. FBA 25 OF 2002CITATION NO. 2003 WAIRC 08474_________________________________________________________________________________________________________

Decision Appeal dismissed for want of prosecutionAppearancesAppellant Ms K Scoble (of Counsel), by leaveRespondent Mr M E Jensen (of Counsel), by leave_________________________________________________________________________________________________________

OrderThis matter having come on for hearing upon the motion of the Commission constituted by the Full Bench on the 12th day of June2003, and having heard Ms K Scoble (of Counsel), by leave, on behalf of the appellant, and Mr M E Jensen (of Counsel), by leave,on behalf of the respondent, and the Full Bench having determined that the appeal should be dismissed for want of prosecution, andthat reasons for decision will issue at a future date, it is this day, the 12th day of June 2003, ordered that appeal No. FBA 25 of2002 be and is hereby dismissed.

By the Full Bench(Sgd.) P. J. SHARKEY,

[L.S.] President.

FULL BENCH—Appeals against decision ofIndustrial Magistrate—


PARTIES INTERCORP SERVICES PTY LTD, APPELLANTandTHE CONSTRUCTION, FORESTRY, MINING, ENERGY UNION OF WORKERS,RESPONDENT

CORAM FULL BENCHHIS HONOUR THE PRESIDENT P J SHARKEYCHIEF COMMISSIONER W S COLEMANSENIOR COMMISSIONER A R BEECH

DELIVERED THURSDAY, 19 JUNE 2003FILE NO/S. FBA 7 OF 2003, FBA 8 OF 2003, FBA 9 OF 2003 AND FBA 10 OF 2003CITATION NO. 2003 WAIRC 08511


_________________________________________________________________________________________________________

Decision Appeals dismissedAppearancesAppellantRespondent Mr T Kucera (of Counsel), by leave_________________________________________________________________________________________________________

Reasons for DecisionTHE PRESIDENT, CHIEF COMMISSIONER W S COLEMAN AND SENIOR COMMISSIONER A R BEECH—

INTRODUCTION1 These are the unanimous reasons for decision of the Full Bench.2 These were four appeals against the decisions of the Industrial Court at Perth, constituted by an Industrial Magistrate,

consisting of orders made on 20 March 2003 in claim No M 119 of 2002, on 20 March 2003 in claim No M 129 of 2002, on26 March 2003 in claim No M 130 of 2002, and on 27 March 2003 in claim No M 131 of 2002 respectively.

3 The appeals were instituted pursuant to s.84 of the Industrial Relations Act 1979 (as amended) (hereinafter called “the Act”),and in the general jurisdiction of the Industrial Magistrates Court.

4 All of the claims at first instance were made pursuant to s.83 of the Act.BACKGROUND

5 The claims were made by the above-named respondent, an organisation of employees, hereinafter called “the CFMEU”,against the appellant employer company. The claims alleged a substantial number of breaches of an award in relation tovarious employees. The award in question was the Building Trades (Construction) Award 1987 being Award No. R14 of 1978.

6 After some delay, whilst various directions were made by the court and some not complied with or at least, tardily compliedwith, and after pre-trial conferences, the matters came on for hearing on 19 and 20 March 2003, save and except claim No.M 131 of 2002 which was the subject of appeal FBA 10 of 2003 and that came on for hearing on 27 March 2003.

7 There was no appearance at these hearings for or on behalf of the respondent company, and the Industrial Magistrate havingheard submissions by counsel for the claimant, the CFMEU, found the breaches proven, imposed penalties, ordered thepayment of the amounts due and payable to employees under the award which should have been paid and had not, ordered thepayment of interest on those amounts, and ordered further that the appellant employer pay the respondent’s costs upon eachclaim.

8 Written orders were issued on 20 March 2003 in each claim except M 130 and M 131. (See FBA 7 of 2003, FBA 8 of 2003)(AB 6).

9 In M 130 the order was made on 26 March 2003, and in M 131, the order was made on 27 March 2003. (See FBA 9 of 2003,FBA 10 of 2003) (AB 6).

10 Notices of appeal against the decisions were filed by solicitors acting on behalf of the appellant company, in the Commission,against the decisions in M 119/2002 (FBA 7 of 2003), M 129/2002 (FBA 8 of 2003) and M 130/2002 (FBA 9 of 2003), on17 April 2003. Appeals FBA 7 and 8 were seven days out of time and FBA 9 was one day out of time, the time limit forinstituting an appeal being 21 days. (See s.49(3) of the Act).

11 The notice of appeal against the decision in FBA 10 of 2003, being the decision in claim No. M 131/2002, was filed within thetime limit of 21 days and therefore there was no necessity to apply to extend time.

12 In relation to appeals 7, 8 and 9 of 2003, applications to extend time were filed and served by the appellant’s solicitors whosubsequently also effected service of the required copies of the appeal books upon the respondent CFMEU.

13 All of these appeals were listed for hearing in the Full Bench on 17 June 2003.PROCEEDINGS IN THE FULL BENCH

14 All were the subject of notices of hearing forwarded by the Commission to the solicitors for the appellant company, EleyPalmer at Gryphon House, 39 Richardson Street, West Perth, WA, 6005, on 15 May 2003.

15 On 17 June 2003, Mr W Vogt, of counsel, instructed by Eley Palmer, appeared for the appellant to advise that his firm EleyPalmer, had received the notices of hearing to which we have referred above, and had no instructions from the appellantcompany in the matter because whilst he had received the notices of hearing and drawn the dates notified therein, to theattention of the general manager of the appellant and had sought to contact him further, he was overseas and further, was notinterested. In addition, Mr Vogt said that he had attempted to contact a director of the appellant company, but was unable tolocate him, he having left his address.

16 As a result, having no instructions to prosecute the appeal, Mr Vogt sought and was granted leave to withdraw from theproceedings. Mr Vogt then withdrew. There was then no appearance by or on behalf of the appellant.

17 The Full Bench was satisfied pursuant to s.27(1)(d), that a notice of hearing had been duly given to the appellant by it beingforwarded to the solicitors who drew it to the attention of their client’s general manager. Thus, the Full Bench was satisfied,there having been a due notice of hearing given, that it could hear and determine the matter in the absence of the appellant andproceeded to do so.

18 It was submitted on behalf of the respondent, that the appeals should be dismissed.CONCLUSIONS

19 The applications to extend time not having been pursued, all three appeals, 7, 8 9 of 2003, were out of time and were nullities.In any event, they were not prosecuted and nothing was submitted to us as to why we should uphold the appeals or grant anyapplication. Particularly did this apply to the last appeal FBA 10 of 2003, which was instituted within time.

FINALLY20 As a result, the Full Bench dismissed the applications to extend time and dismissed all four appeals.THE PRESIDENT—21 For those reasons the Full Bench dismissed the appeals.

Order accordingly

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PARTIES INTERCORP SERVICES PTY LTD, APPELLANTandCONSTRUCTION, FORESTRY, MINING, ENERGY UNION OF WORKERS, RESPONDENT


DELIVERED TUESDAY, 17 JUNE 2003FILE NO/S. FBA 7 OF 2003, FBA 8 OF 2003, FBA 9 OF 2003, FBA 10 OF 2003CITATION NO. 2003 WAIRC 08512_________________________________________________________________________________________________________

Decision Appeals dismissedAppearancesAppellantRespondent Mr T R Kucera (of Counsel), by leave_________________________________________________________________________________________________________

OrderThese appeals having come on for hearing before the Full Bench on the 17th day of June 2003, and having heard Mr W Vogt (ofCounsel), by leave, on behalf of the appellant, and Mr T Kucera (of Counsel), by leave, on behalf of the respondent organisation,and Mr W Vogt having sought and having been granted leave to withdraw as counsel for the appellant and his instructing solicitors,Eley Palmer, having been removed from the record, and there being no appearance by or on behalf of the appellant, and the FullBench having determined that the appeals herein should be dismissed, and that reasons for decision will issue at a future date, andthe parties herein having waived their rights pursuant to s.35 of the Industrial Relations Act 1979 (as amended), it is this day, the17th day of June 2003, ordered as follows:-

(1) THAT leave be granted and leave is hereby granted to amend all the documents relevant to the appeals herein bydeleting the word “applicant” and substituting therefor the word “appellant”.

(2) THAT Intercorp Services Pty Ltd be named and is hereby named as the appellant on all of the documents relevantto the appeals herein.

(3) THAT the Construction, Forestry, Mining, Energy Union of Workers be named and is hereby named as therespondent on all of the documents relevant to the appeals herein.

(4) THAT the applications herein to extend time within which to appeal in appeal Nos. FBA 7 of 2003, FBA 8 of2003 and FBA 9 of 2003 be and are hereby dismissed.

(5) THAT appeal Nos. FBA 7 of 2003, FBA 8 of 2003, FBA 9 of 2003 and FBA 10 of 2003 be and are herebydismissed.

(6) THAT there be no order as to costs.By the Full Bench

(Sgd.) P. J. SHARKEY,[L.S.] President.

FULL BENCH—Proceedings for enforcement of Act—2003 WAIRC 08508

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSIONPARTIES GREGORY PAUL LOGAN-SCALES, INDUSTRIAL INSPECTOR, APPLICANT

- and -BRENDAN LEPPARD, RESPONDENT


DELIVERED THURSDAY, 19 JUNE 2003FILE NO/S. FBM 4 OF 2002CITATION NO. 2003 WAIRC 08508_________________________________________________________________________________________________________

Decision OrdersAppearancesApplicant Mr A Bastow (of Counsel), by leaveRespondent Mr B R Leppard, on his own behalf_________________________________________________________________________________________________________


Reasons for DecisionTHE PRESIDENT AND CHIEF COMMISSIONER W S COLEMAN—

INTRODUCTION1 These are the joint reasons for decision of Chief Commissioner W S Coleman and myself.2 This is an application made by an industrial inspector, Mr Gregory Paul Logan-Scales. He is an “Industrial Inspector” as that

term is defined in s.7 of the Industrial Relations Act 1979 (as amended) (hereinafter called “the Act”).3 The application was made pursuant to s.84A of the Act.4 The particulars of the application contained three different allegations of a contravention of or failure to comply with the Act.

THE APPLICATION5 For convenience, We reproduce the schedule of particulars hereunder:-

“1. Mr Brendan Leppard operates the business “212 Systems”, a commercial cleaning business.2. The Department of Consumer and Employment Protection (“Department”) has received complaints from

Mr Ron Winkler, Mr Sani Omar, Mrs Hayati Abdullah, Ms Michelle Garrity, Ms Rebecca Loveless, Mr XiuHua Cai and Mr Alan Lord (together, the “Complainants”) alleging non-payment of wages by 212 Systems.The Department believes that the Complainants may have been covered by the Contract Cleaners Award1986 and is investigating the complaints to see if there has been a breach of that Award.

3. On 16 January 2002, Mr David Graham, an industrial inspector, wrote to Mr Leppard requiring him to sendor deliver the original of all records pertaining to the employment of all employees and/or persons providinglabour or service to 212 Systems to the Department by 22 January 2002 for the purpose of investigatingcomplaints against 212 Systems.

4. Mr Leppard did not send or deliver the required records by 22 January 2002, contrary to section 102(1)(a) ofthe Industrial Relations Act 1979 (WA) (“Act”).

5. By letter dated 31 January 2002, Mr David Graham again wrote to Mr Leppard requiring him to deliver theoriginal of all records pertaining to Mr Ron Winkler, Mr Sani Omar, Mrs Hayati Abdullah, Ms MichelleGarrity, Ms Rebecca Loveless and Mr Xiu Hua Cai to the Department by 8 February 2002 for the purposeof investigating complaints against 212 Systems.

6. Mr Leppard did not deliver the required records by 8 February 2002, contrary to section 102(l)(a) of theAct.

7. By letter dated 27 March 2002, Ms Regina Stene, an industrial inspector, wrote to Mr Leppard requiringhim to produce for inspection on 2 April 2002 any records pertaining to the engagement of theComplainants for the purpose of investigating complaints against 212 Systems.

8. Mr Leppard did not produce the required records on 2 April 2002, contrary to section 102(1)(a) of the Act.”6 The particulars and the allegations of failure to comply or contravention of the Act were admitted by the respondent upon the

final day of hearing of this matter. This included, as we understand it, an admission that the applicant was an “industrialinspector” as defined in s.7 of the Act, acting in accordance with the powers duly conferred on him by and under the Act andthat the same admission applied to other industrial inspectors acting in this matter.

RELEVANT SECTIONS7 The provisions of the Act relevant to this application were as follows. S.98(3)(e) reads as follows:-

“(3) An Industrial Inspector may, for the purposes of carrying out his functions under this Act–(e) by notice in writing or orally require a person having the control of, or access to, a record, whether

kept in an industrial location entered by him under this subsection or elsewhere, to produce, exhibit,send or deliver that record for his examination in accordance with that requirement.”

8 It is noteworthy also, that, pursuant to s.98(3)(f), an industrial inspector can:-“Examine, and seize or retain or take extracts from or copies of, any record produced, exhibited, sent or deliveredfor his inspection in compliance with a requirement made under this subsection.”

9 S.102(1) of the Act provides:-“(1) A person shall not—

(a) being lawfully required to do so fail to produce or exhibit or allow to be examined, a record;”NO CONFERENCE CONVENED

10 The Full Bench, having heard the parties and, particularly because the contraventions or failures to comply were admitted byMr Leppard, the respondent, and because both parties submitted that such a conference was unavailing, was of the opinion thata conference with a view to an amicable resolution of the matter to which the application relates would be unavailing. Thus, noconference was convened.

BACKGROUND AND FACTS11 This application was filed in the Commission on 24 October 2002 and served on 18 November 2002. It first came on for

hearing before the Full Bench on 29 November 2002.12 On that day, Mr Bastow, of counsel, appeared for the applicant, by leave, and has continued to do so throughout these

proceedings. Mr Leppard appeared for himself on 29 November 2002. Mr Leppard requested an adjournment in order toobtain legal advice, saying that he had not had time to obtain that advice, and also adding that he did not have the money toobtain that advice and he did not expect any monies to be paid to him until 17 December 2002.

13 The adjournment to obtain legal advice was not objected to by counsel for the respondent, and was granted to enableMr Leppard to obtain legal advice.

14 The matter was then re-listed for hearing on 30 January 2003 after Madam Associate had obtained from both the parties thedates on which they were able to appear.

15 On that day, Mr Leppard, who again appeared in person, advised the Full Bench that he could not afford a solicitor. He said,also, “I am about to declare bankruptcy I think”. He said that he was therefore relying on his brother-in-law, a solicitor, torepresent him and that his brother-in-law had only come back on 30 January 2003, (ie) the same day, from London.


16 Mr Leppard also said that he had spoken to his brother-in-law about representing him before Christmas 2002, and that hisbrother-in-law had said that when he got back from England he would go through it all. His brother-in-law, he said, left forEngland on or about 27 December 2002.

17 Counsel for the applicant objected to the adjournment on the basis that he had had no communication about the unavailabilityof counsel or a solicitor and, implicitly, no advice from the respondent about any intention to seek an adjournment. Hesubmitted, too, that he had two witnesses available that day who were public officers and that, for those reasons, the mattershould proceed. The Full Bench, reluctantly, by a majority decision, granted to the respondent, Mr Leppard, a furtheradjournment to obtain legal advice.

18 The matter was then listed for further hearing on 18 March 2003. On that day, Mr Leppard appeared, not by his brother-in-lawor any other solicitor or counsel, but by an agent, Mr Graham McCorry, who advised the Full Bench as follows (see pages 4-5 of the transcript):-

“I agree with my friend that the matter should be adjourned sine die and in accordance with the order that yourHonour has proposed, I think that’s quite suitable, and Mr Leppard is willing to personally give his undertaking thatall documents relating to these people listed in the schedule will be provided to Mr Logan-Scales or whoever henominates. There is a number of people listed on this schedule. … within the 21-day period. … Of today’s date. …And I’ll ask Mr Leppard to actually stand and give that personal undertaking if it please the Full Bench.”

19 Mr Leppard then in open court, standing at the bar table beside Mr McCorry, gave a personal undertaking to the Full Bench ofthe Western Australian Industrial Relations Commission, as follows (see pages 4-5 of the transcript):-

“Sir, I do undertake to provide such records as I have for these people within the 21 days. … And I’ll provide themto Mr Logan-Scales … or his nominee.”

(It was not said by Mr Leppard on that occasion that the documents were not locatable).20 Mr Bastow advised that his client consented to the adjournment of 21 days for that undertaking to be carried out. He said (see

page 2 of the transcript):-“In the event that Mr Leppard doesn’t provide those documents the department will be seeking to follow throughwith these proceedings … and would be making a submission for a cost application and obviously urging theCommission to impose a penalty reflecting any behaviour that is proven in subsequent proceedings.”

21 There was thus a clear expression by the applicant, through counsel, of what he would seek from the Commission if there wasa failure by the respondent to honour his undertaking to the Commission. At the request of the applicant’s solicitors, the matterwas re-listed for hearing for the fourth time on 10 June 2003. On 10 June 2003, Mr Leppard represented himself and admittedall of the allegations against him contained in the schedule to the application, after they were read to him.

22 He did deny that the persons concerned were employees, but that was not the point.23 The gravamen of the allegations of contravention made pursuant to s.102 of the Act are that the requirements of the applicant

which related to an investigation of complaints to the industrial inspectors were not complied with.FACTS, FACTORS AND FINDINGS

24 The facts, which were otherwise not in dispute, were that, initially, Mr Leppard had promised orally, to have the recordsavailable in accordance with the request and produce them accordingly, within 24 hours. This he failed to do.

25 Then, on three separate occasions, as alleged in the particulars, Mr Leppard failed or refused to comply with the writtenrequests by the industrial inspectors to produce records which he was requested to produce which were in each case the samerecords.

26 He has now failed to produce such records in breach of an undertaking which he gave to this Commission in open court. Noexplanation has been given for the breach of the undertaking. No further undertaking or indication has been given that thedocuments will be produced to the industrial inspectors in the future.

27 In fact, for the first time, on 10 June 2003, Mr Leppard asserted from the bar table that he could not find the records, he neverhaving asserted that before. We are not persuaded that that is the case. Further, he asserted that he was on the verge ofbankruptcy, and he has similarly asserted that in this Commission, as we have said above. For the first time, too, Mr Leppardasserted from the bar table that he had received incorrect legal advice that he had no obligation to produce the recordsrequested. He clearly had and has such an obligation. He informed the Full Bench that he now realised that the advice given tohim by this particular legal advisor, who was not an expert in industrial or labour law, was erroneous.

28 He also, in the context of his own inconvenience, which he said that he had suffered, told the Full Bench that it had cost him$700.00 to fly from Adelaide for this hearing and to later return on the same day, the day of the hearing. He denied that he had,in a contemptuous manner, failed to comply with his obligations under the Act, which was what counsel for the applicant hadinvited us to find.

29 What is also a fact, as we find, is that it is now almost 17 months since the request for production of the documents inaccordance with the Act was first made. That is the background.

30 The following facts as we find them are also relevant factors in determining the penalty to be imposed:-(a) It is 17 months since the records were requested and three requests for production of documents over a

17 month period have not been complied with, and to all intents and purposes ignored.(b) Further delay has been occasioned in these proceedings by the failure of Mr Leppard to obtain a legal

practitioner’s or agent’s advice with any expedition.(c) (i) Further delay has been caused by Mr Leppard failing to comply with an undertaking to produce the

documents, given in open court, without explanation or apology.(ii) He has treated this Commission in a contumelious manner.(iii) He has treated public officers, mainly industrial inspectors, carrying out their duties under the Act,

and his obligations under the Act, and the requests of those officers under the Act, with contempt.(iv) He has treated the law of this State and his obligations thereunder with contempt.(v) He has shown no remorse.(vi) He has sought to delay and has delayed the meeting of his statutory obligations.(vii) He has given no indication that he will meet those statutory obligations in the future and, in fact, has

purported to say for the first time that he cannot. We do not, at this time, accept that he cannot.31 This prolonged and unsatisfactorily explained course of conduct lasting over almost 17 months and consisting at its core, of

three repeated contraventions or failures to comply with the Act requires a condign penalty.


32 The sort of contempt for his obligations and lack of remorse exhibited by the respondent would, in our opinion, merit themaximum penalty on each count, both to mark the seriousness of the contravention of the Act, and to deter others. That penaltyfor a person not an employee is $500.00. Mr Leppard is such a person.

33 However, there was no evidence of prior contraventions or failures to comply with the Act. Thus, we agreed to recognise thatfact, and to reduce the penalty for that reason, on each contravention to $450.00, to be paid in accordance with s.84A(7) to theapplicant. That is a total of $1,350.00.

34 We note that no undertaking to comply or intention to comply was given or expressed by Mr Leppard so that there was noundertaking to accept in accordance with s.84A(5). In any event, such an undertaking, having regard to what has alreadyoccurred in this matter, would be worthless.

35 For the same reasons, a caution would be simply inappropriate.COSTS

36 There was an application by the applicant for an order for the costs of instructing counsel and solicitors, in the sum of $575.50,on the basis that the defence of the matter was frivolous and vexatious.

37 S.84A(6) of the Act provides as follows:-“In proceedings under this section costs shall not be given to any party to the proceedings for the services of anylegal practitioner or agent of that party unless, in the opinion of the Full Bench, the proceedings have beenfrivolously or vexatiously instituted or defended, as the case requires, by the other party.”

38 In our opinion, notwithstanding authorities such as R v Denton (Inhabitants) 1864 5 B & S 821 at 828 per Cockburn C J,“defence” in s.84A(6), is not, in our opinion, confined to “defence” in the narrow sense of that word.

39 Read in that sub-section in the context of costs, and having regard to the prescription that costs may be awarded for merelyinstituting proceedings, in our opinion, “defence” in the context of the sub-section, means steps such as those taken by therespondent in these proceedings which delay a matter and includes also a full defence of an application.

40 His conduct was certainly frivolous and vexatious in his prolongation of this matter for no good reason, even though heasserted that he had received legal advice which he acknowledged to be deficient. (As to “frivolous and vexatious” seeWABLPPU v Clark and Another trading as Mike Clark Contracting 76 WAIG 4 (IAC) and CFMEU v Perrott (2002)83 WAIG 17).

TIME TO PAY41 Time to pay of 28 days was granted notwithstanding Mr Leppard’s protest that he was unable to pay the amount of the penalty.42 We note, in that context, that he has had since November 2002 to arrange his affairs to meet his obligations to pay any penalty

imposed, and on his own admission that he had paid $700.00 for an airfare to and from Adelaide for this hearing.FINALLY

43 For those reasons, we agreed with our colleague to make the orders which were made.SENIOR COMMISSIONER A R BEECH44 I agree with the Reasons for Decision of his Honour the President. I merely wish to add the following in relation to my dissent

from the majority decision on 30 January 2003 to allow the adjournment sought by Mr Leppard. I briefly state my reasons fordissenting from the majority view on that occasion.

45 Mr Leppard stated that he could not afford a solicitor but that his brother-in-law was an “attorney” and he wished to get hisbrother-in-law involved in the matter. However, his brother-in-law had arrived back from London only on the day of thehearing, 30 January 2003.

46 His Honour the President pointed out to Mr Leppard that the adjournment granted him on 29 November 2002 had been toenable him to obtain legal advice and he asked Mr Leppard whether he had taken any steps to obtain that legal advice. MrLeppard’s answer was—

47 “MR LEPPARD: Yes, I did. I spoke to Elliott and he said that, “When I get back we’ll go through it all.” I just - - but I didn’trealise -—

PRESIDENT: When did you speak to him?MR LEPPARD: Oh, before Christmas. Whenever it was.PRESIDENT: And he went away before Christmas, did he?MR LEPPARD: No, on the 27th or thereabouts.PRESIDENT: Of December, yeah.MR LEPPARD: Yeah.PRESIDENT: Yeah. All right. And did you - - did he tell you when he was coming back?MR LEPPARD: Yes. He thought he’d be - - no, I didn’t have notice at that stage of when it was called for, but hesaid, “We should be back well and truly,” he said. “It should take about a month.” “(extract transcript pages 3 and 4)

48 I do not accept Mr Leppard’s statement that he did not have notice “at that stage” of when this matter was called back on forhearing. The record of the proceedings shows that the order of the Full Bench dated 2 December 2002 which granted theadjournment he sought on 29 November 2002 itself contained the date of the resumption of the hearing on 30 January2003 ([2002] WAIRC 07129). Accordingly Mr Leppard indeed did know “at that stage” the date for the resumption of thehearing on 30 January 2003 and had known well before Christmas when, he says, he spoke to his brother-in-law.

49 I was reluctant therefore to accept the genuineness of the position Mr Leppard was putting to the Full Bench in support of hisapplication for another adjournment. I was not prepared to accept his submission that failure to give the adjournment wouldresult in “serious injustice” (for the purpose of the test in Myers v Myers [1969] WAR 19) to him. For that reason I would nothave granted the adjournment sought by Mr Leppard on 30 January 2003.

THE PRESIDENT—50 For those reasons the Full Bench made the orders which issued in this matter.

_________



PARTIES GREGORY PAUL LOGAN-SCALES, INDUSTRIAL INSPECTOR, APPLICANT- and—BRENDAN LEPPARD, RESPONDENT

CORAM FULL BENCHHIS HONOUR THE PRESIDENT P J SHARKEYSENIOR COMMISSIONER A R BEECHCOMMISSIONER P E SCOTT

DELIVERED MONDAY, 2 DECEMBER 2002FILE NO/S. FBM 4 OF 2002CITATION NO. 2002 WAIRC 07129_________________________________________________________________________________________________________

Decision Application adjournedAppearancesApplicant Mr A R Bastow (of Counsel), by leaveRespondent Mr B R Leppard on his own behalf_________________________________________________________________________________________________________

OrderThis matter having come on for hearing before the Full Bench on the 29th day of November 2002, and having heard Mr A R Bastow(of Counsel), by leave, on behalf of the applicant, and Mr B R Leppard on his own behalf as respondent, and the respondent havingmade an oral application to adjourn the hearing and determination of matter No FBM 4 of 2002, and the Full Bench havingdetermined that the application for adjournment should be granted, and the parties herein having waived their rights pursuant tos.35 of the Industrial Relations Act 1979 (as amended), it is this day, the 2nd day of December 2002, ordered that the hearing anddetermination of matter No FBM 4 of 2002 be adjourned to 10.30 am on the 30th day of January 2003.


[L.S.] President.

_________


PARTIES GREGORY PAUL LOGAN-SCALES, INDUSTRIAL INSPECTOR, APPLICANT- and -BRENDAN LEPPARD, RESPONDENT


DELIVERED THURSDAY, 30 JANUARY 2003FILE NO/S. FBM 4 OF 2002CITATION NO. 2003 WAIRC 07565_________________________________________________________________________________________________________

Decision Application adjournedAppearancesApplicant Mr A R Bastow (of Counsel), by leaveRespondent Mr B R Leppard, on his own behalf_________________________________________________________________________________________________________

OrderThis matter having come on for hearing before the Full Bench on the 30th day of January 2003, and having heard Mr A R Bastow(of Counsel), by leave, on behalf of the applicant, and Mr B R Leppard, on his own behalf as respondent, and the respondent havingmade an oral application to adjourn the hearing of application No FBM 4 of 2002, and the Full Bench having determined that theapplication for adjournment should be granted, and the parties herein having waived their rights pursuant to s.35 of the IndustrialRelations Act 1979 (as amended), it is this day, the 30th day of January 2003, ordered that the hearing and determination ofapplication No FBM 4 of 2002 be adjourned to 10.30am on the 18th day of March 2003.


[L.S.] President.

_________



PARTIES GREGORY PAUL LOGAN-SCALES, INDUSTRIAL INSPECTOR, APPLICANTv.BRENDAN LEPPARD, RESPONDENT


DELIVERED TUESDAY, 18 MARCH 2003FILE NO/S. FBM 4 OF 2002CITATION NO. 2003 WAIRC 07953_________________________________________________________________________________________________________

Decision Application adjourned sine dieAppearancesApplicant Mr A R Bastow (of Counsel), by leaveRespondent Mr G McCorry, as agent_________________________________________________________________________________________________________

OrderThis matter having come on for hearing before the Full Bench on the 18th day of March 2003 and having heard Mr A R Bastow (ofCounsel), on behalf of the applicant and Mr G McCorry, as agent, on behalf of the respondent, and the applicant having made anapplication to adjourn the hearing and determination of matter No. FBM 4 of 2002, and the respondent having consented to theapplication, and the Full Bench having decided to grant the application, and the parties herein having waived their rights pursuant tos.35 of the Industrial Relations Act 1979 (as amended), it is this day, the 18th day of March 2003, ordered as follows:-

(1) THAT application no. FBM 4 of 2002 be and is hereby adjourned sine die.(2) THAT either party has the right, upon notice in writing to the Full Bench and the other party, or the

representative of that party, to seek to have the matter relisted.(3) THAT the Commission constituted by the Full Bench may relist the matter of its own motion.


[L.S.] President._________


PARTIES GREGORY PAUL LOGAN-SCALES, INDUSTRIAL INSPECTOR, APPLICANT- and -BRENDAN LEPPARD, RESPONDENT


DELIVERED TUESDAY, 10 JUNE 2003FILE NO/S. FBM 4 OF 2002CITATION NO. 2003 WAIRC 08468_________________________________________________________________________________________________________

Decision OrdersAppearancesApplicant Mr A R Bastow (of Counsel), by leaveRespondent Mr B R Leppard, on his own behalf_________________________________________________________________________________________________________

OrderThis matter having come on for hearing before the Full Bench on the 10th day of June 2003 and having heard Mr A R Bastow (ofCounsel), by leave, and Mr B R Leppard, on his own behalf, and the respondent having admitted the three alleged contraventions orfailures to comply, and the Full Bench having determined on the admission of the respondent that the three alleged contraventionsor failures to comply were proven, and that reasons for decision will issue at a future date, and the parties herein having waivedtheir rights pursuant to s.35 of the Industrial Relations Act 1979 (as amended), it is this day, the 10th day of June 2003, ordered asfollows:-

(1) THAT the allegation that on the 22nd day of January 2002 Mr Brendan Leppard failed to produce forexamination a record as defined by s.98(3)(e) of the Industrial Relations Act 1979 (as amended) (“theAct”), namely the original records or documents relating to the employment of all employees and /orpersons providing labour or service to “212 Systems”, contrary to s.102(1)(a) of the Act, whenrequested by letter dated the 16th day of January 2002 by Mr David Graham, Industrial Inspector, isproven.


(2) THAT the allegation that on the 8th day of February 2002 Mr Brendan Leppard failed to produce forexamination a record as defined by s.98(3)(e) of the Act, namely the original records or documentsrelating to the employment of Mr Ron Winkler, Mr Sani Omar, Mrs Hayati Abdullah, Ms MichelleGarrity, Ms Rebecca Loveless and Mr Xiu Hua Cai by “212 Systems”, contrary to s.102(1)(a) of theAct, when requested by letter dated the 31st day of January 2002 by Mr David Graham, IndustrialInspector, is proven.

(3) THAT the allegation that on the 2nd day of April 2002 Mr Brendan Leppard failed to produce forexamination a record as defined by s.98(3)(e) of the Act, namely the original records or documentsrelating to the employment of Mr Ron Winkler, Mr Sani Omar, Mrs Hayati Abdullah, Ms MichelleGarrity, Ms Rebecca Loveless and Mr Xiu Hua Cai by “212 Systems”, contrary to s.102(1)(a) of theAct, when requested by letter dated the 27th day of March 2002 by Ms Regina Stene, IndustrialInspector, is proven.

(4) THAT in relation to each such breach so proven, the Full Bench imposes upon the respondent, MrBrendan Leppard, a penalty of $450.00 and orders that the total sum of such penalties, namely$1350.00, be paid by the respondent to Mr Gregory Paul Logan-Scales, the applicant herein, within28 days of the date of this order.

(5) THAT the respondent do pay to the applicant, Mr Gregory Paul Logan-Scales, Industrial Inspector,costs for the services of his legal practitioner(s) in the sum of $575.50, within 28 days of the date ofthis order.


[L.S.] President.

FULL BENCH—Procedural Directions and Orders—2003 WAIRC 08563

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSIONPARTIES RODERICK JAMES HOLLAS SMITH, APPELLANT

andSARACEN MANAGEMENT PTY LTD, RESPONDENT

CORAM FULL BENCHHIS HONOUR THE PRESIDENT P J SHARKEYCOMMISSIONER J F GREGORCOMMISSIONER S J KENNER

DELIVERED FRIDAY, 27 JUNE 2003FILE NO/S. FBA 29 OF 2002CITATION NO. 2003 WAIRC 08563_________________________________________________________________________________________________________

Decision Appeal discontinued by consent_________________________________________________________________________________________________________

OrderThis matter having been listed for hearing by the Commission of its own motion on the 27th day of June 2003, and the partiesherein, on the 20th day of June 2003, having filed in the Registry of the Commission a minute of consent order that the said appealbe discontinued by consent, and the Full Bench having determined that leave to discontinue the appeal should be granted and thatthe Full Bench should refrain from hearing the matter further, and the parties herein having waived their rights pursuant to s.35 ofthe Industrial Relations Act 1979 (as amended), it is this day, the 27th day of June 2003, ordered, by consent, as follows—

(1) THAT there be leave granted and leave is hereby granted for appeal No. FBA 29 of 2002 to be discontinued.(2) THAT the Full Bench refrain and do hereby refrain from hearing the said appeal further.


[L.S.] President.


COMMISSION IN COURT SESSION—Awards/Agreements—Variation of—

2003 WAIRC 08151IRON ORE PRODUCTION AND PROCESSING (BHP BILLITON IRON ORE PTY LTD) AWARD 2002

NO. A2 OF 2001WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES THE AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDREDINDUSTRIES UNION OF WORKERS & OTHERS, APPLICANTSv.BHP BILLITON IRON ORE PTY LTD & OTHER, RESPONDENTS

CORAM COMMISSION IN COURT SESSIONCOMMISSIONER S J KENNERCOMMISSIONER S WOODCOMMISSIONER J L HARRISON

DATE WEDNESDAY, 16 APRIL 2003FILE NO. APPLICATION 1646 OF 2002CITATION NO. 2003 WAIRC 08151_________________________________________________________________________________________________________

Result Application granted in part. Order to issueRepresentationApplicants Mr D Schapper of counselFirst Respondent Mr H Dixon SC and Mr R Kelly of counselSecond Respondent No Appearance_________________________________________________________________________________________________________

Reasons for Decision1. COMMISSION IN COURT SESSION: By this application the applicants seek a variation of the Iron Ore Production

and Processing (BHP Billiton Iron Ore Pty Ltd) Award 2002 (“the Award”). The variation sought is to clause 7(1) ofthe Award to provide that aggregate wages and allowances set out in schedules I B & II B respectively be paid from thebeginning of the first pay period on or after 19 January 2003, and not twelve months from the making of the Award,otherwise due on 19 July 2003.

2. The grounds in support of the application to vary the Award, albeit briefly stated, assert that the decision of theCommission in Court Session in application A2 of 2001 and the Award made arising from those proceedings, have ledto many changes being effected in the workplaces of the first respondent (“the company”) workplaces covered by theAward, and that the extent of those changes warrant the granting of the application.

3. By notice of answer and counter proposal the company objected to and opposed the applicants’ application to vary theAward. In short, the company’s answer contends that the Commission in Court Session in reasons for decision leadingto the making of the Award required there be a demonstrated increase in flexibility, productivity and efficiency tojustify the application now made and there is no valid basis for the variation of the Award as sought by the applicants.The second named respondent, the CEPU did not file a notice of answer and counter proposal within the time requiredby the Industrial Relations Commission Regulations 1985 (“the Regulations”) but only did so on 30 January 2003, thatbeing the second last day of the hearing before the Commission in Court Session. The CEPU in answer to the claim wasin terms of “Consent to the Application”.

4. Furthermore, the Commission in Court Session made directions for the effective programming of these proceedings on2 December 2002. The CEPU took no steps whatsoever in relation to those directions. Indeed, save for filing the noticeof answer and counterproposal, the CEPU has taken no apparent interest in these proceedings at all. The Commissionwill return to this matter later in these reasons.

Background to this Application5. The Award was made by order of the Commission in Court Session on 19 July 2002: (2002) 82 WAIG 2068. The

Award was made following extensive proceedings before the Commission in Court Session which were the subject ofreasons for decision dated 2 November 2001, 13 March 2002, 21 June 2002 and 19 July 2002: (2002) 2 WAIG 2033 -2067.

6. In making the Award, the Commission in Court Session determined that there would be aggregate wages adjustments intwo stages, they being 2 November 2001 and twelve months from the making of the Award unless otherwisedetermined by the Commission. Those aggregate wages adjustments were 14% and 6% respectively. Relevantly, clause7 - Aggregate Wages of the Award provides as follows—“(1) Employees shall be employed in the classifications set out in the classification structure in the attached schedules

marked IA and IB and shall be paid the annual aggregate wage according to their classification and roster.Aggregate wages set out in schedule IA shall be paid from the beginning of the first pay period on or after2 November 2001. Allowances set out in schedule IIA shall be paid from the beginning of the first pay period onor after the making of this award. Aggregate wages set out in schedule IB and allowances set out in schedule IIBshall be paid from the beginning of the first pay period on or after 12 months from the making of this awardunless otherwise determined by the Commission.

(2) Wages shall be paid fortnightly on a pro rata basis of the aggregate wage, together with any other entitlements,directly into the employee’s bank, credit union or building society account.

(3) Allowances which are not included in the aggregate wages are those set out in the attached schedules marked IIAand IIB.


(4) Each employee may elect to participate in the Company’s Incentive Program and, where they so elect, theCompany shall give effect to that program in accordance with its terms in respect of that employee. Provided thatemployees employed as at the making of this award shall have 14 days from the date of the making of the awardto elect to participate. New employees shall make an election within 14 days of commencing employment with theCompany.”

7. Furthermore, in recognition of the ability of the unions party to the Award to make application to have the six per centaggregate wage and allowance increases payable earlier than twelve months from the making of the Award, by clause29(1) liberty to apply was granted. It is pursuant to that liberty that these proceedings have been commenced.

8. It is of some importance for the purposes of these proceedings that this Commission in Court Session refer to theconclusions of the Commission in Court Session in its reasons leading to the making of the Award, particularly inrelation to the question of aggregate wages and allowances adjustments. However, it is important to recognise that theCommission in Court Session’s various reasons, and the requirements imposed on the parties by them and the Award,went to significantly more than just wage increases. It is important to appreciate that the Commission in Court Sessionwas concerned with not only conditions of employment themselves, but also the relationship between the parties and themaking of the Award as a new foundation upon which workplace relationships can be conducted.

9. The Commission in Court Session recognised that three decades or thereabouts of tradition and practices were beingoverturned. The Commission did not underestimate the significance of the changes to be made by the implementation ofthe Award. Specifically, the Commission in Court Session recognised that not only must the Award employees and theirrepresentatives need to participate in change to achieve the required productivity and efficiency outcomes, but also thatthe company needed to manage change in the new environment, and importantly, that the environment must beestablished whereby attitudes that reflect a commitment to business objectives are fostered. This latter objective in ouropinion requires a positive approach from both employees and employer alike. The Commission will return to these andother observations of the Commission in Court Session leading to the making of the Award, later in these reasons.

Contentions of the Parties10. In summary form and hopefully without doing any injustice to the comprehensive submissions by counsel for the

applicants, Mr Schapper, and senior counsel for the company Mr Dixon, the contentions of the parties can besummarised as thus.

11. Mr Schapper in opening, submitted that the applicants’ case must be seen in the context of the three sets of reasons ofthe Commission in Court Session, published 2 November 2001, 13 March and 21 June 2002. Reference was made bycounsel to para 127(f) of the 2 November 2001 reasons where the Commission in Court Session said—

“We propose that on the anniversary of that increase a further 6% will be payable. The Commission in CourtSession is prepared to sit in 6 months’ time for the purpose of ordering that the 6% increase be paid at a date notearlier than 6 months from the date of this decision if there has been a demonstrated increase in flexibility,productivity and efficiency in accordance with our decision.The increase shall apply to allowances. It will not be applied before the date of these reasons for decision.We reach this conclusion in the context of the almost unique circumstances of this workplace. The long history ofnegotiated working conditions, the decision of 50% of the workforce to work in a different regime and therecognition of the unions and their members that the past must go compel this conclusion.We consider that the significance of the changes which are to occur will lead to an improvement in productivity ofa magnitude which amply justifies an increase of this size. We reach this conclusion with the assistance of theevidence of the increase in productivity which is stated to have occurred as a result of the change to workpractices of the 50% of the workforce which moved to WPA’s. The significant reduction of differences in workpractices which currently exists between the WPA’s and EBA’s as a matter of equity must lead correspondingly toa significant reduction in the differences in remuneration.We also consider that that evidence reveals a capacity on the part of BHPIO to pay the remuneration increasesproposed. There was no submission or evidence to the contrary by BHPIO and we are required by Section26(1)(d) of the Act to have regard to the matters there set out. We are satisfied that there are no impedimentsimposed by Section 26(1)(d) to our proceeding in the manner contemplated by this decision. The evidence of thesubstantial improvement in remuneration paid to employees who no longer work in accordance with the Awardand EBA regime is of itself significant.We recognise, as do all the parties, the need for there to be a change in the culture. Without that change, theincreased productivity inherent in the unions’ stated intentions of co-operating in the dramatic changes whichneed to be made to meet operational requirements will not eventuate. We also recognise that there is evidence tosupport the submission of BHPIO that there will be resistance to that change. Accordingly, the total of the wageincrease we consider appropriate will be made in two stages. This will allow an opportunity for the increase inproductivity to be seen.It is important to state that BHPIO has a significant role to play in creating the environment for change to occurin a positive manner. This will be assisted in our view by BHPIO ensuring that its evidence put before us that thecompany does not, and will not, treat its EBA employees with any less consideration than it does its WPA’s isaccepted and understood at all supervisory levels in the workplace.”

12. Furthermore, Mr Schapper referred to para 113 earlier in the same reasons where the Commission in Court Sessionobserved—

a. “The challenge is for BHPIO to manage change in the structurally reformed regulated workplace.”13. In his submissions, Mr Schapper emphasised that the effect of the Commission in Court Session’s decision making the

Award, involved as a major consequence, the removal of an overlay of instruments and practices, requiring change to beimplemented at the company’s workplaces only by consensus.

14. In terms of the 13 March 2002 reasons, Mr Schapper took the Commission to the observations of the Commission inCourt Session contained at paras 64, 65 and 66 as follows—

“We have noted our conclusion that the circumstances of the material before the Commission present almostunique circumstances. The commendable approach of the unions in this matter will also see significant changesoccur in the efficiencies achieved by award employees, in addition to the contribution they have already made andfor which they should be rewarded. While there may be room for debate about the extent to which futureefficiencies will materialise, we conclude that the thrust of the unions’ approach will result in an improvement in


productivity of a magnitude which justifies a significant increase. We do not compare increase in efficiency withthe increase in efficiency said to have occurred with WPA’s. Furthermore, we are not awarding awardemployees, as a condition of employment, the remuneration of WPA employees. Nevertheless, given the factors wehave referred to in the Reasons for Decision which have issued we considered that a wage increase of 20% isjustified on the material before the Commission and for the reasons we have stated.In our view, however, the evidence before the Commission from some of the unions’ witnesses which indicate notonly that opposition to change will be maintained, but also that further changes to be implemented by BHPIO willbe regarded as an opportunity to claim further increases in remuneration, prompts us not to award the wageincrease in one sum. Rather, we conclude that the significant majority of the sum to be awarded should be paidinitially with the balance payable in a further 12 month period or earlier in the event that there has been ademonstrated increase in flexibility, productivity and efficiency in accordance with the Commission’s decision.The Commission has had regard for the claim of the unions that the wage increase be paid retrospectively. TheCommission concluded that the wage increase would not be applied at a date prior to the delivery of the Reasonsfor Decision. In reaching that conclusion the Commission points to the substantial proportion of the wageincrease due being for the improvements in productivity which are to occur. We recognise the evidence before theCommission of the time which has elapsed since a wage increase has been paid to these employees. We also notethat a contributing factor to this time period was the decision of BHPIO not to engage in discussions on a newenterprise bargaining agreement once it had taken the decision in principle that it would offer only workplaceagreements. The Commission also takes into account, however, the evidence before the Commission of theindustrial action which occurred and that the claim for the new award was not brought to the Commission until2 April 2001. In balancing the issues to be considered the Commission did not conclude that retrospectivity to adate prior to the date of the Reasons for Decision was made out. Therefore, the wage increase to apply will notapply before 2 November 2001.”

15. Finally, counsel for the applicants referred to the Commission in Court Session’s 21 June 2002 reasons in particularpara 10, when it was observed—

“Given that the supplementary wage increase to be awarded is to be based upon proven increases and efficiencyfollowing the cancellation of the various industrial instruments and the operation of this award, the Commissionwill not sit to consider the further wage increase until at least a further six months has passed from the operationof the award itself. For that reason, we consider that the term of the award should be 12 months that datemarking the outside point for the operation of the balance of the wage increase.”

16. The central proposition advanced by Mr Schapper on behalf of the applicants, was that the requirement imposed by theCommission in Court Session and in turn on the implementation of the Award, was a demonstrated increase inproductivity, efficiency and flexibility and since 19 July 2002, there have been very significant changes implemented bythe company, leading to major improvements in productivity, efficiency and flexibility. Therefore, as the submissionwent, the employees covered by the Award are now entitled to reap the benefits of these changes by way of bringingforward the six per cent aggregate wage adjustment. Mr Schapper recognised that the company possessed a differentview as to the requirements imposed by the Commission in Court Session, where reference was made variously in thereasons for decision to a required change of attitude and culture.

17. Alternatively and in any event, the applicants’ counsel submitted that even if one examines the relevant “test” as being ademonstrated change in attitude or culture, then the evidence advanced by the company fell short of establishing aprevalent and widespread “bad attitude” sufficient to deny the employees the improvements in wages as claimed. MrSchapper also submitted that the company had not, in adopting what he described as a “heavy handed” approach bymanagement to the implementation of the terms of the Award, fostered an environment for change, envisaged by theCommission in Session.

18. Senior counsel for the company, Mr Dixon adopted the outline of opening submissions filed on 23 January 2003. Inthose submissions, reference was made to the reasons of the Commission in Court Session of 2 November 2001 andparticularly at para 127(f), referred to above. Reference was also made to paras 64 and 65 of the Commission in CourtSession’s reasons of 13 March 2002, which Mr Schapper also referred to above. In light of these issues, Mr Dixonsubmitted that the requirements imposed by the Commission in Court Session on the delivery of the Award, included arequirement for there to be a demonstrated change in culture of the employees covered by the Award, in order to receivethe significant benefits provided by the decision.

19. The company submitted that for the purposes of the present application, it was not enough for the applicants to satisfythe Commission in Court Session to simply demonstrate compliance with the terms of the Award, with nothing more.The thrust of the company’s submissions were that there had not been, since the implementation of the Award, therequisite change in culture and attitude, to display a cooperative approach to the implementation of change, to justifythe earlier payment of the six per cent aggregate wage increase. It was further submitted, that evidence to be adduced bythe applicants and the company, not only would demonstrate a failure to co-operate by Award employees, but proactiveresistance to change contrary to the expectations of the Commission in Court Session.

The Evidence20. Extensive evidence was adduced by the parties in the proceedings. On behalf of the applicants, witnesses called to give

evidence included Mr William Tracey, an organiser employed by the AWU with responsibility for the company’soperations on behalf of all unions with coverage at the company’s locations. Evidence was also adduced from MrWarren Johncock, a locomotive driver employed by the company who also occupies the position of President of theHedland Lodge of the CFMEU.

21. On behalf of the company, evidence was given by Mr Christopher Dunbar the manager mining at Newman; Mr RobertGoodwin the manager port maintenance at Nelson Point; Mr Anthony Holland supervisor rail transport at Nelson Point;Mr Geoffrey Knuckey manager mine maintenance Newman; Mr Peter Priestley superintendent maintenance FinucaneIsland and Mr James Shaw vice president mining Newman.

22. In broad terms, the evidence of the applicants was directed to establishing that there had been significant changes towork practices at the company’s operations since the implementation of the Award. Additionally, the evidence was alsodirected towards the overall performance of the company’s business, as contained in published material, in particularthat distributed to the work force over the latter half of 2002.

23. For the company, in the main, the evidence was directed at establishing the proposition advanced by counsel that therehad not been the requisite attitudinal or cultural change envisaged by the Commission in Court session, and there wasand continues to be, ongoing resistance to the implementation of change in the workplace.


24. That brief outline of the thrust of the evidence, immediately illustrates that the evidentiary positions of the parties stoodsomewhat in stark contrast, with no evidence being adduced by the company in relation to changes implemented on themaking of the Award, nor of the extent to which there had been co-operation in the implementation of changes arisingtherefrom.

25. Mr Tracey has been employed full time by the AWU with responsibility for the company’s workplaces since aboutNovember 2000. Mr Tracey testified that as a result of his responsibilities, he has acquired a detailed understanding ofthe company’s operations at Newman, Finucane Island, Nelson Point and the rail operations. Upon the making of theAward, Mr Tracey commenced a process of obtaining information from employees in the various workplaces of thecompany, as to changes implemented consequent upon the new Award. Documents, described as “change notifications”were prepared, by employees on site. Mr Tracey collected copies of these documents and engaged in discussions withthose responsible for preparing them, and held meetings in the workplace to confirm the content of the changesdescribed in these documents.

26. Given the manner in which Mr Tracey obtained the information for the purposes of his evidence, it is necessarily to anextent, one step removed from the source of the changes said to have been implemented. This approach to the adducingof evidence by the applicants was attacked by counsel for the company. It was submitted that the evidence led in thisfashion was unsatisfactory in that it consisted largely of a narrative of reported changes, through the process describedabove. It was submitted by the company that the Commission ought to have reservations about evidence of this kind.

27. Mr Schapper for the applicants, conceded that evidence of Mr Tracey was of the kind as described, but contended thatgiven the nature of the issues raised in the proceedings, that this was the only practicable method of placing thismaterial before the Commission, the alternative being calling each and every person involved in these changes to testifydirectly, leading to proceedings of an inordinately long time.

28. The difficulties in relation to adducing evidence in a case of this kind are recognised by the Commission. It is trite toobserve that the Commission, by s 26(1)(b) of the Industrial Relations Act 1979 (“the Act”), is not bound by the rules ofevidence and may inform itself on any matter in such a way as it thinks just. This does not mean, and it has nevermeant, that the Commission is able to proceed to determine a matter in the absence of any cogent evidence. Given thatMr Tracey’s evidence was extensively tested in cross-examination, and witness statements in answer to many of theissues raised by him were filed by the company, we are of the opinion that the Commission is able to accord weight toMr Tracey’s evidence, on these bases.

29. We deal with Mr Tracey’s evidence and the other evidence led, in relation to each work location as follows.Finucane Island30. Evidence from Mr Tracey, which evidence was in part challenged by the company, referred to the following changes in

work practices which were said to have been introduced either immediately or shortly after the implementation of theAward which included—(1) Morning and afternoon smoko’s for operators are now being taken on bulldozers instead of smoko relief being

provided.(2) Operators now are required to work through lunch breaks on the ship loaders and are either not relieved or

relieved late. Mid shift relief was previously provided.(3) Electrical and mechanical tradesmen are now assisted by operators who previously only performed ore handling

work.(4) In the beneficiation plant operators performed some trades work on shift and have been provided tools for this

purpose. A position of “operator/maintainer” was said to have been created in this area.(5) There has been a reduction from two to one operator working in the rail hopper to unload trains and clean up.(6) Operators in the control room are no longer being relieved for mid shift crib break on short staffing.(7) In the ore handling area, shift swaps such as for example A shift to B shift is now occurring frequently whereas

previously such changes were infrequent.(8) Shift mechanical fitters have been reallocated to day work with their duties now being performed by other shift

employees, within their skill, competence and training.(9) Redundancies have been declared in the mechanical department involving 11 employees with further

announcements imminent. We pause to observe that this matter is presently the subject of proceedings beforethe Commission otherwise constituted.

(10) It was said that plant operators in the beneficiation plant have been transferred to the main plant area contrary toprevious practice.

(11) Clean up works are being performed by contractors and not employees as was previously the case.(12) Similarly, contractors are being utilised to load 320 hopper and fines with front end loaders, which was

previously done by employees.(13) In the shift loading and reclaiming area, operators are required to take smoko breaks during “hatch changes”

instead of receiving smoko relief twice per day.(14) There has been a reduction in smoko supplies to employees.(15) In the ship berthing area, there has been a reduction by one mine worker for each of the processes of ship

berthing and ship untying.(16) Since mechanical fitters have been removed from shift, electricians are now working on their own whereas

previously, they worked side by side as required.(17) The use of electrical contractors for shift coverage has been introduced. Previously, employees were given the

first option to do this work.(18) Furthermore in relation to callouts, contractors are now being used more frequently to perform work in

mechanical maintenance on weekends and back shifts.(19) Again in relation to contractors, the company has commenced the practice of a blanket general notification for

the use of contractors in the mechanical and electrical maintenance areas, as opposed to a separate notificationfor each engagement.

(20) Indigenous contractors have been trained in all mobile plant operations to ensure coverage.


(21) On Christmas and Boxing Day 2002 the entire operations, except the beneficiation plant and train loading,continued to work for the first time ever.

Nelson Point31. As to the Nelson Point operations, Mr Tracey testified that changes have been introduced as follows.

(1) In relation to the use of JSAs, they are required now for all non routine work as opposed to the previous practiceof a “take two”.

(2) The same form of general notification for use of contractors is now in place.(3) In the electrical department, supervision are now performing isolation and switching work for fitters and

contractors which were previously done by employee electricians.(4) There has been a shift roster change.(5) Electricians are now being trained to perform lines work in shipping.(6) Electricians are now required to record time confirmations each day using GSAP instead of manually.(7) There is no longer coverage supplied when shift electricians take leave leaving two electricians to cover the site

leading to an increase in work load.(8) Contractors are now being trained by employee electricians in the performance of the employees’ duties.(9) In relation to requirements for permit holders for isolations, supervisors now hold permits instead of the system

being conducted by staff engineers.(10) In relation to shut down work, employee electricians are now required to supervise contractor work groups

whereas this was previously performed by staff or engineers.(11) In the mechanical trades area, employees are now required to use the GSAP system to perform time

confirmations for each job such that hours are allocated to specific tasks which previously did not occur.(12) In relation to parts, shift fitters are now required to order parts for production employees instead of previously

only their own parts requirements. Additionally, they are required to book their own training courserequirements, instead of that task being performed by co-ordinators.

(13) In ship loading operations, shift fitters are being trained to operate ship loaders to provide operator relief whenrequired.

(14) Safety management plans for maintenance shut downs are being prepared by tradesmen instead of staff orengineers.

(15) Overall, there has been a substantial reduction in overtime available for Award employees.(16) Contractors are now being utilised to perform extra work instead of the same work being offered to Award

employees.(17) Generally, there has been a significant increase in the use of contractors which work was formerly performed by

mechanical tradesmen.(18) In the sampling area, the senior sampler has extended duties to include “hundred mesh sizings” whereas this

was previously performed by someone else.(19) In the sample stations, contractors and casual employees are now being utilised to perform clean up of spillage

whereas available employees on shift used to perform this work.(20) In the sampling department employees now perform two sizings per cargo instead of one as previously.(21) The “preferred operator” principle has been introduced into the machine and mobile roster.(22) There is no longer shift fitter coverage when fitters take leave leading to an increase in workload for those on

shift.(23) All employees are being trained on the GSAP computer system.(24) In the locomotive area, car examiners are being trained to drive locomotives in the yard for the purposes of

qualifying for this task.(25) In the stores department, “special jobs” are now being performed by any person, including contractors who are

cable of performing them, instead of employees on overtime.(26) Leave coverage in the stores department is now provided by contractors and staff now perform wages

employees work.32. Mr Goodwin is the manager of port maintenance for the Nelson Point and Finucane Island operations. His evidence was

given primarily in response to issues raised by Mr Tracey in his evidence in chief. In relation to job safety analysis, MrGoodwin testified that matters raised by Mr Tracey as to the company requirement for JSAs to be performed, has beenan ongoing issue and is unrelated to the implementation of the Award.

33. In relation to overtime, it was Mr Goodwin’s evidence that the real benefit to his department from the Awardimplementation was the breaking of the contractor/overtime linkage. Formerly when overtime was performed by acontractor, that same amount of overtime was required to be offered to award employees, whether there were workrequirements or not. It was also the case on Mr Goodwin’s evidence that as a practice, overtime is usually performed onan offer and acceptance basis, and where it is required to be done it is performed, although there has been some protest.

34. In relation to shift roster changes, Mr Goodwin said that the change to the HBI roster was commenced prior to theAward but implemented after it. As to shift coverage, again, Mr Goodwin said the issue raised by Mr Tracey, existedprior to the making of the Award and was indeed adopted in March 2000. Likewise, Mr Goodwin said that electricianshave always worked with and assisted contractors in the maintenance department at Nelson Point and whilst companyelectricians are assuming more responsibility and are supervising contractors, this is predominantly performed by non-Award employees.

35. Supervisors becoming permit holders according to Mr Goodwin, is a matter unrelated to the Award, and has occurred inpart at least, because of increased numbers of shutdowns being undertaken leading to an increase in the number ofemployees involved in this work. Mr Goodwin also disputed that shift fitters now book their own training courses.Whilst Mr Goodwin agreed that shift fitters are now being trained up in ship loading, because of the critical nature ofthis operation, there has yet to be seen any efficiency gained by actually engaging in such operations.


36. Additionally, Mr Goodwin said that whilst tradespersons have become more involved in preparing safety plans formanagement shutdowns, no Award employee to his knowledge, has actually been required to prepare one in its entirety.

37. In relation to contractor usage, Mr Goodwin testified that there has always been utilisation of contractors in themaintenance department. Their usage is determined by workload and shut down availability and there has been nochange to this practice since the making of the Award. Additionally, there has been no change in the approach to shiftfitter coverage when on leave, over many years according to Mr Goodwin. In relation to staff performing wages work,Mr Goodwin acknowledged that the incidence of this has increased since the introduction of the Award.

38. In conclusion, it was Mr Goodwin’s evidence that as a general proposition, the greatest benefits in the maintenancedepartment for the ports, from the Award, has been the removal of previous restrictions including status quo; thecontractor/overtime linkage and changes in requirements for contractors.

39. Mr Priestley is the superintendent maintenance at Finucane Island. Most of the tradespersons at Finucane Island, arecovered by the Award. As with other witnesses called by the company, save for Mr Goodwin, Mr Priestley made thegeneral observation that since the making of the Award, he had not observed any meaningful improvement in theattitude or culture of the Award workforce since its making, leading to an increase in productivity of the operations inhis department at Finucane Island.

40. Mr Priestley cited an example of this in the failure of Award employees to generally adhere to the start and finish timesof shifts as well as working to the time limits for smoko breaks. Mr Priestley testified that on the making of the Award,he gave a presentation to employees in his department and emphasised the requirement to work the rostered hours from7.00am to 3.30pm and to observe the 15 minute smoko break. Following this, Mr Priestley said that he did not noticeany significant change in that employees were still often not commencing their allocated duties until 7.30am and werehabitually finishing work at about 3.00pm. Employees were also continuing to take longer than the 15 minute smokobreaks sometimes extending to 30 to 45 minutes. There was no evidence that any form of discipline has been imposedin relation to this situation.

41. Mr Priestley also responded to some issues dealt with in the evidence of Mr Tracey. As to operators assistingtradespersons, Mr Priestley testified that this occurred both prior to and after the Award was made but is no longerrelevant as the mechanical tradesperson, after October 2002, was removed from shift work.

42. It was asserted by Mr Tracey in evidence that there is now a position of “operator maintainer” utilised in thebeneficiation plant at Finucane Island. This was disputed by Mr Priestley. His evidence was that there is one Awardemployee, who is a qualified tradesperson, who works in the beneficiation plant and who does perform some tradeswork. This operator was issued with a tool box after the Award issued, so that in the event of a plant breakdown, hecould perform some trades tasks in assisting in repairs. In relation to the transfer of mechanical fitters to day shift, MrPriestley said that there is now only one Award mechanical tradesperson left who can do this work. In other cases, it isAward free employees or contractors who perform this coverage work.

43. Mr Priestley also gave evidence that the transfer of employees between the beneficiation plant and the main plant,mentioned by Mr Tracey, has occurred in the past and the Award has not changed this. As to contractors, Mr Priestleysaid that following the making of the Award, restrictions on which employees could provide shift coverage for electricaland mechanical work was removed. He notified employees that coverage would be the responsibility of the appropriateresource co-ordinator, and this may involve the use of contractors. It was his evidence however, that after the making ofthe Award, most of this work was still being performed by Award employees. Similarly, the use of contractors for callout work had not changed, in Mr Priestley’s opinion. As to contractor notification, it was Mr Priestley’s evidence thatfollowing the Award, he issued a notification to employees as required by the Award, as to contractors currently usedand those in the foreseeable future. Employees still are able to view the weekly plan for mechanical maintenance work,which includes reference to contractors.

44. In relation to working Christmas and Boxing Day 2002, Mr Priestley testified that whilst this was the first occasion tohis knowledge that employees in the maintenance department were requested to volunteer for these days, only oneAward electrician volunteered for this period with the remaining shifts being covered by contractors. In cross-examination however, Mr Priestley was not able to indicate to what extent the Award employees volunteered and didwork on these days in production and no other evidence was called on this issue.

Newman45. The evidence given by Mr Tracey in relation to changes at the Newman mining operations, including mine

maintenance, was as follows—(1) Contractors are now being used for the checking and cleaning of vehicles as opposed to employees.(2) Machinery is being operated and other tasks such as cable moving, pool duties and light vehicle movements are

being performed by staff as opposed to Award employees.(3) There has been a change in start and finish times from 5.50 am and pm to 5.45 am and pm.(4) Equipment operators are now required to work through to the end of shift time, as opposed to when relieved by

the new operator as previously.(5) Truck refuelling is now performed by truck drivers and not check point personnel.(6) A transfer of leading hands between shifts has occurred.(7) Trucks now have “hungry boards” or higher sides to enable them to carry correct tonnages.(8) New technology is being used for dozer operators through high resolution GOIC technology.(9) Equipment operators are being trained in “operators’ excellence” in order that operators may work in

conjunction with trades fitters for maintenance work.(10) The electric shovel is now operated by foremen as opposed to only Award employees.(11) Additionally, foremen clean and inspect vehicles and perform pool duties, all of which was previously only

performed by Award employees.(12) Mine employees now distribute “cycle time graphs” previously done by staff.(13) Truck drivers are now required to be trained to operate and perform fuelling, tag out and mileage checks at the

check point as opposed to previously where such work was performed by dedicated check point employees.(14) All employees are being trained in the operation of lube trucks and lube duties whereas previously there was a

dedicated crew for this work.


(15) A reduction by one employee for performing lube truck and refuelling duties in the mine has occurred.(16) Those employees driving lube trucks are required to do general road worthiness checks on vehicles which were

not done previously .(17) Award employees now assist contractors with tyre changes on lube truck vehicles formerly done by contractor

employees.(18) There has been a large scale transfer of Award and workplace agreement employees such that they are now

aligned on the basis of Award or workplace agreement coverage on shifts.(19) Employees in the laboratory now perform some analyst work inside the laboratories.(20) There is now a transfer of operators to Port Hedland for short term peak load relief which did not occur

previously.(21) Time off in lieu as opposed to overtime rates has been taken by some employees.(22) In relation to extended leave of foremen, leading hand Award employees now act in these roles as opposed to

only staff persons previously.(23) The use of contractors to cover peak labour demands in the mine is continuing including truck driving and

normal mine worker duties.(24) Foremen now operate equipment during crib breaks.(25) The checking of light vehicles is now performed by contractors as opposed to employees.(26) In the maintenance and electrical departments an “open ended” contractor notification is being used rather than

separate notification for contractor usage.(27) Tradespersons in the workshop now participate in the weekly maintenance planning sessions with the planner.(28) In order to complete maintenance work foremen are working with tradesperson employees.(29) Apprentices are now inducted by tradespersons and not foremen as was done previously.(30) Time confirmations by tradespersons are now done using the SAP system as opposed to manually.(31) On nightshifts tradespersons are managing their own work duties.(32) Award employee fitters now rotate through the mine “breakdown” position.(33) In relation to the drill and road crew, the night shift allowance and half hour shift change have been removed.(34) Lube truck drivers in production have had removed their “special maintenance rate”.(35) The leading hand in the drill and road crew now undertakes many duties previously performed by the foreman.(36) Award employees in the drill and road crew have undertaken oxy cutting courses to perform work of

tradespersons46. Mr Shaw is the vice president mining with the company. He has been in this position since about February 2001 and has

overall responsibility for the management and operation of the company’s mining operations, both directly conductedand those operated by contractors. Mr Shaw testified as to improvements at the company’s mining operations in recentyears, in particular as to capital investment, planning, stockpile management and other matters.

47. In relation to capital investment, Mr Shaw said that until about 1998, the company had invested approximately$350 million in capital expenditure in particular at its Nelson Point operations. This capital investment according to MrShaw has significantly increased the company’s production capacity and consequentially, its shipping capacity.Furthermore, the company’s operation at Yandi has been significantly expanded, to its present production rate of about38 - 40 Mwmt per annum. In the last few months, Mr Shaw said there has been a further $27 million invested in theYandi Lump Project. A comparative production chart at JDS1 to Mr Shaw’s witness statement shows the increasingcontribution of the Yandi mine to the company’s overall mine production at its various sites.

48. The additional expenditure at Yandi, has included the adding of a further stacker and changes to the crushing circuit,screens and conveyers. The effect of this expenditure means that both fines and lump ore product may now be producedat the Yandi mine, and then railed directly to the port. Consequentially, there is now no longer the need to further crushand screen Yandi ore at the port, thereby improving the port operations. Mr Shaw testified that also in August 2002, anew interim crusher plant at the Yandi mine was finished with a further capital investment of about $20 million to date.He said that this gave the Yandi mine a further 6 Mwmt capacity per annum, which would be reflected in futureproduction figures. It was Mr Shaw’s evidence that this capital investment at Yandi has significantly increased outputand port efficiency overall.

49. There has also been according to Mr Shaw, substantial investment made in improvements at the beneficiation plant atthe Mt Whaleback mine in Newman. This expenditure, over about the last 3 1/2 years or so, has included improvementsin tailings and thickener pumps, new spirals and screens, advanced controller automation and electrical circuitsupgrades. New screens introduced in about October 2002, were estimated by Mr Shaw to have increased the capacity ofthe plant by about 10 to 15 per cent. Tonnages from the beneficiation plant have improved from 7 Mwmt to 12 Mwmtper annum, according to Mr Shaw.

50. A focus on integrated planning has resulted in significant improvements in the business operations Mr Shaw said. Hereferred to daily, weekly and monthly meetings and conferences between management at the company’s departmentsdesigned to remove inefficiencies between the mining and other parts of the company’s operations. Mr Shaw gave anexample of about 12 months ago, to increase the grade of iron ore product from the Newman mine. He testified that thiswas possible due to better mine planning and improved performance at the beneficiation plant, which has increased thesales performance from Newman, in particular to China.

51. Evidence was given by Mr Shaw about the company’s introduction of a continuous stockpile management system at theMt Whaleback mine. This system, introduced in about 1999, enables the company to stockpile iron ore of the requiredgrade. According to Mr Shaw, this new system, which is now starting to show results, enables the company to avoiddelays in ship loading at the port, because there is no longer any requirement to stop loading to check the grade ofshipments. In Mr Shaw’s estimate, the introduction and continuation of this system has improved ship loading rates byabout 50 per cent as ship loading can now be performed on a continuous basis.

52. It has been a result of these initiatives that Mr Shaw said the company has been able to experience the significantproductivity and efficiency gains, and resultant performance outcomes, that it has done so over recent times.


53. Mr Shaw in his evidence, in particular emphasised the improved performance of the Yandi mine, which is a contractmine where no employees covered by the Award are employed. It must be noted however, that this operation is thesubject of a collective federal industrial instrument between the relevant unions and the contractor employer.

54. As to the Award, Mr Shaw testified that its effect was to remove a large number of restrictions which has contributed toimprovements in productivity. Mr Shaw however, cautioned against concluding that the company’s recent performancehas been attributable to the contribution of labour alone, and referred to the significant capital investment and otherchanges introduced. Mr Shaw referred to the company’s introduction of workplace agreements at the end of 1999 andhis view about the willingness of those employees to embrace change and contribute to the company’s performance.

55. As to Award employees, Mr Shaw said that in his view, there has remained opposition to change and a negative attitudeto change. He contrasted this with that of non-Award employees. It was Mr Shaw’s view that recent improvements inrail and shipping operations and consequent sales performance of the company, was not a result of attitudinal change orco-operation, of Award employees. It was Mr Shaw’s evidence that if the majority of Award employees had notcontinued to display a negative attitude towards change, the company’s performance would have been even better. Toillustrate Mr Shaw’s concerns, he referred in his evidence to a number of examples of resistance to change. One citedwas the opposition by the unions and Award employees to the staff incentive program, and the campaign undertaken bythe unions to persuade Award employees to not take part. Mr Shaw viewed the incentive program as being anopportunity for a demonstration of cultural change in the Award workforce, to remove what he described as a “themand us” attitude. Other examples cited by Mr Shaw, included Award employees’ ongoing resistance to the use ofcontractors particularly in mine maintenance and the unions’ opposition to the company’s recent moves towardsexclusive shift arrangements manned by Award and non-Award employees respectively.

56. Mr Shaw was also asked about the company’s recent engagement of contractors at the Newman mine. He said thatbecause of increased demand there was a requirement for up to 25 contract positions and it was finally determined that21 would be needed. Ten contractors were engaged for the period ending 3 February 2003. A further 11 contractorshave also been employed all of whom will work up until June 2003 to meet demand. Mr Shaw testified that there aredifficulties in recruiting permanent employees for these positions but said that the company would be looking to engagepermanent employees from the local area as far as possible, depending upon the market demand at the time. Mr Shawwas cross-examined about this matter in particular, that he notified and consulted with the local shire and Chamber ofCommerce, but not the relevant unions, before proceeding with the proposal.

57. Mr Shaw was also cross-examined about the company’s recent performance. He agreed with counsel that in the lastmonths as at the date of the proceedings, the company had had a “bumper performance” and had achieved verysignificant profitability. He agreed with the various comments made by senior management as contained in thedocuments tendered by the applicants, they being the various “Chronicles” and other complimentary communicationsabout the performance of the business, adduced through Mr Tracey. Mr Shaw agreed that in terms of the company’sperformance, both substantial capital improvements and employee input and effort are elements in the overall outcome.

58. Mr Dunbar is the manager mining at Newman. He is responsible for the mining activities of the mining department atMt Whaleback and ore bodies 29, 30 and 35. Mr Dunbar reports directly to Mr Shaw. Mr Dunbar’s evidence in largepart went to answering evidence led through Mr Tracey, in relation to mining department changes. Additionally, MrDunbar outlined the steps the company took in the mining department, following the introduction of the Award. Hetestified that shortly after the Award was handed down by the Commission, a presentation was given to each of themanagers in the mining department, setting out the changes from the old to the new structure, and what steps thecompany was going to take. A copy of this presentation was annexure CDT1 to Mr Dunbar’s witness statement.

59. Mr Dunbar testified that as a general proposition, from his own observations and from feedback received fromsupervision, since mid-July 2002 when the Award was made he had not seen a noticeable change in the culture ofAward employees as opposed to that of non-Award employees. Mr Dunbar dealt with a number of matters in hisevidence as follows. He outlined the company’s attempt to persuade employees to take part in the incentive programmeand the campaign conducted by the unions opposing it. As a result, the vast majority of Award employees did not takeup the offer to participate in this programme.

60. Mr Dunbar also testified in relation to a change introduced by the company, to provide supervision with refreshertraining on equipment operation. This was done to enable equipment to be operated during crib and smoko breaks or toreplace operators when they are engaged on other duties. Mr Dunbar gave evidence about complaints by Awardemployees on D shift as to a team leader operating equipment, alleging that this has only been done to aggravate Awardemployees. Mr Dunbar referred to a grievance being raised by the TWU in December 2002, and meetings betweencompany representatives and union representatives about the matter, which Mr Dunbar described as unwarrantedresistance to this initiative.

61. Evidence was also given by Mr Dunbar in relation to changes to start and finishing times in mining operations, referredto in Mr Tracey’s evidence. This involved a decision to change start and finish times for Award employees by changingday shift from a 5.50am start to a 5.45am start and consequentially a 6.15pm finish. For night shift the same alterationwas made. Mr Dunbar testified that the purpose of this change was to hopefully avoid employees parking up theirequipment early at the end of shift leading to high grade material being dumped on waste dumps in order to park upearly. It was anticipated that this change, which would require employees to work their full hours each shift, wouldimprove productivity and reduce the incidence of these practices.

62. It was Mr Dunbar’s evidence that following the introduction of this change, Award employees engaged in a range ofbehaviours with the objective in his view, of slowing down the start of shift to frustrate this initiative. Evidence wasgiven by Mr Dunbar of a meeting in September 2002 with the TWU, where he was told the company would have toexpect this sort of response as a form of “pay back”. Mr Dunbar said in a meeting later in January 2003 with MrKumeroa of the TWU, a similar observation was made. In cross-examination, Mr Dunbar expressed the view that thecompany’s position is that under the Award the company is to pay only for time worked, but he still expected the priorpractice of all the preliminary paper work to be performed pre-start, in the employee’s own time. With the new Award,and change to accompany it, Mr Dunbar thought that employees would be willing to do this.

63. Another matter raised in Mr Dunbar’s evidence was the issue of pre-start checks on pool vehicles. Mr Dunbar said thatfollowing the change in start and finish times for shifts, a number of Award employees were doing excessively longpre-start checks, leading to delays in the shift change process. Mr Dunbar counselled several Award employees aboutthese pre-start checks and as a consequence, changed the system to have the task performed by a contractor, includingthe cleaning of pool vehicles also.

64. A further issue raised by Mr Dunbar, was the mining department’s preferred policy to utilise leading hands to undertakesome supervisory work when required. Mr Dunbar testified that there are benefits for both the employee and the


company in this process. His evidence was that in the case of Award employees, both prior to and post the Award beingmade, they were reluctant to undertake leading hand positions in particular to address performance or disciplinarymatters in respect of their work groups. This is not the case for Award free leading hands, according to Mr Dunbar.

65. As noted above, much of Mr Dunbar’s evidence was directed at rebutting or qualifying the evidence of Mr Tracey inrelation to changes implemented in the mining department. We do not specifically refer to those aspects of Mr Tracey’sevidence, dealt with in Mr Dunbar’s evidence above.

66. In relation to truck drivers refuelling their own trucks and changes to dedicated checkpoint personnel, Mr Dunbartestified that it was his experience in the last five to six years or so, that lube truck drivers have operated both their lubetruck and the checkpoint as operational requirements arise. He did say however, that since the Award was made, anumber of Award employees mainly on B shift, have been trained to refuel their trucks when an employee is notmanning the check point location.

67. In relation to the transfer of the leading hand on A shift to D shift, Mr Dunbar said that this was related to the transfer ofemployees between shifts to comprise an entire Award shift and non-Award shift and was not as a result of the Awarditself.

68. As to the use of “hungry boards” or higher sides on trucks, Mr Dunbar’s evidence was that this was a capital investmentto enable the trucks to carry their certified load rating without spillage. It did not in his view involve any additionalcontribution from Award employees.

69. As to the “operators’ excellence” program referred to by Mr Tracey, it was Mr Dunbar’s evidence that this program wasinitiated in 2001 and introduced to operators in October 2002. Mr Dunbar disputed Mr Tracey’s assertion that it isdirected to fast track maintenance rather, its objective is to provide operators with knowledge as to the workings of theirmachinery, in order to assist in better operating techniques. There was a suggestion from Mr Dunbar that one convenerof a union, told him that he thought the program was a waste of time.

70. Mr Dunbar was unable to see how the issue of mine employees distributing cycle time graphs was related to theAward’s introduction.

71. Mr Tracey’s evidence about Award employees helping OTRACO contactor employees was responded to by Mr Dunbarto the effect that this occurred both prior to and following the Award’s introduction. He said that if this activity hasincreased, it would be because of a reduction in the number of OTRACO contractors.

72. As to the alleged mass transfer of employees between shifts, it was Mr Dunbar’s evidence that this initiative was pre-Award and resulted from friction and animosity between groups of employees on shift. As this issue is presently beforethe Commission otherwise constituted, no further observations about this matter will be made.

73. The issue of transfer of operators from Newman to Port Hedland was raised. It was Mr Dunbar’s evidence that inresponse to what was said by Mr Tracey, to his knowledge, there have only been two occasions where Awardemployees were proposed to be transferred to Port Hedland to assist in operations at that location. The first occurred inJuly 2002 where it was proposed to send two Award employees to Port Hedland for a week to assist in the movement ofstock piles. According to Mr Dunbar, the employees concerned were keen to undertake this work however, the uniontold Mr Dunbar that the employees would not be transferring unless agreement was reached on terms and conditions forthe temporary move. As a result, the employees did not go. The second occasion occurred in November 2002, where MrDunbar proposed to transfer two Award loader operators to Port Hedland on a short term basis. The employeesexpressed interest in going and did so. It was Mr Dunbar’s evidence that following the return of the employees, therewas apparently, an incident involving an altercation with another D shift employee, allegedly arising from theemployees’ willingness to transfer to Port Hedland. This matter was presently being investigated by Mr Dunbar.

74. In general terms, it was Mr Dunbar’s evidence that these various incidents gave him the impression that there are a fewindividuals in the various unions who were effectively working against the initiatives sought to be introduced by him inthe mining operations department.

75. Mr Dunbar referred to the engagement of contractors at the mine to perform truck driving and operational duties latelast year and early this year. He testified that once the decision was made to engage contractors, a contractor notificationwas issued following which, grievances were raised by on-site union representatives. Meetings took place in earlyDecember 2002 between management representatives and union representatives on site. Mr Kumeroa requested that thecompany consider offering overtime instead of engaging contractors, and complained that such usage was outside of theterms of the Award.

76. Documents in relation to this issue, including the grievance raised by the union and the company’s response, weretendered as exhibit R9. These documents refer to a meeting between Mr Dunbar and other management representatives,and Mr Kumeroa and other on-site union representatives, on 21 January 2003. At that meeting, in cross-examination,Mr Dunbar said that he told the union officials that no decision to engage contractors had been made. It was also MrDunbar’s evidence, at the meeting, Mr Kumeroa became “passionate” and he said he was not given an opportunity torespond to many of the issues raised by the union representatives. However, the next day, a presentation was made toemployees, informing them that contractors would be engaged and that in Mr Dunbar’s view, he had no obligation toinform the relevant unions, other than at the same time as all of the employees on the day of the announcement, thatbeing 22 January 2003. As a consequence of the matters raised by the union, some changes were made to the contractornotification.

77. It was Mr Dunbar’s evidence, and as contained in the company’s response in exhibit R9, that the issue resolutionprocess under the Award should be utilised for such matters. We will return to this issue later in these reasons.

78. Mr Dunbar responded to the issue raised by the applicants in terms of the removal of night shift allowance for the drillcrew. He testified that on or about 14 October 1999, those employees were notified that they would no longer berequired to work night shift. Because of the previously applicable income maintenance provisions, the night shiftallowance was paid for two years, which expired after the implementation of the Award. In his view therefore, theallowance is no longer payable. As to the removal of the special maintenance allowance for lube truck drivers, MrDunbar testified that on the transfer of these employees from mine maintenance to the mining department, the relevantemployees continued to receive this allowance in error. This error was corrected as the employees concerned were nolonger performing the relevant duties to attract the special maintenance allowance.

79. Finally, in relation to the drill crew, Mr Dunbar said that while a leading hand had been appointed to this crew, noadditional duties have been required as a result of the Award. Those members of the drill crew undergoing oxy cuttingtraining, are qualified tradespeople requiring some familiarisation with this particular skill.

80. Also tendered as a bundle of documents as exhibit A8, were a number of memoranda of various dates between Augustand December 2002, congratulating various equipment operators of various equipment, for production and safetyrelated performance.


81. Again, as a general observation, Mr Knuckey, the manager mine maintenance, expressed the view from his owndealings with Award employees and reports from supervision that since the making of the Award there has not been anynoticeable improvement in flexibility, productivity or efficiency of many Award employees as a group, since mid July2002. He testified that often change has been resisted by Award employees and their union representatives. Mr Knuckeyidentified broad issues in this regard as including—(a) the continued raising of unnecessary disputes with himself and supervision;(b) employees failing to actively look for ways to improve their own work performance and in general cooperating

with the company; and(c) refusals to work overtime.

82. It was Mr Knuckey’s evidence that particularly in the “CAT shop”, which is manned exclusively by Award employeesthere has been the continuation of a negative attitude displayed by employees.

83. Much of Mr Knuckey’s evidence was devoted to the issue of the use of contractors in the mine maintenancedepartment. Mr Knuckey testified that based upon his experience, there continued to be an unjustified opposition to theuse of contractors by the company following the introduction of the Award. He gave a number of examples as evidence.

84. The first of these occurred in September 2002 where it became necessary for the supervisor in the CAT shop to engageadditional labour to meet the needs of the company’s business. He said that at this time, employees in the workshopwere fully utilised in maintaining front end loaders. A breakdown occurred on the afternoon of 21 September whichsupervision determined required contract labour to be engaged “on the hill” during that night shift, to cover all of thework required. As a consequence of this decision, a grievance was raised by the AMWU convener, a copy of whichdocuments were annexure GAK3 to Mr Knuckey’s witness statement.

85. Apparently, there were heated exchanges between supervision and the union representative regarding the engagement ofthe contractor. The issue appeared to be a lack of notice of the engagement. It was Mr Knuckey’s evidence that over theensuing two shifts or so, he gained the impression that the Award employees were on a “go slow” in protest, resulting inthe work required being behind schedule. Mr Knuckey regarded the grievance as unnecessary as he considered thatwhat the company had done was entirely consistent with the terms of the Award.

86. Another example was cited by Mr Knuckey in his evidence. This occurred on or about 25 October 2002. This matterrelated to a contractor notification concerning the use of two “Westrac” mechanics from 26 October to 1 November2002. A copy of the notification was annexure GAK4 to Mr Knuckey’s witness statement. Mr Knuckey gave detailedevidence about this incident all of which we do not propose to traverse. Suffice to say that again, Mr Knuckey wasconcerned that the grievance raised by the union and subsequent stop work meeting, were entirely unnecessary andinvolved an inordinate amount of management time in dealing with the issue.

87. Both of the incidents outlined in Mr Knuckey’s evidence ultimately were referred to this Commission as disputes. Theunion had put a proposal to Mr Knuckey, for there to be some involvement by Award employees in the weekly planningprocess, so that greater information sharing in relation to contractor notification and usage could occur. Additionally,Mr Knuckey gave evidence about other instances of what he regarded as unfounded grievances concerning contractornotifications. These occurred in October and November 2002.

88. Mr Knuckey also gave evidence to the effect that since the making of the Award, Mr Baer, a CEPU on site official hascontinued to display an attitude based on conflict with his supervisors.

89. In response to the evidence given by Mr Tracey, in relation to leading hands filling in for foremen, Mr Knuckey saidthat in the shovels and drills workshop leading hands have filled in for foremen for some years. However, he noted thatin his experience, those fulfilling these roles were reluctant to carry out disciplinary action. In the CAT shop, no Awardemployees to Mr Knuckey’s knowledge had volunteered for such work. As to tradespersons self managing night shifts,it was Mr Knuckey’s evidence that in both the CAT shop and the shovels and drills workshop, this has been occurringfor several years and there has been no change since the making of the Award. As to foremen working withtradespersons in the maintenance department Mr Knuckey, whilst saying that this has occurred post the Award, notedthat it has continued but with fewer objections from Award employees.

90. In relation to overtime in maintenance, Mr Knuckey cited some examples of refusals by Award employees to workovertime to complete jobs in some instances. However, Mr Knuckey did note that in his department, little overtime hasbeen offered and no disciplinary action has been taken when overtime has been refused.

91. As to time confirmations, Mr Knuckey said that requesting tradespersons to perform time confirmations in accordancewith the SAP computer system predated the Award, but did also observe that after the making of the Award, he hadseen an increasing trend where tradespersons are using this system.

92. Also put to Mr Knuckey in cross-examination, was a bundle of publications called “Mine Maintenance on the Move”,tendered as exhibit A12. Mr Knuckey explained that this publication was initiated by him in the department, as a meansof improving communications between management and the workforce. He testified that there had been an intention todo this for some time, and the initiative was finally introduced in July 2002. We do not propose to deal with thispublication in detail, save to observe that in a number of them positive and in some cases, very positive observations aremade about employee performance in the department, which Mr Knuckey confirmed in evidence, included thosecovered by the Award.

93. Additionally, Mr Knuckey said that the content of his evidence in chief in his witness statement was for the purpose ofidentifying as far as he was concerned, those areas in his department where he saw inefficiencies. It was not for thepurposes of identifying good work practices and positive contributions from Award employees, according to hisevidence.

Rail Operations94. Mr Tracey gave evidence about a number of changes said to have been introduced in the rail department including—

(1) Drivers now sign on at Jimblebar Junction and prepare the train to be taken to the Port. Prior to the Award, traindrivers signed on at Newman, waited for the train loading to be completed, then drove to Jimblebar Junction totake the train to the Port. It was said this change has had the effect of releasing a Newman co-ordinator to loadthe next train in the schedule sequence.

(2) Drivers are now required to drive past Jimblebar Junction to the mine site for unloading. Previously, driverswould be relieved at Jimblebar Junction and returned by vehicle to Newman. It was said that this change allowsthe train co-ordinator to continue performing his duties for continuous production. Trains are all loaded at themine site and worked back to Port Hedland. Previously, drivers signed on at Newman and waited for the trainloading operation to be complete, which previously meant only working 10 hours from Jimblebar Junction.


(3) “Job and knock” has been removed such that drivers returning from train trips perform yard duties for the full10 hours as required.

(4) The taking of RDOs has now changed often at short notice on the main roster whereas previously this neveroccurred once the roster was posted.

(5) Roster changes now occur with only 48 hours notice whereas previously this was at least seven days.(6) Train drivers who have been on duty in excess of four hours are being requested to travel away for overnight

stays where this did not occur previously.(7) Trains are now driven in the Nelson Point marshalling yards by fitters and not qualified train drivers as

previously.(8) Trains are now being made up by train drivers and not shunt crews as previously.(9) The duties of driver co-ordinators have been substantially reduced.(10) Minimum hours on days off have significantly reduced from 48 hours and eight hours for two days off to now

be 46 hours or less.(11) The roster change allowance has ceased to be paid following the introduction of the Award.(12) Drivers are being required to travel away for periods up to three days with little or no notice.

95. Evidence about rail operations in particular on behalf of the applicants, was adduced through Mr Johncock. As ageneral proposition, Mr Johncock described the working relationship between supervision and Award employees interms of the employees being told what to do without asking questions. His evidence was that when employees asksupervision questions, they become defensive. In general, Mr Johncock testified that the company refuses tocommunicate with his union on any issues, and insists that regardless of the nature of the problem, that the issueresolution process under the Award be pursued. Various pieces of correspondence in relation to such matters, passingbetween Mr Johncock’s union and the company, were tendered as exhibits A2 to A4 respectively.

96. Mr Johncock also testified that prior to the Award, there were held what were known as “agenda meetings” on a regularbasis, between management and the union to discuss issues relevant to the railway operations. He said that thesemeetings were useful because often information was obtained and shared, about future requirements, new equipmentetc. that was planned to be introduced. In contrast, Mr Johncock said that now the rail employees find out about changesmostly when they sign on for work on the job. Mr Johncock gave an example of this being the changed requirement fordrivers to sign on and off at Jimblebar Junction, rather than their crew quarters at Newman. He testified that the effectof this change was to require drivers to travel in their own time about 35 kilometres each way, adding about half an hourfor each trip.

97. Much of Mr Johncock’s evidence was directed to issues raised by Mr Holland in his witness statement. Mr Johncockcomplained that the previous system of “job and knock” referred to at para 13 of Mr Holland’s witness statement, wasintroduced some 15 minutes or so after the Award issued. However, in cross-examination, Mr Johncock conceded thathe had a great deal of forewarning that this practice would be removed on the introduction of the Award. Mr Johncockresponded to allegations by Mr Holland at paras 15 to 17 of his statement, concerning reluctance by Award employeesto be trained in loading processes at Jimblebar Junction. Mr Johncock said that described the requirements for PortHedland drivers to undertake training at Jimblebar Junction, with an area of concern raised being the taking of RDOswhen rostered for training for up to seven days. Mr Johncock testified that the problem was that RDOs must be taken inNewman, rather than Port Hedland where the drivers live. As to Mr Holland’s allegation that the training was deferredbecause of short notice absenteeism by Award employees, Mr Johncock said that at about the time the training wasdeferred, many drivers were on Christmas leave and long-term sick leave and that the number of available drivers wasnot significantly different to earlier periods.

98. Mr Johncock disputed Mr Holland’s assertions as to the reluctance of rail employees to work overtime. Although itseems that Mr Johncock himself refused to work overtime unless the rail management was prepared to discuss thegeneral issue regarding overtime, in particular time off in lieu, with the union. Annexure AH3 to Mr Holland’sstatement was evidence of this. It was Mr Johncock’s complaint however, that the issue was the management’s refusalto even discuss the issue with him.

99. In relation to para 25 of Mr Holland’s statement, Mr Johncock referred to the resistance from Award employees signingon at Jimblebar Junction. He testified that the issue was whether employees would qualify for workers compensationinsurance cover when travelling in their own time, but in one of the company’s vehicles, to Jimblebar Junction. He saidthat it took proceedings in this Commission, for an answer to be given to that question, which resolved the matter.

100. Secondly, considerable evidence was given about an incident involving a Mr Turner. Apparently, this matter involvedan alleged refusal by Mr Turner to attend training following the restructuring of the rail yard operations. Mr Johncockbecame involved in this matter, because Mr Turner was counselled. It was Mr Johncock’s evidence that this incidentarose from a genuine belief by Mr Turner, that the work proposed for him was in breach of rules and work procedures.Following a meeting to discuss this issue, Mr Johncock said the matter was clarified and Mr Turner performed the workas required.

101. Mr Johncock took umbrage at a statement by Mr Holland at para 26 of his witness statement, that he could not think ofa single occasion when change had been introduced whereby Award employees or their representatives, had indicatedthat change was a good idea and they would like to try it. It was the general thrust of Mr Johncock’s evidence, that itwas the company that had not changed its attitude at all. He said that from the union’s point of view, all it wants is anopportunity to have some input in relation to changes implemented.

102. Mr Johncock was cross-examined about aspects of his testimony. In relation to para 23 of Mr Holland’s statement,concerning rail employees working about half an hour’s overtime when travelling to and from Jimblebar Junction , MrJohncock said the drivers objected to the roster because they may be required to work greater than 10 hours. Despitethis, the union now is insisting that Award drivers be rostered on the Boodarie-Yarrie line, but be given crew relief after10 hours. Mr Johncock testified that if the company maintains its present position in relation to the Boodarie-Yarrieline matter, this issue may well be pursued by the union, as will be the issue of the removal of the roster changeallowance. Mr Johncock also could not give any assurance that the requirement to sign on beyond Jimblebar Junctionwould also not be a matter pursued in the future.

103. As to the issue of fitters doing maintenance work, Mr Johncock intimated that this would also be an issue in relation towhich, he would be seeking further information from management.


104. Mr Holland is a supervisor rail transport at the Nelson Point operations. He reports directly to Mr Ireland, thesuperintendent rail. Additionally, until January 2000, Mr Holland was a financial member of the CFMEU as a traindriver with the company. Mr Holland also held the positions of vice president and secretary/convener of the HedlandLodge of the CFMEU which positions he occupied until about November 1999, when he accepted an offer to enter intoa workplace agreement.

105. It was Mr Holland’s assertion in evidence, that on the implementation of the Award as far as rail operations areconcerned, introduction of change has been generally opposed by Award employees and their union representatives. Anumber of examples of this were cited by Mr Holland in his evidence as follows.

106. The first issue raised by Mr Holland, was working hours and shifts for Award employees, in particular the abolition of“job and knock”, which now requires employees to work all hours for which payment is made. Previously in rail, ifemployees completed their usual duties and no other work was required to be performed, they could leave work early.This practice was removed on the making of the Award. It was Mr Holland’s evidence that in the first few months afterthe Award was made, both he and his supervisors experienced some problems in enforcing the requirement thatemployees work their full ten hour shifts each shift. Mr Holland cited as an example, that in the first few days followingthe Award being made, certain Award employees were not happy that the company was implementing the requirementto work the full ten hours, immediately on the making of the Award. He testified that he received some complaints inthis regard.

107. In response to these issues, Mr Holland said that he and his supervisors spent time telling some Award employees aboutthe changes introduced by the Award, and re-presented a power point presentation previously given. It was MrHolland’s evidence that despite this, there was still some reluctance shown by some Award employees. Mr Holland didnot say this reluctance was universal in rail.

108. In cross-examination, Mr Holland agreed that the consequence of abolition of “job and knock” is that employees nowwork approximately an additional 20 hours per fortnight.

109. The next issue raised by Mr Holland, was his view of reluctance by Award employees to be trained in the loadingprocess at Jimblebar Junction. Jimblebar Junction is a rail junction between Newman and Port Hedland. This location isused for the purposes of splitting trains to enable two locomotives with its cars to travel to one of the three satellitemining operations, where they are to be loaded. Trains leaving Newman normally do so with a configuration of twolocomotives and 104 dumper cars followed again by two locomotives and 104 dumper cars.

110. Mr Holland testified that prior to the Award being introduced, Award drivers would leave the train at JimblebarJunction and not accompany it to the mine sites for loading. This duty was performed by workplace agreementemployees. This included learning the loading process at the satellite mines, in some cases.

111. On the implementation of the Award and immediately so, Award drivers were required to travel with the train for theloading process, given that they are now required to work the full ten hour shift. Training commenced for Award driversto learn the loading process. This training takes about 5 days and occurs at Jimblebar Junction. It was Mr Holland’sevidence that on the implementation of this training, he experienced resistance from some Award employees who didnot want to take part when required to do so. Mr Holland cited some excuses in his view, that were given by Awardemployees as to why they could not attend the training.

112. It was Mr Holland’s evidence that given short notice absenteeism by Award employees, only about half of them havebeen currently trained for this loading process and the training has been deferred, because there are currentlyinsufficient drivers to cover the shifts. It is to be noted, as above, that Mr Johncock disputed Mr Holland’s evidence asto the reason for driver availability.

113. The next issue raised by Mr Holland, and in relation to which he was strongly challenged by Mr Schapper, was hisassertion that Award employees were and are reluctant to work overtime. It is to be observed at this juncture, that thisparticular issue highlighted a degree of tension between at least one of the applicants and Mr Holland, no doubt becauseof his background as an official in the CFMEU in rail.

114. On this issue, Mr Holland testified that prior to the Award most award locomotive drivers were working overtime. Hereferred to the requirement introduced by the Award, that reasonable overtime is now a requirement. It was his evidencethat since about July 2002, Award employees now refuse to work overtime. Mr Holland then set out various examplesof this in his view. One of those examples cited, was the requirement for Award employees to drive from Boodarie toYarrie and return (the Goldsworthy line). He testified that Award drivers working that roster are required to undertakethis trip about once every fortnight requiring approximately a half an hour’s overtime on each occasion. Mr Hollandsaid that certain Award employees continually complained and resisted having to undertake this additional work inovertime. A letter from Mr Johncock to the rail road manager, raising this issue, was annexure AH4 to Mr Holland’switness statement. Mr Holland testified that as a consequence of this resistance, a decision was made by the company totake all Award drivers off the Yarrie line and only have non-Award employees drive this route.

115. As noted, Mr Holland was strenuously challenged by the applicants’ counsel in relation to this evidence. Mr Hollandsaid that in response to a document sought to be tendered through Mr Johncock (MFI1), said to reflect overtime worktaken from the overtime claim book for Award drivers, that on average drivers work one to one and a half hoursovertime each per week. However, it emerged in cross-examination of Mr Holland that for workplace agreementemployees, there is an allocation in their remuneration for an overtime component. There is no requirement by thecompany for these employees to record any overtime worked and thus there is no written confirmation of overtimeworked by non-Award employees. It was put to Mr Holland, that given that there is a rough split of about 50/50 Awardand non-Award drivers in rail, that he gave misleading evidence in relation to total overtime worked by all drivers,when it is only Award drivers that can have overtime actually worked verified. Mr Holland denied this and said that heunderstood that the average was worked out for all drivers in rail.

116. It also emerged in cross-examination, that Mr Holland’s evidence about Award employees refusing to work overtime, isovertime primarily in the rail yard, and it is offered to employees on a voluntarily basis. It would appear that this is notovertime that is required to be performed, in the sense that disciplinary action is taken against Award employees for notaccepting, or who “refuse” as Mr Holland put it, such overtime. We will return to this matter later in these reasons.Employees in rail do work overtime on the rail lines, as they are often required to do so in order to complete theirjourneys without obtaining relief.

117. It was also Mr Holland’s evidence, that he had not seen any noticeable change of attitude in Award employees since theAward was introduced. His impression was that Award employees have been reluctant to accept change in rail. Hecontrasted the attitude of Award employees to those of workplace agreement employees in rail.


118. As with Mr Dunbar, Mr Holland took issue with a number of matters raised in Mr Tracey’s evidence. In relation tosigning on at Jimblebar Junction, Mr Holland disputed Mr Tracey’s assertion that the effect of this change is to release adriver co-ordinator and load out driver from Newman. This was because according to Mr Holland, in about ninety percent of the cases the train is already made up for the Award employee, when they signed on at Jimblebar Junction. MrHolland also re-asserted in his evidence, resistance from Award drivers to this change when it was implemented.

119. In relation to Award drivers loading all of the train at a mine and driving back to Port Hedland, Mr Holland said it is notthe case that all Award employees do this. His evidence was that he understood that some Award employees are loadingparts of trains at mine sites. In relation to notice of changes of rosters, Mr Holland effectively referred to the terms ofthe Award, enabling the company to do what has been occurring.

120. Mr Holland was also not aware of any occasion where a train driver has been rostered on duty for 4 hours or more andthen being required to work overnight, as suggested by Mr Tracey in his evidence. Mr Holland confirmed Mr Tracey’sevidence that maintenance employees now drive trains in the Nelson Point marshalling yards and maintenanceemployees have been trained for this purpose. Additionally, it was Mr Holland’s evidence that as far as he was aware,drivers have always been required to make up their trains and he had not noticed any increase preparedness of drivers toperform this task.

121. In terms of minimum hours on days off, Mr Holland disputed Mr Tracey’s evidence that there has been a reduction. Hesaid that there is no less than 24 hours for a one day break or 48 hours for a two day break and attached to his witnessstatement was the Award employee rail schedule as annexure AH5, showing time off between shifts in this regard. Hewas aware however, of one occasion where an employee only had a 46 hour break for a two day break. Mr Holland wasnot aware of any case where a driver signing on for a work train was, without notice, told they would be required towork away for three days.

122. Additionally, and going to general performance of the company, tendered through Mr Tracey as part of his witnessstatement, were editions of the company’s publication the “Iron Chronicle” and various other communications fromsenior management referring to record production and shipping performance by the company over in particular, theperiod August to December 2002.

123. As a matter of record, those documents reveal that—(a) In the year ending June 2002 records were set in the iron ore operations including—

(i) A safety lost time injury frequency rate of 1.6 (target 3);(ii) A profit of US$503.05 (EBIT);(iii) Shipments at 71.4Mt; and(iv) Production at 74Mt.

(b) New monthly shipping and railing records were set in August totalling 7.13 and 6.73Mt respectively. Notably,the company’s President Mr Hunt said “the outstanding result was attributable to the multiplier effect of eachpart of the business working in unison and at peak performance”. The rail vice president Mr Derby was reportedas saying “this type of achievement doesn’t automatically happen, it’s a team effort between port mine and rail.”

(c) A record result for the beneficiation plant at 4 October 2002 where over one million wet metric tonnes ofmaterial were processed.

(d) The achievement of record gross dumping rates in the period August to November 2002.124. Generally, materials published by the company in relation to these record performances, acknowledged the contribution

of all employees to the company’s business success.Consideration125. As referred to at the outset in these reasons, the parties have proceeded upon fundamentally different views as to the

requirements imposed upon them by the Commission in Court Session, in the reasons for decision leading to the makingof the Award. The applicants’ case on the evidence was that the focal point of the present proceedings is demonstratedimprovements in productivity and efficiency, consistent with the need for same outlined by the Commission in CourtSession in the Award making proceedings. Counsel for the applicants, Mr Schapper, submitted that from the applicants’perspective, the process of resolution of this issue was straightforward and a demonstrated improvement in productivityand efficiency, which on the evidence he submitted was clearly the case, was the “test” for the early payment of the sixper cent aggregate wages increase.

126. Mr Schapper submitted that the evidence supported the conclusion that there have been a large number of changesimplemented at the company’s workplaces. Although some were controversial on the evidence, in the main they wereimplemented without objection or incident.

127. It was not the applicants’ case that the performance of the company was wholly due to the efforts of employees.Recognition was given to the contribution of capital investment and the like. Mr Schapper submitted however, that theperformance of the company has been as a result of a significant effort by all employees, including Award employeeswho he represented. The Commission’s attention was drawn in particular, to the various publications of the company,adduced through the evidence of Mr Tracey, and the confirmation of those expressed views, by senior management ofthe company in evidence, in particular Mr Shaw and Mr Goodwin.

128. Counsel for the applicants also submitted that in the alternative, if attitude and change in culture were required elementsto justify the early payment of the six per cent wage increase, then such a criteria is in large part at least, dependentupon the attitude and approach of the company in the manner in which it has gone about introducing change in theworkplace, following the making of the Award. In this regard, Mr Schapper referred to various parts of the earlierCommission in Court Session reasons for decision, emphasising the importance of the company in creating anenvironment for change to occur in a positive manner, and recognition that a change in culture at the workplace will notbe an overnight phenomenon.

129. On all of the evidence in relation to changes implemented, Mr Schapper submitted that the inevitable inference to bedrawn, accepting that much of the evidence as to these changes was unchallenged, is that Award employees havesignificantly contributed to the overall outstanding performance of the company, particularly in the second half of 2002.Counsel for the applicants also observed in submissions that the entire focus of the company’s case has been onnegative performance, and it has not sought to adduce any evidence of positive changes that have occurred, and referredto the cross-examination of Mr Knuckey, as an illustration of the company’s approach to the case.

130. It was submitted that if cultural change and attitude is a relevant consideration, then the company’s case put at itshighest, fails to establish widespread antagonism to change by the Award employees. Mr Schapper noted that there was


no evidence in relation to opposition to change or attitude, adduced in respect of the company’s operations at NelsonPoint production and maintenance or production at Finucane Island. He submitted that the entire case of the companywas focused on Finucane Island maintenance, mining operations at Newman, and rail operations. Mr Schapper alsoattacked the company’s case on the evidence, as containing broad assertions as to poor employee attitude,unsubstantiated by the examples given in evidence.

131. Counsel for the applicants referred to a number of examples of this as follows. He noted evidence given by Mr Hollandin relation to resistance to changes in working hours and shifts for Award employees. Attention was drawn to MrHolland’s evidence to the effect that in the first few days after the Award was made, Award employees were not happywith the company’s decision to enforce the working of the full ten hour shift periods. It is also fair to say that MrSchapper was highly critical of Mr Holland’s evidence, particularly in relation to the working of overtime by Awardemployees, where he submitted that an attempt was made to mislead the Commission in Court Session. Reference wasalso made to the incident involving Mr Turner, dealt with in Mr Holland’s evidence. It was the applicants’ submission,that taken in context the incident involving Mr Turner did not demonstrate inflexibility or a refusal to co-operate byAward employees, but rather Mr Turner raising what he saw at the material time, as a legitimate issue which wasshortly thereafter resolved and the work proceeded.

132. The applicants focused on examples cited in Mr Dunbar’s evidence, in particular the change to start and finish times“on the hill”. The applicants submitted that the company, by this change, expected the employees to “work to rule” byworking fully all of the paid time for the shift, but still expect employees to engage in preparatory work in their owntime. Mr Schapper said this evidence was illustrative of the company’s approach which he described as “mean spirited”,because evidence adduced in these proceedings was entirely negative, as opposed to many positive observations aboutemployee performance in the company’s own published material given to its workforce.

133. As to the exercise of statutory rights to bring proceedings in this Commission, about several matters as disclosed on theevidence, Mr Schapper submitted that it was not open for the company to be critical of the unions for exercising theirstatutory rights. It was submitted by counsel that the Commission should not have regard to such other proceedings,because the subject matter of those proceedings were not frivolous or vexatious but raised matters of legitimate concernfor the relevant employees, which matters needed to be resolved. A number of such matters were dealt with in theevidence in detail which we do not propose to re-traverse to any great extent, as it would be inappropriate to do so giventhat several of these proceedings are still pending before the Commission otherwise constituted. Those matters includethe performance management issue; transfer of employees from one shift to another; and payment of allowances in railoperations.

134. Mr Schapper in particular drew the Commission’s attention to the long running issues in relation to use of contractors inthe mine maintenance department. He submitted that the evidence disclosed that the issue was primarily if notexclusively confined to the CAT workshop at Newman. In any event, insofar as most recent matters were concerned,some employee involvement in the planning process was sought which has in fact been implemented by management inthe maintenance department, following proceedings in this Commission.

135. It was counsel for the applicants’ omnibus submission, that the question of poor attitude and approach, can be laid inlarge part at the feet of the company, by reason of its approach to simply ignore the unions as parties to the Award.Additionally, Mr Schapper submitted that the company had demonstrated it no longer wanted Award employment as itspreferred option.

136. Mr Dixon in addressing the evidence submitted that there was no doubt as to the required elements imposed by theCommission in Court Session in the Award reasons for decision. In particular, he referred to para 127(f) of theNovember 2001 reasons, when read with para 65 of the March 2002 reasons, referring to there being evidence ofresistance to change. In that regard, the Commission in Court Session at para 65 in the March 2002 reasons ((2002)82 WAIG 2048) said that—

“In our view, however, the evidence before the Commission from some of the unions’ witnesses which indicatenot only that opposition to change will be maintained, but also that further changes to be implemented byBHPIO will be regarded as an opportunity to claim further increases in remuneration, prompts us not to awardthe wage increase in one sum. Rather, we conclude that the significant majority of the sum to be awardedshould be paid initially with the balance payable in a further 12 months period or earlier in the event that therehas been a demonstrated increase in their flexibility, productivity and efficiency in accordance with theCommission’s decision.”

137. The broad tenor of Mr Dixon’s submissions was that the evidence in these proceedings indicated that the unions andAward employees had maintained that broad resistance to change, and had not demonstrated the requisite degree of co-operation and change in attitude and culture. In broad terms and in summary, senior counsel for the company submittedthat the evidence showed opposition to measures designed to achieve better flexibility, productivity and efficiency in anumber of areas including:(a) the engagement by the company of contractors particularly in the CAT shop on Mr Knuckey’s evidence but also

in mining operations as dealt with in the evidence of Messrs Shaw and Dunbar;(b) the evidence of Mr Dunbar regarding opposition to changing start times at the mining operations in Newman,

and the evidence that the response of the Award employees was a form of retribution for the introduction of thischange; opposition to proposals to transfer employees temporarily from Newman to Port Hedland in times ofwork demand as referred to by Mr Dunbar in his evidence;

(c) The dispute in relation to the transfer of shift employees from one shift to another, presently before theCommission; and

(d) The evidence as to the general refusal and/or reluctance of Award employees to work overtime when offered it.138. It was the submission of Mr Dixon, that the company has by and large, attempted to introduce change without resorting

to disciplinary action, for example in relation to overtime. He submitted that this was an example where the companyhas adopted a positive approach of trying to encourage change, rather than implement it through punitive measures. Thefailure of the Award employees to respond to this approach in Mr Dixon’s submission was illustrative of the lack ofchange by these employees.

139. Additionally, Mr Dixon responded to the submissions of Mr Schapper on behalf of the applicants, to the effect that thecompany’s decision to employ new employees on australian workplace agreements, was the exercise by it of a lawfulright available to it under Commonwealth law: Burnie Port Corp Pty Ltd v Maritime Union of Australia (2000) 103 IR153. Mr Dixon submitted that the company cannot be criticised for exercising such a lawful right, in respect of which alarge proportion of the existing workforce have also chosen to adopt such a form of industrial regulation. Counsel


rejected the submission that in some way, the company have treated Award employees less fairly than those who havechosen an individual form of industrial regulation. Furthermore, counsel submitted that it is not the company but theunions, who have sought to perpetuate the division between Award employees and non-Award employees, for example,by reference to description of workplace agreement employees as “Whoppas”.

140. As to the evidence from Mr Tracey in support of changes implemented, Mr Dixon said many of the examples cited byMr Tracey in evidence reflected practices which existed prior to the Award being made. In other cases, his submissionwas that matters raised were either unrelated to efficiency measures such as safety matters, or were such minor mattersas to impact little on any demonstrated change in attitude or effort by Award employees.

141. Furthermore, in relation to the evidence as to rail operations, Counsel referred to the issue of drivers now signing on atJimblebar Junction and the evidence of the unions that no assurance could be given that this matter may not be pursuedin the future. Likewise, reference was made to evidence that the removal of the roster change allowance in rail, whilstcited as an efficiency measure, is a matter that will be pursued by the relevant Award employees.

142. The broad submission of Mr Dixon was that reliance by the applicants on these matters as establishing the requisiteimprovement in productivity and efficiency was somewhat disingenuous because at the same time, the evidencesupported the conclusion that they would be seeking to recover these matters in due course.

143. The Commission in Court Session in its reasons for decision in making the Award, provided for aggregate wagesincreases in two stages. That should not detract from the overall proposition however, that the Commission’s decision inthe Award proceedings was that a wage increase of 20 per cent, and in addition improvements to superannuationbenefits, would flow to Award employees. This significant wage increase, along with the other improvements, was inrecognition by the Commission that the Award workforce had contributed to the performance of the company, and thatthe changes envisaged by the Award would further significantly improve the efficiency and performance of thecompany’s operations.

144. However, because of the recognition by the Commission in Court Session, on the evidence in the Award proceedings,of there being some resistance to change, the wage increases would be payable in two stages. The second stage of thewage increase, that being the six per cent aggregate wages adjustment, would be payable on the first anniversary date ofthe making of the Award. Provision was made however, for the Commission to consider, no earlier than six monthsfrom the making of the Award, earlier payment of the second part of the overall wage increase, if the required increasein productivity had been demonstrated.

145. The Commission in Court Session recognised, what the parties themselves recognised, that being a requirement for achange in culture between the parties to the former industrial regime. In large part, the removal of that former industrialregime, and the complex layers of regulation, was recognition that those arrangements were no longer relevant to thecompany’s contemporary workplaces. It was also stated by the Commission, that without that change, the requisiteproductivity and efficiency improvements would not materialise. It is axiomatic from that proposition that if there hasbeen a significant improvement in productivity and efficiency, then at least that must implicitly, result from acontribution by employees in the business, all other things being equal.

146. Importantly for present purposes, the Commission in Court Session recognised that the requisite changes were not a“one way street”. That is, it was stated by the Commission that a part of the challenge was for the company to create anenvironment within which these changes could be made and where it fostered an environment more aligned to itsbusiness objectives. In particular, the Commission referred to the importance of the company treating all of itsemployees equally, irrespective of their preferred mode of industrial regulation.

147. In our opinion, it is not simply a case of taking one element or the other, in isolation, in terms of the desired outcomesforeshadowed by the Commission in Court Session. That is, it is axiomatic that significant improvements inproductivity and efficiency in a business simply cannot be achieved without the co-operation and contribution ofemployees in the workplace. Whilst capital investment and favourable exchange rates in the context of the iron oreindustry are obviously important indicators of financial performance, so too is the contribution of employees. After all,it is people that ensure that the various components of a business operate to the optimal level within and between eachcomponent, and that the performance itself of each component of a business is maximised.

148. It is employees who drive shovels, trucks and loaders, who run treatment plants, who load ships and who maintain allthe complicated infrastructure required to keep a highly complex operation such as the company’s, in an optimal state.Management co-ordination, self evidently, is also of great importance in ensuring that the component parts of thebusiness operate in synchronisation to maximise the efforts of each of those component parts. Mr Shaw’s evidence inthis regard, illustrated the importance of this aspect of the company’s operation, in improving its overall businessperformance. We unreservedly accept that evidence. We also accept the evidence of the company that it has madesignificant capital investment and plant improvements, over the course of the last year or two that no doubt, contributedsignificantly to what could only be described as the outstanding performance of the business, particularly in the fourthquarter of 2002. The evidence of the many records broken in different parts of the company’s operations, and its overallfinancial performance, are clear evidence of these propositions.

149. Much evidence has been adduced in these proceedings. By its nature, and given the cases advanced by the parties, theevidence has been directed to the introduction of individual work practice and other changes in each area of thecompany’s operations. It has been necessary to deal with that evidence in some detail and to make findings as to theissues raised in each area. Before dealing with our specific findings however, we observe that to the extent that theevidence of the applicants and the company conflict, and it is not to a great extent, given that the applicants’ evidencewas one step removed from the actual changes implemented, we prefer the evidence of the company, as the bestevidence. In light of all of the evidence we make the following findings.

150. The Company has achieved record levels of production, sales and profit in the second half of 2002, in particular the lastquarter of 2002.

151. The performance referred to in para 149 cannot be and was not sought to be attributed only to the efforts of employeesbut has been a result of the combined effect of substantial capital investment; an improvement in business systems andworkflow management leading to greater co-ordination within and between departments; improving returns from theYandi operations; the individual efforts of employees both Award and non-Award alike; and no doubt at least in part,favourable exchange rate movements. As to the Yandi contribution and the greater co-ordination between parts of theoperations, we particularly refer to the evidence of Mr Shaw in this regard.

152. The contribution of all employees across the breadth of the company’s operations has been clearly acknowledged by itssenior management and at the individual workplace both at the company wide level and in terms of individualperformance.


153. Despite the extent of change introduced, there is evidence of some resistance to change being implemented in the railoperations and in the mining department. This does not mean that Award employees and their unions are to completelyforgo the ability to have input into change and to exercise their statutory right under the Act to legitimately object tomatters in the workplace, subject to our observations below, initially through the issue resolution process under theAward in the first instance. It was not the intention or effect of the decisions of the Commission in Court Session in themaking of the Award that this be otherwise.

154. There was evidence adduced by the applicants as to changes that were subsequently demonstrated to have been thesubject of considerable resistance such as changes to start and finish times in mining; the use of contractors in mining;the use of contractors in mine maintenance; proposed transfers of mine employees from Newman to Port Hedland; shifttransfers in mining; and redundancies at Finucane Island.

155. As to the issue of changes to start and finish times in the mine, this was a small change but was opposed and it is opento conclude there was a form of retribution in response from Award employees. The use of contractors in miningcommenced in late 2002 and early 2003. The evidence was the applicants sought to oppose this strongly. They engagedthe community in this respect. In its full context, the decision of the company was not an unreasonable one in all of thecircumstances. Although the strength of feeling amongst employees may have been understandable, the company wasacting in accordance with the terms of the Award.

156. In its full context, the issue of pre start checks of vehicles in mining raised in the evidence was not in our opinion,evidence of resistance to change. A legitimate issue as to compliance with what appeared to be inconsistent writtenrequirements for light vehicle pre start checks was raised. The matter was subsequently resolved.

157. In terms of Mr Kumeroa’s opposition to employees transferring from Newman to Port Hedland for short term workrelief, referred to above, there seemed on the evidence, no substantive reason why that change was resisted.

158. The changes to C and D shifts whereby Award and workplace agreement employees are on each shift exclusively, ispresently before the Commission otherwise constituted and that matter will take its course on the merits in due course.

159. Likewise, the matter of redundancies at Finucane Island has been before both this Commission and the AustralianIndustrial Relations Commission and the circumstances of that matter will not, save for the comment above, beconsidered further by the Commission in Court Session. It is noted however that whilst proffered as an efficiencymeasure by the applicants, its implementation was strongly resisted by them.

160. The incentive programme applicable to staff and offered to Award employees was strongly opposed by the relevantunions. Equally, it fair to observe that there was a concerted effort by the company to persuade employees to take partin the programme. The Award did not oblige Award employees to participate in this programme and it is not open forthe company to challenge the applicants on this matter per se. It was however an opportunity for Award employees togain the benefit of bonuses and to further contribute to the business of the company. A related matter is presently beforethe Commission otherwise constituted.

161. There are also some matters advanced by the applicants in support of their claim that are foreshadowed will be or maybe the subject of proceedings to recover the benefits said to be lost, such as the roster change allowance in rail and therequirement to sign on at Jimblebar Junction.

162. Disputation in relation to the use of contractors has been confined mainly to the mine maintenance department and inparticular the “CAT shop”, where there has been a long running history of difficulties in relation to this issue. The factthat it is to an extent, still an issue, is noted by the Commission. The Award is clear in its terms. There is no limit on theuse of contractors imposed on the company. The qualification is that appropriate notification be given in terms of theAward requirements. The Commission in Court Session previously, and this Commission in Court Session does not,draw a distinction between “core and non core work” and nor does the Award in its terms. However, this is subject tothe qualification of the obligations imposed by Part 5 of the Minimum Conditions of Employment Act 1993. There hasbeen some unnecessary disputation in relation to this issue, in our opinion.

163. We observe however that the company has utilised what were described in evidence as “blanket notifications” of theuse of contractors. Some caution needs to be exercised in this regard, in terms of the obligations imposed by cl 27(4) ofthe Award. Such notifications may be appropriate in cases where the work to be done is ad hoc and of a sporadicnature.

164. We accept that a number of efficiency measures the subject of evidence from the applicants relate to initiativespredating the Award. From a consideration of all of the evidence those matters are the subject of evidence in chief fromMr Tracey in paras 8; 15; 23; 25; 31; 35-38; 41; 45; 50; 57; 63; 70; 88 and 94 in his witness statement. That does notdetract however from the many changes introduced on the evidence, as a result of the Award’s implementation, withoutdemur from the Award workforce, it seems on the evidence.

165. We are also satisfied on the evidence that whilst some initiatives introduced were done so pre-Award, there wasevidence that the incidence and/or frequency of those matters has increased post Award. An example of this is staffperforming wages work at Nelson Point, on the evidence of Mr Goodwin.

166. We do not accept that matters in relation to safety performance are not relevant to employee attitude or culture. Thesematters are indicative of the manner in which employees go about their work each day. It is also to be noted that thebroad issue of safety performance is an element of the company’s minimum performance management process recentlyintroduced as a result of proceedings in the Commission, otherwise constituted. A cornerstone of the company’s case inthat matter was the importance of the system to manage the introduction of change flowing from the Award.

167. As to overtime, in relation to which the parties appeared to devote substantial attention, we accept that there is on theevidence, a lesser degree of overtime worked when offered, than the Company would like. This would appear to beparticularly in the rail operations. However, it is not the case, and we find, that employees do not work overtime. Theevidence of Mr Holland was that drivers on the main line have to work overtime to get the trips completed. Thedisputed amount of overtime otherwise done was referred to in Mr Holland’s evidence. Given that it seems that there isno formal record of overtime for workplace agreement employees and that on average some one to one and a half hoursovertime is worked per employee each week in rail, then it is open to infer that Award employees may work on averagein excess of this.

168. Nonetheless, even though to date in the main voluntary, there remains an ability for the company to require a reasonableamount of overtime to be worked under the Award. There is in our opinion, a corresponding obligation on employees toso work as required. If there is a lesser acceptance of voluntary overtime than that preferred by the company then itought to exercise its rights under the Award. However, we accept that the company has not taken a punitive approach tothis matter as part of managing the introduction of change as required by the Commission in Court Session in theAward making proceedings.


169. We find also however, that a substantial lack of acceptances of voluntary overtime is in our view, a relevant indicator ofemployee cooperation with the Company.

170. We are not persuaded that generally rail employees expressed other than a general level of “unhappiness” with theabolition of “job and knock”, as dealt with in Mr Holland’s and Mr Johncock’s evidence. Given the time over which thesystem previously operated, it is perhaps not surprising, even in light of the notice involved, that there may have beenan initial degree of displeasure by some but the evidence was that it was not widespread or longstanding. It does needto be recognised that the rail changes have resulted in a substantial increase in working hours for drivers.

171. There was no evidence adduced from the company in relation to problems at Nelson Point or Finucane Islandproduction. An inference is open that if evidence of a lack of cooperation/attitudinal change existed in these areas, therewould be evidence led about it.

172. It is also of note that the company adduced no evidence as to cooperation with change implemented in the workplace.173. The fact that the company moved quickly to implement changes arising from the Award was to be expected and we

reject the applicants’ criticisms in this regard. The history of the Award making proceedings makes it clear that therewas ample notice of major changes, in some cases many months, for example in rail operations with the abolition of“job and knock”. We are satisfied on the evidence that the areas of change proposed by the company were adequatelycommunicated to employees and reasonable notice was given, in light of the time elapsing from the Commission inCourt Session’s first reasons for decision and the order making the Award. Additionally, the applicants had sufficienttime to prepare their members for the inevitable changes that would take place.

174. We accept that despite criticisms from Mr Johncock, there are mechanisms in place for Award employees to beinformed of developments in the workplace in the form of monthly meetings, similar to those conducted for staff.Those processes are not for the purposes of dealing with grievances. Given that the Commission understands that theyare for the purposes of information, one would expect that questions asked by employees and issues raised would bediscussed.

175. However, as noted below, and as referred to in the evidence, that is not to say that there may be issues that arise that arenot amenable to being dealt with through the issue resolution process under the Award. Commonsense dictates that theparties engage in dialogue about such matters.

176. We have considered all of the evidence and all of the submissions in this matter. The Commission has done so, in lightof the Commission in Court Session reasons for decision, in the making of the Award, and the requirements imposed byit upon the parties for the satisfaction of tests for the advance payment of the six per cent aggregate wages increase. Weare of the view that the evidence supports the conclusion that there have been a significant number of substantialchanges introduced, following the making of the Award. Whilst there is evidence of some resistance to some changes,in the main, it would appear from all of the evidence, that most changes have been implemented without objection orresistance.

177. It is in this regard, of some significance to refer to examples in evidence, in particular of Mr Knuckey, where he clearlyrecognised the performance of employees in his department, other than that referred to in his evidence in chief in theseproceedings. From his perspective however, his objective was to highlight to the Commission those areas where hethought the Award employees’ approach had been deficient. This is no doubt understandable from his perspective andgiven the thrust of the company’s overall case. However, the conclusion is inescapable on all of the evidence, that therehave been many examples of change introduced and good performance, across the company’s operations.

178. In light of all the evidence, there is however in the Commission’s view, evidence of some on going resistance to change,which have been referred to earlier in these reasons. In conjunction with this, the Commission highlights once again, theneed for the company to foster an approach to encourage co-operation by employees in the introduction of change. Inthat regard, the Commission refers to earlier observations of the Commission in Court Session, that the unions party tothe Award and the Award employees, were recognised as intending to have input into changes which may occur,beyond those involving the removal of past work practices, following the implementation of the Award. It wasrecognised by the Commission, that where those other changes are to be introduced by the company, notification by itof those changes will allow the opportunity for discussion to take place. Where necessary, issues not resolved at theworkplace level, can be referred to this Commission. Those observations recognise that Award employees and theirrepresentatives, are not to be totally excluded by the company, in relation to the introduction of change.

179. In that respect, and one matter highlighted as a consequence of these proceedings, is that the issue resolution processcontained in the Award, may not in all cases be the appropriate vehicle to resolve all workplace issues. There are somematters which have arisen, before the Commission in these proceedings on the evidence, and before the Commission asotherwise constituted, of a systemic nature affecting whole groups of employees, that may not lend themselves easily toresolution through the issue resolution process. In those cases, it would be appropriate for the parties to the Award todeal with those issues on a collective footing. To not do so, runs the risk for both the unions and the company that theissues involved may unnecessarily become the subject matter of a dispute, which could be avoided through somedialogue between the parties. That clearly does not mean the resurrection of the former practices and mechanisms thatexisted under the former industrial relations regime. It does mean however, timely and genuine discussion between theparties, in order to progress issues toward a resolution.

Conclusion180. From a consideration of the foregoing, the Commission has decided to not grant the six per cent aggregate wages

increase from January 2003. We have decided however to vary the Award to provide for a three per cent aggregatewages increase to apply from 19 January 2003, with the further three per cent aggregate wages increase to be payablefrom 19 July 2003. The Commission considers that this approach to the determination of the matter, involves a fairbalancing of the interests of both the Award employees and the company. It recognises the contribution made by theAward employees to the performance of the company and at the same time, acknowledges reservations expressed by thecompany as to some resistance to change as disclosed on the evidence as a whole.

181. The Commission is of the view that there is ample jurisdiction and power to make such an order. The Award at cl 7(1)provides that the six per cent wage increase is payable 12 months from the making of the Award “unless otherwisedetermined by the Commission”. By cl 29(1) of the Award, the unions party to the Award were granted a liberty toapply as to aggregate wages “in respect of the six per cent” salary and allowances increases. By the terms of the presentapplication, the applicants have sought to vary cl 7(1) of the Award, to provide for the payment of the six per cent from19 January 2003. By the terms of s 26(2) of the Act, the Commission is not limited to the specific claim made or thesubject matter of the claim. Furthermore, by s 40(1), the Commission is empowered to vary an award. Section 40(3)(a)enables the Commission to grant a liberty to apply within the term of any award made, to a party to the award, to vary it


or a provision of it. The terms of s 40(3)(b)(ii) of the Act, enable the Commission to be satisfied that it is fair and rightto vary an award pursuant to any liberty to apply granted.

182. By the combined effect of these provisions of the Act, the Commission in Court Session in these proceedings, is able tovary the Award as it sees fit as a matter of jurisdiction and power, consistent with equity and good conscience, andconsistent generally with the tenor of the reasons for decision of the Commission in Court Session in the Award makingcase. The Commission in Court Session in this matter however, is not bound to determine that either the six per centwage increase is payable from January 2003 or not, without an ability to consider, as a matter of equity and goodconscience, any alternative course. In our opinion, by providing for a three per cent wage increase from 19 January2003, the Commission is acting according to equity and good conscience and consistent with the terms of cl 7(1) of theAward, in determining this matter.

CEPU Position183. The Commission has already observed that the CEPU has taken little or no real interest in these proceedings. This is

both surprising and disappointing. It did not participate in any of the interlocutory steps in the matter. There was noattempt to comply with directions issued by the Commission in Court Session in relation to the giving of discovery orthe filing of witness statements. These steps were to be taken well prior to the hearing of the matter. It may well be thatas the union was a respondent, given that the application was commenced by unions other than the CEPU that itconsidered that it was not required to take any such steps. This of course, is not the case. The Commission in CourtSession in the Award making decisions, dealt with above, outlined the requirements on the union parties to the Award,to establish that the requisite changes in productivity and efficiency had been achieved. This applies to the CEPU aswith the other unions’ party to the Award. It is important to note that the unions’ party to the Award are parties principaland not mere agents for their members.

184. We therefore propose to not extend the benefits of this decision yet to the CEPU. The Commission will re-list the matterto hear from the CEPU as to why the Commission should extend the benefits of the Award variation to it and itsmembers at this stage.

185. The parties are therefore directed to file and serve minutes of proposed order, varying the Award, to give effect to thesereasons for decision within seven days.

_________


PARTIES THE AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDREDINDUSTRIES UNION OF WORKERS - WESTERN AUSTRALIAN BRANCH & OTHERS,APPLICANTSv.BHP BILLITON IRON ORE PTY LTD AND ANOTHER, RESPONDENTS


DATE TUESDAY, 6 MAY 2003FILE NO/S. APPLICATION 1646 OF 2002CITATION NO. 2003 WAIRC 08257_________________________________________________________________________________________________________

Result Order to issueRepresentationApplicants No appearanceFirst Respondent No appearanceSecond Respondent Mr A Lovell_________________________________________________________________________________________________________

Supplementary Reasons for Decision1 COMMISSION IN COURT SESSION: In the reasons for decision of the Commission in Court Session of 16 April 2003, in

particular at para 183, the Commission referred to the position of the CEPU in this matter and foreshadowed that theapplication would be re-listed to hear submissions from the CEPU as to why the Commission should extend the benefits of theCommission’s decision to it and its members at this stage.

2 Accordingly the Commission in Court Session notified the CEPU of this intention and it was afforded an opportunity to beheard on 1 May 2003. The Commission in Court Session records that as referred to in the reasons of 16 April 2003, the FirstRespondent, in the substantive proceedings, strongly opposed the extension of any benefit of the applicant’s claim to theCEPU, for the reasons outlined in the oral submissions of Senior Counsel Mr Dixon, and the First Respondent’s writtensubmissions. Furthermore, in those proceedings, counsel for the applicants, Mr Schapper, was also afforded an opportunity ofbeing in heard on the question of the CEPU and put submissions to the Commission in Court Session. Self evidently from theCommission’s reasons of 16 April 2003, those submissions have been considered.

3 The CEPU, through its industrial advocate Mr Lovell, sought and was granted leave to be heard, pursuant to regulation 12(12)of the Industrial Relations Commission Regulations 1995. He submitted that the CEPU always considered itself as a party tothese proceedings, albeit as a named respondent and not applicant. It was submitted that the preparation for the proceedingsand the evidence led from Mr Tracey in the substantive proceedings, was on behalf of all unions and their members employedat the First Respondent, and as a consequence of this apprehension, it did not consider that it was required to take any furthersteps. Mr Lovell further submitted that at no time did the CEPU knowingly ignore the Commission proceedings and meant nodisrespect to the Commission as a consequence of these events.

4 Mr Lovell in support of these submissions tendered two brief affidavits of both himself and Mr Murie, the Assistant StateSecretary of the CEPU.


5 Mr Murie deposed that he was aware of the application made on 1 October 2002 for a variation of the Iron Ore Production andProcessing (BHP Billiton Iron Ore Pty Ltd) Award 2002 (“the Award”). Mr Murie further deposed that although aware that theCEPU was a respondent, he did not consider that he was required to do anything as Mr Tracey, acting on behalf of all unions,was preparing for the proceedings and instructing Mr Schapper. At all times Mr Murie believed that the CEPU was a part ofthe application although technically a respondent, as this had been the case in the proceedings leading to the making of theAward. Mr Murie further deposed that on the basis that the CEPU interests were being dealt with by Mr Tracey, he proceededon annual leave on 20 December 2002 and was away on leave until 11 February 2003.

6 Mr Lovell deposed to the fact that during this period, he was the only officer of the CEPU not on annual leave during January2002 in particular. In short, Mr Lovell deposed that as he was not involved in the matter he had no knowledge of theapplicant’s claim until contacted by the First Respondent’s solicitors it seems in late January 2003 to advise of the proceedingsand to receive by way of service, a bundle of witness statements. On receiving these documents, Mr Lovell attempted to makecontact by telephone with Mr Schapper, counsel for the applicants but was unsuccessful. In turn, Mr Lovell telephoned MrTracey and was informed by him that matters “were in hand” and that Mr Tracey was representing the CEPU’s interests.

7 It was the submission of the CEPU that because at all times it considered itself as a part of the proceedings, that as evidencewas led through Mr Tracey on behalf of it as well as all other applicants, and that because evidence was before theCommission of electrical employees’ contributions to the First Respondent’s business performance, it would be inequitable forthe Commission to not also extend the benefits of the decision to the CEPU and its members and those eligible to be members.

8 We also record that the Commission in Court Session received correspondence from the applicant unions in support of theCEPU being included in the benefits to flow from the Commission’s decision. We note also that correspondence was receivedby the Commission from the solicitors for the First Respondent adverting to the First Respondent’s interest in this matter.There being no advice to the contrary from the First Respondent, it is assumed by the Commission that it maintains itsopposition to the CEPU being included in any order to issue from these proceedings, based on its submissions in thesubstantive hearing of the matter.

Consideration9 The Commission in Court Session has carefully considered the submissions of the CEPU. As already observed in our earlier

reasons for decision, we are concerned that the CEPU found itself in the position that it did in this matter. However, weacknowledge that although technically a respondent to the proceedings, in practical terms, it regarded itself as an applicant andmost importantly, evidence was led in the substantive proceedings through Mr Tracey, on behalf of all unions represented atthe First Respondent’s workplaces, including that for electrical employees covered by the CEPU. That evidence was thesubject of cross-examination and rebuttal evidence led from the First Respondent. The Commission in Court Session hasalready dealt with that evidence in some detail, and made findings of fact to the effect that all of the Award employees havemade a contribution to the First Respondent’s business, albeit not warranting in the Commission’s view, payment of the full sixper cent increase, on the earlier date claimed.

10 It is in light of that evidence, and the findings of fact that the Commission in Court Session has made, that in our opinion,having regard to s 26(1)(a) of the Act, it would be contrary to equity and good conscience to not confer the benefit of theCommission in Court Session’s decision on the employees of the First Respondent members of or eligible to be members ofthe CEPU. We reach this conclusion, notwithstanding our concerns as to any errors or omissions by the CEPU itself, on thebasis of the principle that the employees concerned should not suffer a penalty by reason of any such errors or omissions bytheir organisation. This position is not dissimilar to the general principle that the client of a solicitor or agent should notordinarily be penalised for any errors or omissions by their agent or solicitor, unless actively contributed to by the client. Thatis not the circumstance in these proceedings.

11 We emphasise that we have reached this view based upon the evidence adduced in the substantive proceedings and ourfindings.

12 We therefore decide that the order to issue, extending the three per cent aggregate wages and allowances increase from19 January 2003, should apply to the CEPU and its members and those employees eligible to be its members.

13 A minute of proposed order will shortly issue._________


PARTIES THE AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDREDINDUSTRIES UNION OF WORKERS - WESTERN AUSTRALIAN BRANCH & OTHERS,APPLICANTSv.BHP BILLITON IRON ORE PTY LTD & ANOTHER, RESPONDENTS


DATE FRIDAY, 13 JUNE 2003FILE NO/S. APPLICATION 1646 OF 2002CITATION NO. 2003 WAIRC 08478_________________________________________________________________________________________________________

Catchwords Award – Award variation – Wages and allowances - Productivity and efficiency changes– IndustrialRelations Act 1979 s40

Result Order issuedRepresentationApplicants Mr D Schapper of counselFirst Respondent Mr H Dixon SC and Mr R Kelly of counselSecond Respondent Mr A Lovell and Mr J Murie_________________________________________________________________________________________________________


Supplementary Reasons for Decision1 COMMISSION IN COURT SESSION: In the Commission in Court Session’s earlier reasons in this matter, the parties were

directed to confer as to preparation of a schedule of amendments for the awarding of a three per cent aggregate wagesadjustment. The parties have been unable to reach agreement on how the 3 per cent wages adjustment ought to apply. This isso, notwithstanding the parties’ agreement to the method of adjustment of aggregate wages and allowances, arising from thedecision of the Commission in Court Session in application A2 of 2001. The Commission in Court Session thereforedetermines the matter.

2 An issue raised, somewhat surprisingly, by the First Respondent’s solicitors, is whether the reasons for decision of theCommission in Court Session recently published, intended an adjustment to allowances by three per cent. The Commission, tothe extent that it may be necessary, clarifies this matter as follows. It is noted that reference was made to adjustment to bothaggregate wages and allowances in the Commission’s earlier supplementary reasons for decision, dealing with the position ofthe CEPU. Furthermore, and plainly, the claims made in the herein application, contemplated an adjustment to allowances aswell as aggregate wages. Additionally, by clause 7(1) of the Iron Ore Production and Processing (BHP Billiton Iron Ore PtyLtd) Award 2002 (“the Award”), it is clearly contemplated that the six per cent adjustment would apply to both aggregatewages and allowances, twelve months from the making of the Award, unless otherwise determined by the Commission.

3 The Commission in Court Session clearly intended, if this was not made sufficiently clear in the reasons for decision of16 April 2003, that allowances be included in the three per cent adjustment. Plainly, what the Commission in Court Session hasdecided, is that the aggregate wages and allowances adjustment that otherwise would take effect in July 2003, be broughtforward by six months, albeit in respect of three per cent only of the adjustment amount. It would be in our view, nonsensicalfor allowances to not also be adjusted, given the entire context. We therefore include allowances in the minute of proposedorder that now issues.

4 The second issue that seems to have arisen between the parties is the question of operative date. Consistent with the earlierdecision of the Commission in Court Session in the making of the Award, and as provided for in clause 7(1) of the Award, theaggregate wages and allowances adjustment will be operative from the first pay period commencing on or after 19 January 2003.

5 The final matter that seems to have been at issue between the parties is the method of adjustment of aggregate wages andallowances, to apply the three per cent increase. It is contended by the applicants, that the existing rates ought to be increasedby a flat amount of three per cent. The First Respondent submits that the three per cent adjustment in rates of wages andallowances applicable immediately prior to the making of the Award, on the basis that the Commission in Court Sessiondecision in the making of the Award, albeit implemented in two separate increments, as originally decided. The respondentsubmitted that to apply the three per cent adjustment to the actual rates paid as at January 2003, would be compounding theincrease in total terms, to more than a total of 20 per cent.

6 The original aggregate wages and allowances adjustments, as provided for in schedules IA and IB, apply increases of 14 per centand 20 per cent, on the rates immediately prior to the making of the Award. Given that the parties originally agreed to this methodof calculation as contained in the schedules and as provided to the Commission, the Commission in Court Session considers that tobe consistent, the same methodology ought apply to the three per cent adjustment. In this way the rates in schedules IC and IIC arederived by applying increases of 17 per cent on the rates immediately prior to the making of the Award.

7 A minute of proposed order now issues._________


PARTIES THE AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDREDINDUSTRIES UNION OF WORKERS - WESTERN AUSTRALIAN BRANCH & OTHERS,APPLICANTSv.BHP BILLITON IRON ORE PTY LTD & ANOTHER, RESPONDENTS


DATE WEDNESDAY, 18 JUNE 2003FILE NO/S. APPLICATION 1646 OF 2002CITATION NO. 2003 WAIRC 08501_________________________________________________________________________________________________________

Result Application granted in part. Order issuedRepresentationApplicants Mr D Schapper of counselFirst Respondent Mr H Dixon SC and Mr R Kelly of counselSecond Respondent Mr A Lovell and Mr J Murie_________________________________________________________________________________________________________

OrderHAVING heard Mr D H Schapper of counsel on behalf of the applicants and Mr H J Dixon of Senior Counsel and with him Mr RKelly of counsel on behalf of the first respondent and Mr A Lovell and with him Mr J Murie on behalf of the second respondent theCommission, pursuant to the powers conferred on it under the Industrial Relations Act, 1979 hereby orders-

(1) THAT the Iron Ore Production & Processing (BHP Billiton Iron Ore Pty Ltd) Award No A2 of 2001 be variedin accordance with the following schedule.

(2) THAT otherwise the applicants’ claim be and is hereby dismissed.(Sgd.) S. J. KENNER,

[L.S.] Commission in Court Session._________


SCHEDULE1. Clause 2-Arrangement: Delete this clause and insert the following in lieu thereof—1. Title1B Minimum Adult Award Wage2. Arrangement3. Area & Scope4. Term5. Rescission of All Previous Awards and Agreements6. No Further Claims7. Aggregate Wages8. Arbitrated Safety Net Adjustments9. Contract of Employment10. Casual, Short Term and Part-Time Employment11. Hours of Work12. Annual Leave13. Annual Leave Travel Assistance14. Long Service Leave15. Sick Leave16. Public Holidays17. Parental Leave18. Bereavement Leave19. Special Leave20. Redundancy21. Superannuation22. Travelling on Engagement and Termination23. Issue Resolution Process24. Personal Protective Equipment25. Right of Entry26. Posting of Notices27. Utilisation of Contractors28. Union Representation29. Liberty to Apply30. Parties to Award

Schedules IA, IB and IC – Aggregate WagesSchedules IIA, IIB and IIC – AllowancesSchedule III – Award Classifications

2. Clause 7-Aggregate Wages: Delete subclause (1) and (3) of this clause and insert the following in lieu thereof—(1) Employees shall be employed in the classifications set out in the classification structure in the attached schedules marked

IA, IB and IC and shall be paid the annual aggregate wage according to their classification and roster. Aggregate wagesset out in schedule IA shall be paid from the beginning of the first pay period on or after 2 November 2001. Allowancesset out in schedule IIA shall be paid from the beginning of the first pay period on or after 19 July 2002. Aggregate wagesset out in schedule IC and allowances set out in schedule IIC shall be paid from the beginning of the first pay period on orafter 19 January 2003. Aggregate wages set out in schedule IB and allowances set out in schedule IIB shall be paid fromthe beginning of the first pay period on or after 19 July 2003.

(3) Allowances which are not included in the aggregate wages are those set out in the attached schedules marked IIA, IIB andIIC.

3. Clause 10-Casual, Short Term and Part-time Employment: Delete this clause and insert the following in lieuthereof—

(1) Casual employment(a) “Casual employee” means an employee engaged on an hourly contract of service.(b) A casual employee shall be paid the pro rata hourly rate applicable to the classification in which he or she is

working as set out in the attached schedules marked IA, IB and IC plus a loading of 20%.(c) Clauses 12 - Annual Leave, 13 - Annual Leave Travel Assistance, 14 - Long Service Leave, 15 - Sick Leave,

16 - Public Holidays, 17 - Parental Leave, 18 - Bereavement Leave, 19 - Special Leave and 20 - Redundancy donot apply to casual employees.

(d) All time worked by a casual employee in excess of the ordinary hours applicable to the classification in whichhe or she is working shall be paid at the overtime rate as set out in the attached schedules marked IA, IB and IC.

(2) Short term employment(a) Employees may be engaged for a short term duration which will not exceed 6 months.(b) A short term employee shall be paid the pro rata fortnightly rate applicable to the classification in which he or

she is working as set out in the attached schedules marked IA, IB and IC.(c) On the satisfactory completion of their contract, employees on short term employment will—

(i) if appointed in Perth receive an economy class air fare return to Perth; or(ii) if appointed locally, receive two shifts pay.

(d) Clauses 13 - Annual Leave Travel Assistance, 14 - Long Service Leave, 15(4) - Sickness and Accident Scheme,17 - Parental Leave and 20 - Redundancy do not apply to employees on short term employment.

(3) Part-time employment(a) “Part-time employee” means an employee engaged on a weekly contract of employment who works regularly

from week to week for less than the ordinary hours applicable to the classification in which he or she is workingas set out in the attached schedules marked IA, IB and IC.

(b) A part-time employee shall be paid pro rata the aggregate wage applicable to the classification in which he orshe is working as set out in the attached schedules marked IA, IB and IC.


(c) All time worked by a part-time employee in excess of the ordinary hours applicable to the classification inwhich he or she is working shall be paid at the overtime rate as set out in the attached schedules marked IA, IBand IC.

(d) Time allowed for annual leave, long service leave and sick leave will apply to part time employees in the sameproportion that the part-time employee’s regular ordinary weekly hours bears to the ordinary hours applicable tothe classification in which he or she is working as set out in the attached schedules marked IA, IB and IC.

(e) A part time employee shall be entitled to benefits under the sickness and accident scheme in clause 15 andannual leave travel assistance in clause 13 in the same proportion that the part-time employee’s regular ordinaryweekly hours bears to the ordinary hours applicable to the classification in which he or she is working as set outin the attached schedules marked IA, IB and IC.

4. Clause 11-Hours of Work: A. Delete subclause (1) of this clause and insert the following in lieu thereof—(1) Ordinary hours

(a) Each employee shall work either the daywork or shiftwork ordinary hours per week applicable to theclassification in which he or she is working as set out in this clause and schedules IA, IB and IC.

(b) The Company may set and vary the start time for the commencement of ordinary hours to meet the Company’soperational requirements.

B. Delete subclause (7) of this clause and insert the following in lieu thereof—(7) Shiftwork

(a) The Company may require employees to work shiftwork.(b) The Company may require employees to change from one shift to another on the giving of 48 hours notice. If

the Company gives less than 48 hours notice the employee shall be paid at the overtime rate applicable to theclassification in which he or she is working as set out in the attached schedules marked IA, IB and IC.

(c) The Company may require employees to transfer from daywork to shiftwork or from shiftwork to daywork onthe giving of 7 days notice. If the Company gives less than 7 days notice and the employee works for less than5 consecutive night shifts the employee shall be paid at the overtime rate applicable to the classification inwhich he or she is working as set out in the attached schedules marked IA, IB and IC.

(d) The Company may change the shift system in operation on the giving of 14 days notice.5. Clause 15-Sick Leave: Delete subclause (8) of this clause and insert the following in lieu thereof—(8) The benefits payable under the sickness and accident scheme shall be—

(a) in the event of personal ill health necessitating non-attendance at work, the amount of $400.40 per week or theaggregate wages applicable to the classification in which the employee is working as set out in the attachedschedules marked IA, IB and IC , whichever is the higher;

(b) in the event of personal ill health where the employee returns to work but is reclassified to a classificationattracting a lower aggregate wage, the difference between the aggregate wages.

6. Clause 16-Public Holidays: Delete subclause (1) of this clause and insert the following in lieu thereof—(1) An employee, other than a shift employee, shall be allowed 10 public holidays per annum without loss of pay. Where

such employees are required to work on a public holiday they shall receive the overtime rate as set out in the attachedschedules marked IA, IB and IC for all hours worked.

7. Schedule IB: Following this schedule insert new schedule as follows—_________

SCHEDULE IC

EDIT NOTE: Please Note that the 2002 State Wage Case increase was not applicable to the rates in this schedule.

Days(40 hr week)

4 Panel(12 hr cont shift)

0.25 4 Panel(12.25 hr cont shift)


2 Panel (42)(12 hr cont day shift)

8 on 4 off(10 hr cont day shift)

AnnualSalary

O/TimeRate

AnnualSalary

O/TimeRate

AnnualSalary

O/TimeRate

AnnualSalary

O/TimeRate

AnnualSalary

O/TimeRate

AnnualSalary

O/TimeRate

AWU

1 $48148 $33.0752 $63573 $34.4838 $65499 $34.4838 $67426 $34.4838 $62777 $34.3473 $72428 $34.4838

2 $53429 $37.5710 $70534 $38.9796 $72710 $38.9796 $74888 $38.9796 $69738 $38.8432 $80672 $38.9796

3 $54384 $38.3838 $71791 $39.7926 $74013 $39.7926 $76239 $39.7926 $70998 $39.6563 $82161 $39.7926

4 $57024 $40.6319 $75272 $42.0406 $77619 $42.0406 $79969 $42.0406 $74478 $41.9041 $86284 $42.0406

TWU

S1 $47418 $33.2358 $66394 $33.8619 $61816 $33.7254

S2 $50949 $35.4585 $71382 $36.8670 $66467 $36.7307

S3 $53251 $37.4196 $74638 $38.8281 $69504 $38.6919

LVS1 $50564 $35.1317 $70839 $36.5402 $65963 $36.4038

PRODWORKER

1 $48148 $33.0752 $67426 $34.4838 $62777 $34.3473

2 $53429 $37.5710 $74888 $38.9796 $69738 $38.8432

3 $54384 $38.3838 $76239 $39.7926 $70998 $39.6563

4 $57024 $40.6319 $79969 $42.0406 $74478 $41.9041


Days(40 hr week)






AnnualSalary

O/TimeRate

AnnualSalary

O/TimeRate

AnnualSalary

O/TimeRate

AnnualSalary

O/TimeRate

AnnualSalary

O/TimeRate

AnnualSalary

O/TimeRate

CMETUCRANES

1 $53662 $37.7704 $73030 $39.1790 $75220 $39.1790 $70046 $39.0425

2 $54347 $38.3522 $73963 $39.7608 $76185 $39.7608 $70949 $39.6245 $82104 $39.7608

3 $55263 $39.1333 $75217 $40.5420 $77480 $40.5420 $72115 $40.4057 $83537 $40.5420

4 $57315 $40.8792 $78017 $42.2877 $80378 $42.2877 $74510 $42.1516

AFMEU

1 $48148 $33.0752 $65499 $34.4838 $67426 $34.4838 $62777 $34.3473

2 $53429 $37.5710 $72710 $38.9796 $74888 $38.7690 $69738 $38.8432

3 $54384 $38.3838 $74013 $39.7926 $76239 $39.7926 $71002 $39.6563

4 $55768 $39.5614 $75902 $40.9701 $78192 $41.0333 $72820 $40.8336

5 $57920 $41.3947 $78843 $42.8033 $81234 $42.8033 $75657 $42.6671

6 $60083 $43.2362 $81797 $44.6446 $84291 $44.6446 $78507 $44.5083

7 $62236 $45.0697 $84739 $46.4782 $87335 $46.4782 $81347 $46.3419

8 $64399 $46.9111 $87691 $48.3196 $90392 $48.3196 $84197 $48.1835

Days(40 hr week)






AnnualSalary

O/TimeRate

AnnualSalary

O/TimeRate

AnnualSalary

O/TimeRate

AnnualSalary

O/TimeRate

AnnualSalary

O/TimeRate

AnnualSalary

O/TimeRate

CEPU

1 $46229 $31.4408 $62878 $32.8495 $64713 $32.8495 $60781 $32.7130

2 $48393 $33.2824 $65831 $34.6908 $67769 $34.6908 $63099 $34.5546

3 $52711 $36.9601 $71729 $38.3686 $73875 $38.3686 $68793 $38.2323

4 $55768 $39.5614 $75902 $40.9701 $78192 $40.9701 $72820 $40.8336

5 $57920 $41.3947 $78843 $42.8033 $81234 $42.8033 $75657 $42.6671

6 $60083 $43.2362 $81797 $44.6446 $84291 $44.6446 $78507 $44.5083

7 $62236 $45.0697 $84739 $46.4782 $87335 $46.4782 $81347 $46.3419

8 $64399 $46.9111 $87691 $48.3196 $90392 $48.3196 $84197 $48.1835

9 $66562 $48.7523 $90645 $50.1609 $93446 $50.1609 $87047 $50.0249

BUILDMAINT

4 $55768 $39.5614

5 $57920 $41.3947

6 $60083 $43.2362

APPREN-TICES

1 Year $25885 $20.1789 $37707 $21.5874 $38952 $21.5874 $35592 $21.4510

2 Year $32352 $25.6950 $46475 $27.1037 $48037 $27.1037 $44026 $26.9674

3 Year $40973 $33.0486 $58165 $34.4573 $60152 $34.4573 $55269 $34.3211

4 Year $48986 $36.7276 $67710 $38.1363 $69909 $38.1363 $64591 $37.9999

ADULTAPPREN-TICES

1 Year $49287 $34.0450 $67054 $35.4538 $69036 $35.4538 $64280 $35.3174

2 Year $49287 $34.0450 $67054 $35.4538 $69036 $35.4538 $64280 $35.3174

3 Year $49287 $34.0450 $67054 $35.4538 $69036 $35.4538 $64280 $35.3174

4 Year $53610 $37.7241 $72955 $39.1326 $75142 $39.1326 $69974 $38.9961

CMETULOCO Hedland Newman Finucane

Level 1 $34872 $18.8487

Level 2 $65229 $24.9210

Level 3 $80047 $34.2108

Level 4 $98349 $43.4889 $98349 $43.4889

Level 5 $125207 $52.7436 $125207 $52.7436 $111930 $50.5206

_________


8. Schedule IIB: Following this schedule insert new schedule as follows:

SCHEDULE IICDescription AmountHeight Money $2.46 per shiftConcentrator Allowance $0.42 per hour (actual)Meal Provision $10.08 or a voucherNACA - Loadout Tunnels $0.16 per hour (actual)SMR $0.49 per hour (actual)NACA – Mine $0.23 per hour (actual)House Drains – septics $5.66 per shiftEPCO SewerageTank $5.66 per shiftFitting & Installing/Electrical Dual Licence $20.01 per week (Fixed) = $40.02 per fortnight fixedElectrical OOEWA “B” Licence $20.01 per week (Fixed) = $40.02 per fortnight fixedRigger / Scaffolder $8.72 per week (Rate) = $0.23 per hour (All Purpose)Rigger / Certified Scaffolder $16.44 per week (Rate) = $0.43 per hour (All Purpose)Electrical Restricted Licence $10.01 per week (Fixed) = $20.01 per fortnight fixedLeading Hand 2-5 $40.54 per week (Rate) = $1.07 per hour (All Purpose)Leading Hand >5 $50.14 per week (Rate) = $1.32 per hour (All Purpose)Shift Tradesperson $18.78 per week (Rate) = $0.50 per hour (All Purpose)Unsupervised Tradesperson $13.98 per week (Rate) = $0.37 per hour (All Purpose)Construction Allowance $6.03 per week (Rate) = $0.16 per hour (All Purpose)HIAB Certificate $4.68 per week (Fixed) = $9.36 per fortnight fixedHIAB Motor Vehicle $12.29 per week (Fixed) = $24.57 per fortnight fixedDriver Coordinator $5218.55 per annum (Rate) = $200.72 per fortnight Pro-RataDriver Instructor $2398.50 per annum (Rate) = $92.25 per fortnight fixedFinucane Island Charge Hand $93.37 per week (Rate) = $2.46 per hour (All Purpose)Control Room Operator Allowance (Nelson Point) $2783.13 per annum (Rate) = $15.29 per shiftControl Room Crib (Finucane Island) $21.01 per shiftCar Dumper Control Allowance (Nelson Point) $15.29 per shiftControl Room Crib (Nelson Point) $31.50 per shiftWork Train Allowance $40.95 per shiftLong Train Allowance $13.22 per tripTraining Allowance $6.53 per shiftStockpile Dozing (Finucane Island) $0.49 per hour (actual)Confined Space (Finucane Island) $0.49 per hour (actual)Jack Hammer (Finucane Island) $0.49 per hour (actual)Mobile Operator Allowance (Nelson Point) $1.32 per hour (actual)Roster Change Level 2 Claim $86.98 per shiftRoster Change Level 3 Claim $114.99 per shiftRoster Change Level 4 Day Claim $144.36 per shiftRoster Change Level 5 Day Claim $180.23 per shiftShovel Operators Transport Allowance $888.00 per annum


AWARDS/AGREEMENTS—Variation of—2003 WAIRC 08482

AWU GOLD (MINING AND PROCESSING) AWARD 1993No. A 1 of 1992

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSIONPARTIES THE AUSTRALIAN WORKERS’ UNION, WEST AUSTRALIAN BRANCH, INDUSTRIAL

UNION OF WORKERS, APPLICANTv.KALGOORLIE CONSOLIDATED GOLD MINES PTY LTD & OTHERS, RESPONDENTS

CORAM COMMISSIONER S J KENNERDATE MONDAY, 16 JUNE 2003FILE NO/S. APPLICATION 213 OF 2003CITATION NO. 2003 WAIRC 08482_________________________________________________________________________________________________________

Result Variation of an awardRepresentationApplicant Mr M LlewellynRespondents Ms C Kruger as agent_________________________________________________________________________________________________________

OrderHAVING heard Mr M Llewellyn on behalf of the applicant and Ms C Kruger as agent on behalf of the respondent the Commission,by consent, pursuant to the powers conferred on it under the Industrial Relations Act, 1979 hereby orders—

THAT the AWU Gold (Mining and Processing) Award 1993 be varied in accordance with the following schedule and thatsuch variation shall have effect from the date hereof.

(Sgd.) S. J. KENNER,[L.S.] Commissioner.

SCHEDULE1. Clause 2. - Arrangement: Delete this Clause and insert in lieu thereof the following—

2. - ARRANGEMENT1. Title2. Arrangement3. Term and Application4. Area and Scope5. Contract of Employment6. Hours7. Shift Work8. Overtime9. Rest Breaks and Recall to Work - All Employees10. Saturday Work11. Sunday and Holiday Work12. Public Holidays13. Leisure Days14. Special Provisions for Cycle Working15. Definitions16. Wage Rates17. Allowances18. Employee Relieving in a Higher Capacity19. Payment of Wages20. Piece Work21. Annual Leave22. Sick Leave23. Accident Pay24. Re-Employment after an Accident25. Inclement Weather26. Bereavement Leave27. Jury Service28. Protective Clothing29. First Aid30. Representative Interviewing Employees31. Employment Records32. Right of Entry33. Recognised Crib Place34. Long Service Leave35. Redundancy36. Maternity Leave37. Structural Efficiency


38. Enterprise Flexibility39. Consultation in the Workplace40. Disputes Procedure41. Parties Bound To This Award42. Supersession43. Liberty to ApplyAppendix 1 – Make Up of Total Wage

2. Clause 12. - Public Holidays:A. Insert a new subclause (3) to this Clause as follows:

(3) An employee, other than a casual employee, who in any area of the State is not required to work on aday solely because that day is a public holiday in that area, is entitled to be paid as if he or she wererequired to work on that day.

B. Renumber existing subclauses (3) and (4) as (4) and (5)3. Clause 21. - Annual Leave:

A. Delete subclause (1) of this Clause and insert in lieu thereof the following—(1) Where an employer and an employee have not agreed when the employee is to take his or her annual leave,

subject to subclause (3), the employer is not to refuse the employee taking, at any time suitable to the employee,any period of annual leave the entitlement to which accrued more than 12 months before that time.

(2) The employee is to give the employer at least two weeks notice of the period during which the employee intendsto take his or her leave.

B. Renumber existing subclauses (2), (3), (4), (5), (6), (7), (8), (9), (10) and (11) as (3), (4), (5), (6), (7), (8), (9),(10), (11) and (12).

4. Clause 30. - Representative Interviewing Employees: Delete this Clause and insert in lieu thereof the following—30. - REPRESENTATIVE INTERVIEWING EMPLOYEES

(1) An authorised representative of an organisation may enter, during working hours, any premises where relevantemployees work, for the purpose of holding discussions at the premises with any relevant employees who wishto participate in those discussions.

(2) An ‘authorised representative’ means a person who holds an authority in force under Division 2G of theIndustrial Relations Act 1979 (as amended).

(3) A ‘relevant employee’ means an employee who is a member of an organisation or who is eligible to become amember of the organisation.

(4) The authorised representative shall give at least 24 hours written notice to the employer and shall, upon requestof the occupier of the premises, show his or her authority when entering the premises.

5. Clause 31. - Time and Wages Record: Delete this Clause and insert in lieu thereof the following—31. - EMPLOYMENT RECORDS

(1) Each employer shall keep employment records containing—(a) the employee’s name, and if the employee is under 21 years of age, his or her date of birth.(b) any industrial instrument that applies.(c) the date on which the employee commenced employment with the employer.(d) for each day—

(i) the time at which the employee started and finished work;(ii) the period or periods for which the employee was paid;(iii) details of work breaks, including meal breaks.

(e) for each pay period—(i) the employee’s designation;(ii) the gross and net amounts paid to the employee under the industrial agreement;(iii) all deductions and reasons for them.

(f) all leave taken by the employee, whether paid, partly paid or unpaid.(g) the information necessary for the calculation of the entitlement to, and payment for long service leave

under the Long Service Leave Act 1958, the Construction Industry Portable Long Service Leave Act1985 or the industrial instrument.

(2) Industrial Instrument means—(a) this Award;(b) an order of the Western Australian Industrial Relations Commission; and(c) an industrial agreement.

(3) The employer shall on the written request by a relevant person—(a) produce to the person the employment records relating to the employee;(b) let the person inspect the employment records;(c) let the relevant person enter the premises of the employer for the purpose of inspecting the records;

and(d) let the relevant person take copies of or extracts from the records.

(4) A “relevant person” means—(a) the employee concerned;(b) if the employee is a represented person, his or her representative;(c) a person authorised in writing by the employee; and


(d) an officer referred to in s 93 of the Industrial Relations Act 1979 (as amended) authorised in writingby the Registrar.

(5) An employer shall comply with a written request under subclause (3) not later than—(a) at the end of the next pay period after the request is received; or(b) the seventh day after the day on which the request was made to the employer.

6. Clause 32. - Inspections: Delete this Clause and insert in lieu thereof the following—32. - RIGHT OF ENTRY

(1) An authorised representative of an organisation may enter, during working hours, any premises where relevantemployees work, for the purpose of investigating any suspected breach of the Industrial Relations Act 1979, theLong Service Leave Act 1958, the Minimum Conditions of Employment Act 1993, the Occupational Safety andHealth Act 1984, the Mines Safety and Inspection Act 1994 or an award, order, industrial agreement oremployer-employee agreement that applies to any such employee.

(2) ‘Authorised representative’ in this clause has the same meaning as in subclause (2) of Clause 30. -Representative Interviewing Employees.

(3) For the purpose of investigating any breach, the authorised representative may—(a) subject to subclause (5) require the employer to produce for the representative’s inspection, during

working hours at the employer’s premises or at any mutually convenient time and place, anyemployment records of employees or other documents, other than workplace agreements or employer-employee agreements, kept by the employer that are related to the suspected breach;

(b) make copies of the entries in the employment records or documents related to the suspected breach;and

(c) during working hours, inspect or view any work, material, machinery, or appliance that is relevant tothe suspected breach.

(4) The employer is not required to produce an employment record of an employee if the employee is a party to anemployer-employee agreement and has made a written request to the employer that the record not be availablefor inspection by an authorized representative.

(5) An authorised representative is not allowed to enter premises where relevant employees work for the purposesof investigating a suspected breach of an employer-employee agreement to which a relevant employee is a partyunless the authorized representative is authorised in writing by that relevant employee to carry out theinvestigation.

(6) An authorised representative is not entitled to require the production of employment records or other documentsunless, before exercising the power, the authorised representative has given the employer concerned—(a) if the records or other documents are kept on the employers premises, at least 24 hours written notice;

or(b) if the records or other documents are kept elsewhere, at least 48 hours written notice.

(7) An authorised representative shall, upon request of the occupier of the premises, show his or her authoritybefore entering the premises.

7. Appendix 2 - Resolution of Disputes Requirements: Delete this Appendix.8. Appendix 3 - S.49B - Inspection of Records Requirements: Delete this Appendix.

____________________

2003 WAIRC 08554DENTAL TECHNICIANS’AND ATTENDANT/RECEPTIONISTS’ AWARD, 1982

NO. 29 OF 1982WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES W.A. DENTAL TECHNICIANS’ AND EMPLOYEES’ UNION OF WORKERS, APPLICANTv.DEVENISH DENTAL LABORATORIES AND OTHERS, RESPONDENTS

CORAM COMMISSIONER P E SCOTTDATE OF ORDER THURSDAY, 26 JUNE 2003FILE NO. APPLICATION 1694 OF 2002CITATION NO. 2003 WAIRC 08554_________________________________________________________________________________________________________

Result Award varied_________________________________________________________________________________________________________

OrderHAVING heard Mr G Bucknall on behalf of the applicant and Ms C Dorizzi on behalf of the respondents, and by consent, theCommission, pursuant to the powers conferred under the Industrial Relations Act, 1979, hereby orders—

THAT the Dental Technicians’ and Attendant/Receptionists’ Award, 1982 (No. 29 of 1982) be varied in accordance withthe following Schedule and that such variation shall have effect from the beginning of the first pay period commencing onor after the 5th day of June 2003.

(Sgd.) P. E. SCOTT,[L.S.] Commissioner.

_________


SCHEDULE1. Clause 2. – Arrangement: Delete this clause and insert the following in lieu thereof:1. Title1B. Minimum Adult Award Wage2. Arrangement3. Scope4. Area5. Term6. Definitions7. Wages8. Hours of Work9. Overtime10. Meal Money11. Termination of Employment12. Higher Duties13 Public Holidays14 Annual Leave15 Sick Leave16. Payment of Wages17. Time and Wages Record18 No Reduction19 Supported Wage System20 Recognition of Qualifications21 Apprentices22 Uniforms23 Inspection by Union24 Dispute Settlement Procedure25. Posting of Award and Union Notices26. Long Service Leave27 Location Allowances28. Bereavement Leave29 Part-Time Employees30 Parental Leave31 Superannuation32 Enterprise Agreements33. Redundancy

Schedule A Named Union PartySchedule B Respondents

2. Clause 2A. - Wage Fixing Principles: Delete this number, title and clause.3. Clause 3. – Scope: Delete this clause and insert the following in lieu thereof—This Award shall apply to employees employed in the callings set out in Clause 7. - Wages hereof in the industry carried on by therespondents hereto.4. Clause 6. – Definitions: Delete this clause and insert the following in lieu thereof:(1) “Advanced Dental Technician” shall mean an adult employee who has at least four years’ experience as a Dental

Technician other than as an apprentice and has qualified at an approved trade school, and who is engaged in all aspects ofCrown and Bridge work (including Ceramics) or Cast Metal Dentures or Maxillo facial work on Orthodentice.

(2) “Senior Dental Technicians” shall mean a Dental Technician who, in addition to ordinary duties, is required by theemployer to supervise the work of three or more other Dental Technicians and/or apprentices.

(3) “Dental Attendant and/or Receptionist” shall mean an employee who is required to perform any of the followingfunctions, namely: receive patients, attend patients, make or record appointments or keep patients’ records, or any workincidental to such functions.

(4) “Dental Assistant” shall mean an employee who performs similar duties to that of a Dental Attendant and/or Receptionistwho is undertaking or has concluded a Certificate IV in Dental Clinic Assisting in a dental establishment, or holds acertificate of proficiency as a Dental Assistant issued by the Dental Assistants’ Association as a result of havingcompleted to the satisfaction of the Examiners a training course the standards of which have been approved and acceptedby the Australian Dental Association (Western Australian Branch) and the Dental Assistants’ Association of Australia, orwho holds a certificate recognised by the Dental Assistants’ Association of Australia as being equivalent to theircertificate of proficiency.

(5) “Senior Dental Assistant or Senior Dental Attendant and/or Receptionist” shall mean an employee who in addition tonormal duties is required to supervise the work of more than one other Dental Assistant or Dental Receptionist and/orAttendant.

(6) “Laboratory Assistant” shall mean an employee in a Dental Laboratory employed on work other than that work normallyperformed by a technician or apprentice technician.

(7) “Casual Employee” shall mean an employee engaged on an hourly basis for not more than one week or who is employedto relieve another employee on annual leave or other leave not including long service leave and shall be informed of thoseconditions of employment prior to being engaged.

(8) “Commission” shall mean the Western Australian Industrial Relations Commission.(9) “Union” means the Dental Technicians’ and Employees’ Union of Workers.5. Clause 9. – Overtime: Delete subclause (2)(b) and insert the following in lieu thereof:(2) (b) All hours worked on any of the days prescribed in subclause (1) of Clause 13. - Public Holidays of this Award

shall be paid for at the rate of double time and a half.6. Clause 10. - Meal Money: Delete this clause and insert the following in lieu thereof:(1) An employee required to work overtime for two hours or more shall be supplied with a meal by the employer or paid

$7.40 for a meal.


(2) If the amount of overtime required to be worked necessitates a second or subsequent meal, the employer shall providesuch meal or pay an amount of $5.80 for each such meal.

(3) Meal allowance increases shall be calculated by the percentage change from the appropriate CPI quarter index numberlast used to increase the allowance, where the allowance was last adjusted or nearest to the date the allowance lastchanged to the latest quarter index number. This percentage change is then applied to the allowance previously paid

(4) Where an employer elects not to provide a meal as provided in subclauses (1) and (2) hereof but makes payment in lieuthereof such payments shall be made to the employee prior to the taking of such meal.

(5) The provisions of subclauses (1) and (2) of this clause do not apply—(a) in respect of any period of overtime for which the employee has been notified on the previous day or earlier that

the employee will be required, or(b) to any employee who lives in the locality in which the place of work is situated in respect of any meal for which

the employee can reasonably go home.7. Clause 11. – Deleted: Delete this number and title.8. Clause 12. - Contract of Service: Delete this number, title and clause and insert the following in lieu thereof—

11. - TERMINATION OF EMPLOYMENT(1) Notice of termination by employer

(a) In order to terminate the employment of an employee, the employer shall give to the employee the followingwritten notice of dismissal:Period of continuous service Period of noticeLess than 1 year 1 week1 year and up to the completion of 3 years 2 weeks3 years and up to the completion of 5 years 3 weeks5 years and over 4 weeks

(b) In addition to the notice prescribed in subclause (1) (a), employees over forty-five years of age at the time of thegiving of the notice with not less than two years continuous service, shall be entitled to an additional week’snotice.

(c) Payment in lieu of notice prescribed in subclauses (1) (a) and/or (b), shall be made if the appropriate noticeperiod is not given. Provided that employment may be terminated by part of the period of notice specified andpart payment in lieu thereof.

(d) In calculating any payment in lieu of notice the wages an employee would have received in respect of theordinary time the employee would have worked during the period of notice had their employment not beenterminated shall be used.

(e) The period of notice in this clause shall not apply in the case of conduct which justifies instant dismissal or inthe case of casual employees or employees engaged for a specific period of time or for a specific task or tasks.

(2) Notice of termination by employeeThe notice of termination required to be given by an employee shall be the same as that required of an employer, save andexcept that there shall be no additional notice based on the age of the employee concerned.

(3) Time-off during notice periodWhere an employer has given notice of termination to an employee, an employee shall be allowed up to one day’s time-off without loss of pay for the purpose of seeking other employment. The time-off shall be taken at times that areconvenient to the employee after consultation with the employer.

(4) Summary DismissalNotwithstanding the provisions of this clause, an employer shall have the right to summarily dismiss any employeewithout notice for misconduct which justifies instant dismissal, and in such case the wages shall be paid up to the time ofdismissal only.

9. Clause 13. - Higher Duties: Delete this number, title and clause and insert the following in lieu thereof—12. - HIGHER DUTIES

(1) An employee engaged on duties carrying a higher rate than the employee’s ordinary classification shall be paid the higherrate for the time the employee is so engaged but if the employee is so engaged for more than half of one day or shift theemployee shall be paid the higher rate for the whole day or shift.

(2) An employee’s regular rate of wage shall not be reduced whilst the employee is temporarily employed on work classifiedwith a lower minimum rate.

10. Clause 14. – Holidays: Delete this number, title and clause and insert the following in lieu thereof—13. - PUBLIC HOLIDAYS

(1) (a) The following days, or the days observed in lieu shall, subject to clause 9. - Overtime hereof, be allowed asholidays, without deduction of pay, namely: New Year’s Day, Australia Day, Good Friday, Easter Monday,Anzac Day, Labour Day, Foundation Day, Sovereign’s Birthday, Christmas Day and Boxing Day. Provided thatanother day may be taken as a public holiday by arrangement between the parties in lieu of any of the daysnamed in the subclause.

(b) When any of the days mentioned in paragraph (a) hereof falls on a Saturday or a Sunday the holiday shall beobserved on the next succeeding Monday and when Boxing Day falls on a Sunday or a Monday the holidayshall be observed on the next succeeding Tuesday. In each case the substituted day shall be a public holidaywithout deduction of pay and the day for which it is substituted shall not be a public holiday.

11. Clause 15. - Annual Leave: Delete this number, title and clause and insert the following in lieu thereof—14. - ANNUAL LEAVE

(1) Except as hereinafter provided a period of four consecutive weeks’ leave with payment of ordinary wages shall beallowed annually to an employee by the employer after a period of twelve months’ continuous service with that employer.


(2) (a) An employee is to be paid for the period of annual leave at the time payment is made in the normal course ofemployment, unless the employee requests in writing the employee be paid before the period of leavecommences in which case the employee is to be so paid.

(b) During a period of annual leave an employee shall receive a loading of 17.5% calculated on the employee’sordinary rate of wage.

(3) If any Award holiday falls within an employee’s period of annual leave and is observed on a day which in the case of thatemployee would have been an ordinary working day there shall be added to that period one day being an ordinaryworking day for each such holiday observed as aforesaid.

(4) (a) an employee leaves employment or employment is terminated by the employer through no fault of theemployee, the employee shall be paid 2.923 hours pay in respect of each completed week of service.

(b) In addition to any payment to which the employee may be entitled under paragraph (a) hereof an employeewhose employment terminates after the employee has completed a twelve month qualifying period and has notbeen allowed leave prescribed under this Award in respect of that qualifying period shall be given payment inlieu of that leave or, in a case to which subclause (7) of this clause applies, in lieu of so much of that leave ashas not been allowed unless—(i) the employee has been justifiably dismissed for misconduct; and(ii) the misconduct for which the employee has been dismissed occurred prior to the completion of that

qualifying period.(5) Notwithstanding anything else herein contained, an employer who observes a Christmas closedown for the purpose of

granting annual leave may require an employee to take the employees annual leave in not more than two periods butneither of such periods shall be less than one week.

(6) Any time in respect of which an employee is absent from work except time for which the employee is entitled to claimsick pay or time spent on holidays or annual leave as prescribed by this Award shall not count for the purpose ofdetermining the employee’s right to annual leave.

(7) In the event of an employee being employed by an employer for portion only of a year the employee shall only be entitledsubject to subclause (4) of this clause to such leave on full pay as is proportionate to the employee’s length of serviceduring that period with such employer, and if such leave is not equal to the leave given to the other employees theemployee shall not be entitled to work on pay whilst the other employees of such employment are on leave on full pay.

(8) In special circumstances and by mutual consent of the employer, the employee and the union concerned, annual leavemay be taken in not more than two periods.

(9) (a) Where an employer and employee have not agreed when the employee is to take annual leave, subject to (9)(b)the employer is not to refuse the employee taking, at any time suitable to the employee, any period of annualleave entitlement to which accrued more than 12 months before that time.

(b) The employee is to give the employer at least 2 weeks’ notice of the period during which the employee intendsto take leave.

(10) The provisions of this clause shall not apply to casual employees.12. Clause 16. - Absence Through Sickness: Delete this number, title and clause and insert the following in lieu

thereof—15. – SICK LEAVE

Entitlement to leave for sickness etc.(1) (a) An employee, other than a casual employee, who is unable to work as a result of the employee’s illness or

injury, is entitled to be paid for periods of absence from work resulting from the illness or injury.(b) in the case of a full-time employee, up to 10 working days or 76 hours, whichever is the lesser, each year.(c) in the case of a part-time employee --

(i) who is paid a proportion of a full-time employee’s pay; or(ii) who is paid according to the number of hours worked, the proportion of the number of hours worked

each week that the average number of hours worked each week bears to 38, up to 76 hours each year.(d) An entitlement under subsection (1) (b) accrues pro rata on a weekly basis.(e) In subsection (1) (a), “year” does not include any period of unpaid leave.

(2) The unused portions of the entitlement to paid sick leave in any one year shall accumulate from year to year and subjectto this clause may be claimed by the employee if the absence by reason of personal ill health or injury exceeds the periodfor which entitlement has accrued during the year at the time of the absence. Provided that an employee shall not beentitled to claim payment for any period exceeding ten weeks in any one year of service.

(3) To be entitled to payment in accordance with this clause the employee shall as soon as reasonably practicable advise theemployer of the employee’s inability to attend for work, the nature of the employee’s illness or injury and the estimatedduration of the absence. Provided that such advice, other than in extraordinary circumstances shall be given to theemployer within 24 hours of the commencement of the absence.

(4) (a) Except as provided in (b) hereof, the provisions of this clause do not apply to an employee who fails to producea certificate from a medical practitioner dated at the time of the absence or who fails to supply such other proofof the illness or injury as the employer may reasonably require provided that the employee shall not be requiredto produce a certificate from a medical practitioner with respect to absences of two days or less unless after twosuch absences in any year of service the employer requests in writing that the next and subsequent absences inthat year, if any, shall be accompanied by such certificate.

(b) The requirement to provide medical certificates under this clause shall also be satisfied if the employee is ableto provide alternative evidence that would satisfy a reasonable person of the entitlement to sick leave.

(5) (a) Subject to the provisions of this subclause, the provisions of this clause apply to an employee who sufferspersonal ill health or injury during the time when the employee is absent on annual leave and an employee mayapply for and the employer shall grant paid sick leave in place of paid annual leave.

(b) Application for replacement shall be made within seven days of resuming work and then only if the employeewas confined to the employee’s place of residence or a hospital as a result of personal ill health or injury for a


period of seven consecutive days or more and the employee produces a certificate from a registered medicalpractitioner that the employee was so confined. Provided that the provisions of this paragraph do not relieve theemployee of the obligation to advise the employer in accordance with subclause (3) of this clause if theemployee is unable to attend for work on the working day next following the employee’s annual leave.

(c) Replacement of paid annual leave by paid sick leave shall not exceed the period of paid sick leave to which theemployee was entitled at the time the employee proceeded on annual leave and shall not be made with respect tofractions of a day.

(d) Where paid sick leave has been granted by the employer in accordance with paragraphs (a), (b) and (c) of thissubclause, that portion of the annual leave equivalent to the paid sick leave is hereby replaced by the paid sickleave and the replaced annual leave may be taken at another time mutually agreed to by the employer and theemployee or, failing agreement, shall be added to the employee’s next period of annual leave or, if terminationoccurs before then, be paid for in accordance with the provisions of clause 15. - Annual Leave.

(e) Payment for replaced annual leave shall be at the rate of wage applicable at the time the leave is subsequentlytaken provided that the annual leave loading prescribed in clause 15. - Annual Leave shall be deemed to havebeen paid with respect to the replaced annual leave.

(6) Where a business has been transmitted from one employer to another and the employees service has been deemedcontinuous in accordance with subclause (3) of clause 2 of the Long Service Leave provisions as prescribed by the LongService Leave General Order and published in the Western Australian Industrial Gazette and as varied from time to time,the paid sick leave standing to the credit of the employee at the date of transmission from service with the transmittorshall stand to the credit of the employee at the commencement of service with the transmittee and may be claimed inaccordance with the provisions of this clause.

(7) The provisions of this clause with respect to payment do not apply to employees who are entitled to payment under theWorkers’ Compensation Act nor to employees whose injury or illness is the result of the employee’s own misconduct.

(8) The provisions of this clause do not apply to casual employees.13. Clause 17. - Payment of Wages: Delete this number, title and clause and insert the following in lieu thereof—

16. - PAYMENT OF WAGES(1) Wages shall be paid by cheque, direct transfer or cash at the employer’s discretion following consultation with the

employees.(2) (a) (i) Where the employer requires the employee to establish an account for the purpose of receiving the

employee’s salary the employee shall pay the costs associated with the establishment and maintenanceof such accounts.

(ii) The employer may require such an account to be established at a major bank or building society.(3) Salaries shall be paid fortnightly.(4) Notwithstanding the foregoing, where the employer and the employee agree, an employee may be paid weekly at half the

appropriate fortnightly rate.(5) For the purpose of effecting the rostering off of employees as provided by Clause 8. - Hours of Work, ordinary wages

may be paid either for the actual hours worked each pay period or an amount being calculated on the basis of the averageof thirty eight hours per week.

(6) Where an employee’s services are terminated, the employee shall be paid all wages due before leaving the employer’spremises or alternatively, a cheque for the amount due may be forwarded by registered post to the employee’s last knownaddress within 48 hours of such termination.

14. Clause 18. - Time and Wages Record: Delete this number, title and clause and insert the following in lieu thereof—17. - TIME AND WAGES RECORD

A record shall be kept in the premises occupied by the employer wherein shall be entered:—The following are to be recorded for each employee:1. On a daily basis—

(a) start/finish time;(b) paid time; and(c) breaks.

2. For each pay period—(a) designation;(b) gross and net pay; and(c) deductions, including reasons for these deductions.

3. The following records must also be kept—(a) employees name(b) date of birth if under 21 years of age;(c) start date;(d) all leave paid, partly paid or unpaid;(e) relevant information for LSL calculations;(f) any additional information required by the industrial instrument; and(g) any other information necessary to show remuneration and benefits comply with the Agreement.

15. Clause 19. – No Reduction: Delete this number, title and clause.16. Clause 20. - Under Rate Workers: Delete this number, title and clause and insert the following in lieu thereof:

19. - SUPPORTED WAGE SYSTEM(1) This clause defines the conditions, which will apply to employees who, because of the effects of a disability are eligible

for a supported wage under the terms of this Award. In the context of this clause the following definitions will apply—(a) “Supported Wage System” means the Commonwealth Government system to promote employment for people

who cannot work at full Award wages because of a disability, as documented in “Supported Wage System:Guidelines and Assessment Process”.


(b) “Accredited Assessor” means a person accredited by the management unit established by the Commonwealthunder the Supported Wage System to perform assessments of an individual’s productive capacity within theSupported Wage System.

(c) “Disability Support Pension” means the Commonwealth pension scheme to provide income security for personswith a disability as provided under the Social Security Act 1991, as amended from time to time, or anysuccessor to that scheme.

(d) “Assessment instrument” means the form provided for under the Supported Wage System that records theassessment of the productive capacity of the person to be employed under the Supported Wage System.

(2) Eligibility Criteria(a) Employees covered by this clause will be those who are unable to perform the range of duties to the

competence level required within the class of work for which the employee is engaged under this Award,because of the effects of a disability on their productive capacity and who meet the impairment criteria forreceipt of a Disability Support Pension.

(b) This clause does not apply to any existing employee who has a claim against the employer which is subject tothe provisions of workers’ compensation legislation or any provision of this Award relating to the rehabilitationof employees who are injured in the course of their employment.

(c) (i) This clause does not apply to employers in respect of their facility, program, undertaking, service orthe like which receive funding under the Disability Services Act 1986 and fulfil the dual role ofservice provider and sheltered employer to people with disabilities who are in receipt of or eligible fora Disability Support Pension, and such employees.

(ii) Provided that this exclusion shall not prevent Services funded under Section 10 or 12A of the Actreferred to in subparagraph (i) hereof, engaging persons who meet the eligibility criteria under theSupported Wages System, on work covered by this Award, where both parties wish to access theSystem and all other criteria are met.

(3) Supported Wage Rates(a) Employees to whom this clause applies shall be paid the applicable percentage of the minimum rate of pay

prescribed by this Award for the class of work which the person is performing according to the followingschedule—

AssessedCapacity

(Sub-clause 4)

% of PrescribedAward Rate

10% 10%20% 20%30% 30%40% 40%50% 50%60% 60%70% 70%80% 80%90% 90%

(b) Provided that the minimum amount payable shall not be less than $56.00 per week.(c) Where a person’s assessed capacity is 10 per cent, they shall receive a high degree of assistance and support.

(4) Assessment of CapacityFor the purpose of establishing the percentage of the Award rate to be paid to an employee under this Award, theproductive capacity of the employee will be assessed in accordance with the Supported Wage System and documented inan assessment instrument by either—(a) the employer and the union party to the Award, in consultation with the employee, or;(b) the employer and an accredited assessor agreed to by the employer and the Union party to the Award in

consultation with the employee.(5) Lodgement of Assessment Instrument

(a) All assessment instruments under the conditions of this clause, including the appropriate percentage of theAward wage to be paid to the employee, shall be lodged by the employer with the Registrar of the WesternAustralian Industrial Relations Commission.

(b) All assessment instruments shall be agreed and signed by the parties to the assessment, provided that where theunion which is party to the Award is not party to the assessment, it shall be referred by the Registrar to theunion by certified mail and shall take effect unless an objection is notified to the Registrar within ten workingdays.

(6) Review of AssessmentThe assessment of the applicable percentage should be subject to annual review or earlier on the basis of a reasonablerequest for such a review. The process of review shall be in accordance with the procedures for assessing capacity underthe Supported Wage System.

(7) Other Terms and Conditions of EmploymentWhere an assessment has been made the applicable percentage shall apply to the wage rate only. Employees covered bythe provision of the clause will be entitled to the same terms and conditions of employment as all other employeescovered by this Award, but be paid at the rate of wage as determined in accordance with this clause.


(8) Workplace AdjustmentAn employer wishing to employ a person under the provisions of this clause shall take reasonable steps to make changesin the workplace to enhance the employee’s capacity to do the job. Changes may involve redesign of job duties, workingtime arrangements and work organisation in consultation with other employees in the area.

(9) Trial Period(a) In order for an adequate assessment of the employee’s capacity to be made, an employer may employ a person

under the provisions of this clause for a trial period not exceeding 12 weeks, except that in some casesadditional work adjustment time (not exceeding four weeks) may be needed.

(b) During the trial period the assessment of capacity shall be undertaken and the proposed wage rate for acontinuing employment relationship shall be determined.

(c) The minimum amount payable to the employee during the trial period shall be no less than such amount as isstipulated by statutory regulation from time to time.

(d) Work trials should include induction or training as appropriate to the job being trailed.(e) Where the employer and employee wish to establish a continuing employment relationship following the

completion of the trial period, a further contract of employment shall be entered into based on the assessmentunder subclause (4) of this clause.

(10) The conditions of employment, as agreed, to apply during a trial period or in a continuing employment relationship shallbe documented, a copy of which shall be provided by the employer to the person employed in accordance with thisclause.

17. Clause 21. - Recognition of Qualifications: Delete this number, title and clause and insert the following in lieuthereof:

20. - RECOGNITION OF QUALIFICATIONS(1) Dental Technicians—

(a) Employees who have been employed as technicians for a period of six years at the time of delivery of theAward shall be rated as journeymen.

(b) An employee who is not employed as a technician at the time of the delivery of this Award may be accepted asa journeyman upon production of proof that the employee has previously been employed in such a capacity fora period of not less than six years.

(c) An employee who is unable to fulfil the conditions set out in (a) and (b) above and who is desirous of beingrecognised as a technician shall submit to examination by the apprentice Examiners and shall bear the cost ofsuch examination.

(2) Dental Assistants—(a) An employee who holds a Certificate in Dental Clinic Assisting issued by the Technical Education Division of

the Education Department and who has been employed for not less than three months in a dental practice afterobtaining the aforesaid certificate shall be recognised as a Dental Assistant.

(b) An employee who holds a Certificate of Proficiency as a Dental Assistant issued by the Dental AssistantsAssociation as a result of having completed to the satisfaction of the examiners a training course the standardsof which have been approved and accepted by the Australian Dental Association (Western Australian Branch)and the Dental Assistants Association of Australia, shall be recognised as a dental assistant.

18. Clause 22. – Apprentices: Delete this number, title and clause and insert the following in lieu thereof—21. - APPRENTICES

(1) Subject to the provisions of this clause, the Apprenticeship Regulations 1981 (hereinafter referred to as “theApprenticeship Regulations”) are incorporated in and form part of this Award.

(2) Apprentices may be taken to the trade of Dental Technology in the proportion of one apprentice to every two or fractionof two tradespersons, provided that a dentist may be regarded as a tradesperson for the purpose of this subclause.

(3) No minor shall be employed as an apprentice unless the employee has completed the tenth year of schooling and hasobtained the High School Certificate or Junior Certificate of the Public Examinations Board in such subjects as theappropriate Apprenticeship Advisory Board determines and has the vocational aptitude for the trade concerned, the periodof apprenticeship shall be four years.

(4) Where the apprentice has completed the eleventh year of schooling and has obtained the High School Certificate or JuniorCertificate of the Public Examinations Board in such subjects as the appropriate Apprenticeship Advisory Boarddetermines and has the vocational aptitude for the trade concerned, the employee may be allowed a credit to reduce theperiod of three and a half years.

(5) Where the apprentice has completed the twelfth year of schooling and has obtained the High School Certificate orLeaving Certificate of the Public Examinations Board in such subjects as the appropriate Apprenticeship Advisory Boarddetermines and has the vocational aptitude for the trade concerned, the employee may be allowed a credit to reduce theperiod to three years.

(6) A minor who has satisfactorily completed an approved pre-apprenticeship course conducted by the Technical EducationDivision of the Education Department may be indentured as an apprentice under this Award on a three year term ofapprenticeship.

(7) Where classes are provided by the Technical Education Division of the Education Department in the locality in which theapprentice is employed, the hours of attendance at such classes shall be 8 hours per week for the first, second and thirdschool years.

(8) No junior shall be employed on work for which an apprenticeship is provided, except when engaged on probation with aview to an apprenticeship.

19. Clause 23. – Uniforms: Delete this number, title and clause and insert the following in lieu thereof:22. - UNIFORMS

(1) Where an employee is required by the employer to wear a special uniform subject to subclause (3) such uniform shall beprovided and laundered by the employer at the employers’ expense.


(2) Where the conditions of work are such that an employee is unable to avoid the employee’s clothing becoming excessivelydirty, the employee shall be provided with protective clothing or material, subject to subclause (3) such clothing ormaterial shall be provided and laundered by the employer at the employers’ expense.

(3) Where subclause (1) or (2) of this clause apply the employer may:—(a) pay an allowance of $4.50 per week in lieu of providing such special uniform, clothing or material;(b) pay an allowance of $3.00 per week in lieu of laundering such special uniform, clothing or material.

(4) Any dispute arising out of this clause may be dealt with in accordance with the clause 24. - Disputes SettlementProcedure.

20. Clause 24. - Inspection by Union: and Delete this number, title and clause and insert the following in lieu thereof:23. - RIGHT OF ENTRY

A relevant person or authorised representative of the Union, as defined by the Industrial Relations Act 1979 as amended from timeto time or it’s successor (the “Act”), may enter, during working hours, the premises of the employer in accordance with theprovisions of “Part II Division 2F – Keeping of and access to employment records” and/or “Part II Division 2G – Right of entry andinspection by authorised representative” of the Act.21. Clause 25. - Board of Reference: Delete this number, title and clause and insert the following in lieu thereof:

24. - DISPUTES SETTLEMENT PROCEDURE(1) Preamble

Subject to the provisions of the Industrial Relations Act 1979 (as amended) any question, disputes or difficulties, or anymatter raised by the Union or a respondent employer and the employees of the employer, shall be settled in accordancewith the procedures set out herein.The parties agree that no bans, stoppages or limitations or lockouts will be imposed prior to, or during the time thisprocedure is being followed.This clause in no way limits the rights of employers, employees and the Union under the Occupational Health, Safety andWelfare Act 1984 or other related legislation.

(2) ProcedureWhere the matter is raised by an employee or a group of employees, the following steps shall be observed.(a) The employee(s) concerned shall discuss the matter with the immediate supervisor. If the matter cannot be

resolved at this level the supervisor shall, within two working days, refer the matter to a more senior officernominated by the employer and the employee(s) shall be advised accordingly.

(b) The senior officer shall, if able, answer the matter raised within five working days of it being referred and if thesenior officer is not so able, refer the matter to the employer for the employers attention, and the employee(s)shall be advised accordingly.

(c) (i) If the matter has been referred in accordance with paragraph (b) above the employee(s) or the shopsteward shall notify the Union Secretary or nominee, to enable the opportunity of discussing thematter with the employer.

(ii) The employer shall, as soon as practicable after considering the matter before it, advise theemployee(s) or, where necessary the Union of its decision. Provided that such advice shall be givenwithin 21 calendar days of the matter being referred to the employer.

(d) Should the matter remain in dispute after the above processes have been exhausted either party may refer thematter to the Western Australian Industrial Relations Commission.The status quo (i.e. the condition applying prior to the issue arising) will remain until the issue is resolved inaccordance with the procedure outlined above.

(e) Nothing in this procedure shall preclude the parties reaching agreement to shorten or extend the period specifiedin subclauses (2)(a), (b) or (c)(ii).

22. Clause 26. - Posting of Award and Union Notices: Delete this number, title and clause and insert the following inlieu thereof—

25. - POSTING OF AWARD AND UNION NOTICESA copy of the Award (if supplied by the union) and union notices signed by an accredited representative of the union, shall beallowed to be posted on the employer’s premises in a place agreed to by the employer and easily accessible to the employees.23. Clause 27. - Long Service Leave: Delete this number, title and clause and insert the following in lieu thereof:

26. - LONG SERVICE LEAVEThe long service leave general order provisions as published in the Western Australian Industrial Gazette and as varied from time totime are hereby incorporated in and form part of this Award.24. Clause 28. - Deleted: Delete this number and title.25. Clause 29. – Location Allowances:

A. Delete the number and title and insert the following in lieu thereof—27. - LOCATION ALLOWANCES

B. Delete subclause (3)(a) of this clause and insert the following in lieu thereof—(a) is provided with board and lodging by the employer, free of charge; orC. Delete subclause (5) of this clause and insert the following in lieu thereof—

(5) Where an employee is on annual leave or receives payment in lieu of annual leave the employee shall be paid for theperiod of such leave the location allowance to which the employee would ordinarily be entitled.D. Delete subclause (6) of this clause and insert the following in lieu thereof—

(6) Where an employee is on long service leave or other approved leave with pay (other than annual leave) the employeeshall only be paid location allowance for the period of such leave the employee remains in the location in which theemployee is employed.


26. Clause 30. - Compassionate Leave: Delete this number, title and clause and insert the following in lieu thereof:28. - BEREAVEMENT LEAVE

Entitlement to bereavement leave(1) (a) Subject to subclause 2 of this clause, on the death of—

(i) the spouse or de facto spouse of an employee;(ii) the child or step-child of an employee;(iii) the brother or sister of an employee(iv) the parent, step-parent or grand parent of an employee; or(v) any other person who, immediately before that person’s death, lived with the employee as a member

of the employee’s family,The employee is entitled to paid bereavement leave of up to 2 days.(a) The 2 days need not be consecutive.(b) Bereavement leave is not to be taken during a period of any other kind of leave

(2) Proof in support of claim for leaveAn employee who claims to be entitled to paid leave under subclause (1) is to provide to the employer, if so requested bythe employer, evidence that would satisfy a reasonable person as to—(a) the death that is the subject of the leave sought; and(b) the relationship of the employee to the deceased person.

27. Clause 31. - Part-Time Workers: Delete this number, title and clause and insert the following in lieu thereof—29. - PART-TIME EMPLOYEES

(1) A “part-time employee” means an employee regularly employed to work less hours than prescribed in Clause 8. - Hoursof Work of this Award and observed by the employer.

(2) When an employee is employed under the provisions of this clause, they shall be paid at a rate pro rata to the rateprescribed for the class of work in which they are engaged in the proportion to which their weekly hours bear to theweekly hours of an employee engaged full-time on that class of work in the employer’s premises.

(3) When an employee is employed under the provisions of this clause, they shall be entitled to annual leave, long serviceleave, holidays and sick leave and any allowances in accordance with the provisions of this Award with payment being inthe proportion to which their weekly hours bear to the weekly hours of an employee engaged full-time in that class ofwork.

(4) The employer may vary the ordinary hours of a part-time employee where the employee consents in writing provided thatthe employer shall give the part-time employee 48 hours notice of such variation in hours. For period of less than48 hours payment for the hours in addition to the ordinary hours shall be paid in accordance with Clause 9. - Overtime.

28. Clause 32. - Maternity Leave: Delete this number, title and clause and insert the following in lieu thereof:30. - PARENTAL LEAVE

(1) DefinitionsFor the purpose of this clause—(a) “Child” means a child of the employee under the age of one year except for adoption of a child where “child”

means a person under the age of five years of age who is placed with the employee for the purpose of adoption,other than a child or step-child of the employee or of the spouse of the employee or child who has previouslylived continuously with the employee for a period of six months or more.

(b) “Parental leave” means maternity, paternity or adoption leave taken in accordance with this clause.(2) Basic entitlement

(a) Employees who have completed not less than 12 months’ continuous service are entitled to 52 weeks unpaidparental leave in relation to the birth or adoption of their child. For females maternity leave may be taken andfor males paternity leave may be taken. Adoption leave may be taken in the case of adoption.

(b) Parental leave is to be available to only one parent at a time, except that both parents may simultaneously accessthe leave in the following circumstances—(i) for maternity leave and paternity leave, an unbroken period of one week at the time of the birth of the

child—(ii) for adoption leave, an unbroken period of up to three weeks at the time of placement of the child.

(c) In order to demonstrate to the employer that, subject to paragraph (b), only one parent will be off on Parentalleave at a time an employee shall, when applying for parental leave, provide the employer with a statutorydeclaration stating particulars of any period of parental leave sought or taken by the employee’s spouse.

(3) Maternity leave(a) An employee will provide to the employer at least 10 weeks in advance of the expected date of confinement—

(i) a certificate from a registered medical practitioner stating that the employee is pregnant and theexpected date of confinement; and

(ii) written notification of the date on which the employee proposes to commence maternity leave, and theperiod of leave to be taken.

(b) Subject to paragraph (c) and unless agreed otherwise between employer and employee, an employee maycommence parental leave at any time within six weeks immediately prior to the expected date of the birth.

(c) Where an employee continues to work within the six week period immediately prior to the expected date ofbirth, or where the employee elects to return to work within six weeks after the birth of the child, an employermay require the employee to provide a medical certificate stating that employee is fit to work on normal duties.

(d) Where the pregnancy of an employee terminates after 27 weeks and the employee has not commenced maternityleave, the employee may take unpaid leave (to be known as special maternity leave) for such period as a


registered medical practitioner certifies as necessary, except that where an employee is suffering from an illnessnot related to the direct consequences of the delivery, an employee shall be entitled to access paid sick leave towhich the employee is entitled, in lieu of, or in addition to, special maternity leave.

(e) Where leave is granted under paragraph (d) of this subclause, during the period of leave an employee mayreturn to work at any time, as agreed between the employer and the employee provided that time does notexceed four weeks from the recommencement date desired by the employee.

(f) Where the pregnancy of an employee then on maternity leave terminates other than by the birth of a living child,it shall be the right of the employee to resume work at a time nominated by the employer which shall not exceedfour weeks from the date of notice in writing by the employee to the employer that the employee desires toresume work.

(g) Where an employee then on maternity leave suffers illness related to the pregnancy, the employee may takesuch paid sick leave as to which the employee is then entitled and such further unpaid leave (to be known asspecial maternity leave) as a registered medical practitioner certifies as necessary before the employee’s returnto work provided that the aggregate of paid sick leave, special maternity leave and maternity leave shall notexceed twelve months.

(4) Paternity leaveAn employee will provide to the employer, at least 10 weeks prior to each proposed period of paternity leave—(a) a certificate from a registered medical practitioner which names the spouse, states that the employee is pregnant

and the expected date of confinement, or states the date on which the birth took place; and(b) written notification of the date on which the employee proposes to start and finish the period of paternity leave.

(5) Adoption leave(a) The employee will notify the employer at least 10 weeks in advance of the date of commencement of adoption

leave and the period of leave to be taken. An employee may commence adoption leave prior to providing suchnotice where through circumstances beyond the control of the employee, the adoption of a child takes placeearlier.

(b) The employer may require an employee to provide confirmation from the appropriate government authority ofthe placement.

(c) The employer shall grant an employee who is seeking to adopt a child such unpaid leave as is required by theemployee to attend any compulsory interviews or examinations as are necessary as part of the adoptionprocedure. Where paid leave is available to the employee, the employer may require the employee to take suchleave in lieu of unpaid leave.

(d) Where the placement of child for adoption with an employee does not proceed or continue, the employee willnotify the employer immediately and the employer will nominate a time not exceeding four weeks from the dateof notification for the employee’s return to work.

(6) Variation of notice periodNotwithstanding the requirement to give at least 10 weeks notice of the date of commencement of parental leave, suchnotice may be for a greater or lesser period, where it is necessary to vary the date of commencement of parental leave dueto a variation in the actual date of arrival of the child. Such variation does not count as a variation for the purposes ofsubclause (7) of this clause.

(7) Variation of period of parental leaveUnless agreed otherwise between the employer and employee, an employee may apply to their employer to change theperiod of parental leave on one occasion. Any such change shall be notified at least four weeks prior to thecommencement of the changed arrangements.

(8) Parental leave and other entitlements(a) An employee may in lieu of or in conjunction with parental leave, access other paid leave entitlements which

the employee has accrued, such as annual leave and long service leave, subject to the total amount of leave notexceeding 52 weeks.

(b) The employer may require an employee on parental leave to be paid any accrued time off in lieu of overtime,during such period of leave and prior to the payment of any other leave entitlements in accordance withparagraph (a) of this subclause.

(9) Transfer to a safe job(a) Where an employee is pregnant and, in the opinion of a registered medical practitioner, illness or risks arising

out of the pregnancy or hazards connected with the work assigned to the employee make it inadvisable for theemployee to continue at the employee’s present work, the employee will, if the employer deems it practicable,be transferred to a safe job at the rate and on the conditions attaching to that job until the commencement ofmaternity leave.

(b) If the transfer to a safe job is not practicable, the employee may elect, or the employer may require theemployee, to commence parental leave.

(10) Entitlement to part-time employment(a) Where an employee is pregnant, and has a doctors certificate advising that it would be preferable for the

employee to work part-time, or where an employee is eligible for parental leave, and the employer agrees, theemployee may work part-time, the terms of which are to be agreed in writing, in one or more periods at anytime until the child’s second birthday or until the second anniversary of the placement of the child.

(b) The work to be performed part-time need not be the work performed by the employee in the employee’s formerposition.

(11) Returning to work after a period of parental leave or part-time work(a) An employee will notify of their intention to return to work after a period of parental leave or part-time work

entered into in accordance with this clause at least four weeks prior to the expiration of the leave or part-timework.


(b) An employee will be entitled to the position that they held immediately before proceeding on parental leave. Inthe case of an employee transferred to a safe job pursuant to subclause (9), the employee will be entitled toreturn to the position they held immediately before such transfer. An employee who entered into part-time workin accordance with subclause (10) will be entitled to return to the employee’s former position.

(c) When such position no longer exists but there are other positions available, which the employee is qualified forand is capable of performing, the employee will be entitled to a position as nearly comparable in status and payto that of their former position.

(12) Replacement employees(a) A replacement employee is an employee specifically engaged or temporarily promoted or transferred, as a result

of an employee proceeding on parental leave.(b) A replacement employee will be informed of the temporary nature of the employment and of the rights of the

employee who is being replaced.(13) Notwithstanding any Award, agreement or other provision to the contrary—

(a) absence on parental leave shall not break the continuity of service of an employee but shall not be taken intoaccount in calculating the period of service for any purpose of the Award.

(b) Commencement of part-time employment in accordance with this clause, and return from part-time to full-timework under this clause, shall not break the continuity of service or employment.

29. Clause 33. - Liberty: Delete this number, title and clause.30. Clause 34. – Superannuation: Delete this number, title and clause and insert the following in lieu thereof—

31. - SUPERANNUATIONEmployees shall be entitled to superannuation benefits in accordance with the provisions of this clause.(1) Definitions—

For the purposes of this clause—(a) “Approved Occupational Superannuation Fund” means a superannuation fund approved by the Occupational

Superannuation Commission.(b) The Fund means the Health Employees Superannuation Trust Australia (HESTA).(c) “Ordinary time earnings” means the actual rate of wage paid by the employer to the employee for ordinary

hours worked and shall include any allowance regularly paid for working ordinary hours and/or for the class ofwork regularly undertaken by the employee, including allowances for working ordinary hours after 6.00p.m.,and or on Saturday morning, and in respect of casual employees, shall include any casual loading prescribed bythe Award but not including any bonuses, commissions, payments for overtime other than overtime paymentswhich are a component of a salary averaging arrangement, or any other extra-ordinary payments, remunerationor allowances including meal allowances.

(d) “Eligible employee” shall mean an employee in respect of which superannuation contributions are required tobe made by virtue of the provisions of the Superannuation Guarantee (Administration) Act 1992 of theCommonwealth. Provided that an eligible employee shall continue to be eligible during any period of paidleave.

(2) Payment—(a) An employer shall contribute an amount not less than the percentage amount prescribed by the Superannuation

Guarantee (Administrative) Act 1992 or its successor, of the ordinary time earnings of each eligible employee tothe account of such employee in the Fund in accordance with the rules of such Fund and the provisions of thisclause.

(b) Contributions shall be calculated on the basis of the employee’s pay period, and shall, unless the rules of theFund provide otherwise, be paid to the fund on a monthly basis.

(3) Members’ Additional Voluntary Contributions—An employee may elect to make additional contributions to the Fund and the employer shall, where such election is madeupon the direction of the employee deduct such contributions from the employee’s wages and pay them to the Fund inaccordance with the direction of the employee and the rules of the Fund.

(4) No contributions shall be made for—(a) Periods of unpaid leave or unauthorised absences; or(b) Annual leave on termination or any other payments on termination.

(5) Employee Entry into Fund—Contributions in accordance with subclause (2) of this clause shall be made by the employer on behalf of each eligibleemployee from the date one month after the employee commences employment.

(6) The employer shall provide the employee with an application to join the Fund and documentation explaining the fundwithin one week of qualifying for entitlement under this clause.

(7) Compliance, Nomination and TransitionNotwithstanding anything contained elsewhere herein which requires that contribution be made to a superannuation fundor scheme in respect of an employee, on and from 30 June 1998—(a) Any such fund or scheme shall no longer be a complying superannuation fund or scheme for the purposes of

this clause unless—(i) the fund or scheme is a complying fund or scheme within the meaning of the Superannuation

Guarantee (Administration) Act 1992 of the Commonwealth; and(ii) under the governing rules of the fund or scheme, contributions may be made by or in respect of the

employee permitted to nominate a fund or scheme;(b) The employee shall be entitled to nominate the complying superannuation fund or scheme to which

contributions are to be made by or in respect of the employee;(c) The employer shall notify the employee of the entitlement to nominate a complying superannuation fund or

scheme as soon as practicable;


(d) A nomination or notification of the type referred to in paragraphs (b) and (c) of this subclause shall, subject tothe requirements of regulations made pursuant to the Industrial Relations Legislation Amendment and RepealAct 1995, be given in writing to the employer or the employee to whom such is directed;

(e) The employee and employer shall be bound by the nomination of the employee unless the employee andemployer agree to change the complying superannuation fund or scheme to which contributions are to be made;

(f) The employer shall not unreasonably refuse to agree to a change of complying superannuation fund or schemerequested by a employee;

Provided that on and from 30 June 1998, and until an employee thereafter nominates a complying superannuation fund orscheme—(g) if one or more complying superannuation funds or schemes to which contributions may be made be specified

herein, the employer is required to make contributions to that fund or scheme, or one of those funds or schemesnominated by the employer;or

(h) if no complying superannuation fund or scheme to which contributions may be made be specified herein, theemployer is required to make contributions to a complying fund or scheme nominated by the employer.

31. Clause 35. – Enterprise Agreements: Delete this number and title and insert the following in lieu thereof—32. - ENTERPRISE AGREEMENTS

32. Clause 32. – Enterprise Agreements: After this clause and insert new number, title and clause as follows—33. - REDUNDANCY

1. Termination of Employment(a) Discussions before termination

(i) Where an employer for any reason, including the cessation or reduction of grant funding, has made adefinite decision that the employer no longer wishes the job the employee has been doing done byanyone and that decision may lead to termination of employment, the employer shall hold discussionswith the employees directly affected and with the Union.

(ii) The discussions shall take place as soon as practicable after the employer has made a definite decisionwhich will invoke the provisions of subclause 1(a)(i) and shall cover, inter alia, any reasons for theproposed terminations, measures to avoid or minimise terminations and measures to mitigate anyadverse effects of any terminations on the employees concerned.

(iii) For the purpose of the discussion, the employer shall, as soon as practicable, provide in writing to theemployees concerned and the Union all relevant information about the proposed terminationsincluding the reasons for the proposed terminations, the number of categories of employees likely tobe affected and the number of employees normally employed and the period over which theterminations are likely to be carried out. Provided that any employer shall not be required to discloseconfidential information, the disclosure of which would be inimical to the employer’s interests.

(b) Transfer to Lower Paid DutiesWhere an employee is transferred to lower paid duties for reasons set out in subclause 1 (a) (i), the employeeshall be entitled to the same period of notice of transfer as the employee would have been entitled to if theemployee’s employment had been terminated, and the employer may at the employer’s option make payment inlieu thereof, an amount equal to the difference between the former ordinary rate of pay and the new lowerordinary time rates for the number of weeks of notice still owing.

(c) Severance Pay(i) In addition to the period of notice prescribed for ordinary termination in Clause 11. - Termination of

Employment subclause 1(a)(i) and 1(a)(ii), and subject to further order of the Commission, anemployee whose employment is terminated for reasons set out in subclause 1(a)(i), shall be entitled tothe following amount of severance pay in respect of a continuous period of service:Period of continuous service Severance payLess than one year nil1 year and up to the completion of 2 years 4 weeks’ pay2 years and up to the completion of 3 years 6 weeks’ pay3 years and up to the completion of 4 years 7 weeks’ pay4 years and over 8 weeks’ pay

(ii) “Week’s pay” means the employee’s current ordinary time hourly rate of pay multiplied by theaverage of weekly hours (excluding overtime) worked over the past 52 weeks.

(d) Employee Leaving During NoticeAn employee whose employment is terminated for reasons set out in subclause 1 (a) (i), may terminate theiremployment during the period of notice and, if so, shall be entitled to the same benefits and payments under thisclause had the employee remained with the employer until the expiry of such notice. Provided that in suchcircumstances, the employee shall not be entitled to payment in lieu of the remainder of the period of notice.

(e) Alternative EmploymentAn employer, in a particular redundancy case, may make application to the Commission to have the generalseverance pay prescription varied if the employer obtains acceptable alternative employment for an employee.

(f) Time off during notice period(i) During the period of notice of termination given by the employer an employee shall be allowed up to

one day’s time off without loss of pay during each week of notice for the purpose of seeking otheremployment.

(ii) If the employee has been allowed paid leave for more than one day during the notice period for thepurpose of seeking other employment, the employee shall, at the request of the employer, be required


to produce proof of attendance at an interview or the employee shall not receive payment for the timeabsent. For this purpose a statutory declaration will be sufficient.

(g) Notice to Commonwealth Employment ServiceWhere a decision has been made to terminate employees in the circumstances outlined in subclause 1 (a) (i), theemployer, shall notify the local office of the Commonwealth Employment Service as soon as possible givingrelevant information including the number and categories of the employees likely to be affected and the periodover which the terminations are intended to be carried out.

(h) Employees ExemptedThis clause shall not apply to employees with less than one year’s continuous service and the general obligationon employers should be no more than to give relevant employees an indication of the impending redundancy atthe first reasonable opportunity, and to take such steps as may be reasonable to facilitate the obtaining by theemployees of suitable alternative employment.

(i) Incapacity to PayAn employer, in a particular redundancy case, may make application to the Commission to have the generalseverance pay prescription varied on the basis of the employer’s capacity to pay.

33. Clause 33. – Redundancy: After this clause insert new title and schedule as follows.SCHEDULE A. – NAMED UNION PARTY

The W.A. Dental Technicians’ and Employees’ Union of Workers34. Schedule A. – Named Union Party: After this Schedule insert new title and schedule as follows—

SCHEDULE B. – RESPONDENTSDr. David BaileyInnaloo Medical/Dental CentreCnr S/Beach Road and Oswald StreetINNALOO WA 6018Dr. Ross BaileyPO Box 209MANDURAH WA 6210Dr. Richard Cook AM8th Floor Exchange House68 St George’s TerracePERTH WA 6000Dr. John DaviesP O Box 864MT LAWLEY WA 6929Dr. Mark Davis5 Eagar CnrLEEMING WA 6149Dr. Peter ElliesBroome Dental ClinicPO Box 600BROOME WA 6725Dr. Graeme Ewers31 Central AvenueSWANBORNE WA 6010Dr. Domenic Faraone42 Woodsome StreetMOUNT LAWLEY WA 6050Dr. Stuart Gairns174 Cambridge StreetWEST LEEDERVILLE WA 6007Dr. Mark Hansen31 Dakin StreetDAGLISH WA 6008Dr. Andrew Heap25 Belhus DriveTRIGG WA 6029Dr. Fiona Kelly100 Chapman RoadGERALDTON WA 6530Dr. Brian KochApplecross Professional CentreP O Box 243APPLECROSS WA 6153Dr. Philip Lawe-Davies4th Floor Kings New Office Tower533 Hay StreetPERTH WA 6000Dr. Carmel Lloyd19 Dunstan StreetBUNBURY WA 6230


Dr. Charles LoveWinthrop Prof CentreSuite 352 Hatherley ParadeWINTHROP WA 6150Dr. David McDonaldBusselton Dental ClinicPO Box 1380BUSSELTON WA 6280Dr. Michael McGuinnessCentral City Dental ClinicExchange House, Level 668 St George’s TerracePERTH WA 6000Dr. Peter McKerracher8 Earls CourtST JOHNS WOOD WA 6010Dr. Peter Munt39 Colin StreetWEST PERTH WA 6005Dr. Colin O’Brien478 Stirling HighwayCOTTESLOE WA 6011Dr. Terence PitsikasS3 Mirrabooka Medical CentreCNR Ilkeston Place and Yirrigan DriveMIRRABOOKA WA 6061Dr. Anthony Poli10 Pritchard RoadGREENMOUNT WA 6056Dr. Albert TanSuite 320 Altona StreetWEST PERTH WA 600035. Appendix – Resolution of Disputes Requirement: Delete this Title and Appendix.36. Appendix – S 49B – Inspection of Records Requirements: Delete this Title and Appendix.

____________________

2003 WAIRC 08553HOSPITAL SALARIED OFFICERS (CEREBRAL PALSY) AWARD 1978


PARTIES HOSPITAL SALARIED OFFICERS ASSOCIATION OF WESTERN AUSTRALIA (UNION OFWORKERS), APPLICANTv.CEREBRAL PALSY ASSOCIATION OF WA INC, RESPONDENT

CORAM COMMISSIONER P E SCOTTDATE OF ORDER THURSDAY, 26 JUNE 2003FILE NOS APPLICATION 1683 OF 2002 AND APPLICATION 14 OF 2003CITATION NO. 2003 WAIRC 08553_________________________________________________________________________________________________________


OrderHAVING heard Mr G Bucknall on behalf of the applicant and Ms C Dorizzi on behalf of the respondents, and by consent, theCommission, pursuant to the powers conferred under the Industrial Relations Act, 1979, hereby orders—

THAT the Hospital Salaried Officers (Cerebral Palsy) Award 1978 (No. 37 of 1976) be varied in accordance with thefollowing Schedule and that such variation shall have effect from the beginning of the first pay period commencing on orafter the 5th day of June 2003.


_________

SCHEDULE1. Clause 1B. - Minimum Adult Award Wage: Delete subclause (5) of this clause and insert the following in lieu

thereof:(5) Juniors shall be paid no less than the wage determined by applying the percentage prescribed in the junior rates provision

referred to in Schedule B - Minimum Salaries to the Minimum Adult Award Wage of $431.40 per week.


2. Clause 2. – Arrangement: Delete this clause and insert the following in lieu thereof: 1. Title1B. Minimum Adult Award Wage 2. Arrangement 3. Scope 4. Area 5. Term 6. Right of Entry 7. Time and Wages Record 8. Termination of Employment 9. Payment of Salaries10. Higher Duties11. Hours12. Overtime13. Meal Money14. Public Holidays15. Annual Leave16. Bereavement Leave17. Sick Leave18. Long Service Leave19. Motor Vehicle Allowances20. Travelling21. Shift Work22. Protective Clothing and Uniforms23. Dispute Settlement Procedure24. Part-Time Employees25. Salaries26. Parental Leave27. Casual Employees28. Enterprise Agreements29. Supported Wage System30. Superannuation31. Redundancy32. Salary/Remuneration Packaging

Schedule A - Named Union PartySchedule B - Minimum SalariesSchedule C - Classification and Grading of EmployeesSchedule D - Technician (Bio-engineering) Classification CriteriaSchedule E - Respondents

3. Clause 2A. - Wage Fixing Principles: Delete this number, title and clause.4. Clause 6. - Right of Entry: Delete this clause insert the following in lieu thereof:A relevant person or authorised representative of the Union, as defined by the Industrial Relations Act 1979 as amended from timeto time or it’s successor (the “Act”), may enter, during working hours, the premises of the employer in accordance with theprovisions of “Part II Division 2F – Keeping of and access to employment records” and/or “Part II Division 2G – Right of entry andinspection by authorised representative” of the Act.5. Clause 7. - Inspection of Salary Record: Delete this number, title and clause and insert the following in lieu

thereof:

7. - TIME AND WAGES RECORDA record shall be kept in the premises occupied by the employer wherein shall be entered:—The following are to be recorded for each employee:1. On a daily basis—

a) start/finish time;b) paid time; andc) breaks.

2. For each pay period—a) designation;b) gross and net pay; andc) deductions, including reasons for these deductions.

3. The following records must also be kept—a) employees nameb) date of birth if under 21 years of age;c) start date;d) all leave paid, partly paid or unpaid;f) relevant information for LSL calculations;g) any additional information required by the industrial instrument; andh) any other information necessary to show remuneration and benefits comply with the Agreement.


6. Clause 8. - Contract of Service: Delete this number, title and clause and insert the following in lieu thereof—8. - TERMINATION OF EMPLOYMENT

(1) Notice of termination by employer(a) In order to terminate the employment of an employee, the employer shall give to the employee the following

written notice of dismissal:Period of continuous service Period of noticeLess than 1 year 1 week1 year and up to the completion of 3 years 2 weeks3 years and up to the completion of 5 years 3 weeks5 years and over 4 weeks

(b) In addition to the notice prescribed in subclause (1) (a), employees over forty-five years of age at the time of thegiving of the notice with not less than two years continuous service, shall be entitled to an additional week’snotice.

(c) Payment in lieu of notice prescribed in subclauses (1) (a) and/or (b), shall be made if the appropriate noticeperiod is not given. Provided that employment may be terminated by part of the period of notice specified andpart payment in lieu thereof.

(d) In calculating any payment in lieu of notice the wages an employee would have received in respect of theordinary time the employee would have worked during the period of notice had their employment not beenterminated shall be used.

(e) The period of notice in this clause shall not apply in the case of conduct which justifies instant dismissal or inthe case of casual employees or employees engaged for a specific period of time or for a specific task or tasks.

(2) Notice of termination by employeeThe notice of termination required to be given by an employee shall be the same as that required of an employer, save andexcept that there shall be no additional notice based on the age of the employee concerned.If an employee fails to give notice the employer shall have the right to withhold moneys due to the employee with amaximum amount equal to the ordinary time rate of pay for the period of notice.

(3) Time-off during notice periodWhere an employer has given notice of termination to an employee, an employee shall be allowed up to one day’s time-off without loss of pay for the purpose of seeking other employment. The time-off shall be taken at times that areconvenient to the employee after consultation with the employer.

(4) Summary DismissalNotwithstanding the provisions of this clause, an employer shall have the right to summarily dismiss any employeewithout notice for misconduct which justifies instant dismissal, and in such case the wages shall be paid up to the time ofdismissal only.

7. Clause 9. - Payment of Salaries: Delete subclause (2)(a) of this clause and insert the following in lieu thereof—(2) (a) (i) Where the employer requires the employee to establish an account for the purpose of receiving the

employees salary the employee shall pay the costs associated with the establishment and maintenanceof such accounts.

(ii) The employer may require such an account to be established at a major bank or building society.8. Clause 11. – Hours: Delete subclause (3) of this clause and insert the following in lieu thereof—(3) The lunch interval shall be taken between 11.30 a.m. and 2.30 p.m. at a time agreed between the employer and the

employee.9. Clause 12. – Overtime: Delete this clause and insert the following in lieu thereof—(1) All time worked at the direction of the employer outside the employees ordinary working hours shall be paid for at the

rate of time and one-half for the first two hours and double time thereafter.Provided that overtime rates shall not apply until after the rostering parameters for a full-time employee are exceeded oneach day.

(2) All time worked at the direction of the employer on a Saturday after 12.00 noon or a Sunday shall be paid for at the rateof double time.

(3) All time worked at the direction of the employer outside the employees ordinary working hours-prescribed in Clause 11. -Hours on a public holiday shall be paid for at the rate of double time and one-half.

(4) In lieu of payment for overtime an employee, on request, shall be allowed time off proportionate to the payment to whichthe employee is entitled up to a maximum of five days per annum.Time off shall be taken at a time convenient to the employer. If the employer agrees, an employee may take time off inexcess of five days per annum.

(5) An employee who is required to work more than two hours’ overtime on any day shall be allowed an unpaid break of atleast thirty minutes after the completion of two hours’ overtime.

(6) (a) For the purposes of this Award an employee is on-call when the employee is directed by the employer to remainat such a place as will enable the employer to readily contact him during the hours when the employee is nototherwise on duty. In so determining the place at which the employee shall remain, the employer may requirethat place to be within a specified radius from the hospital.

(b) An employee shall be paid an allowance of 18.75% of the hourly rate of an employee on the classification of alevel 5/10 increment 1 as detailed in clause 3 (a) of Schedule B of this Award.Provided that payment in accordance with this subclause shall not be made with respect to any period for whichpayment is other wise made in accordance with the provisions of this clause when the employee is recalled towork.

(c) Where the employer determines that there is a need for an employee to be on-call or to provide a consultativeservice and the means of contact is to be by telephone or telepage, the employer shall where the telephone is notalready installed bear the cost of such installation.


(d) (i) Where the employee pays or contributes towards the payment of the rental of such telephone theemployer shall pay the employee an amount being a proportion of the telephone rental calculated onthe basis that for each seven days on which an employee is required to be on-call, the employer shallpay the employee 1/52nd of the annual rental paid by the employee.

(ii) Provided that where as a usual feature of the work employee is regularly required to be on-call or toprovide a consultative service the employer shall pay the full amount of the telephone rental.

(e) Where the employer determines that the means of contact is to be by a telepage or similar device the employershall supply such device to the employee at no cost to the employee.

(f) Where the employer determines otherwise or it is not possible to contact an employee by telephone or telepage,the employer may send a taxi to the employee’s residence or such other place with instructions for theemployees to return to work.

(g) Notwithstanding the provisions of this subclause, where the employer and the union, in writing, agree otherarrangements may be made for compensation of on-call work.

(7) (a) If an employee is recalled to work for any purpose the employee shall be paid a minimum of two hours at theappropriate overtime rate but the employee shall not be obliged to work for two hours if the work for which theemployee was recalled is completed in less time, provided that if an employee is called out within two hours ofstarting work on a previous call the employee shall not be entitled to any further payment for the time workedwithin that period of two hours.

(b) If an employee is recalled to work the employee shall be provided with transport, free of charge, from theemployee’s home to the place of employment and return, or be paid the motor vehicle allowance provided inClause 19. - Motor Vehicle Allowances of this Award.

(8) For the purpose of assessing overtime each day shall stand-alone.10. Clause 13. - Meal Money: Delete this clause and insert the following in lieu thereof:An employee required to work overtime before or after the ordinary working hours on any day, shall, when such additional dutynecessitates taking a meal away from the employee’s usual place of residence, be supplied by the employer with any meal requiredor be reimbursed for each meal purchased at the rate of $7.75 for breakfast, $9.55 for the midday meal, and $11.50 for the eveningmeal. Provided that the overtime worked before or after the meal break totals not less than two hours. Such reimbursement shall bein addition to any payment for overtime to which the employee is entitled.Meal allowance increases shall be calculated by estimating the percentage change from the appropriate CPI quarter index numbernearest to the date the allowance last changed to the latest quarter index number. This percentage change is then applied to theallowance previously paid.11. Clause 14. - Holidays and Annual Leave: Delete this number, title and clause and insert the following in lieu

thereof:14. - PUBLIC HOLIDAYS

(1) (a) The following days or the days observed in lieu thereof shall, subject as hereinafter provided, be allowed asholidays without deduction of pay, namely New Year’s Day, Australia Day, Good Friday, Easter Monday,Anzac Day, Labour Day, Foundation Day, Sovereign’s Birthday, Christmas Day, Boxing Day.An additional two (2) days of leave will be granted in lieu of the Public Service Holidays at Easter andChristmas. These days are to be taken on days nominated by the employer.Provided that another day may be taken as a holiday by arrangement between the parties in lieu of any of thedays referred to in that subclause.In such cases time and one-half shall be paid during ordinary hours worked on any of the above mentionedholidays.

(b) Where any of the days mentioned in paragraph (a) hereof falls on a Saturday or Sunday, such holiday shall beobserved on the next succeeding Monday and where Boxing Day falls on a Sunday or a Monday, such holidayshall be observed on the next succeeding Tuesday; in each case the substituted day shall be deemed a holidaywithout deduction of pay in lieu of the day for which it is substituted.

(c) An employee who is instructed to be ready to be on-call in accordance with subclause (6) of Clause 12. -Overtime on a day observed as a public holiday during the ordinary working hours shall be allowed to observethat day on a day mutually acceptable to the employer and the employee. An employee referred to in thisparagraph shall be paid at the rate of time and one-half for work performed during the employee’s ordinaryhours prescribed in Clause 11 - Hours on that day.

12. Clause 14. – Public Holidays: After this clause insert new number, title and clause as follows:15. - ANNUAL LEAVE

(1) Except as hereinafter provided, a period of four consecutive weeks leave shall be allowed to an employee by theemployer, for each year of continuous service. Such leave shall accrue on a weekly basis

(2) (a) An employee is to be paid for the period of annual leave at the time payment is made in the normal course ofemployment, unless the employee requests in writing that the employee be paid before the period of leavecommences in which case the employee is to be so paid.

(b) If—(i) an employee lawfully leaves their employment, or(ii) an employee’s employment is terminated by the employer through no fault of the employee,before the employee has taken annual leave to which the employee is entitled, the employee is to be paid for allof that annual leave.

(c) If—(i) an employee leaves their employment, or(ii) that employment is terminated by the employer,in circumstances other than those referred to in subclause (2) (b) before the employee has taken annual leave towhich the employee is entitled, the employee is to be paid for any untaken leave that related to a completed year


of service, except if the employee is dismissed for misconduct, the employee is not entitled to be paid for anyuntaken leave that relates to a year of service that was completed after the misconduct occurred.

(3) If any public holiday as prescribed by subclause (1) of clause 14. - Public Holidays falls within an employee’s period ofannual leave and is observed as a day which in the case of that the employee would have been an ordinary working daythere shall be added to that period one day being an ordinary working day for each such public holiday.

(4) Where an employer and an employee have not agreed when the employee is to take the employee’s annual leave, subjectto subsection (1), the employer is not to refuse the employee taking, at any time suitable to the employee, any period ofannual leave the entitlement to which accrued more than 12 months before that time.

(5) The annual leave prescribed in subclause (1) of this clause may be taken in lesser periods, provided that the employee soagrees.Provided further that the maximum number of single day absences allowable during any twelve month accrual periodshall be five.

(6) (a) when an employee proceeds on annual leave, the employee shall be paid a loading of 17½% of the employee’sordinary salary for four weeks at the time of taking such leave.If an employee takes annual leave in two or more periods the employee shall be paid one-twentieth of theloading for each day of leave at the time of taking each period of leave.

(b) The loading prescribed in this subclause shall not apply to proportionate annual leave on termination.(7) Any time in respect of which an employee is absent from work, except time for which that employee is entitled to claim

paid sick leave or the first calendar month of any absence on workers’ compensation, or any absence on annual leave,long service leave or bereavement leave, shall not count for the purpose of determining annual leave entitlements.

(8) Notwithstanding subclause (2) of this Clause and Clause 24. - Part-Time Employees of this Award, the following mayapply:—(a) A full-time employee who, during a qualifying period towards an entitlement of annual leave was employed

continuously on both a full-time and part-time basis may elect to take a lesser period of annual leave calculatedby converting the part-time service to equivalent full-time service.

(b) A part-time employee may elect to take a lesser period of annual leave calculated by converting any portion ofthe part-time service to equivalent full-time service.

13. Clause 15. - Compassionate Leave: Delete this number title and clause and insert the following in lieu thereof:16. - BEREAVEMENT LEAVE

Entitlement to bereavement leave(1) (a) Subject to subclause (2) of this clause, on the death of—

(i) the spouse/partner or de facto spouse/partner of an employee;(ii) the child or step-child of an employee;(iii) the brother, sister, step brother or sister of an employee;(iv) the parent step-parent or grandparent of an employee; or(v) any other person who, immediately before that person’s death, lived with the employee as a member

of the employee’s family,the employee is entitled to leave up to and including the funeral of such person and be paid bereavement leaveof up to 2 days.

(b) The 2 days need not be consecutive.(c) Bereavement leave is not to be taken during a period of any other kind of leave.

(2) Proof in support of claim for leaveAn employee who claims to be entitled to paid leave in accordance with subclause (1) hereof is to provide to theemployer, if so requested by the employer, evidence that would satisfy a reasonable person as to—(a) the death that is the subject of the leave sought; and(b) the relationship of the employee to the deceased person.

14. Clause 16. - Sick Leave: Delete this number title and clause and insert the following in lieu thereof—17. – SICK LEAVE

(1) An employee shall be entitled to payment for non-attendance on the grounds of personal ill health for 12 1/2 days perannum; such sick leave shall accrue on a weekly basis.If the full period of sick leave as prescribed is not taken in any year, such portion as is not taken shall be cumulative fromyear to year.Payment under this subclause may be adjusted at the end of each calendar year or at the time the employee leaves theservice of the employer in the event of the employee being entitled by service subsequent to the illness to a greaterallowance than that made at the time the sickness occurred.

(2) An employee shall not be entitled to receive any salary from the employer for any time lost through any accidentwherever sustained arising out of the employee’s own wilful default, or for sickness arising out of the employee’s ownserious misconduct.

(3) (a) No employee shall be entitled to the benefits of this clause unless the employee produces proof satisfactory tothe employer of sickness but the employer shall not be entitled to a medical certificate unless the absence is formore than three working days.

(b) The requirement to provide medical certificates under this clause shall also be satisfied if the employee is ableto provide alternative evidence that would satisfy a reasonable person of the entitlement to sick leave.

(4) This clause shall not apply where an employee is entitled to compensation under the Workers’ Compensation andRehabilitation Act 1981.

(5) Where an employee is ill during the period of annual leave and produces at the time or as soon thereafter a medicalevidence to the satisfaction of the employer that the employee was as a result of the employee’s illness, confined to their


place of residence or a hospital for a period of seven days, the employee may with the consent of the employer, be grantedat a time convenient to the employer additional leave equivalent to the period during which the employee was soconfined.

15. Clause 17. - Long Service Leave: Delete this number title and clause and insert the following in lieu thereof—18. – LONG SERVICE LEAVE

(1) An employee shall be entitled to thirteen weeks long service leave on full pay if the employee has completed—(a) seven years’ continuous service under the terms of this Award, or(b) eight and a half years’ continuous service, of which not less than eighteen months shall have been served in a

capacity which would normally entitle that employee to long service leave on the basis laid down for full-timeState Government wages employees.

(2) For each and every subsequent period of seven years’ continuous service an employee shall be entitled to an additionalthirteen weeks long service leave on full pay.

(3) Upon application by an employee, an employer may approve of the taking by the employee:-(a) of double the period of long service leave entitlement on half pay, in lieu of the period of long service leave

entitlement on full pay; or(b) of any portion of the employee’s long service leave entitlement on full pay or double such period on half pay.(c) A full-time employee who, during a qualifying period towards an entitlement of long service leave was

employed continuously on both a full-time and part - time basis may elect to take a lesser period of long serviceleave calculated by converting the part - time service to equivalent full-time service.

(d) Notwithstanding the provisions of paragraph (b) of this subclause an employee who has elected to compact anaccrued entitlement to long service leave in accordance with paragraph (c) of this subclause shall only take suchleave in one period of full pay.

(4) Continuous service shall not include the period during which the employee is on long service leave or any periodexceeding two weeks an employee is absent on leave without pay.

(5) An employee who resigns or is dismissed, shall not be entitled to long service leave or payment for long service leaveother than leave that had accrued to the employee prior to the date on which the employee resigned or the date of theoffence for which the employee is dismissed.

(6) Any public holiday occurring during the period in which an employee is on long service leave will be treated as part ofthe long service leave, and extra days in lieu thereof shall not be granted.

(7) Long service leave shall be taken as it falls due at the convenience of the employer but within three years next afterbecoming entitled thereto. Provided that the employer may approve the accumulation of long service leave not exceedingsix months.

(8) A lump sum payment for long service leave accrued in accordance with this clause and for pro-rata long service leaveshall be made in the following cases:-(a) To an employee who retires at or over the age of fifty-five years or who has retired on the grounds of ill health,

provided that no payment shall be made for pro-rata long service leave unless the employee has completed notless than twelve months’ continuous service.

(b) To an employee who has retired for any other cause. Provided that no payment shall be made for pro-rata longservice leave unless the employee had completed not less than three years’ continuous service before the date ofthe employee’s retirement.

(c) To the widow of an employee or such other person as may be approved by the employer in the event of thedeath of the employee. Provided that no payment shall be made for pro-rata long service leave unless theemployee had completed not less than twelve months’ continuous service prior to the date of the employee’sdeath.

(9) A calculation of the amount due for long service leave accrued and for pro-rata long service leave shall be made at therate of salary of the employee at the date of retirement, resignation or death, whichever applies and no such payment shallexceed the equivalent of twelve months’ salary.

(10) Long service leave accrued prior to the issue of this Award shall remain to the credit of each employee.(11) Subject to the provisions of subclauses (4), (5), (7), (8) and (12) of this clause, the service of an employee shall not be

deemed to have been broken—(a) by resignation, if the employee resigns from the employment of an employer a party to this Award and

commences with another employer a party to this Award within one working week of the expiration of anyperiod for which payment in lieu of annual leave or holidays has been made by the employer from whom theemployee resigned or, if no such payment has been made, within one working week of the day on which theemployee’s resignation became effective;

(b) if the employee’s employment is ended by the employer a party to this Award for any reason other thanmisconduct or unsatisfactory service but only if—(i) the employee resumes employment with an employer a party to this Award not later than six months

from the day on which the employee’s employment ended; and(ii) payment pursuant to subclause (8) of this clause has not been made; or

(c) by any absence approved by the employer as leave whether with or without pay.(12) The expression “continuous service” in this clause includes any period during which an employee is absent on full pay or

part pay, from the employee’s duties, but does not include—(a) any period exceeding two weeks during which the employee is absent on leave without pay;(b) any period during which the employee is taking the employee’s long service leave entitlement or any portion

thereof;(c) Any service of the employee who resigns or is dismissed, other than service prior to such resignation or to the

date of any offence in respect of which the employee is dismissed when such prior service has actually entitledthe employee to long service leave under this clause.


(13) Provided that any period in excess of one month that an employee is absent on workers’ compensation shall not count asservice in determining an entitlement to long service leave.

(14) “Provided that notwithstanding Clause 24. - Part-Time Employees of this Award, a part-time employee may elect to takea lesser period of long service leave calculated by converting any portion of the part-time service to equivalent full-timeservice.”

16. Clause 18. - Motor Vehicle Allowances: Delete this number, title and clause and insert the following in lieuthereof—

19. - MOTOR VEHICLE ALLOWANCES(1) Allowance for Employees Required to Supply and Maintain a Vehicle as a Term of Employment—

(a) An employee who is required to supply and maintain a motor vehicle for use when travelling on officialbusiness as a term of employment and who is not in receipt of an allowance provided by subclause (5) shall bereimbursed monthly in accordance with the appropriate rates set out in subclause (7) for journeys travelled onofficial business and approved by the employer or an authorised employee.

(b) An employee who is reimbursed under the provisions of subclause (1)(a) will also be subject to the followingconditions:-(i) For the purposes of subclause (1) (a) an employee shall be reimbursed with the appropriate rates set

out in subclause (7) for the distance travelled from the employee’s residence to place of duty and forthe return distance travelled from place of duty to residence except on a day where the employeetravels direct from residence to headquarters and return and is not required to use the vehicle onofficial business during the day.

(ii) Where an employee, in the course of a journey, travels through two or more separate areas,reimbursement shall be made at the appropriate rate applicable to each of the areas traversed as set outin subclause (7).

(iii) Where an employee does not travel in excess of 4000 kilometres in a year an allowance calculated bymultiplying the appropriate rate per kilometre by the difference between the actual distance travelledand 4000 kilometres shall be paid to the employee provided that where the employee has less than12 months’ qualifying service in the year then the 4000 kilometre distance will be reduced on a prorata basis and the allowance calculated accordingly.

(iv) Where a part-time employee is eligible for the payment of an allowance under (iii) above suchallowance shall be calculated on the proportion of total hours worked in that year by the employee tothe annual standard hours had the employee been employed on a full-time basis for the year.

(v) An employee who is required to supply and maintain a motor vehicle for use on official business isexcused from this obligation in the event of the employee’s vehicle being stolen, consumed by fire, orsuffering a major and unforeseen mechanical breakdown or accident, in which case all entitlement toreimbursement ceases while the employee is unable to provide the motor vehicle or a replacement.

(vi) It shall be open to the employer or the employers representative to elect to waive the requirement thatan employee supply and maintain a motor vehicle for use on official business, but three months’written notice of the intention so to do shall be given to the employee concerned.

(2) Allowance for Employees Relieving Employees Subject to Subclause (1)—(a) An employee not required to supply and maintain a motor vehicle as a term of employment who is required to

relieve an employee required to supply and maintain a motor vehicle as a term of employment shall bereimbursed all expenses incurred in accordance with the appropriate rates set out in subclause (7) for alljourneys travelled on official business and approved by the employer or an authorised employee where theemployee is required to use the employee’s vehicle on official business whilst carrying out the relief duties.

(b) For the purposes of subclause (2)(a) an employee shall be reimbursed all expenses incurred in accordance withthe appropriate rates set out in subclause (7) for the distance travelled from the employee’s residence to place ofduty and the return distance travelled from place of duty to residence except on a day where the employeetravels direct from residence to headquarters and return and is not required to use the vehicle on officialbusiness during the day.

(c) Where an employee in the course of a journey travels through two or more separate areas, reimbursement shallbe made at the appropriate rate applicable to each of the areas traversed as set out in subclause (7).

(d) For the purposes of this subclause the allowance provided in subclause (1) (b) (iii) and (iv) shall not apply.(3) Allowance for Other Employees Using Vehicle on Official Business—

(a) An employee who is not required to supply and maintain a motor vehicle for use when travelling on officialbusiness as a term of employment, but when requested by the employer or an authorised employee, voluntarilyconsents to use the vehicle and who is not in receipt of an allowance provided by subclause (5) shall, forjourneys travelled on official business approved by the employer or an authorised employee be reimbursed allexpenses incurred in accordance with appropriate rates set out in subclauses (8) and (9).

(b) For the purpose of subclause (3) (a) an employee shall not be entitled to reimbursement for any expensesincurred in respect to the distance between the employee’s residence and headquarters and the return distancefrom headquarters to residence.

(c) Where an employee in the course of a journey travels through two or more separate areas, reimbursement shallbe made at the appropriate rate applicable to each of the areas traversed as set out in subclause (8).

(4) Allowance for Towing Employer’s Caravan or Trailer—In cases where employees are required to tow employer’s caravans on official business, the additional rate shall be threecents per kilometre. When an employer’s trailer is towed on official business the additional rate shall be two cents perkilometre.

(5) Commuted Allowance—The employer may authorise a commuted amount for reimbursement of costs for motor vehicles or any other conveyancebelonging to an employee.

(6) The employer may increase the rates prescribed by this clause in any case in which it is satisfied that they are inadequate.


(7) Requirement to supply and maintain a Motor Car—

Rate (cents) per kilometreArea Details Engine Displacement (in cubic centimetres)

Over 2600cc Over1600cc 1600ccto 2600cc and under

Metropolitan AreaFirst 4000 kilometres 136.3 118.4 103.5Over 4000 up to 8000 kms 56.7 49.1 43.7Over 8000 up to 16000 kms 30.2 26.1 23.8Over 16000 kms 31.6 27.2 24.5South West Land DivisionFirst 4000 kilometres 139.4 121.3 106.4Over 4000 up to 8000 kms 58.3 50.6 45.1Over 8000 up to 16000 kms 31.3 27.1 24.7Over 16000 kms 32.5 28.0 25.2North of 23.5° South LatitudeFirst 4000 kilometres 154.4 135.1 118.9Over 4000 up to 8000 kms 63.9 55.7 49.7Over 8000 up to 16000 kms 33.7 29.2 26.7Over 16000 kms 33.4 28.7 25.8Rest of StateFirst 4000 kilometres 144.1 125.2 109.6Over 4000 up to 8000 kms 60.3 52.3 46.5Over 8000 up to 16000 kms 32.4 28.0 25.5Over 16000 kms 33.3 28.5 25.7

(8) Voluntary use of a Motor Car—Metropolitan Area 63.3 54.9 48.7South West Land Division 65.1 56.5 50.2North of 23.5° South Latitude 71.4 62.3 55.5Rest of the State 67.3 58.4 51.8

(9) Voluntary use of a Motor Cycle—21.9

Distance Travelled Duringa Year on Official Business Rate

Cents per kilometre

Rate per kilometre 21.9

(10) In this clause the following expressions shall have the following meanings:—“A year” means twelve months commencing on the first day of July and ending on the thirtieth day of June nextfollowing.“South West Land Division” means the South West Land Division as defined by section 28 of the Land Act, 1933-1971,excluding the area contained within the Metropolitan Area.“Rest of the State” means that area south of 23.5 degrees south latitude, excluding the Metropolitan Area and the SouthWest Land Division.“Term of Employment” means a requirement made known to the employee at the time of applying for the position byway of publication in the advertisement for the position, written advice to the employee contained in the offer for theposition or oral communication at interview by an interviewing employee and such requirement is accepted by theemployee either in writing or orally.

(11) The allowances in this clause shall be varied in accordance with any movement in the allowances in the Public ServiceAward 1992.

17. Clause 19. – Travelling: Delete this number, title and clause and insert the following in lieu thereof—20. – TRAVELLING

All reasonable out of pocket and accommodation expenses and all travelling expenses incurred by an employee in the discharge ofthe employee’s duties shall be paid at least once a month by the employer.18. Clause 20. - Shift Work: Delete this number, title and clause and insert the following in lieu thereof:

21. - SHIFT WORK(1) (a) The ordinary hours of work may be worked on rostered shifts, which provide an average of not more than forty

hours per week over each roster period. Such roster may provide that the hours of work need not be worked onfive consecutive days and it may provide that ordinary hours can be worked on afternoon or night shift or on aSaturday or a Sunday.

(b) The spread of shift shall mean the period of time between an employee commencing and finishing theemployee’s ordinary day’s work and shall not exceed ten hours.

(2) For the purposes of this clause:—(a) “Afternoon Shift” shall mean a shift, which commences at or after 12.00 midday and before 6.00 p.m.(b) “Night Shift” shall mean a shift which commences at or after 6.00 p.m. and before 6.01 a.m.


(3) (a) A shift employee shall be paid the following loadings—(i) Twelve and one half per cent of the daily rate of salary for each afternoon or night shift worked in

ordinary hours.(ii) fifty percent of the employee’s daily rate of salary for each shift worked on a Saturday or a Sunday in

ordinary hours.(iii) one hundred and fifty percent of the employee’s daily rate of salary for a shift worked on a public

holiday in ordinary hours.Provided that if the employer agrees the employee may be paid a loading of fifty percent of the employee’sdaily rate of salary and in addition be allowed to observe the holiday on a day mutually acceptable to theemployer and the employee.

(b) The loadings prescribed in subclause (a) hereof shall be in addition to the shift employees ordinary salary asprescribed and the employee shall be paid the loading applicable to the majority of the shift.

(4) All time worked by a shift employee outside the employee’s ordinary hours shall be paid for as overtime in accordancewith Clause 12 - Overtime.

(5) If it becomes necessary for shift employees to work two consecutive shifts occasioned by the absence of anotheremployee, the employee shall not be required to attend for duty within ten hours of ceasing duty on the second shift.

(6) When any of the days observed as a public holiday as prescribed in subclause (1) of clause 14. - Public Holidays fall on aday when a shift employee is rostered off duty and the employee has not been required to work on that day the employeeshall be paid as if the day was an ordinary working day or if the employer agrees be allowed to take a day’s holiday inlieu of the holiday at a time mutually acceptable to the employer and the employee.

(7) (a) Shift workers who are regularly rostered to work on Sundays and public holidays shall be allowed one week’sleave in addition to that prescribed in subclause (1) of Clause 15. - Annual Leave.

(b) Where an employee with twelve months continuous service is engaged for part of a qualifying period on shiftsreferred to in paragraph (a) hereof, the employee shall be entitled to so have the period of annual leave to whichthe employee is otherwise entitled under this Award increased by one-twelfth of a week for each completedmonth the employee is continuously so engaged.

(c) Where the employment of an employee is terminated, other than for serious misconduct the employee shall bepaid pro rata annual leave, such leave shall accrue on a weekly basis

(8) (a) When a shift employee, other than a shift employee referred to in subclause (7) hereof, proceeds on annualleave the employee shall be paid a loading of either 17½% of the employee’s ordinary salary for four weeks oran amount equivalent to the shift and weekend penalties the employee would have received if the employee hadnot proceeded on annual leave, whichever amount is the greater.

(b) When a shift employee, referred to in subclause (7) hereof, proceeds on annual leave the employee shall be paida loading of either 20% of the employee’s ordinary salary for five weeks or an amount equal to the shift andweekend penalties the employee would have received if the employee had not proceeded on annual leave,whichever amount is the greater.

(c) The loadings referred to in this subclause shall be paid at the time the employee takes annual leave and wherethe employee takes annual leave in two or more periods the employee shall be paid one-twentieth of the loading(or one twenty-fifth of the loading in the case of a shift employee referred to in subclause (7) hereof) for eachday of leave taken.

(9) A shift employee shall be entitled to pro-rata payment of the annual leave loading in the same circumstances as otherworkers covered by this Award.

19. Clause 21. - Protective Clothing and Uniforms: Delete this number, title and clause and insert the following in lieuthereof—

22. – PROTECTIVE CLOTHING AND UNIFORMS(1) Where an employee is required by the employer to wear a special uniform such uniform shall be provided by the

employer.The cost of laundering such uniform or uniforms shall be met by the employer, or, if the employee agrees, an allowancefor laundering may be paid to the employee.

(2) Where an employee is required by the employer and/or the nature of the work requires the wearing of protective clothing,the employer shall provide and launder protective clothing at the employer’s own expense.

(3) In the event of a dispute as to the provision or laundering of uniforms or special clothing, the matter may be dealt with inaccordance with clause 23. - Dispute Settlement Procedure.

20. Clause 22. - Board of Reference: Delete this number, title and clause and insert the following in lieu thereof—

23. - DISPUTE SETTLEMENT PROCEDURE(1) Preamble

Subject to the provisions of the Industrial Relations Act 1979 (as amended) any grievance, complaint or dispute, or anymatter raised by the Union or an employer and the employees of the employer, shall be settled in accordance with theprocedures set out herein.This clause in no way limits the rights of employers, employees and the Union under the Occupational Health, Safety andWelfare Act 1984 or other related legislation.

(2) ProcedureWhere the matter is raised by an employee or a group of employees the following steps shall be observed.(a) The employee(s) concerned shall discuss the matter with the immediate supervisor. If the matter cannot be

resolved at this level the supervisor shall, within two working days, refer the matter to a more senior officernominated by the employer and the employee(s) shall be advised accordingly.

(b) The senior officer shall, if able, answer the matter raised within five working days of it being referred and if thesenior officer is not so able, refer the matter to the employer for the employers attention, and the employee(s)shall be advised accordingly.


(c) (i) If the matter has been referred in accordance with paragraph (b) above the employee(s) or the shopsteward shall notify the Union Secretary or nominee, to enable the opportunity of discussing thematter with the employer.

(ii) The employer shall, as soon as practicable after considering the matter before it, advise theemployee(s) or, where necessary the Union of its decision. Provided that such advice shall be givenwithin 21 calendar days of the matter being referred to the employer.

(d) Should the matter remain in dispute after the above processes have been exhausted either party may refer thematter to the Western Australian Industrial Relations Commission.The status quo (i.e. the condition applying prior to the issue arising) will remain until the issue is resolved inaccordance with the procedure outlined above.

(e) Nothing in this procedure shall preclude the parties reaching agreement to shorten or extend the period specifiedin subclauses (2)(a), (b) or (c)(ii).

21. Clause 23. - Part - Time Workers: Delete this number, title and clause and insert the following in lieu thereof—

24. - PART-TIME EMPLOYEES(1) A “part-time employee” means an employee regularly employed to work less hours than prescribed in Clause 11. - Hours

and observed by the employer.(2) When an employee is employed under the provisions of this clause, the employee shall be paid at a rate pro-rata to the

rate prescribed for the class of work in which the employee is engaged in the proportion to which the employees weeklyhours bear to the weekly hours of an employee engaged full-time on the class of work in the employer’s premises.

(3) When an employee is employed under the provisions of this clause, the employee shall be entitled to the provisions of thisAward and any allowances in accordance with the provisions of this Award with payment being in the proportion towhich the employees weekly hours bear to the weekly hours of an employee engaged full-time in that class of work.

22. Clause 24. – Non-Reduction: Delete this number, title and clause.23. Clause 25. – Salaries:

A. Delete subclause (1) of this clause and insert the following in lieu thereof—(1) The minimum rates of salaries to be paid to employees covered by this Award shall be those set out in Schedule B

attached to this Award. Nothing contained in this Award shall preclude the payment by way of an allowance an amount inaddition to that prescribed for the classification of a position set out in Schedule C of this Award.B. Delete subclause (2) of this clause and insert the following in lieu thereof—

(2) Transition—The provisions of this subclause shall apply notwithstanding provisions elsewhere in this Award.(a) Interpretation of classifications to salary scale

Subject to any reclassification whether agreed or arbitrated, the classifications set out in Schedule C of theAward shall be related to the salaries in Schedule B in accordance with the classifications table and grading ofemployees set out in Schedule C

(b) Higher DutiesWhere an employee was acting in a position classified higher than the employee’s substantive position prior tothe introduction of this clause and who continued to act in the same position at the operative date of this clause,the employee shall receive higher duties allowance equivalent to the salary that would have been payable to thepermanent occupant.Provided that should the employee cease to act in that higher classified position, the future periods of acting inthe same position or other positions classified higher than the employee’s substantive classification shall be paida higher duties allowance in accordance with Clause 10. - Higher Duties, of the Award.

(c) Incremental Dates(i) Where an employee is in receipt of a salary that equates to a salary under this clause and the

employee is classified at that level, the employee will remain on that salary and retain the employee’scurrent incremental date.

(ii) An employee in receipt of a salary, which does not equate to a salary under this clause, shall beplaced on the nearest salary point higher at the date of operation of this clause, which shall becomethe employee’s new incremental date.

(d) Maintenance of SalaryWhere an employee’s maximum salary is reduced as a result of the introduction of this agreement, the followingshall apply—All employees appointed to a classification or level prior to the date of implementation of this clause, willprogress through the salary ranges (as adjusted by general salary movements) applicable to that classification orlevel irrespective of the level determined by this clause.

24. Clause 26. – Preference: Delete this number, title and clause.25. Clause 27. – Liberty to Apply: Delete this number, title and clause.26. Clause 28. – Maternity Leave: Delete this number, title and clause and insert the following in lieu thereof.

26. - PARENTAL LEAVEInterpretation(1) In this clause—

“adoption”, in relation to a child, is a reference to a child who—(i) is not the natural child or the step-child of the employee or the employee’s spouse;(ii) is less than 5 years of age; and(iii) has not lived continuously with the employee for 6 months or longer;


“continuous service” means service under an unbroken contract of employment and includes—(i) any period of parental leave; and(ii) any period of leave or absence authorised by the employer or by this workplace agreement;

“expected date of birth” means the day certified by a medical practitioner to be the day on which the medicalpractitioner expects the employee or the employee’s spouse, as the case may be, to give birth to a child;“parental leave” means leave provided for by subclause (2) (a);“spouse” includes a de facto spouse.

Entitlement to parental leave(2) (a) Subject to subclauses (4), (5) (a) and (6) (a), an employee, other than a casual employee, is entitled to take up to

52 consecutive weeks of unpaid leave in respect of—(i) the birth of a child to the employee or the employee’s spouse; or(ii) the placement of a child with the employee with a view to the adoption of the child by the employee.

(b) An employee is not entitled to take parental leave unless the employee—(i) has, before the expected date of birth or placement, completed at least 12 months’ continuous service

with the employer; and(ii) has given the employer at least 10 weeks written notice of the employee’s intention to take the leave.

(c) An employee is not entitled to take parental leave at the same time as the employee’s spouse but this paragraphdoes not apply to one week’s parental leave—(i) taken by the male parent immediately after the birth of the child; or(ii) taken by the employee and the employee’s spouse immediately after a child has been placed with

them with a view to their adoption of the child.(d) The entitlement to parental leave is reduced by any period of parental leave taken by the employee’s spouse in

relation to the same child, except the period of one week’s leave referred to in paragraph (b).Maternity leave to start 6 weeks before birth(3) A female employee who has given notice of the employee’s intention to take parental leave, other than for an adoption, is

to start the leave 6 weeks before the expected date of birth unless in respect of any period closer to the expected date ofbirth a medical practitioner has certified that the employee is fit to work.

Medical certificate(4) An employee who has given notice of the employee’s intention to take parental leave, other than for adoption, is to

provide to the employer a certificate from a medical practitioner stating that the employee or the employee’s spouse, asthe case may be, is pregnant and the expected date of birth.

Notice of spouse’s parental leave(5) (a) An employee who has given notice of the employee’s intention to take parental leave or who is actually taking

parental leave is to notify the employer of particulars of any period of parental leave taken or to be taken by theemployee’s spouse in relation to the same child.

(b) Any notice given under paragraph (a) is to be supported by a statutory declaration by the employee as to thetruth of the particulars notified.

Notice of parental leave details(6) (a) An employee who has given notice of the employee’s intention to take parental leave is to notify the employer

of the dates on which the employee wishes to start and finish the leave.(b) An employee who is taking parental leave is to notify the employer of any change to the date on which the

employee wishes to finish the leave.(c) The starting and finishing dates of a period of parental leave are to be agreed between the employee and

employer.Return to work after parental leave(7) (a) On finishing parental leave, an employee is entitled to the position the employee held immediately before

starting parental leave.(b) If the position referred to in paragraph (a) is not available, the employee is entitled to an available position—

(i) for which the employee is qualified; and(ii) that the employee is capable of performing, most comparable in status and pay to that of the

employee’s former position without loss of income within any area of CPAWA.(c) Where, immediately before starting parental leave, an employee was acting in, or performing on a temporary

basis the duties of, the position referred to in paragraph (a), that paragraph applies only in respect of theposition held by the employee immediately before taking the acting or temporary position.

Effect of parental leave on employment(8) Absence on parental leave—

(a) does not break the continuity of service of an employee; and(b) is not to be taken into account when calculating the period of service for the purpose of this Award.

(9) Accrued LeaveAn employee going on parental leave, will be paid out in lieu of any accrued or pro rata annual leave or accrued longservice leave owing to the employee at the time of taking parental leave

(10) Any absence from duty during a pregnancy for medical reasons relating to that pregnancy and certified by a suitablyqualified medical practitioner will not be debited against the 52 week maternity leave entitlement.

27. Clause 29. – Casual Employees: Delete this number, title and clause and insert the following in lieu thereof.27. - CASUAL EMPLOYEES

(1) A “casual employee” means an employee who is not employed on a regular basis and who is engaged by the employer fora period not exceeding one month in duration.


(2) Where an Employee is employed under the provisions of this clause, the employee shall be paid at a rate pro-rata to therate prescribed for the class of work on which the employee is engaged in proportion to which the weekly hours bear to37.5.

(3) In lieu of entitlements for annual leave, long service leave, holidays and sick leave prescribed in this award, a casualemployee shall be paid a loading of 25 per cent.

(4) Casual employees shall only be employed by mutual agreement between the employer and the union. In the event of noagreement being arrived at the matter shall be dealt with in accordance with clause 23. - Dispute Settlement Procedure.

(5) Casual employees are to be advised by the employer of their employment conditions prior to being engaged.28. Clause 30. – Enterprise Agreements: Delete this number and title and insert the following in lieu thereof.

28. – ENTERPRISE AGREEMENTS29. Clause 31. - Jobskills Trainees: Delete this number, title and clause and insert the following in lieu thereof—

29. - SUPPORTED WAGE SYSTEM(1) This clause defines the conditions, which will apply to employees who, because of the effects of a disability are eligible

for a supported wage under the terms of this Award. In the context of this clause the following definitions will apply—(a) “Supported Wage System” means the Commonwealth Government system to promote employment for people

who cannot work at full Award wages because of a disability, as documented in “Supported Wage System:Guidelines and Assessment Process”.

(b) “Accredited Assessor” means a person accredited by the management unit established by the Commonwealthunder the Supported Wage System to perform assessments of an individual’s productive capacity within theSupported Wage System.

(c) “Disability Support Pension” means the Commonwealth pension scheme to provide income security for personswith a disability as provided under the Social Security Act 1991, as amended from time to time, or anysuccessor to that scheme.

(d) “Assessment instrument” means the form provided for under the Supported Wage System that records theassessment of the productive capacity of the person to be employed under the Supported Wage System.

(2) Eligibility Criteria(a) Employees covered by this clause will be those who are unable to perform the range of duties to the

competence level required within the class of work for which the employee is engaged under this Award,because of the effects of a disability on their productive capacity and who meet the impairment criteria forreceipt of a Disability Support Pension.

(b) This clause does not apply to any existing employee who has a claim against the employer which is subject tothe provisions of workers’ compensation legislation or any provision of this Award relating to the rehabilitationof employees who are injured in the course of their employment.

(c) (i) This clause does not apply to employers in respect of their facility, program, undertaking, service orthe like which receive funding under the Disability Services Act 1986 and fulfil the dual role ofservice provider and sheltered employer to people with disabilities who are in receipt of or eligible fora Disability Support Pension, and such employees.

(ii) Provided that this exclusion shall not prevent Services funded under Section 10 or 12A of the Actreferred to in subparagraph (i) hereof, engaging persons who meet the eligibility criteria under theSupported Wages System, on work covered by this Award, where both parties wish to access theSystem and all other criteria are met.

(3) Supported Wage Rates(a) Employees to whom this clause applies shall be paid the applicable percentage of the minimum rate of pay

prescribed by this Award for the class of work which the person is performing according to the followingschedule—

AssessedCapacity

(Sub-clause 4)

% of PrescribedAward Rate

10% 10%20% 20%30% 30%40% 40%50% 50%60% 60%70% 70%80% 80%90% 90%

(b) Provided that the minimum amount payable shall not be less than $56.00 per week.(c) Where a person’s assessed capacity is 10 per cent, they shall receive a high degree of assistance and support.

(4) Assessment of CapacityFor the purpose of establishing the percentage of the Award rate to be paid to an employee under this Award, theproductive capacity of the employee will be assessed in accordance with the Supported Wage System and documented inan assessment instrument by either—(a) the employer and the union party to the Award, in consultation with the employee, or;(b) the employer and an accredited assessor agreed to by the employer and the Union party to the Award in

consultation with the employee.


(5) Lodgement of Assessment Instrument(a) All assessment instruments under the conditions of this clause, including the appropriate percentage of the

Award wage to be paid to the employee, shall be lodged by the employer with the Registrar of the WesternAustralian Industrial Relations Commission.

(b) All assessment instruments shall be agreed and signed by the parties to the assessment, provided that where theunion which is party to the Award is not party to the assessment, it shall be referred by the Registrar to theunion by certified mail and shall take effect unless an objection is notified to the Registrar within ten workingdays.

(6) Review of AssessmentThe assessment of the applicable percentage should be subject to annual review or earlier on the basis of a reasonablerequest for such a review. The process of review shall be in accordance with the procedures for assessing capacity underthe Supported Wage System.

(7) Other Terms and Conditions of EmploymentWhere an assessment has been made the applicable percentage shall apply to the wage rate only. Employees covered bythe provision of the clause will be entitled to the same terms and conditions of employment as all other employeescovered by this Award, but be paid at the rate of wage as determined in accordance with this clause.

(8) Workplace AdjustmentAn employer wishing to employ a person under the provisions of this clause shall take reasonable steps to make changesin the workplace to enhance the employees capacity to do the job. Changes may involve redesign of job duties, workingtime arrangements and work organisation in consultation with other employees in the area.

(9) Trial Period(a) In order for an adequate assessment of the employee’s capacity to be made, an employer may employ a person

under the provisions of this clause for a trial period not exceeding 12 weeks, except that in some casesadditional work adjustment time (not exceeding four weeks) may be needed.

(b) During the trial period the assessment of capacity shall be undertaken and the proposed wage rate for acontinuing employment relationship shall be determined.

(c) The minimum amount payable to the employee during the trial period shall be no less than such amount as isstipulated by statutory regulation from time to time.

(d) Work trials should include induction or training as appropriate to the job being trailed.(e) Where the employer and employee wish to establish a continuing employment relationship following the

completion of the trial period, a further contract of employment shall be entered into based on the assessmentunder subclause (4) of this clause.

(10) The conditions of employment, as agreed, to apply during a trial period or in a continuing employment relationship shallbe documented, a copy of which shall be provided by the employer to the person employed in accordance with thisclause.

29. Clause 29. - Supported Wage System: Immediately following this clause insert new number, title and clause asfollows:

30. - SUPERANNUATION(1) The employer shall contribute on behalf of each employee in accordance with the requirements of the Superannuation

Guarantee (Administration) Act 1992, the Superannuation Guarantee Charge Act 1992, the Superannuation Industry(Supervision) Act 1993 and the Superannuation (Resolution of Complaints) Act 1993 as varied from time to time.

(2) Contributions shall, at the option of the employee be either paid into—(a) the Health Employees Superannuation Trust Australia (HESTA) fund; or(b) such other complying superannuation fund or scheme nominated by the employee in accordance with section

48B of the Industrial Relations Act 1979.(3) The employer shall notify the employee that the employee may nominate a complying fund or scheme. If the employee

does not nominate a fund or scheme, or until such time as the employee nominates a fund or scheme, superannuationcontributions shall be paid into a fund or scheme nominated by the employer. The employer and employee are bound bythe employees nominated choice unless they agree to change the fund. The employer will not unreasonably refuse achange of fund request made by an employee.

(4) All contributions into the nominated fund or scheme shall be paid monthly and within 30 days of the end of each month.(5) For the purpose of this clause the employees earnings base shall include base classification rate, shift penalties together

with any other all purpose allowance or penalty payment for work in ordinary time and shall include in respect of casualemployees the casual loading prescribed by this Award, but shall exclude any payment for overtime worked, vehicleallowances, fares or travelling time allowances (excluding travelling related to distant work), commission or bonus aswell as-(i) periods of unpaid leave or unauthorised absences; or(ii) annual leave or any other payments paid out on termination.

(6) The employer shall continue to contribute to the nominated fund or scheme on behalf of an employee in receipt ofpayments under the Workers Compensation and Rehabilitation Act.

30. Clause 30. – Superannuation: Immediately following this clause insert a new number, title and clause as follows:

31. - REDUNDANCY1. Termination of Employment

(a) Discussions before termination(i) Where the employer for any reason, including the cessation or reduction of grant funding, has made a

definite decision that the employer no longer wishes the job the employee has been doing done byanyone and that decision may lead to termination of employment, the employer shall hold discussionswith the employees directly affected and with the Union.


(ii) The discussions shall take place as soon as practicable after the employer has made a definite decisionwhich will invoke the provisions of subclause 1 (a) (i) and shall cover, inter alia, any reasons for theproposed terminations, measures to avoid or minimise terminations and measures to mitigate anyadverse effects of any terminations on the employees concerned.

(iii) For the purpose of the discussion, the employer shall, as soon as practicable, provide in writing to theemployees concerned and the Union all relevant information about the proposed terminationsincluding the reasons for the proposed terminations, the number of categories of employees likely tobe affected and the number of employees normally employed and the period over which theterminations are likely to be carried out. Provided that any employer shall not be required to discloseconfidential information, the disclosure of which would be inimical to the employer’s interests.

(b) Transfer to Lower Paid DutiesWhere an employee is transferred to lower paid duties for reasons set out in subclause 1 (a) (i), the employeeshall be entitled to the same period of notice of transfer as the employee would have been entitled to if theemployee’s employment had been terminated, and the employer may at the employer’s option make payment inlieu thereof, an amount equal to the difference between the former ordinary rate of pay and the new lowerordinary time rates for the number of weeks of notice still owing.

(c) Severance Pay(i) In addition to the period of notice prescribed for ordinary termination in Clause 11.- Termination of

Employment subclause 1 (a) (i) and 1 (a) (ii), and subject to further order of the Commission, anemployee whose employment is terminated for reasons set out in subclause 1 (a) (i), shall be entitledto the following amount of severance pay in respect of a continuous period of service:Period of continuous service Severance payLess than one year nil1 year and up to the completion of 2 years 4 weeks’ pay2 years and up to the completion of 3 years 6 weeks’ pay3 years and up to the completion of 4 years 7 weeks’ pay4 years and over 8 weeks’ pay

(ii) “Week’s pay” means the employees current ordinary time hourly rate of pay multiplied by theaverage of weekly hours (excluding overtime) worked over the past 52 weeks.

(d) Employee Leaving During NoticeAn employee whose employment is terminated for reasons set out in subclause 1 (a) (i), may terminate theiremployment during the period of notice and, if so, shall be entitled to the same benefits and payments under thisclause had the employee remained with the employer until the expiry of such notice. Provided that in suchcircumstances, the employee shall not be entitled to payment in lieu of the remainder of the period of notice.

(e) Alternative EmploymentThe employer, in a particular redundancy case, may make application to the Commission to have the generalseverance pay prescription varied if the employer obtains acceptable alternative employment for an employee.

(f) Time off during notice period(i) During the period of notice of termination given by the employer an employee shall be allowed up to

one day’s time off without loss of pay during each week of notice for the purpose of seeking otheremployment.

(ii) If the employee has been allowed paid leave for more than one day during the notice period for thepurpose of seeking other employment, the employee shall, at the request of the employer, be requiredto produce proof of attendance at an interview or the employee shall not receive payment for the timeabsent. For this purpose a statutory declaration will be sufficient.

(g) Notice to Commonwealth Employment ServiceWhere a decision has been made to terminate employees in the circumstances outlined in subclause 1(a)(i), theemployer, shall notify the local office of the Commonwealth Employment Service as soon as possible givingrelevant information including the number and categories of the employees likely to be affected and the periodover which the terminations are intended to be carried out.

(h) Employees ExemptedThis clause shall not apply to employees with less than one year’s continuous service and the general obligationon employers should be no more than to give relevant employees an indication of the impending redundancy atthe first reasonable opportunity, and to take such steps as may be reasonable to facilitate the obtaining by theemployees of suitable alternative employment.

(i) Incapacity to PayThe employer, in a particular redundancy case, may make application to the Commission to have the generalseverance pay prescription varied on the basis of the employer’s capacity to pay.

31. Clause 31. – Redundancy: Immediately following this clause insert new number, title and clause as follows—32. - SALARY/REMUNERATION PACKAGING

(1) This clause shall be read in conjunction with the other provisions of the Award but the provisions of this clause to theextent that they deal with entitlements under the Award will prevail over and apply in lieu of the relevant provisions of theAward.

(2) Where agreed between the employer and an employee, the employer may introduce remuneration packaging in respect ofsalary and benefits (including any negotiated salary allowable) and the terms and conditions of such a package shall not,when viewed objectively, be less favourable than the entitlements otherwise available under this Award and shall besubject to the following provisions(a) The employer shall ensure the structure of any agreed package complies with taxation and other relevant laws.(b) The employer shall confirm in writing to the employee the classification level and current salary payable as

applicable to that employee.


(c) The employer shall advise the employee, in writing, that Award conditions, other than the salary and benefits(including any negotiated salary allowable), shall continue to apply.

(d) The employee shall advise the employer, in writing, that the agreed cash component is adequate for theemployees ongoing living expenses.

(e) Where undue pressure or duress is placed on a party to enter into such a package it will be open to either partyto seek relief in accordance with Clause 23. - Dispute Settlement Procedure.

(3) The packaging agreement, the terms and conditions of which shall be in writing and signed by both the employer andemployee, shall detail the components of the total remuneration package for the purpose of this agreement and for thepurpose of complying with time and wages records under the Act and Regulations.

(4) A copy of the Packaging Agreement shall be made available to the employee.(5) The employee shall be entitled to inspect details of payments and transactions made under the terms of this agreement and

for this purpose where such details are maintained electronically, shall be provided with access to a computer terminal.(6) (a) The configuration of the remuneration package shall remain in force for the period agreed between the employee and

the employer. Provided that an employee may withdraw from a remuneration packaging arrangement by giving theemployer reasonable notice of intention to withdraw from the end of the next quarter of the calendar year.

(b) An employee, who has previously declined to take up packaging, may, by giving the employer reasonable notice,take up the benefit at any time.

(7) Where at the end of the financial year the full amount allocated to a specific benefit has not been utilised, by agreementbetween the employer and the employee, any unused amount may be carried forward to the next financial year to beutilised by 30 September, or be paid as salary as at the end of the financial year, which will be subject to usual taxationrequirements.

(8) In the event that changes in legislation, Income Tax Assessment Act determinations or Rulings, particularly in respect ofthe Employer’s fringe benefits tax exempt status, remove the Employer’s capacity to maintain the salary packagingarrangements offered to employees under this Clause, the employer shall be entitled to withdraw from the salarypackaging arrangements by giving notice to each affected employee three months prior to the withdrawal taking place ornotice to have effect from a date not later than the date any change in the legislation is to have effect.

(9) The employer shall as soon as practicable after being advised of the legislative change referred to in subclause (8) hereof,advise the Union and employees and shall convene a meeting of the parties with a view to reaching an alternativeagreement on salaries and salary benefits.

32. Appendix – Resolution of Disputes Requirement: Delete this Title and Appendix.33. Schedule C – Classification and Grading of Employees: Delete this Schedule and insert the following in lieu

thereof:LEVEL CLASSIFICATIONLevel 1 Clerical AssistantsLevel 2 Machine Operators, Typists, Data Processing Operators, Technical AssistantsLevel 2/3 Laboratory Assistants, ClerksLevel 3 Senior Machine Operators, StorekeeperLevel 3/4 Technical Assistants (Bio-engineering)Level 4 Co-ordinatorLevel 4/8 Technician (Bio-engineering)

(To be applied in accordance with Schedule D of this Award)Level 6/9 Recreation OfficerLevel 7/8 Remedial Gymnast, Dental TherapistLevel 5/10 Psychologists, Dietitian, Physiotherapist, Occupational Therapist, Speech Pathologist Librarian,

Medical Social WorkersLevel 11/12 Senior Dietician, Physiotherapist, Occupational Therapist, Speech PathologistLevel 13/14 Physiotherapist, Occupational Therapist or Speech Pathologist in charge, Supervising Physiotherapist,

Occupational Therapists or Speech Pathologists, Psychologists (Senior)34. Schedule E – Respondents: Delete this Schedule and insert the following in lieu thereof:Cerebral Palsy Association of W.A. Ltd ABN 79 057 702 95935. Appendix – S 49B – Inspection of Records Requirements: Delete this Title and Appendix.

____________________

2003 WAIRC 08467HOSPITAL WORKERS (CLEANING CONTRACTORS – PRIVATE HOSPITALS) AWARD 1978

NO. R2 OF 1977WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION,WESTERN AUSTRALIAN BRANCH, APPLICANTv.POWERCLEAN, RESPONDENT

CORAM COMMISSIONER P E SCOTTDATE OF ORDER WEDNESDAY, 11 JUNE 2003FILE NO. APPLICATION 295 OF 2003CITATION NO. 2003 WAIRC 08467


_________________________________________________________________________________________________________


OrderHAVING heard Ms J O’Keefe on behalf of the applicant and Mr P Robertson on behalf of the respondent, and by consent, theCommission, pursuant to the powers conferred under the Industrial Relations Act, 1979, hereby orders—

THAT the Hospital Workers (Cleaning Contractors – Private Hospitals) Award 1978 (No. R 2 of 1977) be varied inaccordance with the following Schedule and that such variation shall have effect from the beginning of the first pay periodcommencing on or after the 7th day of March 2003.


_________

SCHEDULE1. Clause 23. – Fares, Travelling Time and Transport: Delete subclause (2)(c) of this clause and insert the following

in lieu thereof—(c) A year for the purpose of this clause shall commence on the 1st day of July and end on the 30th day of June next

following.Rates of hire for use of employee’s own vehicle on employer’s business:

Schedule 1 - Motor Vehicle AllowancesArea and Details Engine Displacement (in cubic centimetres)

Over 2600cc Over 1600cc &2600cc

1600ccUnder

Rate per kilometre (Cents)Metropolitan Area 71.6 62.1 55.1South West Land Division 73.6 63.9 56.8North of 23.5o South Latitude 80.7 70.4 62.7Rest of the State 76.1 66.0 58.6

Schedule 2 - Motor Cycle AllowancesDistance travelled during a year on OfficialBusiness

Rate per Kilometre(Cents)

All areas of the State 24.8Motor vehicles with rotary engines are to be included in the 1600 – 2600cc.(d) The rates specified in paragraph (c) applied from the beginning of the first pay period commencing on or after

the 7th day of March 2003, and are calculated by applying the percentage movement in the Consumer PriceIndex (Private Motoring Perth) between June 2000 and September 2002. This is calculated as— (September 2002) 137.6 x 100 = 5.76%(June 2000) 130.1

____________________

2003 WAIRC 08472INDEPENDENT SCHOOLS’ TEACHERS’ AWARD 1976

NO. R27 OF 1976WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES THE INDEPENDENT SCHOOLS SALARIED OFFICERS’ ASSOCIATION OF WESTERNAUSTRALIA, INDUSTRIAL UNION OF WORKERS, APPLICANTv.THE ANGLICAN SCHOOLS COMMISSION (INC) AND OTHERS, RESPONDENT

CORAM COMMISSIONER J L HARRISONDATE OF ORDER THURSDAY, 12 JUNE 2003FILE NO/S. APPL 1047A OF 2002CITATION NO. 2003 WAIRC 08472_________________________________________________________________________________________________________


OrderWHEREAS on 7 June 2002 the Independent Schools Salaried Officers’ Association of Western Australia, Industrial Union ofWorkers applied to vary the Independent Schools’ Teachers’ Award 1976 ; andWHEREAS the Commission held conciliation conferences and the parties engaged in negotiations and on 7 April 2003 theapplicant lodged an amended schedule to the application; and


WHEREAS as some of the variations were required to be progressed under Principle 10 of the Statement of Principles of the2002 State Wage Case and the Chief Commissioner allocated the application to the Commission as presently constituted to dealwith them under this Principle; andWHEREAS at the hearing before the Commission to vary the Award on 14 April 2003 there was a disagreement as to the parties’intentions in relation to the new Clause 14 - Salaries subclause (5) of the Award dealing with payment for relief teachers; andWHEREAS the Commission formed the view that this application should be divided, and the parties consented to the applicationbeing divided into 1047 of 2002 and 1047A of 2002; andWHEREAS on 12 May 2003 the Commission convened a conference for the purpose of conciliating between the parties in relationto 1047A of 2002; andWHEREAS at the conference the parties could not reach agreement in respect to the variation sought; andWHEREAS having considered the issues involved the Commission made a recommendation that the parties agree to vary the newClause 14(5)(a)(i) of the Award by deleting Step 3 and replacing it with Step 6 and Clause 14(5)(a)(ii) by deleting Step 5 andreplacing it with Step 8, with an operative date of 1 January 2004; andWHEREAS each party advised the Commission that it accepted the recommendation; andHAVING heard Mr N Briggs on behalf of the applicant and Mr P Andrew and Dr I Fraser on behalf of the respondents and byconsent, the Commission, pursuant to the powers conferred under the Industrial Relations Act, 1979, hereby orders—

THAT the Independent Schools’ Teachers’ Award 1976 No R27 of 1976 be varied in accordance with the followingSchedule and that such variation shall have effect from the beginning of the first pay period commencing on or after the1st day of January 2004.

(Sgd.) J. L. HARRISON,[L.S.] Commissioner.

_________

SCHEDULE1. Clause 14 -Salaries: Delete subclause (5) of this Clause and insert the following in lieu thereof—(5) (a) Relief teachers employed for five (5) consecutive working days or more shall be paid for the period at the rate

of salary appropriate to their qualifications and experience on a weekly basis of annual salary divided by forty(40) or a daily basis of annual salary divided by two hundred (200).

(b) A relief teacher employed for less than five (5) consecutive working days shall be paid according to thefollowing formula—(i) Less than four year trained

(aa) Full day = Step 6 Annual Salary / 200(bb) Half day = Step 6 Annual Salary / 400

(ii) Four year trained (aa) Full day = Step 8 Annual Salary / 200(bb) Half day = Step 8 Annual Salary / 400

Note: For the purposes of this subclause a half day is determined as the hours usually worked in a school priorto the lunch break or the hours worked from the beginning of the lunch break until the end of the school day.

____________________

2003 WAIRC 08559NICKEL MINING AND PROCESSING AWARD, 1975


PARTIES THE AUSTRALIAN WORKERS’ UNION, WEST AUSTRALIAN BRANCH, INDUSTRIALUNION OF WORKERS, APPLICANTv.WESTERN MINING CORPORATION LIMITED, RESPONDENT

CORAM COMMISSIONER S J KENNERDATE THURSDAY, 26 JUNE 2003FILE NO/S. APPLICATION 1154 OF 2002CITATION NO. 2003 WAIRC 08559_________________________________________________________________________________________________________

Result Award variedRepresentationApplicant Mr M LlewellynRespondent Mr T Caccamo as agent_________________________________________________________________________________________________________

OrderHAVING heard Mr M Llewellyn on behalf of the applicant and Mr T Caccamo as agent on behalf of the respondent theCommission, pursuant to the powers conferred on it under the Industrial Relations Act, 1979 and by consent hereby orders—

1. THAT the Nickel Mining and Processing Award 1975 No. 18 of 1975 be varied in accordance with thefollowing schedule and that such variation shall have effect from the beginning of the first pay periodcommencing on or after the date of this order.


2. THAT the applicant’s claims in relation to industry allowance and parental leave be and are hereby divided andre-numbered as application 1154 A of 2003.


SCHEDULE1. Clause 2 – Arrangement: Delete this Clause and insert in lieu thereof the following—

2. ARRANGEMENT1. Title2. Arrangement3. Term4. Area and Scope5. Contract of Employment6. Hours of Work7. Shift Work8. Overtime9. Rest Breaks and Recall to Work9A. Saturday Work9B. Sunday and Public Holiday Work10. Sick Leave11. Wet Places12. Public Holidays13. Annual Leave14. Mixed Functions15. Reduction of Hands16. Accident Pay17. Full Payment of Shift18. Payment of Wages19. First Aid20. Resumption of Work After Annual Leave21. Aged and Infirm Employees22. Board of Reference23. Protective Clothing24. Time and Wages Record25. Inspections26. Re-Employment After Accident27. Long Service Leave28. Maximum Rate29. Junior Employees30. Recognised Crib Places31. Piece Work32. Bereavement Leave33. Jury Service34. Redundancy35. Definitions36. Special Rates37. Maternity Leave38. Minimum Wage39. Resolution of Grievances and Dispute Procedure40. Disciplinary Practice41. Superannuation (Exemption for WMC Resources Limited)

Appendix - Resolution of Disputes RequirementsSchedule 1. - WagesSchedule 2. - Long Service LeaveSchedule 3. - Parties to the AwardAppendix - S.49B - Inspection Of Records Requirements

2. Clause 3 – Term: Delete this Clause and insert in lieu thereof the following—3. – TERM

The term of this award shall be for a period of one month from 17 June 2003.3. Clause 5 – Contract of Employment: Delete subclause (2), (3), (13) and (14) of this Clause and insert in lieu

thereof the following subclauses—3. – CONTRACT OF EMPLOYMENT

(2) Termination of Employment(a) Full time and part time employees

(i) The employment of a full-time or part-time employee may be terminated by the employer byproviding the following period of notice—

Period of Continuous Service Period of NoticeNot more than 1 year 1 weekMore than 1 year but not more than 3 years 2 weeks


More than 3 years but not more than 5 years 3 weeksMore than 5 years 4 weeks

(ii) Employees over 45 years of age with 2 or more years’ continuous service at the time oftermination, shall receive an additional weeks’ notice.

(iii) Where all or part of the relevant notice is not provided, the employee shall be entitled topayment in lieu.

(iv) Payment in lieu of notice shall be calculated using the employee’s weekly ordinary timewages as prescribed.

(v) The period of notice in this clause shall not apply in the case of dismissal for seriousmisconduct that is, misconduct of a kind such that it would be unreasonable to require theemployer to continue the employment during the notice period.

(vi) Notice of Termination by employee. Except in the first 3 months of service, 1 week’s noticeshall be necessary for an employee to terminate his or her engagement or by the forfeiture orpayment of 1 week’s pay by the employee to the employer in lieu of notice.

(vii) Probation. Notwithstanding sub clause 2 (a)(i) above, the employment of an employee onprobation, may be terminated by either party providing to the other, one day’s notice, or oneday’s pay in lieu shall be paid or forfeited.

(b) Casual EmployeesThe employment of casual employee may be terminated by 1 hours notice, given by either party.

(3) An employer may dismiss an employee without notice for serious misconduct, that is, misconduct of a kindsuch that it would be unreasonable to require the employer to continue the employment, and in such cases,wages shall be paid up to the time of dismissal only.

(13) Employees may be engaged in any of the following ways—(a) Full time: to work on a regular basis for an average of forty hours per week (excluding overtime).(b) Part time:

(i) a part time employee is engaged to work on a regular basis for less than forty hours perweek on average;

(ii) a part-time employee will be paid per hour one fortieth of the weekly rate prescribed in theappropriate wage schedule to this Award and applicable allowances contained in thisAward;

(iii) entitlements to authorised leave of absence under this Award will be pro rata in proportionto the hours worked in a week, by the part-time employee, as to the full-time weekly hours.

(c) Temporary: to work on a full-time or part-time basis for a limited or specified period of employment.(d) Casual—

(i) a casual employee is to be informed that he or she is employed on a casual basis before heor she is engaged;

(ii) an employee engaged as a casual in any of the classifications set out in this Award shall bepaid 120% of the ordinary forty hour earnings for the relevant classification;

(iii) the additional amount of 20% referred to in subclause (ii) above shall be paid in lieu of allleave otherwise allowed to employees under this award and payment shall only be made forwork actually performed

(14) (a) An employee, engaged in a full-time, part-time or temporary employment capacity shall serve a three(3) month probationary period of employment.

(b) The employer may, without having to provide any reasons for doing so, terminate an employee’scontract of employment during the probationary period by giving the employee one day’s notice orpayment in lieu thereof.

4. Clause 6 – Hours of Work: Delete subclause (4) of this Clause and insert in lieu thereof the following subclause—6. – HOURS OF WORK

(4) (a) Notwithstanding the provisions of subclauses (1) to (3) inclusive, hours of work may be arranged overwork cycles consisting of a consecutive number of working days or shifts followed by a consecutivenumber of non-working days. The total ordinary hours of work during a work cycle shall not exceed40 hours multiplied by the number of working or non-working weeks in the cycle. Overtime ratesshall be paid for any time worked in excess of 8 hours per day or shift, or hours in excess of the totalordinary hours prescribed in the work cycle. There shall be no entitlement for payment for theconsecutive non-working days in a work cycle, other than where an employee is engaged on an annualsalary basis.

(b) In the event that a work cycle is constituted by a period of 6 consecutive working weeks or more, suchmay be worked only following upon the union being notified.

5. Clause 7 – Shift Work:Delete “$8.00” appearing in subclause (2) of this Clause and insert in lieu thereof “$10.30”

6. Clause 9 – Rest Breaks and Recall to Work – All Employees:Delete “$4.30” appearing in subclause (7) of this Clause and insert in lieu thereof “$7.80”

7. Clause 10 – Payment for Sickness: Delete the title and subclauses (1), (2) and (3) from this Clause and insert inlieu thereof the following new title and subclauses—

10. – SICK LEAVE(1) Subject as hereinafter provided a full-time employee shall be entitled to payment for non-attendance on the

ground of personal ill health or injury for up to 10 working days or 76 hours, whichever is the lesser, each year,


accrued on a weekly basis. Part-time employees who are paid a proportion of a full-time employee’s pay or paidaccording to the number of hours worked shall be entitled to the proportion of the number of hours worked eachweek that the average number of hours each week bears to 38, up to 76 hours each year. This clause shall notapply where the employee is entitled to compensation under the Worker’s Compensation and Rehabilitation Act1981.

(2) A employee shall not be entitled to receive wages from the employer for any time lost through illness or injurycaused by the employee’s own serious and wilful misconduct or gross and wilful neglect.

(3) An employee, who claims to be entitled to paid leave under this clause, is to provide the employer withevidence that would satisfy a reasonable person of the entitlement.

8. Clause 11 – Wet Places:Delete “$1.03” appearing in this Clause and insert in lieu thereof “$1.33”

9. Clause 12 – Holidays: Delete this title and insert in lieu thereof the following title—12. – PUBLIC HOLIDAYS

10. Clause 13 – Annual Leave: Delete subclause (2), (3), (4) and (11) of this Clause and insert in lieu thereof thefollowing subclauses—

13. – ANNUAL LEAVE(2) (a) Except as hereinafter provided a period of four weeks leave with payment of ordinary wages as

prescribed in paragraph (b) hereof shall apply for each year of service and accrue pro rata on a weeklybasis.

(b) (i) An employee before going on leave shall be paid the wages that employee would havereceived in respect of the ordinary time that employee would have worked had thatemployee not been on leave during the relevant period.

(ii) Subject to paragraph (c) hereof an employee shall, where applicable, have the amount ofwages to be received for annual leave calculated by including the following whereapplicable—(aa) The rate applicable to the employee as prescribed by Schedule 1 – Wages.(bb) Subject to paragraph (c)(ii) hereof the rate prescribed for work in ordinary time by

Clause 7. - Shift Work of this award according to the employee’s roster orprojected roster including Saturday and Sunday shifts.

(cc) The rate payable pursuant to Clause 14. - Mixed Functions calculated on a dailybasis, which the employee would have received for ordinary time during therelevant period whether on a shift roster or otherwise.

(dd) Any other rate to which the employee is entitled in accordance with thatemployee’s contract of employment for ordinary hours of work; provided that thisprovision shall not operate so as to include any payment which is of a similarnature to or is paid for the same reason as or is paid in lieu of those paymentsprescribed by Clause 8. - Overtime, Clause 11. - Wet Places and subclause (2) ofClause 38. - Special Rates of this award, nor any payment which might havebecome payable to the employee as reimbursement for expenses incurred.

(c) During a period of annual leave an employee shall receive a loading calculated on the rate of wageprescribed by paragraph (b)(ii)(aa) hereof. The loading shall be as follows—(i) Day Employees - An employee who would have worked on day work had that employee not

been on leave - a loading of 17½ per cent.(ii) Shift Employees - An employee who would have worked on shift work had that employee

not been on leave - a loading of 17½ per cent.Provided that where the employee would have received shift loadings prescribed by Clause7. - Shift Work had that employee not been on leave during the relevant period and suchloadings would have entitled that employee to a greater amount than the loading of 17½ percent then the shift loadings shall be added to the rate of wage prescribed by paragraph(b)(ii)(aa) hereof in lieu of the 17½ per cent loading.Provided further that if the shift loadings would have entitled the employee to a lesseramount than the loading of 17½ per cent then such loading of 17½ per cent shall be added tothe rate of wage prescribed by paragraph (b)(ii)(aa) hereof in lieu of the shift loadings.The loading prescribed by this subclause shall not apply to proportionate leave ontermination.

(d) The provisions of this subclause shall not operate in respect of leave fully due prior to the date of thisorder, irrespective of the date at which such leave is taken.

(3) Continuous shift employees, that is, shift employees engaged in continuous process work who are rostered towork regularly on Sundays and holidays, shall be allowed one week’s leave in addition to the leave prescribedin subclause (2) hereof which shall accrue on a weekly basis

(4) (a) If, after one week’s continuous service in any qualifying 12 month period an employee lawfully leavesthe employment or the employment is terminated by the employer through no fault of the employee,the employee shall be paid in lieu the proportion that the number of shifts worked by the employee atthe rate prescribed by paragraphs (b) and (c) of sub clause (2) of this clause in the qualifying periodbears to the full number of shifts worked in a qualifying 12 month period.

(b) If an employee’s employment terminates in circumstances other than those referred to in sub clause(5) (a) before he or she has taken the leave prescribed under this award he or she shall be paid for anyuntaken leave that relates to completed year of service or, in a case to which sub clause (8) or (9) ofthis clause applies in lieu of so much that leave as has been allowed, unless—(i) the employee has been dismissed for misconduct; and


(ii) the misconduct for which the employee has been dismissed occurred prior to the completionof that qualifying period.

(11) Any time in respect of which an employee is absent from work, except time which the employee is entitled toclaim sick pay, or time spent on public holidays, annual leave or bereavement leave as prescribed by this award,shall not count for the purpose of determining an entitlement to annual leave.

11. Clause 19 – First Aid: Delete subclause (1) and (4) of this Clause and insert in lieu thereof the followingsubclauses—

19. – FIRST AID(1) In any shaft where employees are employed a first aid kit shall be provided. This kit shall be as required under

the Mines Safety & Inspection Act 1994 and Mines Safety and Inspection Regulations 1995 as amended fromtime to time.

(4) Any first aid person appointed by the employer to perform first aid duties shall be paid an allowance of$1.55 per shift in addition to that employee’s ordinary rate of pay.

12. Clause 21 – Aged and Inform Employees: Delete this Clause and insert in lieu thereof the following new clause—21. – SUPPORTED WAGE

(1) This clause defines the conditions which will apply to employees who because of the effects of a disability areeligible for a supported wage under the terms of this award. In the context of this clause, the followingdefinitions will apply—(a) ‘Supported Wage System’ means the Commonwealth Government system to promote employment for

people who cannot work at full award wages because of disability as documented in “[SupportedWages System: Guidelines and Assessment Process]”.

(b) ‘Accredited Assessor’ means a person accredited by the management unit established by theCommonwealth under the Supported Wage System to perform assessments of an individual’sproductive capacity within the Supported Wage System.

(c) ‘Disability Support Pension’ means the Commonwealth pension scheme to provide income securityfor persons with a disability as provided under the Social Security Act 1991, as amended from time totime, or any successor to that scheme.

(d) ‘Assessment instrument’ means the form provided for under the Supported Wage System that recordsthe assessment of the productive capacity of the person to be employed under the Supported WageSystem.

(2) Eligibility Criteria—Employees covered by this clause will be those who are unable to perform the range of duties to the competencelevel required within the class of work for which the employee is engaged under this Award, because of theeffects of a disability on their productive capacity and who meet the impairment criteria for Support Pension.(The clause does not apply to any existing employee who has a claim against the employer that is subject to theprovisions of workers’ compensation legislation or any provision of this award relating to the rehabilitation ofemployees who are injured in he course of their current employment).The clause also does not apply to employers in respect of their facility, programme, undertaking, services or thelike which receives funding under the Disability Services Act 1988 and fulfils the dual role of service providerand sheltered employer to people with disabilities who are in receipt of or are eligible for a disability supportpension, except with respect to an organisation which has received recognition under s10 or s12A of the Act, orif a part has received recognition, that part.

(3) Supported Wage Rates—Employees to whom this clause applies shall be paid the applicable percentage of the minimum rate of payprescribed by this Award for the class of work which the person is performing according to the followingschedule—

Assessed Capacity % of prescribed award rate (Clause 1.3)10%*20% 20%30% 30%40% 40%50% 50%60% 60%70% 70%80% 80%90% 90%

* (Provided that the minimum amount payable shall be not less than $45 per week).Where a person’s assessed capacity is 10%, they shall receive a high degree of assistance and support.

(4) Assessment of CapacityFor the purpose of establishing the percentage of the Award rate to be paid to an employee under this Award,the productive capacity of the employee will be assessed in accordance with the Supported Wage System anddocumented in an assessment instrument by either:(a) the employer in consultation with the employee or, if desired by either of these; or(b) the employer and an accredited Assessor form a panel agreed by the parties to the Award and the

employee.(5) Lodgement of Assessment Instrument

(a) All assessment instruments under the conditions of this clause, including the appropriate percentage ofthe Award wage to be paid to the employee, shall be lodged by the employer with the Registrar of theWestern Australian Industrial Relations Commission.

(b) All assessment instruments shall be agreed and signed by the parties to the assessment.


(6) Review of AssessmentThe assessment of the applicable percentage should be subject to annual review or earlier on the basis for areasonable request for such a review. The process of review shall be in accordance with the procedures forassessing capacity under the Supported Wage System.

(7) Other Terms and Conditions of EmploymentWhether an assessment has been made, the applicable percentage shall apply to the wage rate only. Employeescovered by the provisions of the clause will be entitled to the same terms and conditions of employment as allother employees covered by this Award paid on a pro-rata basis.

(8) Workplace AdjustmentAn employer wishing to employ a person under the provisions of this clause shall take reasonable steps to makechanges in the workplace to enhance the employee’s capacity to do the job. Changes may involve re-design ofjob duties, working time arrangements and work organisation in consultation with employees in the area.

(9) Trial Period(a) In order for an adequate assessment of the employee’s capacity to be made, an employer may employ

a person under the provisions of this clause for a trial period not exceeding 12 weeks, except in somecases additional work adjustment time (not exceeding 4 weeks) may be needed.

(b) During the trial period the assessment of capacity shall be undertaken and the proposed wage rate forcontinuation employment relationship shall be determined.

(c) The minimum amount payable to the employee during the trial period shall be no less than $45 perweek; on, in the case of paid rates award, the amount payable to the employee during the trial periodshall be $45 per week or such greater amount as is agreed from time to time between the parties(taking into account the Department of Social Security income test free areas for earnings) andinserted into this Award.

(d) Work trial should include induction or training as appropriate to the job being trialled.(e) Where the employer and employee wish to establish a continuing employment relationship following

the completion of the trial period, a further contract of employment shall be entered into based on theoutcome of assessment under sub clause (4) of this clause.

13. Clause 22 – Board of Reference: Delete subclause (1) of this Clause and insert in lieu thereof the followingsubclause—

22. - BOARD OF REFERENCE(1) The Commission hereby appoints for the purpose of this award a Board of Reference consisting of a chairperson

and two other members who shall be appointed pursuant to regulation 25 of Industrial Relations CommissionRegulations 1985.

14. Clause 23 – Protective Clothing: Delete subclause (4) of this Clause and insert in lieu thereof the followingsubclause—

23. – PROTECTIVE CLOTHING(4) All protective clothing shall be in accordance with the Mines Safety and Inspection Act 1994 and Mines Safety

and Inspection Regulations 1995 as amended from time to time.15. Clause 24 – Representative Interviewing Employees: Delete this clause16. Clause 25 – Record: Delete this title and insert in lieu thereof the following new title—

24. TIME AND WAGES RECORD17. Clause 26 – Inspections: Delete this clause number and insert in lieu thereof the following new clause number—

25. INSPECTIONS18. Clause 27 – Re-Employment After Accident: Delete this clause number and insert in lieu thereof the following

new clause number—26. RE-EMPLOYMENT AFTER ACCIDENT

19. Clause 28 – Long Service Leave: Delete this clause number and insert in lieu thereof the following clausenumber—

27. LONG SERVICE LEAVE20. Clause 29 – District Allowance: Delete this Clause21. Clause 30 – Maximum Rate: Delete this clause number and insert in lieu thereof the following new clause

number—28. MAXIMUM RATE

22. Clause 31 – Junior Employees: Delete this clause number and insert in lieu thereof the following new clausenumber—

29. JUNIOR EMPLOYEES23. Clause 32 – Recognised Crib Places: Delete this clause number and insert in lieu thereof the following new

clause number—30. RECOGNISED CRIB PLACES

24. Clause 33 – Piece Work: Delete this clause number and insert in lieu thereof the following new clause number—31. PIECE WORK

25. Clause 34 – Bereavement Leave: Delete this Clause and insert in lieu thereof the following—32. – BEREAVEMENT LEAVE

When it is necessary for an employee to be absent from his or her employment for the purpose of attending or arranging afuneral an employee shall be entitled a maximum of to three days’ leave at ordinary wages as prescribed on each occasionand on production of evidence that would satisfy a reasonable person of the death of the employee’s wife, husband,father, mother, grandfather, grandmother, brother, sister, child, father-in-law, mother-in-law, or any other person who


immediately before that person’s death, lived with the employee as a member of the employee’s family. Wife or husbandas referred to in this clause shall include de-facto wife or husband.

26. Clause 35 – Jury Service: Delete this clause number and insert in lieu thereof the following new clause number—33. JURY SERVICE

27. Clause 36 – Redundancy: Delete this Clause and insert in lieu thereof the following—34. – REDUNDANCY

(1) Discussions Before Terminations(a) Where an employer has made a definite decision that the employer no longer wishes the job the

employee has been doing done by anyone and this is not due to the ordinary and customary turnoverof labour and that decision may lead to termination of employment, the employer shall holddiscussions with the employees directly affected and with their union.

(b) The discussions shall take place as soon as is practicable after the employer has made a definitedecision which will invoke the provisions of sub clause (1) paragraph (a) hereof and shall cover,among other things, any reasons for the proposed terminations, measures to avoid or minimise theterminations and measures to minimise any adverse affect of any terminations on the employeesconcerned.

(c) For the purpose of the discussion the employer shall, as soon as practicable, provide in writing to theemployees concerned and their union, all relevant information about the proposed terminationsincluding the reasons for the proposed terminations, the number and categories of employees likely tobe affected and the number of employees normally employed and the period over which theterminations are likely to be carried out. Provided that any employer shall not be required to discloseconfidential information the disclosure of which would be unfavourable to the employer’s interests.

(2) Transfer to Lower Paid DutiesWhere an employee is transferred to lower paid duties for reasons set out in sub clause (1) hereof, the employeeshall be entitled to the same period of notice of transfer as the employee would have been entitled to had theemployment been terminated, and the employer may at the employer’s option, make payment in lieu thereof ofan amount equal to the difference between the former ordinary weekly rate of wage and the new lower ordinaryweekly rate of wage for the number of weeks of notice still owing.

(3) Severance Pay(a) In addition to the period of notice prescribed in Clause 5 – Contract of Service, sub clause (5)

paragraph (a), of this award, for ordinary termination, and subject to further order of the Commission,an employee whose employment is terminated for reasons set out in sub clause (1) paragraph (a)hereof, shall be entitled to the following amount of severance pay in respect of a continuous period ofservice.Period of Continuous Service Severance PayLess than 1 year Nil1 year and less than 2 completed years 4 weeks2 years and less than 3 completed years 6 weeks3 years and less than 4 completed years 7 weeks4 years and over 8 weeks“Week’s Pay” means the ordinary weekly rate of wage for the employee concerned. Provided that theseverance payments shall not exceed the amount which the employee would have earned ifemployment with the employer had proceeded to the employee’s normal retirement date.

(b) For the purpose of this clause continuity of service shall not be broken on account of—(i) any interruption or termination of the employment by the employer if such interruption or

termination has been made merely with the intention of avoiding obligations hereunder inrespect of leave of absence:

(ii) any absence from work on account of personal sickness or accident for which an employeeis entitled to claim sick pay as prescribed by this award or on account of leave lawfullygranted by the employer; or

(iii) any absence with reasonable cause, proof whereof shall be upon the employee;Provided that in the calculation of continuous service under this subclause any time in respect ofwhich an employee is absent from work except time for which an employee is entitled to claim annualleave, sick pay, long service leave and public holidays as prescribed by this award shall not count astime worked.

(4) Employee Leaving During NoticeAn employee whose employment is to be terminated for reasons set out in sub clause (1) paragraph (a) hereof,may terminate his or her employment during the period of notice and, if so, shall be entitled to the same benefitsand payments under this clause had the employee remained with the employer until the expiry of such notice.Provided that in such circumstances the employee shall not be entitled to payment in lieu of notice.

(5) Alternative EmploymentAn employer, in a particular redundancy case, may make application to the Commission to have the generalseverance pay prescription varied if the employer either offers or obtains acceptable alternative employment foran employee.

(6) Time Off During Notice Period(a) During the period of notice of termination of employment given by an employer, an employee whose

employment is to be terminated for reasons set out in paragraph (a) of subclause (1) of this clause thatemployee shall for the purpose of seeking other employment be entitled to be absent from work duringeach week of notice up to a maximum of eight ordinary hours without deduction of pay.


(b) If the employee has been allowed paid leave for more than one day during the notice period for thepurpose of seeking other employment, the employee shall, at the request of the employer, be requiredto produce proof of attendance at an interview or the employee shall not receive payment for the timeabsent. For this purpose a statutory declaration will be sufficient.

(7) Notice to CentrelinkWhere a decision has been made to terminate employees in the circumstances outlined in sub clause (1)paragraph (a) hereof, the employer shall notify Centrelink thereof as soon as possible giving relevantinformation including the number and categories of the employees likely to be affected and the period overwhich the terminations are intended to be carried out.

(8) Superannuation BenefitSubject to an order of the Commission, where an employee who is terminated receives a benefit from asuperannuation scheme, the employee shall only receive under sub clause (3) hereof, the difference between theseverance pay specified in that sub clause and the amount of the superannuation benefit the employee receives,which is attributable to employer contributions only.

(9) Transmission of Business(a) Where, before or after the date of this award, a business is transmitted from an employer (in this sub

clause called “the transmittor”) to another employer (in this sub clause called “the transmittee”), anemployee who at the time of such transmission was an employee of the transmittor in that businessbecomes an employee of the transmittee—(i) the continuity of the employment of the employee shall be deemed not to have been broken

by reason of such transmission; and(ii) the period of employment which the employee has had with the transmittor or any prior

transmittor shall be deemed to be service of the employee with the transmittee.(b) In this sub clause “business” includes trade, process, business or occupation and includes part of any

such business and “transmission” includes transfer, conveyance, assignment or succession whether byagreement or by operation of law and “transmitted” has a corresponding meaning.

(10) Employees With Less Than One Year’s ServiceThis clause shall not apply to employees with less than one year’s continuous service and the general obligationon employers should be no more than to give relevant employees an indication of the impending redundancy atthe first reasonable opportunity, and to take such steps as may be reasonable to facilitate the obtaining by theemployees of suitable alternative employment.

(11) Employees ExemptedThis clause shall not apply where employment is terminated as a consequence of conduct that justifies instantdismissal including malingering, inefficiency or neglect of duty or in the case of casual employees, apprenticesor employees engaged for a specific period of time or for a specified task or tasks.

(12) Employers ExemptedSubject to an order of the Commission, in particular redundancy case, this clause shall not apply to employerswho employ less than 15 employees.

(13) Incapacity to PayAn employer, in a particular redundancy case, may make application to the Commission to have the generalseverance pay prescription varied on the basis of the employer’s incapacity to pay.

28. Clause 37 – Definitions: Delete this clause number and insert in lieu thereof the following new clause number—35. DEFINITIONS

29. Clause 38 – Special Rates: Delete the clause number and subclause (1) of this Clause, and insert in lieu thereofthe following new clause number and subclause—

36. SPECIAL RATES(1) Height Money: An employee shall be paid an allowance of $1.09 for each day on which that employee works at

a height of 15.5 metres or more above the nearest horizontal plane.30. Clause 39 – Maternity Leave: Delete this clause number and insert in lieu thereof the following new clause

number—37. MATERNITY LEAVE

31. Clause 40 – Minimum Wage: Delete this clause number and insert in lieu thereof the following new clausenumber—

38. MINIMUM WAGE32. Clause 41 – Resolution of Grievances and Disputes Procedure: Delete this clause number and insert in lieu

thereof the following new clause number—39. RESOLUTION OF GRIEVANCES AND DISPUTES PROCEDURE

33. Clause 42 – Disciplinary Practice: Delete this clause number and insert in lieu thereof the following new clausenumber—

40. DISCIPLINARY PRACTICE34. Insert the following new Clause—

41. – SUPERANNUATION (EXEMPTION FOR WMC RESOURCES LTD) (1) Subject to the amendments set out in sub-clause (2) below WMC will continue to make superannuation

contributions on behalf of employees covered by this Award in accordance with the Nickel Mining andProcessing Award 1975 No 18 of 1975 Western Mining Limited Occupational Superannuation Order (1993)73 WAIG 2346 (the Order).

(2) The following amendments apply to the Order—(a) The Superannuation Fund means the Plum Financial Services Ltd (Fund) ABN 360812731 or other

fund approved for the purposes of the Superannuation Industry (Superannuation) Act 1993 (C’th)nominated by WMC.

(b) The Company means WMC Resources Limited (WMC).


(c) WMC’s contribution to the Superannuation Fund in respect of employees covered by this Award willbe 9% or such other percentage as prescribed by the Superannuation Guarantee (Administration) Act1992 (C’th).

35. Schedule 1 – Wages: Delete this Schedule and insert in lieu thereof the following—SCHEDULE 1. – WAGES

The minimum rates of pay payable under this Award shall be as follows—PART A(1) Rate per Week

BaseRate

$

IndustryAllowance

$

ArbitratedSafety Net

Adjustments$

TotalRate

$(a) Underground Section -

Trucker 260.70 83.80 106.00 450.50Tool Carrier 260.70 83.80 106.00 450.50Shoveller 260.70 83.80 106.00 450.50Diamond Drillers Assistant 268.70 83.80 106.00 458.50Pipe Assembler 268.70 83.80 106.00 458.50Sampler 268.70 83.80 106.00 458.50Hydraulic Fill Operator 268.70 83.80 106.00 458.50Popper Machine Employee 268.70 83.80 106.00 458.50Air Hoist Operator 268.70 83.80 106.00 458.50Electric Hoist Operator 268.70 83.80 106.00 458.50Pump Attendant 268.70 83.80 106.00 458.50Ventilation Employee 268.70 83.80 106.00 458.50Platelayer 273.60 83.80 106.00 463.40Train Crew 273.60 83.80 106.00 463.40Mechanical Loader Operator 273.60 83.80 106.00 463.40Scraper Hauler Operator 273.60 83.80 106.00 463.40Braceperson 273.60 83.80 106.00 463.40Plateperson 273.60 83.80 106.00 463.40Skiperson 273.60 83.80 106.00 463.40Scalers 278.10 83.80 106.00 467.90Rock drill employee in all otherplaces including open cut 285.60 83.80 106.00 475.40Sanitary Employee 286.00 83.80 106.00 475.80Timberperson - Other 290.40 83.80 106.00 480.20Rock Drill employee in rises 293.90 83.80 106.00 483.70Rock Drill employee in winzes 293.90 83.80 106.00 483.70Raised Borer Operator 293.90 83.80 106.00 483.70Diamond Driller -

(i) up to 20 h.p. 293.90 83.80 106.00 483.70(ii) over 20 h.p. 299.20 83.80 106.00 489.00

Timberperson - shaft 301.60 83.80 106.00 491.40Rock Drill employee in shafts 301.60 83.80 106.00 491.40Hauler Operator 307.40 83.80 106.00 497.20Hydraulic Twin and Treble Jumbo Operator 314.30 83.80 106.00 504.10

(b) Open Cut section -Quarry Labourer 265.00 83.80 106.00 454.80Sampler 265.00 83.80 106.00 454.80Dump Spotter 265.00 83.80 106.00 454.80Fuel and Lube Serviceperson 281.40 83.80 106.00 471.20Powder Monkey 288.30 83.80 106.00 478.10Machine Drill Operator 294.90 83.80 106.00 484.70Dump Truck Operator 317.80 83.80 106.00 507.70Operators of Bulldozers, Front-end loaders, or tractors with orwithout power operatedattachments -

Up to 35 b.h.p. 288.40 83.80 106.00 478.20Over 35 b.h.p. up to 70 b.h.p. 298.00 83.80 106.00 487.80Over 70 b.h.p. up to130 b.h.p.

302.80 83.80 106.00 492.60

Over 130 b.h.p. up to250 b.h.p.

309.40 83.80 106.00 499.20

Over 250 b.h.p. up to400 b.h.p.

316.90 83.80 106.00 506.70

Over 400 b.h.p. 324.70 83.80 106.00 514.50


BaseRate

$

IndustryAllowance

$


Adjustments$

TotalRate

$Grader driver -

Up to 100 b.h.p. 319.90 83.80 106.00 509.70Over 100 b.h.p. 323.60 83.80 106.00 513.40

(c) Surface sections -General Hand 254.10 83.80 106.00 443.90Utility Employee Grade 1 260.70 83.80 106.00 450.50Utility Employee Grade 2 265.00 83.80 106.00 454.80Utility Employee Grade 3 272.10 83.80 106.00 461.90Storeperson 273.50 83.80 106.00 463.30Sawyer and Benchperson 277.40 83.80 106.00 467.20Overhead Crane Driver 277.40 83.80 106.00 467.20Sanitary Employee 277.40 83.80 106.00 467.20Ambulance/First Aid Attendant 281.40 83.80 106.00 471.20Nursery Hand 281.40 83.80 106.00 471.20Storeperson (WMC - MainStore)

282.00 83.80 106.00 471.80

Tool Sharpener 282.40 83.80 106.00 472.20Rigger and Splicer 291.40 83.80 106.00 481.20Linotex Operator/Belt Repairer 296.50 83.80 106.00 486.30Diamond Driller 299.20 83.80 106.00 489.00

(d) Ore Treatment Mill SectionOre Treatment Plant Operator -Grade 1 - ie an O.T.O. havingless than three monthsexperience on the process

265.30 83.80 106.00 455.10

Ore Treatment Plant Operator -Grade 2 - ie an O.T.O. havingmore than three monthsexperience -

280.70 83.80 106.00 470.50

Spray Dryer Control RoomOperator after three monthscontrol room experience -

301.30 83.80 106.00 491.10

No. 2 Crushing Plant ControlRoom Operator after three monthscontrol room experience -

307.40 83.80 106.00 497.20

Leinster Nickel OperationConcentrator Operator - Grade1 -less than four monthsexperience -

273.80 83.80 106.00 463.60

Concentrator Operator - Grade2 - Not less than three monthsexperience -

285.10 83.80 106.00 474.90

Concentrator Operator Grade 3 Not less than eight monthsservice and proficient to operateall of the process plant andmechanical equipment -

301.50 83.80 106.00 491.30

(e) Laboratory Section -Sampler Preparer -(i) with less than three

months experience 265.30 83.80 106.00 455.10(ii) with more than three

months experience 278.10 83.80 106.00 467.90Laboratory Assistant -(i) with less than three

months experience 276.70 83.80 106.00 466.50(ii) with more than three

months experience 286.00 83.80 106.00 475.80 (f) Mechanical Equipment Section -

Driver of Motor Vehicle -(i) Not exceeding 25 cwt

capacity 302.50 83.80 106.00 492.30(ii) Exceeding 25 cwt

capacity but notexceeding 3 tonscapacity

306.90 83.80 106.00 496.70


BaseRate

$

IndustryAllowance

$


Adjustments$

TotalRate

$(iii) Exceeding 3 tons capacity

but not exceeding 6 tonscapacity

310.90 83.80 106.00 500.70

(iv) 6 tons and over butunder 7 tons 311.70 83.80 106.00 501.50

(v) 7 tons and over butunder 8 tons 313.30 83.80 106.00 503.10

(vi) 8 tons and over butunder 9 tons 313.30 83.80 106.00 503.70

(vii) 9 tons and over butunder 10 tons 314.30 83.80 106.00 504.10

(viii) 10 tons and over butunder 11 tons 315.50 83.80 106.00 505.30

(ix) 11 tons and over butunder 12 tons 316.40 83.80 106.00 506.20

(x) 12 tons and over butunder 13 tons 317.10 83.80 106.00 506.90

Driver of articulated Vehicle morethan 11 tons and up to 12 tons 320.60 83.80 106.00 510.40Unlicensed Dump Truck Operator 317.20 83.80 106.00 507.00Fork Lift Driver -(i) Under 10000 lbscapacity

310.90 83.80 106.00 500.70

(ii) Over 10000 lbscapacity

333.10 83.80 106.00 522.90

Operators of bulldozers, Front-end loaders, or tractors with orwithout power operatedattachments -

Up to 35 b.h.p. 288.40 83.80 106.00 478.2035 b.h.p. up to 70 b.h.p. 298.00 83.80 106.00 487.8070 b.h.p. up to 130 b.h.p. 302.80 83.80 106.00 492.60130 b.h.p. up to 250 b.h.p. 309.30 83.80 106.00 499.10250 b.h.p. up to 400 b.h.p. 316.60 83.80 106.00 506.40Over 400 b.h.p. 323.90 83.80 106.00 513.70

Grader Driver -(i) Up to 100 b.h.p. 319.40 83.80 106.00 509.20(ii) Over 100 b.h.p. 323.10 83.80 106.00 512.90

(g) Mess Personnel -Head Cook 314.90 83.80 106.00 504.70Cook 301.80 83.80 106.00 491.60Cook’s Offsider 278.10 83.80 106.00 467.90Mess Attendant 254.40 83.80 106.00 444.20

The rates of pay in this award include arbitrated safety net adjustments available since December 1993, under theArbitrated Safety Net Adjustment Principle.These arbitrated safety net adjustments may be offset against any equivalent amount in the rate of pay received byemployees since 1 November 1991 above the rate prescribed in the Award, except where such absorption is contrary tothe terms of an industrial agreement.Increases in rates of pay otherwise made under the State Wage Case Principles, excepting those resulting from enterpriseagreements, are not to be used to offset arbitrated safety net adjustments.

(2) Leading Hands.In addition to the appropriate rate prescribed in part (1) of this Schedule, a leading hand shall be paid the following inexcess of the highest rate applicable to the work being carried out—

$(a) If placed in charge of not less than three

and not more than ten other employee.18.90

(b) If placed in charge of more than ten andnot more than twenty other employees

28.50

(c) If placed in charge of more than twentyother employees

37.00

(3) Industry AllowanceAn industry allowance of $83.80 per week, payable for all purposes of the award, is payable for all employees, in additionto the base rate, as reflected in Part A hereof. Such allowance recognises, and is in payment for, all aspects of work in thenickel industry, including the location and nature of individual operations within it.


PART BWAGES - KAMBALDA NICKEL OPERATIONS

In lieu of sub clauses (1) and (2) of this clause, surface employees at the Kambalda Nickel Operations shall be paid thefollowing—

(1) Classification BaseRate

$

IndustryAllowance

$


Adjustments$

TotalRate

$

General Hand 290.70 83.80 106.00 480.50Level One includes thefollowing:

302.70 83.80 106.00 492.50

MPE 1,Laboratory Assistant 1and Storeperson 1

Level Two includes thefollowing:

321.40 83.80 106.00 511.20

MPE 2,Laboratory Assistant 2,Storeperson 2

Level Three includes thefollowing:

324.20 83.80 106.00 514.00

Process Operator 2Level Four includes thefollowing:

329.90 83.80 106.00 519.70

MPE 3, LaboratoryAssistant 3, Storeperson 3

Level Five includes thefollowing:

336.80 83.80 106.00 526.60

Process Operator 3Level Six includes thefollowing:

346.20 83.80 106.00 596.00

MPE 4, LaboratoryAssistant 4

Level Seven includes thefollowing:

349.10 83.80 106.00 538.90

Diamond DrillerLevel Eight includes thefollowing:

357.70 83.80 106.00 547.50

Process Operator 4Level Nine includes thefollowing:

364.10 83.80 106.00 553.90

Process Operator 5(2) Mechanical Equipment

SectionDriver of Motor Vehicle notexceeding 25 cwt capacity

347.50 83.80 106.00 537.30

Exceeding 25 cwt capacitybut not exceeding 3 tonscapacity

352.20 83.80 106.00 542.00

Exceeding 3 tons capacityunder 6 tons capacity

356.30 83.80 106.00 546.10

6 tons capacity up to 7 tons 357.20 83.80 106.00 547.007 tons capacity up to 8 tons 358.90 83.80 106.00 548.708 tons capacity up to 13 tons 363.00 83.80 106.00 552.80Driver of articulated vehiclemore than 11 tons up to12 tons 366.70 83.80 106.00 556.50

Unlicensed Dump TruckOperator

363.20 83.80 106.00 553.00

Fork Lift Driver -Under 10000 lbs. capacity 356.30 83.80 106.00 546.10Over 10000 lbs capacity 380.00 83.80 106.00 569.80


(1) Classification BaseRate

$

IndustryAllowance

$


Adjustments$

TotalRate

$

Operator of Bulldozers, Frontend loaders, Road Sweepersor tractors with or withoutpower operated attachments -

Up to 35 b.h.p. 332.40 83.80 106.00 522.2035 b.h.p. up to 70 b.h.p. 342.50 83.80 106.00 532.3070 b.h.p. up to 140 b.h.p. 347.80 83.80 106.00 537.60140 b.h.p. up to 250 b.h.p. 354.70 83.80 106.00 544.50250 b.h.p. up to 400 b.h.p. 362.50 83.80 106.00 552.30Over 400 b.h.p. 370.30 83.80 106.00 560.10

Grader Driver -Up to 100 b.h.p. 365.50 83.80 106.00 555.30Over 100 b.h.p. 369.40 83.80 106.00 559.20

The rates of pay in this award include arbitrated safety net adjustments available since December 1993, under theArbitrated Safety Net Adjustment Principle.These arbitrated safety net adjustments may be offset against any equivalent amount in the rate of pay received byemployees since 1 November 1991 above the rate prescribed in the Award, except where such absorption is contrary tothe terms of an industrial agreement.Increases in rates of pay otherwise made under the State Wage Case Principles, excepting those resulting from enterpriseagreements, are not to be used to offset arbitrated safety net adjustments.(3) Industry Allowance

An industry allowance of $83.80 per week, payable for all purposes of the award, is payable for all employees,in addition to the base rate, as reflected in Part B hereof. Such allowance recognises, and is in payment for, allaspects of work in the nickel industry, including the location and nature of individual operations within it.

36. Schedule 3 – District Allowance: Delete this Schedule37. Schedule 4 – Wages - Kambalda Nickel Operation: Delete this Schedule38. Schedule 5 – Wages – Windarra Nickel Project: Delete this Schedule39. Schedule 6 – Parties to the Award: Delete this title and insert in lieu thereof the following title—

SCHEDULE 3. – PARTIES TO THE AWARD

____________________

2003 WAIRC 08560NICKEL REFINING AWARD 1971

No. 6 of 1971WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES THE AUSTRALIAN WORKERS’ UNION, WEST AUSTRALIAN BRANCH, INDUSTRIALUNION OF WORKERS, APPLICANTv.WMC RESOURCES (PREVIOUSLY WESTERN MINING CORPORATION) ABN76 004 184 598, RESPONDENT




1. THAT the applicant’s claim in relation to parental leave be and is hereby divided as application 1155 A of 2003.2. THAT the Nickel Refining Award 1971 No. 6 of 1971 be varied in accordance with the following schedule and

that such variation shall have effect from the beginning of the first pay period commencing on or after the dateof this order.


_________


SCHEDULE1. Clause 2 – Arrangement: Delete this Clause and insert in lieu thereof the following—

2. ARRANGEMENT1. Title1B. Minimum Adult Award Wage2. Arrangement2A. State Wage Principles - June 19913. Area and Scope4. Term5. Preference to Unionists6. Contract of Service7. Mixed Functions8. Special Rates and Provisions9. Hours (Other than Continuous Shift Employees)10. Overtime (Other than Continuous Shift Employees)11. Continuous Shift Employees12. Shift Work13. Rest period After Overtime14. Public Holidays15. Annual Leave16. Long Service Leave17. Sick Leave18. Travelling19. Notice Boards20. Shop Stewards21. Grievances and Disputes22. Board of Reference23. Junior Employees24. Payment of Wages25. Time and Wages Record26. Liberty to Apply27. Wages28. Bereavement Leave29. Jury Service30. Redundancy31. Special Day Off Provisions32. Definitions33. Superannuation34. Parental Leave

Appendix – Resolution of Disputes ProceduresSchedule A. – Parties to the AwardAppendix – S.49B – Inspection of Records Requirements

2. Clause 3 – Area and Scope: Delete this Clause and insert in lieu thereof the following—3. - AREA AND SCOPE

This Award shall apply to the employees employed by the respondent in the vocations mentioned in Clause 28 hereof inthe nickel refining industry in the area occupied and controlled by the respondent at Kwinana.


The term of this award shall be for a period of one month from 17 June 2003.4. Clause 6 – Contract of Service: Delete this Clause and insert in lieu thereof the following—

6. – CONTRACT OF SERVICE(1) A contract of service to which this Award applies shall be—

(a) “hourly”, in the case of a casual employee,(b) “daily”, during the first month of employment;(c) “weekly”, after the first month of employment;

and shall be terminated in accordance with the provisions of this clause and not otherwise but this subclause does notoperate so as to prevent any party to a contract from giving a greater period of notice than is hereinafter prescribed nor toaffect any employer’s right to dismiss an employees without notice for misconduct and in such case wages shall be paidup to the time of dismissal only.(2) Termination of Employment

(a) Full time and part time employees(i) The employment of a full-time or part-time employee may be terminated by the employer by

providing the following period of notice—

Period of Continuous Service Period of NoticeNot more than 1 year 1 weekMore than 1 year but not more than 3 years 2 weeksMore than 3 years but not more than 5 years 3 weeksMore than 5 years 4 weeks


(ii) Employees over 45 years of age with 2 or more years’ continuous service at the time oftermination, shall receive an additional weeks’ notice


(iv) Payment in lieu of notice shall be calculated using the employee’s weekly ordinary time wagesas prescribed.

(v) The period of notice in this clause shall not apply in the case of dismissal for serious misconductthat is, misconduct of a kind such that it would be unreasonable to require the employer tocontinue the employment during the notice period.


(vii) Probation. An employee engaged under the terms of this award may be engaged under probationfor an agreed period not exceeding three months. Notwithstanding sub clause 2 (a)(i) above, theemployment of an employee on probation, may be terminated by either party providing to theother, one day’s notice, or one day’s pay in lieu shall be paid or forfeited.


(3) In lieu of giving the notice referred to in subclause (2) of this clause, an employer may pay the employeeconcerned their ordinary wages for the period of notice to which he or she would otherwise be entitled.

(4) (a) Where an employee leaves their employment—(i) without giving the notice referred to in subclause (2) of this clause; or—(ii) having given such notice, before the notice expires, the employee forfeits his or her

entitlement to any moneys owing to them under this award except to the extent that thosemoneys exceed his or her ordinary wages for the period of notice which should have beengiven.

(b) In a case to which paragraph (a) of this subclause applies—(i) the contract of service shall, for the purposes of this Award, be deemed to have terminated at

the time at which the employee was last ready, willing and available for work duringordinary hours under the contract; and

(ii) the provisions of subclause (2) of this clause shall be deemed to have been complied with ifthe employee pays to the employer, whether by forfeiture or otherwise, an amountequivalent to the employee’s ordinary wages for the period of notice which should havebeen given.

(5) The period of notice referred to in subclause (2) of this clause is—(a) in the case of a casual employee, one hour;(b) in any other case—

(i) during the first month of employment under the contract, one day; and(ii) after the first month of such employment, one week.

(6) (a) On the first day of engagement an employee shall be notified by their employer or by the employer’srepresentative whether the duration of the employee’s employment is expected to exceed one monthand, if the employee is hired as a casual employee, he or she shall be advised accordingly.

(b) An employee shall, for the purposes of this award, be deemed to be a casual employee—(i) if the expected duration of the employment is less than one month; or(ii) if the notification referred to in paragraph (a) of this subclause is not given and the employee

is dismissed through no fault of his or her own within one month of commencingemployment.

(7) The employer shall be under no obligation to pay for any day not worked upon which the employee is requiredto present him or herself for duty, except when such absence from work is due to illness and comes within theprovisions of clause 17 or such absence is on account of holidays to which the employee is entitled under theprovisions of this Award.

(8) (a) The employer is entitled to deduct payment for any day upon which an employee cannot be usefullyemployed because of a strike by any of the unions party to this Award, or by any other association or union.

(b) The provisions of paragraph (a) of this subclause also apply where the employee cannot be usefullyemployed through any cause which the employer could not reasonably have prevented but only if, andto the extent that, the employer and the union or unions concerned so agree or, in the event ofdisagreement, the Board of Reference so determines.

(c) Where the stoppage of work has resulted from a breakdown of the employer’s machinery the Board ofReference, in determining a dispute under paragraph (b) of this subclause, shall have regard for theduration of the stoppage and the endeavours made by the employer to repair the breakdown.

5. Clause 7 – Mixed Functions: Delete this Clause and insert in lieu thereof the following—7. - MIXED FUNCTIONS

An employee engaged on duties carrying a higher rate than their ordinary classification shall be paid the higher rate forthe period he or she is so engaged, but if the employee is so engaged for two hours or more of one day or shift he or sheshall be paid the higher rate for the whole day or shift.

6. Clause 8 – Special Rates and Provisions: Delete subclause (1) of this Clause and insert in lieu thereof the followingsubclause—

8. – SPECIAL RATES AND PROVISIONS(1) In lieu of any other special rates and conditions an employee shall be paid a flat allowance of $12.50 per week.


7. Clause 9 – Hours (Other than Continuous Shift Workers): Delete the title and subclauses (1) and (4) of this Clauseand insert in lieu thereof the following title and subclauses—

9. – HOURS (OTHER THAN CONTINUOUS SHIFT EMPLOYEES)(1) The ordinary working hours shall not exceed forty in any one week and shall not exceed eight hours in any one

day Monday to Friday, inclusive, and except in the case of shift employees, shall be worked between the hoursof 7 a.m. and 5.30 p.m.Hours for shift employees shall be by agreement between the employer and the union.

(4) With the exception of shift employees provided in subclause (3) of this clause all employees shall be allowed arest period not exceeding seven minutes in the morning at such time and in such manner as determined by theemployer for the efficient operation of their plant.

8. Clause 10 – Overtime (Other than Continuous Shift Workers):Delete the title and subclauses (4) to (10) of this Clause and insert in lieu thereof the following new title andsubclauses—

10. – OVERTIME (OTHER THAN CONTINUOUS SHIFT EMPLOYEES)(4) (a) (i) When an employees is recalled to work overtime after leaving their employer’s business

premises (whether notified before or after leaving such premises) they shall be paid for atleast four hours at overtime rates: provided that, except in the case of unforeseencircumstances arising, an employee shall not be required to work the full four hours if thejob for which he or she was recalled is completed within a shorter period but if suchemployee is subsequently recalled to work within the period of four hours for whichpayment has been made, an additional payment shall not be made nor shall any extraovertime be paid in respect of any period covered by such minimum payment.

(ii) Where the recall exceeds the four hours minimum the employee shall be paid an additionalthirty minutes travelling time at overtime rates.

(b) This subclause shall not apply in cases where it is customary for an employee to return to theiremployer’s premises to perform a specific job outside their ordinary working hours or where theovertime is continuous (subject to any reasonable meal break which may be allowed) with thecompletion or commencement of ordinary working time.

(c) Overtime worked in the circumstances specified in this subclause shall not be regarded as timeworked for the purposes of clause 13 of this award where the time worked is less than four hours onsuch recall or on each of such recalls.

(5) When an employee is required to hold him or herself in readiness for a call to work after ordinary hours, theemployee shall be paid at ordinary rates for the time they so hold themselves in readiness.

(6) When an employee, without being notified on the previous day is required to continue working after the usualknock off time for more than two hours the employee shall be provided with any meal required or be paid$7.80 in lieu thereof. Provided that such payment need not be made to employees living in the same locality astheir place of employment who can reasonable return home for a meal.

(7) An employee shall not be compelled to work for more than five and one half hours during ordinary or overtimehours or both without a break of the customary period for a meal.

(8) When an employee, other than a shift employee, entitled to a paid meal period during their ordinary hours asprovided in subclause (3) of clause 9 is required for duty during the meal interval whereby their meal time ispostponed for more than half an hour, he or she shall be paid at overtime rates from the time they usuallycommence their meal interval until they get their meal.

(9) In the calculation of overtime rates, each day shall stand alone: Provided that, when an employee continuesworking beyond midnight on any day, the hours worked after midnight shall be counted as part of the previousday’s work for the purpose of calculating the rates to be paid.

(10) These overtime rates shall not apply to excess time worked due to private arrangements between the employeesthemselves or owing to a relieving employee failing to come on duty at the proper time or where such time isworked to effect the periodical rotation of shifts. The time for which any employee may be paid at ordinary ratesinstead of overtime due to a relieving employee failing to come on duty at the proper time shall not exceed twohours after the expiration of which overtime rates shall apply for the whole of the extra time worked.

9. Clause 11 – Continuous Shift Workers:Delete the title and subclauses (3), (5), (6), (7), (10) and (11) of this Clause and insert in lieu thereof the followingnew title and subclauses—

11. –CONTINUOUS SHIFT EMPLOYEES(3) These overtime rates shall not apply to excess time worked due to private arrangement between the employees

themselves or owing to a relieving employee failing to come on duty at the proper time or where such time isworked to effect the periodical rotation of shifts.The time for which any employee may be paid at ordinary rates instead of overtime due to a relieving employeefailing to come on duty at the proper time shall not exceed two hours, after the expiration of which overtimerates shall apply to the whole of the of the extra time worked.

(5) (a) (i) When an employee is recalled to work overtime after leaving their employer’s businesspremises (whether notified before or after leaving such premises) the employee shall be paidfor at least four hours at overtime rates: provided that except in the case of unforeseencircumstances arising, an employee shall not be required to work the full four hours if thejob for which they were recalled is completed within a shorter period but if such employee issubsequently recalled to work within the period of four hours for which payment has beenmade, an additional payment shall not be made nor shall any extra overtime be paid inrespect of any period covered by such minimum payment

(ii) Where the recall exceeds the four hours minimum the employee shall be paid an additionalthirty minutes travelling time at overtime rates.


(b) This subclause shall not apply in cases where it is customary for an employee to return to theiremployer’s premises to perform a specific job outside the employees ordinary working hours or wherethe overtime is continuous (subject to any reasonable meal break which may be allowed) with thecompletion or commencement of ordinary working time.

(c) Overtime worked in the circumstances specified in this subclause shall not be regarded as timeworked for the purposes of clause 13 of this award where the time worked is less than four hours onsuch recall or on each of such recalls.

(6) When an employee without being notified on the previous day is required to continue working after their usualknock off time for more than two hours he or she be provided with any meal required or be paid $7.80 in lieuthereof. Provided that such payment need not be made to employees living in the same locality as their place ofemployment who can reasonable return home for a meal.

(7) When on overtime an employee shall not be compelled to work for more than five and one half hours without abreak for a meal. Such five and one half hour period commencing from the employees work starting time and/orthe finishing time of their last meal time during the working period.

(10) A continuous shift employee rostered off on a holiday shall be paid eight hours pay at ordinary rates.(11) In the calculation of overtime rates, each day shall stand alone. Provided that, when an employee continues

working beyond midnight on any day, the hours worked after midnight shall be counted as part of the previousday’s work for the purpose of calculating the rates to be paid.

10. Clause 12 – Shift Work: Delete this Clause and insert in lieu thereof the following—(1) The employer may if they so desire, work any of their employees on shifts, but before doing so shall give notice

of their intention to the Union.(2) (a) An employee who in any consecutive three weeks, does not work at least one week on day shift or day

work shall be paid at the rate of time and one-quarter for each afternoon or night shift which he or sheworks in those three weeks.

(b) An employee who works for more than one week consecutively on afternoon shift shall be paid at therate of time and one-quarter for each afternoon shift worked in the consecutive second or subsequentweeks of afternoon shift.

(c) An employee who works for more than one week consecutively on night shift shall be paid at the rateof time and one-quarter for each night shift worked in the consecutive second or subsequent weeks ofnight shift.

(d) This subclause does not apply to an employee to whom it would only otherwise apply because of achange of shift due to private arrangement with another employee nor to an employee employed onany roster to which the employer and the union or unions concerned have agreed it shall not apply.

(3) A shift employee shall, in addition to the ordinary rate, be paid per shift of eight hours at the rate of$10.30 when on afternoon or night shift.

(4) (a) Where any particular process is carried out on shifts other than day shift, and less than fiveconsecutive afternoon or five consecutive night shifts are worked on that process, then employeesemployed on such afternoon or night shifts shall be paid at overtime rates. All overtime work ofMonday to Friday shift employees on Saturdays and Sundays stands alone and does not count for thepurpose of computing five consecutive shifts.

(b) The sequence of work shall not be deemed to be broken under the preceding paragraph by reason ofthe fact that work on that process is not carried out on a Saturday or Sunday or on any public holiday.

(5) (a) An employee who replaces a regular shift employee who is absent for any reason beyond the controlof the employer, on afternoon or night shift, shall be paid at the rate of time and one-quarter if they donot work for five consecutive shifts and the appropriate shift work rate if they work five or more shiftsconsecutively.

(b) An employee who replaces on afternoon or night shift a regular shift employee who is absent byreason of a direction of the employer shall be paid at overtime rates unless they work the number ofconsecutive shifts prescribed in the next preceding paragraph.

(c) The sequence of consecutive shifts shall not be deemed to be broken under paragraph (a) by reason ofrostered days off in respect to employees employed on continuous process work or by a Saturday orSunday in respect to other employees or by any public holiday or any other reason beyond the controlof the employer.

(d) A regular shift employee who does not work five consecutive shifts for any reason beyond the controlof the employer shall not be entitled to payment under the provisions of this subclause.

(6) A shift employee requested by the employer to work as a temporary day employee for relief purposes coveringabsences of day employees or for employer training purposes shall be paid the amount which they would havereceived had the employee worked their normal roster.

(7) Where a shift commences at or after 11 p.m. then the whole shift shall be paid for at the rate which applies tothe major portion of the shift.

(8) A roster showing the shifts to be worked and the commencing and finishing times of ordinary working hours ofthe respective shifts shall be posted on the Notice Boards.Such roster shall not be altered unless by agreement between shift employees and the employer or failingagreement by giving seven days’ notice to the Union of the proposed alteration.Copies of rosters shall be supplied to the Union.

(9) Maximum Rate: Extra rates in this Award except rates prescribed in Clause 8 of this Award are not cumulativeso as to exceed the maximum of double the ordinary rates or two and a half times the ordinary rate for workperformed on any of the holidays prescribed in clause 14 hereof.

11. Clause 13 – Rest Period After Overtime: Delete this Clause and insert in lieu thereof the following—13. - REST PERIOD AFTER OVERTIME

(1) When overtime work is necessary it shall wherever reasonably practicable, be so arranged that employees haveat least ten consecutive hours off duty between the work of successive days.


(2) An employee (other than a casual employee) who works so much overtime between the termination of theirordinary work on one day and the commencement of their ordinary work on the next day that the employee hasnot at least ten consecutive hours off duty between those times shall, subject to this subclause, be released aftercompletion of such overtime until the employee has had ten consecutive hours off duty without loss of pay forordinary working time occurring during such absence.

(3) If, on the instructions of their employer, such an employee resumes or continues work without having had suchten consecutive hours off duty, the employee shall be paid at double rates until he or she is released from dutyfor such period and the employee shall then be entitled to be absent until they have had ten consecutive hoursoff duty without loss of pay for ordinary working time occurring during such absence.

(4) An employee (other than a casual employee) not engaged on continuous shift work who works on a Sunday orpublic holiday and (except for meal breaks) immediately thereafter continues such work shall on being relievedfrom duty be entitled to be absent until they have had ten consecutive hours off duty, without deduction of payfor ordinary time of duty occurring during such absence.

(5) The provisions of this clause shall apply in the case of continuous shift employees who rotate from one shift toanother, as if eight hours were substituted for ten hours when overtime is worked—(a) for the purpose of changing shift rosters; or(b) where a shift employee does not report for duty; or(c) where a shift is worked by arrangement between employees themselves.

12. Clause 14 – Holidays: Delete the title and subclause (3) of this Clause and insert in lieu thereof the following newtitle and subclause—

14. – PUBLIC HOLIDAYS(3) Any employee absenting him or herself from work without reasonable cause, proof of which shall lie upon the

employee on the whole or portion of the working day succeeding a holiday provided for herein, shall not beentitled to payment for such holiday.

13. Clause 15 – Annual Leave: Delete this Clause and insert in lieu thereof the following—15. – ANNUAL LEAVE

(1) (a) Except as hereinafter provided a period of four weeks’ leave with payment of ordinary wages asprescribed in paragraph (b) hereof shall apply for each year of service and shall accrue pro rata on aweekly basis.

(b) (i) An employee before going on Annual Leave shall be paid the wages they would havereceived in respect of the ordinary time they would have worked had they not been on leaveduring the relevant period.

(ii) Subject to paragraph (c) hereof an employee shall, where applicable, have the amount ofwages to be received for annual leave calculated by including the following whereapplicable—(aa) The rate applicable to the employee as prescribed in clause 28 of this award;(bb) Subject to paragraph (c)(ii) hereof the rate prescribed for work in ordinary time by

clause 12. - Shift Work of the award according to the employees roster orprojected roster including Saturday or Sunday shift;

(cc) The rate payable pursuant to clause 7. - Mixed Functions calculated on a dailybasis, which the employee would have received for ordinary time during therelevant period whether on a shift roster or otherwise;

(dd) Any other rates to which the employee is entitled in accordance with their contractof employment for ordinary hours of work, provided that this provision shall notoperate so as to include any payment which is of a similar nature to or is paid forthe same reasons as or is paid in lieu of those payments prescribed by clause 10. -Overtime (Overtime other than Continuous Shift Employees) clause 11. -Continuous Shift Employees, clause 8. - Special Rates and Provisions, of thisaward nor any payment which might have become payable to the employee asreimbursement for expenses incurred.

(c) During the period of annual leave an employee shall receive a loading calculated on the rate of wageprescribed by paragraph (b) hereof. This loading shall be as follows:-(i) Day Employees - An employee who would have worked on day work had he or she not been

on leave - a loading of 17½ per cent.(ii) Shift Employees - An employee who would have worked on shift work had he or she not

been on leave - a loading of 17½ per cent.Provided that where the employee would have received shift loadings prescribed by clause 12. - ShiftWork had he or she not been on leave during the relevant period and such loadings would haveentitled him to a greater amount than the loading of 17½ per cent, then the shift loadings shall beadded to the rate of wage prescribed by paragraph (b)(ii)(aa) hereof in lieu of the 17½ per centloading.Provided further, that if the shift loadings would have entitled him to a lesser amount than the loadingof 17½ per cent then such loading of 17½ per cent shall be added to the rate of wage prescribed byparagraph (b) but not including paragraph (b)(ii)(bb) hereof in lieu of the shift loadings.The loading prescribed by this subclause shall not apply to proportionate leave on termination.

(2) A seven day shift employee, i.e. a shift employee who is rostered to work regularly on Sunday and holidaysshall be allowed one week’s leave in addition to the leave to which he or she is otherwise entitled under thisclause. This leave will be accrued weekly.

(3) If any prescribed holiday falls within an employee’s period of annual leave and is observed on a day which, inthe case of that employee would have been an ordinary working day, there shall be added to that period one daybeing an ordinary working day for each such holiday observed as aforesaid.


(4) (a) After one week’s continuous service in any qualifying twelve month period, an employee whoseemployment terminates shall, subject to the provisions of paragraph (b) of this sub clause, be paid onethirteenth of a week’s pay (or 2.932 hours) at his or her ordinary rate of wage in respect of eachcompleted week of service.

(b) Where an employee is justifiably dismissed for serious misconduct the provisions of paragraph (a) ofthis sub clause do not apply.

(5) Any time in respect of which an employee is absent from work, except time for which the employee is entitledto claim sick pay, or time spent on public holidays, annual leave or bereavement leave as prescribed by thisaward shall not count for the purpose of determining his or her right to annual leave.

(6) In special circumstances and by mutual consent of the employer, the employee and the union concerned, annualleave may be taken in not more than two periods.

(7) An employee whose employment terminates after they have completed a twelve monthly qualifying period andwho has not been allowed the leave prescribed under this award in respect of that qualifying period shall receivepayment in lieu of that leave at their ordinary rate of wage.

(8) Notwithstanding anything else herein contained an employer who observes a Christmas close down for thepurpose of granting annual leave may require an employee to take his or her annual leave in not more than twoperiods but neither of such periods shall be less than one week.

(9) (a) An employer may allow annual leave to an employee before the right thereto has accrued but whereleave is so allowed and taken a further period of annual leave shall not commence to accrue until theexpiration of the qualifying twelve month period in respect of which annual leave has been soallowed.

(b) Where leave has been allowed and taken by an employee pursuant to paragraph (a) of this sub clauseand the employee’s employment terminates before he or she completes the continuous service inrespect of which the leave was so allowed the employer may deduct from any moneys owing to theemployee upon the termination of his or her employment payments made for annual leave taken butnot accrued.

(c) In a case to which paragraph (b) of this sub clause applies any payment made for or in respect of anyof the holidays prescribed in Clause 14. – Public Holidays of this award shall not be deemed part ofthe amount of wage paid on account of the annual leave.

(10) The provisions of this clause shall not apply to casual employees.(11) (a) An employee who, at the commencement of his or her annual leave, has an entitlement to payment for

non-attendance on the ground of personal ill health for not less than forty hours under the provisionsof Clause 16. – Sick Leave of this award and who, within fourteen days of resuming work, producesto the employer evidence that would satisfy a reasonable person that during annual leave the employeewas confined to his or her home or to a hospital for a period of at least seven consecutive days for areason which, if he or she had not been on annual leave, would have entitled him or her to be on sickleave for so much of that period as the employee would otherwise have been entitled to paymentunder that clause.

(b) An employee to whom paragraph (a) applies shall take the period deemed to be sick leave as annualleave at a time convenient to the employer but on ordinary pay, without the loading prescribed inparagraph (c) of sub clause (1) of this clause.

(12) If an employee’s employment terminates in circumstances other than those referred to in sub clause (4)(a)before he or she has taken the leave prescribed under this award he or she shall be paid for any untaken leavethat relates to completed year of service or, in a case to which sub clause (5) or (6) of this clause applies in lieuof so much that leave as has been allowed, unless—(a) the employee has been dismissed for misconduct; and(b) the misconduct for which the employee has been dismissed occurred prior to the completion of that

qualifying period.14. Clause 17 – Absence through Sickness: Delete this title and Clause and insert in lieu thereof the following new title

and Clause—17. – SICK LEAVE

(1) Subject as hereinafter provided a full-time employee shall be entitled to payment for non-attendance on theground of personal ill health or injury for up to 10 working days or 76 hours, whichever is the lesser, each year,accrued on a weekly basis. Part-time employees who are paid a proportion of a full-time employee’s pay or paidaccording to the number of hours worked shall be entitled to the proportion of the number of hours worked eachweek that the average number of hours each week bears to 38, up to 76 hours each year. This clause shall notapply where the employee is entitled to compensation under the Worker’s Compensation and Rehabilitation Act1981.

(2) An employee shall not be entitled to receive wages from the employer for any time lost through illness or injurycaused by the employee’s own serious and wilful misconduct or gross and wilful neglect.

(3) An employee, who claims to be entitled to paid leave under this clause, is to provide the employer withevidence that would satisfy a reasonable person of the entitlement.

(4) Sick leave shall accumulate from year to year so that any balance of the period specified in subclause (1) of thisclause which has in any year not been allowed to any employee by their employer as paid sick leave, may beclaimed by the employee subject to the conditions hereinbefore prescribed, shall be allowed by their employerin any subsequent year without diminution of the sick leave prescribed in respect of that year.

(5) The provisions of this clause do not apply to casual employees.15. Clause 18 – Travelling: Delete this Clause and insert in lieu thereof the following—

18. - TRAVELLINGTransport: Where an employee working overtime finishes work at a time when reasonable means of transport are notavailable to the employee the employer shall transport the employee to his or her home.


16. Clause 19 – Union Representative Interviewing Workers: Delete this Clause17. Clause 20 – Notice Boards: Delete this clause number and insert in lieu thereof the following new clause number—

19. – NOTICE BOARDS18. Clause 21 – Shop Stewards: Delete this clause number and insert in lieu thereof the following new clause

number—20. – SHOP STEWARDS

19. Clause 22 – Grievances and Disputes: Delete this Clause and insert in lieu thereof the following—21. - GRIEVANCES AND DISPUTES

(1) To facilitate the remedying of any grievance or the settlement of any dispute the following procedure shallapply, namely:-(a) The employee concerned shall firstly refer the grievance to their foreperson or immediate superiors.(b) The job steward on the site may discuss with the foreperson any grievance affecting the employees he

or she represents and, if the matter is not satisfactorily resolved, the job steward may discuss thematter with the Industrial Officer or other officer nominated by the employer to deal with such matterson the site.

(c) The Industrial Officer or other officer referred to in paragraph (b) of this subclause shall, within fortyeight hours of discussing a grievance with a job steward, advise the job steward of the employer’sdecision on the matter; provided that where, owing to the nature of the grievance, the IndustrialOfficer or other officer and job steward agree that a longer period than forty eight hours is necessaryfor a decision to be made, the employer’s decision shall be conveyed to the job steward within theagreed time.

(d) If the matter is not resolved by the foregoing discussions the job steward shall notify the appropriatefull-time official of their Union and shall thenceforth leave the conduct of negotiations in the hands ofthe Union.

(e) Where a matter has been referred to the union by the job steward the Union shall promptly take allsteps necessary under its rules and under the Industrial Relations Act 1979 for the resolution of thematter.

(2) A job steward shall not leave their place of work to investigate any matter or to discuss any matter with theemployer’s representative unless on each occasion they first obtain permission to do so from their foreperson orsupervisor.

(3) A job steward shall not during working hours call or hold any meeting of the employees concerned with anygrievance or dispute. Work shall be continued normally at the instruction of the employer and there shall be noban or limitation imposed whilst the above procedure is being carried out.

20. Clause 23 – Board of Reference: Delete this clause number and subclause (1) of this Clause and insert in lieuthereof the following new clause number and subclause—

22. - BOARD OF REFERENCE(1) The Commission hereby appoints for the purpose of this award a Board of Reference consisting of a chairperson

and two other members who shall be appointed pursuant to regulation 25 of Industrial Relations CommissionRegulations 1985.

21. Clause 24 – Junior Workers: Delete this Clause and insert in lieu thereof the following new Clause—23. – JUNIOR EMPLOYEES

(1) Subject to the provisions of subclause (2) of this clause, junior employees may be employed in any callingmentioned in this Award.

(2) Any dispute between any of the parties to this Award as to whether it is appropriate that a junior employee beemployed on particular work may be determined by the Board of Reference.

22. Clause 25 – Payment of Wages: Delete this Clause and insert in lieu thereof the following—24. - PAYMENT OF WAGES

(1) Payment of wages shall be fortnightly by cheque.(2) At or before the time at which the employee receives their wages he or she shall be issued with a slip showing

the gross amount of wages and allowances due to them, all deductions therefrom, the total number of hoursworked including the number of overtime hours and the rate at which such overtime has been paid.

23. Clause 26 – Time and Wages Record: Delete this clause number and subclauses (1) and (2) of this Clause andinsert in lieu thereof the following new clause number and subclauses—

25. – TIME AND WAGES RECORD(1) The employer shall make and keep a record or records showing-

(a) The name and classification of each employee.(b) The age of junior employees.(c) The starting and finishing times on each day.(d) The hours worked.(e) The wages and overtime (if any) paid.(f) The amount of other allowances paid.(g) Deductions.

(2) The time and wages record shall be open for inspection by a duly accredited representative of the Union, duringthe usual office hours, at the employer’s office or other convenience place and the duly accreditedrepresentative of the Union shall be allowed to take extracts therefrom. The employer’s works shall be deemedto be a convenient place for the purpose of this paragraph and if for any reason the record is not available at theworks when the official calls to inspect it, it shall be made available for inspection within twenty four hours,either at the employer’s office or at the works.


24. Clause 27 – Liberty to Apply: Delete this clause number and insert in lieu thereof the following new clausenumber—

26. – LIBERTY TO APPLY25. Clause 28 – Wages: Delete this Clause and insert in lieu thereof the following—

27. - WAGESThe minimum rates of wages per week payable under the provisions of this award shall be as follows:

(1) Adult BaseRate

$

IndustryAllowance

$


Adjustments$

TotalRate

$

Process Operator Grade 1 330.50 83.80 106.00 520.30Process Operator Grade 2 339.50 83.80 106.00 529.30Process Operator Grade 3 357.30 83.80 106.00 547.10Process Operator Grade 4 370.80 83.80 106.00 560.60Process Operator Grade 5 386.20 83.80 106.00 576.00Storeperson 332.60 83.80 106.00 522.40Multi-skilled Process Operator Grade 1 363.50 83.80 106.00 553.30Multi-skilled Process Operator Grade 2 372.50 83.80 106.00 562.30Multi-skilled Process Operator Grade 3 390.30 83.80 106.00 580.10Multi-skilled Process Operator Grade 4 403.80 83.80 106.00 593.60Multi-skilled Process Operator Grade 5 419.20 83.80 106.00 611.00


(2) Male Junior Employees (percent rate for Plant Operators Grade 1 classification per week)Under 17 years of age 55%Between 17 and 18 years of age 65%Between 18 and 19 years of age 80%At 19 years of age appropriate adult classification rate

(3) Casual Employees shall be paid fifteen per cent (15%) in addition to the rates prescribed in this clause.(4) Industry Allowance

An industry allowance of $83.80 per week, payable for all purposes of the award, is payable for all employees, in additionto the base rate. Such allowance recognises, and is in payment for, all aspects of work in the nickel industry, including thelocation and nature of individual operations within it.

26. Clause 29 – Bereavement Leave: Delete this Clause and insert in lieu thereof the following—28. – BEREAVEMENT LEAVE

When it is necessary for an employee to be absent from his or her employment for the purpose of attending or arranging afuneral, an employee shall be entitled a maximum of to three days’ leave at ordinary wages as prescribed on eachoccasion and on production of evidence that would satisfy a reasonable person of the death of the employee’s wife,husband, father, mother, grandfather, grandmother, brother, sister, child, father-in-law, mother-in-law, or any other personwho immediately before that person’s death, lived with the employee as a member of the employee’s family. Wife orhusband as referred to in this clause shall include de-facto wife or husband.

27. Clause 30 – Jury Service: Delete this Clause and insert in lieu thereof the following—29. - JURY SERVICE

An employee required for jury service during their ordinary working hours shall be granted leave with pay for all periodof time they are so required for jury service. An employee when applying for such leave, shall be required to support theirapplication with written proof of their attendance at such jury service.









paragraph (a), of this award, for ordinary termination, and subject to further order of the Commission,an employee whose employment is terminated for reasons set out in sub clause (1) paragraph (a)hereof, shall be entitled to the following amount of severance pay in respect of a continuous period ofservice.Period of Continuous Service Severance PayLess than 1 year Nil1 year and less than 2 completed years 4 weeks2 years and less than 3 completed years 6 weeks3 years and less than 4 completed years 7 weeks4 years and over 8 weeks“Week’s Pay” means the ordinary weekly rate of wage for the employee concerned. Provided that theseverance payments shall not exceed the amount which the employee would have earned ifemployment with the employer had proceeded to the employee’s normal retirement date.

(b) For the purpose of this clause continuity of service shall not be broken on account of—(i) any interruption or termination of the employment by the employer if such interruption or














transmittor shall be deemed to be service of the employee with the transmittee.


(b) In this sub clause “business” includes trade, process, business or occupation and includes part of anysuch business and “transmission” includes transfer, conveyance, assignment or succession whether byagreement or by operation of law and “transmitted” has a corresponding meaning.





29. Clause 32 – Special Day Off Provisions: Delete tie clause number and subclauses (1) and (4) of this Clause andinsert in lieu thereof the following new clause number and subclauses—

31. - SPECIAL DAY OFF PROVISIONS(1) Notwithstanding provisions prescribed elsewhere in this award, each employee shall be entitled to twelve

special days off per annum, without loss of pay.(4) Where an employee is required to work on a special day off they shall be paid as follows:-

(a) Where an employee works a full shift on a special day off, he or she shall be paid at the rate of timeand one half for that day, and in addition, shall be allowed and shall take one day off with pay, in lieuof the special day.

(b) Where less than eight hours are worked on a special day off, an employee shall be paid at the rate ofdouble time and one half.

30. Clause 33 – Definitions: Delete this clause number and insert in lieu thereof the following new clause number—32. – DEFINITIONS

31. Insert the following new Clause—33. – SUPERANNUATION

(1) Subject to the amendments set out in sub-clause (2) below WMC will continue to make superannuationcontributions on behalf of employees covered by this Award in accordance with the Nickel Refining Award1971 No 6 of 1971 Western Mining Limited Occupational Superannuation Order (1993) 73 WAIG 2346 (theOrder).

(2) The following amendments apply to the Order:(a) The Superannuation Fund means the Plum Financial Services Ltd (Fund) ABN: 35 081 812 731 or

other fund approved for the purposes of the Superannuation Industry (Superannuation) Act1993 (C’th) nominated by WMC.

(b) The Company means WMC Resources Limited (WMC).(c) WMC’s contribution to the Superannuation Fund in respect of employees covered by this Award will

be 9% or such other percentage as prescribed by the Superannuation Guarantee (Administration) Act1992 (C’th).

____________________

2003 WAIRC 08556NICKEL SMELTING (WESTERN MINING CORPORATION LIMITED)

AWARD, 1972 NO. 18 OF 1972WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES THE AUSTRALIAN WORKERS’ UNION, WEST AUSTRALIAN BRANCH, INDUSTRIALUNION OF WORKERS, APPLICANTv.WMC RESOURCES (PREVIOUSLY WESTERN MINING CORPORATION) ABN76 004 184 598, RESPONDENT





1. THAT the applicant’s claim in relation to parental leave be and is hereby divided as application 1152 A of2003.

2. THAT the Nickel Smelting (Western Mining Corporation Limited) Award 1972 No. 18 of 1972 be varied inaccordance with the following schedule and that such variation shall have effect from the beginning of the firstpay period commencing on or after the date of this order.


SCHEDULE1. Clause 1 – Title: Delete this Clause and insert in lieu thereof the following—

1. TITLEThis award shall be known as the Nickel Smelting (WMC Resources Ltd) Award 2003, as amended and consolidated.

2. Clause 2 – Arrangement: Delete this Clause and insert in lieu thereof the following—2. ARRANGEMENT

1. Title2. Arrangement2A. State Wage Principles – June 19913. Term4. Area and Scope5. Preference to Unionists6. Contract of Service7. Mixed Functions8. Hours9. Overtime10. Shift Work11. Saturday Work12. Sunday and Holiday Work13. Holidays14. Annual Leave15. Long Service Leave16. Sick Leave17. Bereavement Leave18. Payment of Wages19. Time and Wages Record20. Shop Stewards21. Notice Boards22. Board of Reference23. Definitions24. Minimum Wage25. Grievances and Disputes26. Special Rates27. Jury Service28. Redundancy29. Superannuation

Appendix - Resolution of Disputes RequirementsSchedule 1- WagesSchedule 2 - Parties to the AwardAppendix - S.49B - Inspection Of Records Requirements


The term of this award shall be for a period of one month from 17 June 2003.4. Clause 4 – Area and Scope: Delete this Clause and insert in lieu thereof the following—

4. - AREA AND SCOPEThis award shall apply to the employees employed by the respondent in the vocations mentioned in schedule 1 hereof inthe nickel smelting industry in the area occupied and controlled by the respondent approximately ten miles south ofBoulder.

5. Clause 6 – Contract of Service: Delete this Clause and insert in lieu thereof the following—6. – CONTRACT OF SERVICE

(1) A contract of service to which the award applies shall be—(a) “hourly” in the case of a casual employee;(b) “daily” during the first month of employment;(c) “weekly”, after the first month of employment—and shall be terminated in accordance with the provisions of this clause and not otherwise, but this subclausedoes not operate so as to prevent any party to a contract from giving a greater period of notice than is hereinafterprescribed, nor to affect any employer’s right to dismiss an employee without notice for misconduct and, insuch case wages shall be paid up to the time of dismissal only.


(2) Termination of Employment(a) Full time and part time employees

(i) The employment of a full-time or part-time employee may be terminated by the employer byproviding the following period of notice—Period of Continuous Service Period of NoticeNot more than 1 year 1 weekMore than 1 year but not more than 3 years 2 weeksMore than 3 years but not more than 5 years 3 weeksMore than 5 years 4 weeks

(ii) Employees over 45 years of age with 2 or more years’ continuous service at the time oftermination, shall receive an additional weeks’ notice


(iv) Payment in lieu of notice shall be calculated using the employee’s weekly ordinary timewages as prescribed.

(v) The period of notice in this clause shall not apply in the case of dismissal for seriousmisconduct that is, misconduct of a kind such that it would be unreasonable to require theemployer to continue the employment during the notice period.


(vii) Probation. An employee engaged under the terms of this award may be engaged underprobation for an agreed period not exceeding three months. Notwithstanding sub clause2 (a)(i) above, the employment of an employee on probation, may be terminated by eitherparty providing to the other, one day’s notice, or one day’s pay in lieu shall be paid orforfeited.


(3) In lieu of giving the notice referred to in subclause (2) of this clause, an employer may pay the employeeconcerned his or her ordinary wages for the period of notice to which the employee would otherwise be entitled.

(4) (a) Where an employee leaves their employment— (i) without giving the notice referred to in subclause (2) of this clause; or(ii) having given such notice, before the notice expires, the employee forfeits their entitlement to

any monies owing to them under this award except to the extent that those monies exceedthe employee’s ordinary wages for the period of notice which should have been given.

(b) In a case to which paragraph (a) of this subclause applies— (i) the contract of service shall, for the purposes of this award be deemed to have terminated at

the time at which the employee was last ready, willing and available for work duringordinary hours under the contract; and

(ii) the provisions of subclause (2) of this clause shall be deemed to have been complied with ifthe employee pays to the employer, whether by forfeiture or otherwise, an amountequivalent to the employee’s ordinary wages for the period of notice which should havebeen given.

(5) The period of notice referred to in subclause (2) of this clause is—(a) in the case of a casual employee, one hour;(b) in any other case—

(i) during the first month of employment under the contract, one day; and(ii) after the first month of such employment, one week.

(6) (a) On the first day of engagement an employee shall be notified by their employer or by the employer’srepresentative whether the duration of their employment is expected to exceed one month and, if theemployee is hired as a casual employee, they shall be advised accordingly.

(b) An employee shall, for the purposes of this award, be deemed to be a casual employee—(i) if the expected duration of the employment is less than one month; or(ii) if the notification referred to in paragraph (a) of this subclause is not given and the employee

is dismissed through no fault of their own within one month of commencing employment.(7) The employer shall be under no obligation to pay for any day not worked upon which the employee is required

to present themself for duty, except when such absence from work is due to illness and comes within theprovisions of clause 16 or such absence is on account of holidays to which the employee is entitled under theprovisions of this award.

(8) (a) The employer is entitled to deduct payment for any day upon which an employee cannot be usefullyemployed because of a strike by any of the unions party to this award or by any other association orunion.

(b) The provisions of paragraph (a) of this subclause also apply where the employee cannot be usefullyemployed through any cause which the employer could not reasonably have prevented but only if, andto the extent that the employer and the union or unions concerned so agree or, in the event ofdisagreement, the Board of Reference so determines.


(c) Where the stoppage of work has resulted from a breakdown of the employer’s machinery q the Boardof Reference in determining a dispute under paragraph (b) of this subclause, shall have regard for theduration of the stoppage and the endeavours made by the employer to repair the breakdown.

6. Clause 7 – Mixed Functions: Delete this Clause and insert in lieu thereof the following—7. - MIXED FUNCTIONS

(1) An employee engaged on duties carrying a higher rate than their ordinary classification shall be paid the higherrate for the time they are so engaged but if they are so engaged for more than two hours of one day or shift theyshall be paid the higher rate for the whole day or shift.

(2) Any employee regularly engaged in relieving work shall be paid the highest rate applicable to the class of workupon which they are employed during any day or shift.

7. Clause 8 – Hours: Delete this Clause and insert in lieu thereof the following—8. - HOURS

(1) Day Employees and Shift Employees (other than Continuous Shift Employees).(a) Subject to the provisions of this subclause the ordinary working hours shall be—

(i) 40 hours per week to be worked in shifts of 8 hours Monday to Friday inclusive and exceptin the case of shift employees shall be worked between 7.00 a.m. and 5.00 p.m.;

(ii) starting and finishing times other than those prescribed in paragraph (i) above may be fixedby agreement between the unions and their members and the company and failing agreementshall be determined by the Board of Reference.

(b) Subject to the provisions of paragraph (c) all ordinary working hours shall be consecutive except forthe meal interval which shall not be more than one hour or less than thirty minutes.

(c) On a three shift system (and in any other shift system where the parties agree) the crib break shall becounted as time worked and shall be twenty minutes as near as practicable to the middle of the shiftdependent upon the plant requirements from day to day, but in any event no later than five and onehalf hours from the commencement of the shift.

(2) Continuous shift employees.The ordinary working hours of continuous shift employees shall be forty per week to be worked in shifts ofeight hours each inclusive of a crib break of twenty minutes, as near as practicable to the middle of the shiftdependent upon the plant requirements from day to day, but in any event no later than five and one half hoursfrom the commencement of the shift.

8. Clause 9 – Overtime: Delete this Clause and insert in lieu thereof the following—9. OVERTIME

(1) Day employees and shift employees (other than Continuous Shift Employees).(a) Subject to the provisions of subclause (3) of this clause, all time worked outside or in excess of the

ordinary working hours on any day Monday to Friday inclusive shall be paid for at the rate of timeand one half for the first two hours and double time thereafter.

(b) Where a day employee or a shift employee (other than a shift employee working a shift inclusive of apaid meal break) is required for duty during their usual meal time and their meal time is postponed formore than half an hour the employee shall be paid at overtime rates from the time their meal breakwould normally commence until the employee gets a meal break of the customary period.

(2) Continuous shift employees.(a) Subject to the provisions of paragraph (b) of this subclause, all time worked by a continuous shift

employee in excess of the ordinary hours as prescribed on a shift other than a rostered shift shall bepaid for at the rate of double time, except where such an employee is called upon to work a regularlyrostered overtime shift in not more than one week in any four weeks, when the employee shall be paidfor such shift at time and one-half for the first two hours and double time thereafter.

(b) Time worked in excess of the ordinary working hours shall be paid for at ordinary rates—(i) if it is due to private arrangements between the employees themselves;(ii) if it does not exceed one hour and is due to a relieving employee not coming on duty at the

proper time; or(iii) if it is for the purpose of effecting the customary rotation of shifts.

(3) All employees.(a) (i) When overtime work is necessary, it shall wherever reasonably practicable, be so arranged

that employees have at least ten consecutive hours off duty between the work of successivedays.

(ii) An employee (other than a casual employee) who works so much overtime between thetermination of their ordinary work on one day and the commencement of their ordinarywork on the next day that they have not at least ten consecutive hours off duty between thosetimes shall, subject to this paragraph, be released after completion of such overtime untilthey have had ten consecutive hours off duty without loss of pay for ordinary working timeoccurring during such absence.

(iii) If, on the instruction of the employer, such an employee resumes or continues work withouthaving had such ten consecutive hours off duty they shall be paid at double rates until theyare released from duty for such period and the employee shall then be entitled to be absentuntil they have had ten consecutive hours off duty without loss of pay for ordinary workingtime occurring during such absence.

(iv) Where an employee (other than a casual employee or an employee engaged on continuousshift work) is called in to work on a Sunday or public holiday preceding an ordinaryworking day the employee shall, wherever reasonably practicable, be given ten consecutive


hours off duty before their usual starting time on the next day. If this is not practicable thenthe provisions of subparagraphs (ii) and (iii) of this paragraph shall apply mutatis mutandis.

(b) (i) An employee recalled to work overtime after leaving the job (whether notified before orafter leaving the premises) shall be paid for at least four hours at the appropriate rate foreach such occasion but not more than once in respect of any period of time provided that,except in the case of unforeseen circumstances arising, the employee shall not be required towork the full four hours if the job they were to perform is completed within a shorter period;provided further that this sub-paragraph shall not apply in cases where it is customary for anemployee to return to the employer’s premises to perform a specific job outside theirordinary working hours or where the overtime is continuous (subject to a reasonable mealbreak) with the completion or commencement of ordinary working time.

(ii) Overtime worked in the circumstances specified in sub-paragraph (i) of this paragraph shallnot be regarded as overtime for the purposes of paragraph (a) of this subclause where theactual time worked is less than four hours on such recall or on each such recalls.

(c) Subject to the provisions of paragraph (d) of this sub clause, an employee required to work overtimefor more than one hour shall be supplied with a suitable meal by the employer or be paid $7.80 for ameal. Any dispute as to the suitability of meals supplied shall be determined by the Board ofReference.

(d) The provisions of paragraph (c) of this subclause do not apply—(i) in respect of any period of overtime for which the employee has been notified on the

previous day or earlier that they will be required; or(ii) to any employee who lives in the locality in which the place of work is situated in respect of

any meal for which they can reasonably go home.(e) An employee shall not be compelled to work for more than five and one half hours without a break for

a meal.(f) In computing overtime each day shall stand alone but when an employee works overtime which

continues beyond midnight on any day, the time worked after midnight shall be deemed to be part ofthe previous day’s work for the purpose of this subclause.

(g) (i) Overtime on shift work shall be based on the rate payable for shift work. This shall notapply to the weekend penalty rates prescribed by clauses 11 and 12 of this award.

(ii) The provisions of this subclause do not operate so as to require payment of more thandouble time rates, or double time and a half on a holiday prescribed under this award.

9. Clause 10 – Shift Work: Delete this Clause and insert in lieu thereof the following—10. SHIFT WORK

The provisions of this clause apply to shift work whether continuous or otherwise.(1) The employer may work any of their employees on shifts and may change any shift system in operation from

time to time but before so doing shall give forty-eight hours’ notice of the employers intention to the unionconcerned unless the employees concerned agree to the proposed method of working.

(2) A shift employee shall, in addition to his or her ordinary rate, be paid per shift of eight hours at the rate of$10.30 when on afternoon or night shift.

(3) Where a shift commences at or after 11.00 p.m. the whole of that shift shall be deemed for the purposes of thisaward to have been worked on the following day.

(4) (a) Where any particular work is carried out on shifts other than day shift and less than five consecutiveafternoon or five consecutive night shifts are worked on that process, on days other than Saturday orSunday, the employees employed on such afternoon or night shifts shall be paid at overtime rates.

(b) The sequence of work shall not be deemed to be broken under the preceding paragraph by reason ofthe fact that work on the process is not carried out on a Saturday or Sunday or on any public holiday.

(5) (a) An employee who, in any consecutive three weeks, does not work at least one week on day shift orday work shall be paid at the rate of time and one quarter for each afternoon or night shift which he orshe works in those three weeks.

(b) An employee who works for more than one week consecutively on afternoon shift shall be paid at therate of time and one-quarter for each afternoon shift worked in the consecutive second or subsequentweeks of afternoon shift.

(c) An employee who works for more than one week consecutively on night shift shall be paid at the rateof time and one quarter for each night shift worked in the consecutive second or subsequent weeks ofnight shift.

(d) This subclause does not apply to an employee to whom it would only otherwise apply because of achange of shift due to private arrangement with another nor to an employee employed on any roster towhich the employer and the union or unions concerned have agreed it shall not apply.

(6) (a) An employee who replaces a shift employee on afternoon or night shift and who works for less thanfive such shifts consecutively shall be paid— (i) at the rate of time and one-quarter if the employee he or she replaces is absent for any reason

beyond the control of the employer; and(ii) at overtime rates if the employee he or she replaces is absent by reason of a direction of the

employer.(b) The sequence of afternoon or night shifts shall not be deemed to be broken under this subclause by

reason of the fact that work is not done by the employee concerned on a Saturday, Sunday or publicholiday or on a rostered day off or for any other reason beyond the control of the employer, but anydispute as to whether or not the “any other” reason is beyond the control of the employer shall bereferred to the Board of Reference for determination.


(7) A roster showing the shifts to be worked and the commencing and finishing times of ordinary working hours ofthe respective shifts shall be posted on a notice board and a copy of any such roster shall be supplied to theunion or unions concerned upon request.

(8) Transfer of Day Employees from Day Work to Shift Work.Further to subclause (4)(a) when Day Employees are transferred to shift work they shall be paid as follows—(a) For five or more consecutive afternoon or five or more consecutive night shifts at the rate prescribed

in subclause (2).(b) For less than five consecutive afternoon or five consecutive night shifts at overtime rates, and such

hours worked shall be deemed to be ordinary hours for the purpose of this award.(c) When a day employee is required to change from day work to shift work the employee shall be

allowed to cease work without loss of pay for ordinary hours of employment on that day in such amanner as to enable them to have eight hours break from the termination of their day work to thecommencement of their particular shift work; provided that the time off duty without loss of pay shallnot be regarded as time worked for the purposes of computation of overtime or other penalty rates.

10. Clause 11 – Saturday Work: Delete this Clause and insert in lieu thereof the following—11. - SATURDAY WORK

(1) Overtime.(a) Day Employees and Shift Employees (other than Continuous Shift Employees).

(i) Overtime worked prior to twelve noon shall be paid for at the rate of time and one half forthe first two hours and double time thereafter.

(ii) Overtime worked after twelve noon shall be paid for at the rate of double time.(b) Continuous Shift Employees.

All time worked by continuous shift employees outside ordinary hours on Saturday shall be paid for atthe rate of double time.

(2) Ordinary Hours all Shift Employees.All time worked by shift employees during ordinary hours on Saturdays shall be paid for at the rate of time andone-half.This rate shall be in lieu of the shift allowances prescribed in subclause (2) of Clause 10 of this award.

11. Clause 12 – Sunday and Holiday Work: Delete this Clause and insert in lieu thereof the following—12. - SUNDAY AND HOLIDAY WORK

(1) Day Employees and Shift Employees (other than Continuous Shift Employees).(a) All time worked on Sundays shall be paid for at the rate of double time.(b) Work done on any day prescribed as a holiday under this award shall be paid for at the rate of double

time and a half, (2½).(2) Continuous Shift Employees.

(a) All time worked by continuous shift employees during ordinary hours on Sundays shall be paid for atthe rate of double time. This rate shall be in lieu of the shift allowances prescribed in subclause (2) ofclause 10 of this award.

(b) (i) All time worked by continuous shift employees during ordinary hours on any of the holidaysprescribed in clause 13 of this award shall be paid for at the rate of double time. This rateshall be paid in lieu of the shift allowances prescribed in subclause (2) of clause 10 of thisaward.

(ii) All time worked by continuous shift employees outside ordinary hours on any of theholidays prescribed in clause 13 of this award, shall be paid for at the rate of double timeand a half (2½)

(c) A continuous shift employee rostered off on a holiday shall be paid eight hours pay at ordinary rates.12. Clause 13 – Holidays: Delete the title and subclause (2) of this Clause and insert in lieu thereof the following new

title and subclause—13. – PUBLIC HOLIDAYS.

(2) Any employee absenting themself from work without reasonable cause, proof of which shall lie upon him or heron the whole or portion of the working day succeeding a holiday provided for herein, shall not be entitled topayment for such holiday.

13. Clause 14 – Annual Leave: Delete this Clause and insert in lieu thereof the following—14. - ANNUAL LEAVE

(1) (a) Except as hereinafter provided a period of four weeks’ leave with payment of ordinary wages asprescribed in paragraph (b) hereof shall apply for each year of service and shall accrue pro rata on aweekly basis.

(b) (i) An employee before going on leave shall be paid wages he or she would have received inrespect of the ordinary time he or she would have worked had he or she not been on leaveduring the relevant period.

(ii) Subject to paragraph (c) hereof an employee shall, where applicable, have the amount ofwages to be received for annual leave calculated by including the following whereapplicable.(aa) The rate applicable to him or her as prescribed in Schedule 1 - Wages and;(bb) Subject to paragraph (c)(ii) hereof the rate prescribed for work in ordinary time by

Clause 10 - Shift Work, Clause 11 - Saturday Work and Clause 12 - Sunday andHoliday Work of the award according to the Employee’s roster or projected rosterincluding Saturday and Sunday shifts;


(cc) The rate payable pursuant to Clause 7 - Mixed Functions calculated on a dailybasis, which the employee would have received for ordinary time during therelevant period whether on a shift roster or otherwise;

(dd) Any other rate to which the employee is entitled in accordance with his or hercontract of employment for ordinary hours of work; provided that this provisionshall not operate so as to include any payment which is of similar nature to or ispaid for the same reasons as or is paid in lieu of those payments prescribed byClause 9 - Overtime and Clause 27 - Special Rates of this award, nor any paymentwhich might have become payable to the employee as reimbursement for expensesincurred.

(c) During a period of annual leave an employee shall receive a loading calculated on the rate of wageprescribed by paragraph (b)(ii)(aa) hereof. The loading shall be as follows; (i) Day Employees - An employee who would have worked on day work had he or she not been

on leave - a loading of 17½ per cent.(ii) Shift Employees - An employee who would have worked on shift work had he or she not

been on leave - a loading of 17½ per cent.Provided that where a shift employee would have received shift loadings prescribed byClause 10 - Shift Work, Clause 11 - Saturday Work and Clause 12 - Sunday and HolidayWork for their ordinary hours had they not been on leave during the relevant period andsuch loadings would have entitled the employee to a greater amount than the loading of 17½per cent then the shift loadings shall be added to the rate of wage prescribed by paragraph(b)(ii)(aa) hereof, in lieu of the 17½ per cent loading.Provided further, that if the shift loadings would have entitled the employee to a lesseramount than the loading of 17½ per cent, then such loading of 17½ per cent shall be addedto the rate of wage prescribed by paragraph (b)(ii)(aa) hereof, in lieu of shift loadings.The loading prescribed by this subclause shall not apply to proportionate leave ontermination.

(d) The provisions of this subclause shall not operate in respect of leave fully due prior to the date of thisorder, irrespective of the date at which such leave is taken.

(2) After one week’s continuous service in any qualifying twelve month period, an employee whose employmentterminates shall, subject to the provisions of sub clause (5) of this clause, be paid one thirteenth of a week’s pay(or 2.932 hours) at his or her ordinary rate of wage in respect of each completed week of service.

(3) Continuous shift employees, that is shift employees engaged in continuous process work who are rostered towork regularly on Sundays and holidays shall be allowed one week’s leave in addition to the leave prescribed insub clause (1) hereof. All leave shall be accrued on a weekly basis.

(4) The amounts to be paid hereunder shall be calculated at the rate prevailing at the time the payment is made.(5) If an employee’s employment terminates in circumstances other than those referred to in sub clause (2) before

he or she has taken the leave prescribed under this award he or she shall be paid for any untaken leave thatrelates to completed year of service or, in a case to which sub clause (10) or (11) of this clause applies in lieu ofso much that leave as has been allowed, unless—(a) the employee has been dismissed for misconduct; and(b) the misconduct for which the employee has been dismissed occurred prior to the completion of thatqualifying period.

(6) If any of the holidays prescribed in Clause 13 of this award falls during the employee’s period of annual leaveand is observed on a day which in the case of that employee would have been an ordinary working day theemployee shall have one extra day added to the period of annual leave.

(7) An employer may close down their operation or sections thereof for the purposes of allowing annual leave to allor the majority of their employees employed generally or in any such section or sections and, in the event of anemployee being employed for portion only of a year the employee shall only be entitled to such leave on fullpay as is proportionate to their length of service during that period with such employer and if such leave is notequal to the leave given to the other employees the employee shall not be entitled to work or pay whilst theother employees of such employer are on leave on full pay.

(8) The provisions of this clause do not apply to casual employees.(9) (a) An employee who, at the commencement of his or her annual leave, has an entitlement to payment for

non-attendance on the ground of personal ill health for not less than forty hours under the provisionsof Clause 15. – Sick Leave of this award and who, within fourteen days of resuming work, producesto the employer evidence that would satisfy a reasonable person that during annual leave the employeewas confined to his or her home or to a hospital for a period of at least seven consecutive days for areason which, if he or she had not been on annual leave, would have entitled him or her to be on sickleave for so much of that period as the employee would otherwise have been entitled to paymentunder that clause.

(b) An employee to whom paragraph (a) applies shall take the period deemed to be sick leave as annualleave at a time convenient to the employer but on ordinary pay, without the loading prescribed inparagraph (c) of sub clause (1) of this clause.

(10) Any time in respect of which an employee is absent from work, except time for which the employee is entitledto claim sick pay, or time spent on public holidays, annual leave or bereavement leave as prescribed by thisaward shall not count for the purpose of determining his or her right to annual leave.

14. Clause 16 – Absence Through Sickness: Delete this title and Clause and insert in lieu thereof the following newtitle and Clause—

16. – SICK LEAVE(1) Subject as hereinafter provided a full-time employee shall be entitled to payment for non-attendance on the

ground of personal ill health or injury for up to 10 working days or 76 hours, whichever is the lesser, each year,


accrued on a weekly basis. Part-time employees who are paid a proportion of a full-time employee’s pay or paidaccording to the number of hours worked shall be entitled to the proportion of the number of hours worked eachweek that the average number of hours each week bears to 38, up to 76 hours each year. This clause shall notapply where the employee is entitled to compensation under the Worker’s Compensation and Rehabilitation Act1981.

(2) An employee shall not be entitled to receive wages from the employer for any time lost through illness or injurycaused by the employee’s own serious and wilful misconduct or gross and wilful neglect.

(3) An employee, who claims to be entitled to paid leave under this clause, is to provide the employer with evidencethat would satisfy a reasonable person of the entitlement.

(4) Sick leave shall accumulate from year to year so that any balance of the period specified in subclause (1) of thisclause which has in any year not been allowed to any employee by their employer as paid sick leave, may beclaimed by the employee subject to the condition hereinbefore prescribed, shall be allowed by their employer inany subsequent year without diminution of the sick leave prescribed in respect of that year.

(5) The provisions of this clause do not apply to casual employees.15. Clause 17 – Bereavement Leave: Delete this Clause and insert in lieu thereof the following—

17. - BEREAVEMENT LEAVEWhen it is necessary for an employee to be absent from his or her employment for the purpose of attending or arranging afuneral, an employee shall be entitled a maximum of up to three days’ leave at ordinary wages as prescribed on eachoccasion and on production of evidence that would satisfy a reasonable person of the death of the employee’s wife,husband, father, mother, grandfather, grandmother, brother, sister, child, father-in-law, mother-in-law, or any other personwho immediately before that person’s death, lived with the employee as a member of the employee’s family. Wife orhusband as referred to in this clause shall include de-facto wife or husband.

16. Clause 18 – Payment of Wages: Delete this Clause and insert in lieu thereof the following—18. - PAYMENT OF WAGES

(1) Payment of wages shall be fortnightly by cash or cheque.(2) At or before the time at which the employee receives their wages they shall be issued with a slip showing the

gross amount of wages and allowances due to them, all deductions therefrom, the total number of hours worked,including the number of overtime hours and the rate at which such overtime has been paid.

17. Clause 19 – Time and Wages Record: Delete subclause (1) and (2) of this Clause and insert in lieu thereof thefollowing—

19. - TIME AND WAGES RECORD(1) The employer shall make and keep a record or records showing—

(a) The name and classification of each employee.(b) The age of junior employees.(c) The starting and finishing times on each day.(d) The hours worked(e) The wage and overtime (if any) paid.(f) The amount of other allowances paid.(g) Deductions.

(2) The time and wages record shall be open for inspection by a duly accredited representative of the union, duringthe usual office hours, at the employer’s office or other convenient place and they shall be allowed to takeextracts therefrom. The employer’s works shall be deemed to be a convenient place for the purpose of thisparagraph and if for any reason the record is not available at the works when the official calls to inspect it, itshall be made available for inspection within twenty-four hours, either at the employer’s office or at the works.Before exercising a power of inspection the representative shall give notice of not less than 24 hours to theemployer.

18. Clause 22 – Union Representative Interviewing Workers: Delete this Clause19. Clause 23 – Board of Reference: Delete the clause number and subclause (1) of this Clause and insert in lieu

thereof the following new clause number and subclause—22. - BOARD OF REFERENCE

(1) The Commission hereby appoints for the purpose of this award a Board of Reference consisting of a chairpersonand two other members who shall be appointed pursuant to regulation 25 of Industrial Relations CommissionRegulations 1985.

20. Clause 24 – Definitions: Delete the clause number and insert in lieu thereof the following new clause number—23. – DEFINITIONS

21. Clause 25 – Minimum Wage: Delete the clause number and insert in lieu thereof the following new clausenumber—

24. – MINIMUM WAGE22. Clause 26 – Grievances and Disputes: Delete this Clause and insert in lieu thereof the following—

25. - GRIEVANCES AND DISPUTES(1) To facilitate the remedying of any grievance or the settlement of any dispute the following procedure shall

apply, namely—(a) The employee concerned shall firstly refer the grievance to their foreperson or immediate superiors.(b) The job steward on the site may discuss with the foreperson any grievance affecting the employee

they represent and, if the matter is not satisfactorily resolved, the job steward may discuss the matterwith the Industrial Officer or other officer nominated by the employer to deal with such matters onsite.


(c) The Industrial Officer or other officer referred to in paragraph (b) of this subclause shall, within forty-eight hours of discussing a grievance with a job steward, advise the job steward of the employer’sdecision on the matter; provided that where, owing to the nature of the grievance, the IndustrialOfficer or other officer and job steward agree that a longer period than forty-eight hours is necessaryfor a decision to be made, the employer’s decision shall be conveyed to the job steward within theagreed time.

(d) If the matter is not resolved by the foregoing discussions the job steward shall notify the appropriatefull-time official of their union and shall thenceforth leave the conduct of negotiations in the hands ofthe union.

(e) Where a matter has been referred to the union by the job steward the union shall promptly take allsteps necessary under its rules and under the Industrial Relations Act 1979 for the resolution of thematter.

(2) A job steward shall not leave his or her place of work to investigate any matter or to discuss any matter with theemployer’s representative unless on each occasion he or she first obtains permission to do so from his or herforeperson or supervisor.

(3) A job steward shall not during working hours call or hold any meeting of the employees concerned with anygrievance or dispute. Work shall be continued normally at the instruction of the employer and there shall be noban or limitation imposed whilst the above procedure is being carried out.

23. Clause 27 – Special Rates: Delete this Clause and insert in lieu thereof the following—26. - SPECIAL RATES

(1) Heat Money: any employee employed for more than one hour—(a) in places where the temperature is raised by artificial means to between 46 and 55 degrees Celsius,

shall be paid an allowance of 23 cents per hour extra, and/or(b) in places where the temperature exceeds 55 degrees Celsius shall be paid 28 cents per hour extra.

(2) Dust Money: any employee required to work in excessively dusty areas shall be paid an allowance of 23 centsper hour extra. Excessively dusty areas shall be determined from time to time by the parties to this award butshall include—(a) Dust handling area on precipitator(b) Dust handling on boilers(c) Feeding system on furnace(d) Return crushing system

24. Clause 28 – Jury Service: Delete this Clause and insert in lieu thereof the following—27. - JURY SERVICE

An employee required for jury service during their ordinary working hours shall be granted leave with pay for all periodsof time they are so required for jury service. An employee when applying for such leave, shall be required to support theirapplication with written proof of their attendance at such jury service.








paragraph (a), of this award, for ordinary termination, and subject to further order of the Commission,an employee whose employment is terminated for reasons set out in sub clause (1) paragraph (a)hereof, shall be entitled to the following amount of severance pay in respect of a continuous period ofservice.Period of Continuous Service Severance PayLess than 1 year Nil1 year and less than 2 completed years 4 weeks2 years and less than 3 completed years 6 weeks3 years and less than 4 completed years 7 weeks4 years and over 8 weeks


“Week’s Pay” means the ordinary weekly rate of wage for the employee concerned. Provided that theseverance payments shall not exceed the amount which the employee would have earned ifemployment with the employer had proceeded to the employee’s normal retirement date.

(b) For the purpose of this clause continuity of service shall not be broken on account of— (i) any interruption or termination of the employment by the employer if such interruption or














transmittor shall be deemed to be service of the employee with the transmittee.(b) In this sub clause “business” includes trade, process, business or occupation and includes part of any

such business and “transmission” includes transfer, conveyance, assignment or succession whether byagreement or by operation of law and “transmitted” has a corresponding meaning.






26. Insert the following new Clause:29. - SUPERANNUATION

(1) Subject to the amendments set out in sub-clause (2) below WMC Resources Ltd will continue to makesuperannuation contributions on behalf of employees covered by this Award in accordance with the NickelSmelting (Western Mining Corporation Ltd) Award 1972 No 18 of 1972 Western Mining Limited OccupationalSuperannuation Order (1993) 73 WAIG 2346 (the Order).

(2) The following amendments apply to the Order:(a) The Superannuation Fund means the Plum Financial Services Ltd (Fund) ABN: 35 081 812 731 or

other fund approved for the purposes of the Superannuation Industry (Superannuation) Act1993 (C’th) nominated by WMC Resources Ltd.

(b) The Company means WMC Resources Limited (WMC).(c) WMC’s contribution to the Superannuation Fund in respect of employees covered by this Award will

be 9% or such other percentage as prescribed by the Superannuation Guarantee (Administration) Act1992 (C’th).

27. Schedule 1 – Wages: Delete this Schedule and insert in lieu thereof the following—SCHEDULE 1. WAGES

The minimum rates of wages per week payable under the provisions of this award shall be as follows:BaseRate

$

IndustryAllowance

$


Adjustments$

TotalRate

$

(1) Process Operator Grade 1 306.80 83.80 106.00 496.60Process Operator Grade 2 320.50 83.80 106.00 510.30Process Operator Grade 3 333.10 83.80 106.00 522.90Process Operator Grade 4 343.40 83.80 106.00 533.20Process Operator Grade 5 357.90 83.80 106.00 547.70Process Operator Grade 6 379.20 83.80 106.00 569.00


(2) Leading HandsIn addition to the appropriate rate prescribed in sub clause (1) of this clause, a Leading Hand shall be paid the followingin excess of the highest rate applicable to the work being carried out.

$a) if placed in charge of not less than

3 and not more than 10 other employees 18.90(b) if placed in charge of more than 10

and not more than 20 other employees 28.50(c) if placed in charge of more than 20

other employees 37.00 (3) Industry Allowance

An industry allowance of $83.80 per week, payable for all purposes of the award, is payable for all employees, in additionto the base rate. Such allowance recognises, and is in payment for, all aspects of work in the nickel industry, including thelocation and nature of individual operations within it.

____________________

2003 WAIRC 08647WESTERN AUSTRALIAN SURVEYING (PRIVATE PRACTICE) INDUSTRY AWARD, 2003


PARTIES ASSOCIATION OF PROFESSIONAL ENGINEERS, AUSTRALIA (WESTERN AUSTRALIANBRANCH), ORGANISATION OF EMPLOYEES, APPLICANTv.A GRADE SURVEYS & OTHERS, RESPONDENT

CORAM COMMISSIONER S WOODDATE OF ORDER FRIDAY, 4 JULY 2003FILE NO. APPLICATION 1599 OF 2000CITATION NO. 2003 WAIRC 08647


_________________________________________________________________________________________________________

Result Award variedRepresentationApplicant Mr D Moss on behalf of the Association of Professional Engineers, Australia (Western Australian

Branch), Organisation of EmployeesRespondent Mr M Kane on behalf of the Australian Municipal, Administrative, Clerical and Services Union of

Employees, Western Australian Branch.Mr K Dwyer as agent for Fugro Survey Pty Ltd.Mr D Hicks on behalf of the Automotive, Food, Metals, Engineering, Printing and Kindred IndustriesUnion of Workers, WA Branch.

_________________________________________________________________________________________________________

OrderWHEREAS on 11 October 2000 the Association of Professional Engineers, Australia (Western Australian Branch), Organisation ofEmployees applied to vary the Western Australian Surveying (Private Practice) Industry Award No A 2 of 1988; andWHEREAS the matter was listed for conference on 19 March 2003; andWHEREAS at the conclusion of the conference the parties were instructed to have further discussions; andWHEREAS the parties advised the Commission on 30 April 2003 that the variations to the award were consented to by all theparties; andWHEREAS the matter came on for hearing on 16 June 2003 and all parties were provided with a copy of the amended application;andWHEREAS the applicant union sought to vary the award consistent with the State Wage Principles 82 WAIG 1386; andWHEREAS all parties consented to the variations and sought an operative date of first pay period commencing on or after 16 June2003; andWHEREAS I am satisfied that the variations sought comply with the Industrial Relations Act 1979 and the State Wage Principles82 WAIG 1386;NOW THEREFORE having heard Mr D Moss on behalf of the Applicant and Mr M Kane on behalf of the ASU, Mr K Dwyer onbehalf of Fugro Survey Pty Ltd and Mr D Hicks on behalf of the AFMEPKIU, the Commission, pursuant to the powers conferredon it under the Industrial Relations Act, 1979, hereby orders:

THAT the Western Australian Surveying (Private Practice) Industry Award No A 2 of 1988 as varied, be further varied,by consent, in accordance with the following Schedule and that such variation shall have effect from the beginning of thefirst pay period commencing on or after 16 June 2003.

(Sgd.) S. WOOD,[L.S.] Commissioner.

SCHEDULEDelete clauses 1 – 32, Schedules of Parties and Appendix s.49B and insert in lieu thereof the following—PART 1 - APPLICATION AND OPERATION OF AWARD1.1 AWARD TITLEThis Award is to be known as The Western Australian Surveying (Private Practice) Industry Award, 2003, and shall replace TheWestern Australian Surveying (Private Practice) Industry Award, 1989 (No A 2 of 1988).1.2. ARRANGEMENTThis Award is arranged as follows—Part 1 - Application and operation of Award1.1 Award Title1.2 Arrangement1.3 Area of Application1.4 Scope1.5 Term1.6 DefinitionsPart 2 - Award Flexibility and Workplace Facilitation2.1 Structural EfficiencyPart 3 - Communication, Consultation and Dispute Resolution3.1 Settlement of DisputesPart 4 - Employer and Employees Duties, Employment Relationship and Related Arrangements4.1 Contract of Service4.2 Existing Contracts of Employment4.3 Certificate of ServicePart 5 - Salaries and Related Matters5.1 Salaries5.2 Payment of Salaries5.3 Minimum Adult Wage5.4 Superannuation5.5 Record


Part 6 - Hours of Work, Breaks, Overtime, Shiftwork, Weekend Work6.1 Hours of Work6.2 OvertimePart 7 - Leave of Absence and Public Holidays7.1 Public Holidays7.2 Annual Leave7.3 Absence through Sickness7.4 Carer’s Leave7.5 Bereavement Leave7.6 Parental Leave7.7 Long Service Leave7.8 Continuing Professional Development Leave7.9 Jury Service LeavePart 8 - Transfers, Travelling and Working Away from Usual Place of Work8.1 Vehicle Allowance8.2 Fares and Travelling Time8.3 Distant Work and Allowances8.4 Location AllowancesPart 9 - Miscellaneous9.1 Protective Equipment9.2 Right of Entry9.3 Inspection of Records Requirements9.4 Liberty to ApplySchedules

Schedule of Respondents covered by this Award1.3 AREA OF APPLICATIONThis Award shall operate throughout the State of Western Australia and shall include those areas which are described in Section3 of the Industrial Relations Act 1979.1.4 SCOPE(1) Subject to subclause (2), this Award shall apply to all persons employed in the surveying (private practice) industry

eligible to be members of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers- Western Australian Branch, the Association of Professional Engineers Australia, (Western Australian Branch),Organisation of Employees or the Australian Municipal, Administrative, Clerical and Services Union of Employees,Western Australian Branch and employed in the classifications defined in Clause 1.6. - Definitions and employed byemployers who are wholly or mainly engaged in any branch or branches of the surveying (private practice) industry.

(2) This award does not apply to the hydrographic surveying branch of the industry.1.5 TERMThe term of this Award shall be for a period of two years from the beginning of the first pay period commencing on or after 16 June2003.1.6 DEFINITIONS(1) Industry Definition

Surveying is the process of determining the nature, size, shape, position, limits and physical or administrative attributes ofnatural or artificial boundaries, features, objects, land parcels, or engineering works, above or below the earth’s surface. Itincludes the acquisition, management, interpretation and analysis of data; the portrayal and dissemination of derivedinformation in written, graphical, numerical, digital, photographic or magnetic media; and associated consulting, design,administration, management and technical support activities.

(2) UnionsUnions in this Award shall be the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union ofWorkers - Western Australian Branch, the Association of Professional Engineers Australia, (Western Australian Branch),Organisation of Employees and the Australian Municipal, Administrative, Clerical and Services Union of Employees,Western Australian Branch.

(3) Professional Definitions(a) ‘Experienced Surveyor’

Shall mean a person engaged as such, as defined, who has post-graduate qualifications in an industry - relevantdiscipline acceptable to the Institution of Surveyors, Western Australia Incorporated, and who is eligible forcorporate membership of the Institution of Surveyors Australia or Institution of Engineering and MiningSurveyors of Australia, or has had a minimum of two years experience on professional surveying duties sincegraduating as a surveyor.

(b) ‘Cadastral Surveyor’Shall mean a person who is engaged as such and who is licensed in accordance with the provisions of theLicensed Surveyors Act, 1909-1976, as amended and is a holder of current practicing certificate issued by theLand Surveyors Licencing Board.

(c) ‘Experienced Town Planner’Shall mean a person employed as such, who has qualifications at least equal to those necessary for corporatemembership of the Royal Australian Planning Institute.


(d) ‘Engineering Surveyor’Is a person employed as such, by virtue of post-graduate experience, and is a Surveyor as defined in Clause1.6(3)(a), and who is eligible for corporate membership of the Institution of Engineering and Mining SurveyorsAustralia.

(e) ‘Mining Surveyor’Shall mean a person engaged as such and as defined in Clause 1.6(3)(a) and who is authorised in accordancewith the provisions of the Mines Regulations Act 1946-1994 as amended, and carries out survey workassociated with mineral extraction industries.

(f) Professional Engineers(i) ‘Professional Engineering Duties’

Shall mean duties carried out by a person in any particular employment the adequate discharge of anyportion of which duties requires qualification of the employee as (or at least equal to those of) agraduate member of the Institution of Engineers, Australia.

(ii) ‘Professional Engineer’Shall mean an adult person qualified to carry out professional engineering duties as defined above.The term “Professional Engineer” shall embrace and include “Qualified Engineer” and “ExperiencedEngineer” as hereinafter defined.

(iii) ‘Qualified Engineer’Shall mean a Professional Engineer other than an “Experienced Engineer” as hereinafter defined; thatis, it shall mean a person who is, or is qualified to become, a graduate member of the Institution ofEngineers, Australia.

(iv) ‘Experienced Engineer’Shall mean a Professional Engineer with the undermentioned qualifications in any particularemployment the adequate discharge of any portion of the duties of which employment requiresqualification of the employee as (or at least equal to those of) a Member of the Institution ofEngineers, Australia. The aforesaid qualification is as follows—(a) that he/she is a Chartered Member of the said Institution; or(aa) that he/she, having graduated in a four year or a five year course at a university recognised

by the said Institution, has had four years’ experience on professional engineering dutiessince becoming a Qualified Engineer; or

(aaa) that he/she, not having so graduated, has had five years of such experience.(4) Graduate Definitions

(a) ‘Graduate Surveyor’Shall mean a person engaged as such and who is involved in any of the fields of practice of land, engineering,geodetic, mining, cadastral, topographic, photogrammetric, cartographic, remote sensing, computing, surveyexamination and allied professional roles.A Graduate Surveyor shall hold a degree (3 or 4 year course) recognised by the Institution of Surveyors,Australia Incorporated; or Institution of Engineering & Mining Surveyors Australia or, be a member of, or beeligible for Graduate Membership of the aforementioned Institution.

(b) ‘Graduate Town Planner’Shall mean a person employed as such and who has a Town Planning Degree (3 or 4 year course) but by virtueof experience is not yet eligible for corporate membership of the Royal Australian Planning Institute.

(c) ‘Graduate Engineer’Shall mean a “Qualified Engineer” who is the holder of a university degree (four or five year course) recognisedby the Institution of Engineers, Australia.

(5) Para ProfessionalAre persons employed as Technicians ie (Surveying or Drafting) or Survey Party Leaders in support tasks toProfessionals and who are partaking in or have completed approved courses in training as Professionals or have sufficientexperience to perform those tasks.

(6) Traineeship Schemes(a) ‘Surveyor Under Articles’

- Training AgreementShall mean a Graduate Surveyor as defined in Clause 1.6(4)(a), who is working under an agreement registeredwith the Land Surveyors Licensing Board in order to qualify as a Licensed Surveyor.

(b) TraineeShall mean a person employed as such and who is undergoing training under an approved Traineeship Schemeor is subject to internal training of a specified kind in a contract of employment.

(7) Definitions - General(a) ‘Casual Employee’

Shall mean an employee who works the ordinary hours, as defined in Clause 6.1. - Hours of Work, and isemployed for less than 16 consecutive weeks, with a minimum engagement of four hours per day. Such anemployee shall be paid at the weekly rate calculated pro-rata for the ordinary hours for the class of workperformed plus twenty five percent as an addition to the ordinary rate prescribed in this Award.Notwithstanding the abovementioned, a casual clerk may be employed at an hourly rate for a lesser period thanfour weeks and shall be paid while so employed, a twenty five percent loading with a minimum engagement offour hours per day; provided that, notwithstanding anything contained in this subclause, the basis and terms ofemployment of casual clerks may be varied in any particular case by agreement in writing between theemployer and the union.


(b) ‘Permanent Part Time Employee’Shall mean an employee who regularly works defined set hours but less than 38 ordinary hours of work asdefined in Clause 6.1. - Hours of Work. Such an employee shall be paid at the weekly rate calculated pro ratafor the ordinary hours for the class of work performed.Payment for annual leave and sick pay, for part time employees, shall be strictly related proportionately inaccordance with the number of hours worked, to the conditions prescribed in each establishment for full timeemployees.

PART 2 - AWARD FLEXIBILITY AND WORKPLACE FACILITATION2.1 STRUCTURAL EFFICIENCY(1) (a) Arising out of the Structural Efficiency Principles enunciated in the State Wage Case, an employer may direct

an employee to carry out such duties as are within the limits of the employee’s skill, competence and training,including work which is incidental or peripheral to their main tasks or functions.

(b) Any direction issued by an employer shall be consistent with the employer’s responsibilities to provide a safework place.

(2) The parties to this award are committed to co-operating positively to increase the efficiency, productivity andinternational competitiveness of the surveying industry and to enhance the career opportunities and job security ofemployees in the industry.

(3) Without limiting the rights of either an employer or a union to arbitration, any other measure designed to increaseflexibility on a site or within an enterprise sought by any party shall, by agreement, be implemented subject to thefollowing requirements—(a) the changes sought shall not affect provisions reflecting Commission standards on hours of employment, annual

leave with payment and long service leave with payment;(b) the majority of employees affected by the change at the site or enterprise must genuinely agree to the change;(c) no employee shall lose income as a result of the change;(d) the union must be a party to the agreement; and(e) any agreement shall be subject, where appropriate, to approval by the Western Australian Industrial Relations

Commission and, if approved, shall operate as a schedule to this award and take precedence over any provisionsof this award to the extent of any inconsistency.

(4) Award restructuring should be given its wider meaning, and award restructuring should not be confined to therestructuring of classifications but may extend to the review of other restrictive provisions which currently operate. Tothat end, such restrictive provisions will be reviewed on an ongoing basis.

(5) The parties to this award recognise that in order to increase the efficiency, productivity and international competitivenessof industry, a greater commitment to training and skill development is required. Accordingly, the parties committhemselves to—(a) developing a more highly skilled workforce;(b) providing employees with career opportunities through appropriate training to acquire additional skills; and(c) removing barriers to the utilisation of skills required.

(6) Any disputes arising in relation to the implementation of this clause shall be subject to the provisions of the settlement ofdisputes clause.

PART 3 - COMMUNICATION, CONSULTATION AND DISPUTE RESOLUTION3.1 SETTLEMENT OF DISPUTES(1) Subject to the Industrial Relations Act 1979, where an employee has a grievance in relation to any industrial matter

covered by this Award, he or she shall first contact his or her supervisor to work out the problem, and if that failsrepresentation shall then be made to the employer by the employee or an accredited Union workplace representative, forthe matter to be given further consideration.

(2) If after the employer’s view has been established, the employee still considers his or her complaint unresolved he or shemay then raise the matter with the Union which may then enter into discussions with the employer to see if the matter canbe resolved.

(3) In the event of the dispute failing to be resolved the dispute may be then referred to the Western Australian IndustrialRelations Commission.

PART 4 - EMPLOYER AND EMPLOYEE DUTIES, EMPLOYMENT RELATIONSHIP AND RELATEDARRANGEMENTS

4.1 CONTRACT OF SERVICE(1) Except in the case of casual employees, the contract of service of every employee shall be terminable by the following

notice period given by either side—Period of continuous service Period of noticeLess than 1 year 1 week1 year and up to thecompletion of 3 years 2 weeks3 years and up to thecompletion of 5 years 3 weeks5 years and over 4 weeksIn addition to the notice above, employees over 45 years of age, with at least 2 years continuous service, at the time theemployer gives notice, shall be entitled to an additional weeks notice by the employer.In the event of notice not being given, by the payment in lieu of notice of an equivalent amount of pay by the employer,or the forfeiture of payment of equivalent amount of pay by the employee.

(2) In the case of a casual employee the contract of service shall be terminable by one day’s notice on either side given onany day, or in the event of such notice not being given by the payment of one day’s pay by the employer or the forfeitureof payment of one day by the employee.


(3) The provisions of this clause shall not effect the right of the employer to dismiss the employee without notice formisconduct (and in such cases the wages shall be paid up to the time of dismissal only).

(4) The employer shall be under no obligation to pay for any day not worked on which the employee was required to presentfor duty except where such absence from work is due to illness and comes within the provisions of Clause 7.3. - AbsenceThrough Sickness, or such absence is on account of annual leave, long service leave, workers’ compensation orbereavement leave, continuing professional development leave, or other holidays or days off prescribed under this Awardor the Minimum Conditions of Employment Act 1993 to which the employee is entitled.

4.2 EXISTING CONTRACTS OF EMPLOYMENTNothing contained in this Award shall entitle an employer to reduce the salary of any employee who, at the date of this Award, wasbeing paid a higher rate of salary than the minimum prescribed for his or her class of work. Provided however, that upon thecommencement of this Award an employer shall have the right to vary, or cancel, any other provision of an employee’s contract ofemployment which is not provided by, or is inconsistent with the provisions of this Award.4.3 CERTIFICATE OF SERVICEUpon termination of employment, the employer, when requested by the employee, shall provide a certificate of service statinglength of service, duties performed and classification of office as well as CPD taken as per Clause 7.8. - Continuing ProfessionalDevelopment Leave.PART 5 - SALARIES AND RELATED MATTERS5.1 SALARIESThe rates of pay in this Award include Arbitrated Safety Net adjustments available since December 1993 under the ArbitratedSafety Net Adjustment Principle and includes the 2002 Safety Net Wage Case Increase of 22 July 2002 (2002 WAIRC 06055).These Arbitrated Safety Net adjustments may be offset against any equivalent amount in the rate of pay received by employeessince 1 November 1991 above the rate prescribed in the Award except where such absorption is contrary to the terms of anindustrial agreement.Increases in rates of pay otherwise made under the State Wage Case Principles, excepting those resulting from enterpriseagreements, are not to be used to offset Arbitrated Safety Net adjustments.

Wage Classification title Minimum Salaries - $ Wage relativity tolevel 10 after fullminimum rate\broadbandingadjustments

Hourly Weekly Annual %Level 15.1.1(a)

Manager/Professional -Business/Specialist

25.79 980.10 50965.00 210

Level 25.1.1(b)

Manager/Professional - Project/Specialist

22.50 855.00 44460.00 180

Level 35.1.1(c)

ExperiencedProfessional Surveyorincluding LicensedSurveyor/Engineer

20.30 771.50 40118.00 160

Level 45.1.1(d)

ExperiencedSurveyor/Town Planner

19.24 731.00 38012.00 150

Level 55.1.1(e)

Technician V / SurveyParty Leader

18.71 710.90 36967.00 145

Level 65.1.1(f)

Technician IV / SurveyParty Leader

17.61 669.20 34798.00 135

Level 75.1.1(g)

Technician III / SurveyTechnician, Senior(part-time party leader)Graduate ProfessionalEngineer/Surveyor/Town Planner- 4 year

17.06 648.40 33717.00 130


Wage Classification title Minimum Salaries - $ Wage relativity tolevel 10 after fullminimum rate\broadbandingadjustments

Hourly Weekly Annual %Level 85.1.1(h)

Technician II / SurveyTechnician,Graduate Surveyor -under Articles/TownPlanner – 3 year

16.51 627.50 32630.00 125

Level 95.1.1(i)

Technician I / TraineeTechnician, Survey

14.92 566.90 29479.00 110

Level 105.1.1(j)

Technical AssistantSurvey

13.83 525.20 27326.00 100

Level 115.1.1(k)

Trainee AssistantSurvey

12.67 481.50 25038.00 90

Level 125.1.1(l)

Unskilled 11.79 448.10 23301.00 82

Entry level5.1.1(m)

For entry level for employees who possess relevant technical/professional qualificationssee clause 5.1.2

5.1.1(n) The wage relativities to level 10 set out in the above table apply subject to any futureaward or safety net increases by the Commission. Any such safety net increases will notvary the percentages set out above as being the indicative wage relativities ofclassifications under this award.

5.1.2 Classification definitions (Professional, Technical and Surveying)5.1.2(a) Level 12 - unskilled

An unskilled person is an employee who holds no relevant qualification but is capable of assisting the surveyor orsurvey technician.Their duties include—• Assisting in field work under direct supervision.• Be aware of safe working practices.• Be eligible to or hold a drivers license.• Be able to maintain and clean basic survey equipment.• Be able to perform general office duties under instruction.• Be able to work in a team environment.

5.1.2(b) Level 11 - Trainee assistant - surveyAn employee who has completed year 11 or is eligible to enter a traineeship scheme or has completed 50% of aBridging Course or equivalent experience.Such an assistant may not be pursuing any training but must show a preparedness to develop their skills as pertinentto assisting the surveyor or survey technician in the performance of their duties.Their duties, under supervision, are to be able to—• Set up surveying instruments.• Be aware of safe work practices.• Be eligible to or hold a drivers license.• Be able to maintain and clean basic survey instruments.• Be able to reduce levels.• Be capable of general office duties.• Be able to work in a team environment.

5.1.2(c) Level 10 - Technical assistant - surveyA Technical Assistant means a person who has completed a Traineeship scheme, or Year 12 Qualification orBridging Course but has not progressed onto any further related studies at this stage, or has equivalent experience.A person who under direct supervision can—• Using the correct techniques, measure accurately.• Understand and perform basic survey tasks under instruction.• Be adaptable to form part of a team for the purpose of performing surveys.• Show initiative in the performance of survey tasks.


• Be capable of maintaining survey equipment.• Eligible to hold a drivers license.

5.1.2(d) Level 9 – Technician I/Trainee technical surveyA Technician I/Trainee Technician means a person who has completed 50% of the advanced certificate (nationalcertificate IV) course or equivalent experience.• A person with basic mathematical skills enabling—

⋅ The competent reduction of levels.⋅ The accurate transfer of survey information.⋅ Basic plan preparation.⋅ Accurate angular observation.⋅ Efficient field techniques.⋅ The understanding of measurement techniques.

• Responsible for the acquisition of data in the field under the immediate supervision of a qualified surveyor ortheir appointee.

• Works in a team environment or under routine supervision.• Basic understanding of the down loading of field data into computers.• Basic keyboard skills.• Able to measure accurately.• Holds or is able to hold a drivers license.

5.1.2(e) Level 8 – Technician II/Survey technician - Graduate Surveyor under Articles/Town Planner - 3 yearGraduate1. 1st year of an advanced certificate (national certificate IV) or 25% of an advanced certificate (national

certificate IV) and with three years relevant experience; or2. An equivalent level of accredited training progressing towards level 3; or3. Entry point for Graduate Surveyor under Articles and Graduate Town Planner (three year graduate) - as

defined ; or4. Equivalent experience.A Survey Technician works above and beyond an employee at level 9 and to the level of their training.• Provides technical guidance or advice within the scope of this level.• Provides limited technical reports on assigned tasks as directed within the scope of this level.• Has an overall knowledge and understanding of the principles of the systems and equipment on which they

are required to carry out their tasks.Indicative of the tasks which an employee at this level may perform are the following—• Carry out limited engineering surveys to the required accuracy under immediate supervision or direction.• Prepare basic plans using either manual or computer based methods under supervision.• Survey computations.• Be able to use survey based computer programmes.

5.1.2(f) Level 7 – Technician III/Survey technician senior (part-time/ party leader) - Graduate ProfessionalEngineer/Surveyor/Town Planner - 4 Year GraduateA Technician III/Surveying Technician Senior means an employee who has completed an advanced certificate(national certificate IV) or equivalent experience.A Surveying Technician Senior works above and beyond an employee at level 8 and to the level of their training—1. Provides technical guidance or advice within the scope of this level.2. Prepares reports of a technical nature on specific tasks or assignments as directed or within the scope of

discretion at this level.3. Has an overall knowledge and understanding of the principles of the systems and equipment on which they

are required to carry out their tasks.4. Assists in the provision of on-the-job training in conjunction with supervisors and trainers.Indicative of the tasks which an employee at this level may perform are the following—• Carry out surveys to the required accuracy under supervision or direction.• Prepare plans, using either manual or computer based methods under supervision.• Survey computations.• Obtain survey information and interpret this information for drawing, computation or survey needs.• Have basic knowledge of civil engineering, geology, soil and fauna/environmental aspects relevant for

surveying practice.• Be able to use survey based computer programmes.Entry point for Graduate Surveyor, Graduate Town Planner and Graduate Professional Engineer (four yeargraduate) - as defined - The Graduate Surveyor, Town Planner or Engineer undertakes initial professionalsurveying/engineering/town planning tasks of limited scope and complexity, such as minor phases of broaderassignments, in office, plant or field work.

5.1.2(g) Level 6 – Technician IV/Survey Party leaderA Technician IV/Survey Party Leader means an employee who has completed 3rd year of an associate diploma(national diploma) or equivalent.


A Survey Party Leader is an employee who—• Whilst working under controlled supervision, gathers or sets out field data and collates the resultant or

separate information using computer techniques.• Prepares work sheets for engineering surveys and applies all relevant checks to ensure quality of computed

work.• Prepares plans to a standard where they would be acceptable to the Office of Titles.• Assists in the training of staff, maintenance of equipment and office records.• Assists in the development of new techniques and procedures.

5.1.2(h) Level 5 – Technician V/Survey Party leaderA Technician V/Survey Party Leader means an employee who has completed an associate diploma (nationaldiploma) or equivalent experience, including at least three years work in the officer’s speciality.A Survey Party Leader whilst not requiring supervision for daily tasks is still responsible to an ExperiencedSurveyor when performing any survey where title definition is required.Duties which may be expected of such an employee are—• Under the direction of a coordinator, be able to perform surveys to the required accuracy for the various types

of surveys.• Interpret survey information to enable field surveys to relate to previous surveys.• Prepare reports on the manner in which the surveys were conducted and justification of results.

5.1.2(i) Level 4 - Experienced Surveyor/Experienced Town Planner (as defined)An Experienced Surveyor/Experienced Town Planner acts above and beyond an employee at level 5.Duties which may be expected of an Experienced Surveyor are—• To the level of their experience coordinate other field parties in the performance of their duties.• To carry out field surveys to a professional standard to the satisfaction of the employer.• To show initiative on improving field and office techniques.• Manage computer files and job flow patterns.• To ensure quality assurance for the areas directly under their control.• Prepare detailed reports on survey results.• To be of such professional attitude and demeanour to enable themselves to represent their employer at

meetings.• To be technically competent in all areas relating to the officer’s speciality.An Experienced Surveyor (as defined) would have a minimum of two (2) years on professional surveying dutiessince graduating as a Surveyor or would be a Corporate Member of the Institute of Surveyors Australia orAustralian Institute of Mining and Metallurgy.

5.1.2(j) Level 3 - Professional Surveyor - Licensed/Professional Engineer - ExperiencedAt Level 3 a Professional Surveyor-Licensed/Professional Engineer - Experienced means an employee who hascompleted—• A three or four year degree, diploma (national advanced diploma); or• An employee who has completed additional accredited education and training so as to reach a standard

equivalent to a three or four year degree and• who is required to perform the work set out below.A Professional Surveyor - Licensed at Level 3 shall include an employee who has successfully completed allnecessary requirements to become a Licensed Surveyor. Such a qualification however is not mandatory for work atthis level. Requirements of such an employee would be to be proficient in aspects of law relating to surveying andbe actively involved in maintaining their knowledge to include any changes in legislation and technology.A Professional Engineer – Experienced at Level 3 is an Experienced Engineer (as defined) who plans and conductsprofessional engineering work without detailed supervision, but with guidance on unusual features and who isusually on more responsible engineering assignments requiring substantial professional experience.They would require a mature approach to the completion of survey projects and be able to adequately supervisethose under their control. The Experienced Professional Engineers would have a minimum four years experience onprofessional engineering duties since becoming a Qualified engineer or would be a Chartered Member of theInstitution of Engineers, Australia.A Level 3 Professional Surveyor - Experienced/Licensed acts above and beyond an employee at Level 4.Included in the added responsibility of Licensed Surveyor or an employee working at an equivalent skill level is acommitment to improving the skills of those over which they have direct control.Regular checks on Quality Control procedures in place for the surveyor’s/engineer’s place of equipment.Supervision received is in broad objectives where communication with management will enable the surveyor todetermine whether targets are being reached.

5.1.2(k) Level 2 - Manager/Professional project/specialistA Manager/Professional project/specialist means an employee who has completed—• A three or four year degree to qualify as a Professional Surveyor/Engineer; or• An employee who has completed additional accredited education and training so as to reach a standard

equivalent to a three or four year degree and• who is required to perform the work set out below.DutiesThey require the application of mature surveying/engineering knowledge with scope for individual accomplishmentand coordination of difficult and responsible surveying alignments/engineering decision making. They deal withproblems for which it is necessary to modify established guides and devise new approaches.


They may take some original contribution and/or apply new approaches and techniques to design or development ofequipment or specific aspects of products.Recommendation and decisionsTheir recommendations may be reviewed for soundness of judgement but are usually regarded as technicallyaccurate and feasible. They make responsible decisions on matters assigned, including the establishment ofsurveying/engineering standards and procedures.Supervision receivedWork is carried out within broad guidelines requiring conformity with overall objectives, relative priorities andnecessary cooperation with other units. Informed technical guidance may be available.Supervision exercisedThey outline and assign work and review it for technical accuracy and adequacy. They may plan, direct andcoordinate the work of other professional surveyors and may also supervise other professional and technical staffand/or engineers.

5.1.2(l) Level 1 - Manager/Professional business/specialistA Manager Business/Specialist means an employee who has completed—• A three or four year degree to qualify as a Professional Surveyor/Engineer; or• An employee who has completed accredited education and training so as to reach a standard equivalent to a

three or four year degree and• who is required to perform the work set out below.DutiesThey are required to perform professional surveying work involving considerable independence in approach anddemanding a considerable degree of originality, ingenuity and judgement. They require knowledge of more thanone field of surveying/engineering or is an expert in a particular field of surveying/engineering. They initiate and/orparticipate in short and long range planning and make independent decisions on surveying policies and procedureswithin an overall program. They may take detailed technical responsibility for product development and thedevelopment and provision of specialised survey systems, facilities and functions.They coordinate work programs and direct or advise on the use of material and/or equipment.Recommendations and decisionsThey make responsible decisions not usually subject to technical review. They decide courses of action necessary toexpedite the successful accomplishment of assigned projects. They may make recommendations involving largesums of money or long-range objectives.Supervision receivedDuties are assigned only in terms of broad objectives and are reviewed for policy, soundness of approach,accomplishment and general effectiveness.Supervision exercisedThey supervise a group or groups including professional surveyors and other staff and/or exercise authority andtechnical control over a group of qualified professional personnel engaged, in both instances, in complex surveyapplications.

5.1.3 Salaries – Clerical Employees5.1.3(a) Adult

Grade Weekly Rate1 $470.602 $491.503 $525.20Provided that—(a) No employee employed as at the commencement of this award is to receive less pay as a result of

regrading under this award. In the event that such regrading results in a lower grading, the presentsalary is to be maintained until overtaken by award increases.

(b) Overaward payments may be absorbed into any increase arising under this award.5.1.3(b) Juniors

The following percentage of Grade 1 weekly rates shall be minimum rates of wages per week for junioremployees—

Age Rate per Week17 60%18 70%19 80%20 90%

5.1.4 Classification Definitions – (Clerical employees)5.1.4(a) Grade 1 Clerical Assistant

Employees in this grade perform and are accountable for clerical and office tasks as directed within the skilllevels set out. They work within established routines, methods and procedures. Supervision is direct.Employees shall be graded at this level where the principal functions of their employment, as determined by theemployer, require the exercise of any one or more of the skill levels set out below.Employees may be required to train other employees in the skills of their own grades by means of personalinstruction and demonstration.MACHINE OPERATION – Skill Level 1

Operate telephone/intercom systems, telephone answering machines, facsimile machines,photocopiers, franking machines, guillotines.


INFORMATION HANDLING SKILLS – Skill Level 1Receive, sort, open, distribute incoming mail, process outgoing mail, receive incoming and dispatchoutgoing courier mail, deliver messages and documents to appropriate persons/locations.Prepare and collate documents.Sort and file documents/records accurately in correct location/sequence using an established paperbased filing system.

ENTERPRISE/INDUSTRY, SPECIALIST SKILLS – Skill Level 1Acquire and apply a limited knowledge of office procedures and requirements.

5.1.4(b) Grade 2 Clerical OfficerEmployees in this grade perform clerical and office tasks using a more extensive range of skills and knowledgeat a level higher than required in Grade 1. They are responsible and accountable for their own work which isperformed within established routines, methods and procedures.Supervision is routine.Employees shall be graded at this level where the principal functions of their employment, as determined by theemployer, require the exercise of any one or more of the skill levels set out below.Employees may be required to train other employees in the skills of their own grade and below by means ofpersonal instruction and demonstration.MACHINE OPERATION – Skill Level 2

Operate adding machines, switchboard, paging system, telex machine, typewriter and calculator.COMPUTER – Skill Level 1

Use knowledge of keyboard and function keys to enter and retrieve data through computer terminal.KEYBOARD TYPING – Skill Level 1

Copy type at 25 words per minute with 98% accuracy.INFORMATION HANDLING SKILLS – Skill Level 2

Maintain mail register and records.Maintain established paper-based filing/records systems in accordance with set procedures includingcreating and indexing new files, distributing files within the organisation as requested, monitoring filelocations.Transcribe information into records, complete forms, take telephone messages.

ENTERPRISE/INDUSTRY, SPECIALIST SKILLS – Skill Level 2Acquire and apply a working knowledge of office or sectional operating procedures andrequirements.Acquire and apply a working knowledge of the organisation’s structure and personnel in order to dealwith inquiries at first instance, locate appropriate staff in different sections, relay internal information,respond to or redirect inquiries, greet visitors.

BUSINESS/FINANCIAL SKILLS – Skill Level 1Keep appropriate records.Sort, process and record original source financial documents (eg invoices, cheques, correspondence)on a daily basis; maintain and record petty cash; prepare bank deposits and withdrawals and dobanking.

5.1.4(c) Grade 3 Clerical OfficerEmployees in this grade perform clerical and office tasks using a more extensive range of skills and knowledgeat a level higher than required in Grade 2.They are responsible and accountable for their own work, which is performed within established guidelines,they exercise limited discretion within the range of their skill and knowledge. Supervision is general.Employees shall be graded at this level where the principal functions of their employment, as determined by theemployer, require the exercise of any one or more of the skill levels set out below.Employees may be required to train other employees in the skills of their own grade and below by means ofpersonal instruction and demonstration.MACHINE OPERATION – Skill Level 3

Operate computerised radio telephone equipment, micro/personal computer, printing devices attachedto personal computer, dictaphone equipment, typewriters.

KEYBOARD TYPING – Skill Level 2Produce documents and correspondence using knowledge of standard formats, touch type at 40 wordsper minute with 98% accuracy, audio type.

COMPUTER – Skill Level 2Use one or more software application package(s) developed for a micro/personal computer to operateand populate a database, spreadsheet/worksheet to achieve a desired result; graph previously preparedspreadsheet; use simple menu utilities of personal computer.Following standard procedures or template for the preceding functions using existing models/fields ofinformation. Create, maintain and generate simple reports.Use a central computer resource to an equivalent standard.

WORD PROCESSING – Skill Level 1Use one or more software packages to create, format, edit, proof read, spell check, correct, print andsave text documents, eg standard correspondence and business documents.Apply additional functions such as search and replace, variable fonts, moving and merging acrossdocuments and simple maths.


SECRETARIAL – Skill Level 1Take shorthand notes at 70 words per minute and transcribe with 95% accuracy.Arrange travel bookings and itineraries, make appointments, screen telephone calls, follow visitorprotocol procedures, establish telephone contact on behalf of executive.

ENTERPRISE/INDUSTRY, SPECIALIST SKILLS – Skill Level 3Apply a working knowledge of the organisation’s produces/services, functions, locations and clients.Respond to and act upon most internal/external inquiries in own function area.

INFORMATION HANDLING SKILLS – Skill Level 3Use and maintain a computer-based record management system to identify, access and extractinformation from internal sources.Maintain circulation, indexing and filing systems for publications, review files, close files, archivefiles.

BUSINESS/FINANCIAL SKILLS – Skill Level 2Maintain financial records and journals; collect and prepare time and wages records; prepare accountspayable for authorisation; respond to simple account queries from debtors; post transactions to ledger.Employees holding a Certificate of Office and Secretarial Studies (TAFE) or accredited equivalentand who are required to use skills and perform tasks within the range of skills in Grade 3 shall begraded at Grade 3 or above.

5.2 PAYMENT OF SALARIESSalaries may be paid, as agreed between the employer and employee, weekly, fortnightly, or monthly in cash, by cheque, or bydirect bank transfer into an account nominated by the employee.5.3 MINIMUM ADULT AWARD WAGE(1) No adult employee shall be paid less than the Minimum Adult Award Wage unless otherwise provided by this clause.(2) The Minimum Adult Award Wage for full time adult employees is $431.40 per week payable from the beginning of the

first pay period commencing on or after 1st August 2002.(3) The Minimum Adult Award Wage of $431.40 per week is deemed to include all arbitrated safety net adjustments from

State Wage Case decisions to July 2002, including the arbitrated safety net adjustment from Matter No. 06055 of 2002.(4) Unless otherwise provided in this clause adults employed as casual or part time employees shall not be paid less than pro

rata the Minimum Adult Award Wage according to the hours worked.(5) Juniors shall be paid no less than the wage determined by applying the percentage prescribed in the junior rates provision

to the Minimum Adult Award Wage of $431.40 per week.(6) (a) The Minimum Adult Award Wage shall not apply to apprentices, employees engaged on traineeships or

Jobskills placements, or to other categories of employees who by prescription are paid less than the minimumaward rate.

(b) Liberty to apply is reserved in relation to any special categories of employees not included here or otherwise inrelation to the application of the Minimum Adult Award Wage.

(7) Subject to this clause the Minimum Adult Award Wage shall —(a) apply to all work in ordinary hours.(b) apply to the calculation of overtime and all other penalty rates, superannuation, payments during sick leave,

long service leave and annual leave and for all other purposes of this award.5.4 SUPERANNUATION(1) Definitions

(a) “Complying Superannuation Fund” means—(i) the fund or scheme is a complying fund or scheme within the meaning of the Superannuation

Guarantee (Administration) Act 1992 of the Commonwealth; and(ii) under the governing rules of the fund or scheme, contributions may be made by or in respect of the

employee permitted to nominate a fund or scheme.(b) “Eligible Employee” means an employee who is entitled to receive an employer superannuation contribution

pursuant to the Superannuation Guarantee (Administration) Act 1992.(c) “Ordinary Time Earnings” Shall be as defined in the Superannuation Guarantee (Administration) Act 1992.

(2) Contributions(a) The employer shall pay contributions to the complying superannuation fund determined under subclause (3)

Fund, on behalf of each eligible employee, 9% of Ordinary Time Earnings.(b) employer contributions shall be paid on a quarterly basis.

(3) Fund(a) The employee shall be entitled to nominate the complying superannuation fund or scheme to which

contributions are to be made by or in respect of the employee.(b) The employer shall notify the employee of the entitlement to nominate a complying superannuation fund or

scheme as soon as practicable.(c) A nomination or notification of the type referred to in paragraphs (a) and (b) of this subclause shall, subject to

the requirements of regulations made pursuant to the Industrial Relations Legislation Amendment and RepealAct 1995, be given in writing to the employer or the employee to whom such is directed.

(d) The employee and employer shall be bound by the nomination of the employee unless the employee andemployer agree to change the complying superannuation fund or scheme to which contributions are to be made.

(e) The employer shall not unreasonably refuse to agree to a change of complying superannuation fund or schemerequested by an employee.


(f) Provided that until an employee nominates a complying superannuation fund or scheme, the employer shallmake any required employee contributions to a complying superannuation fund or scheme nominated by theemployer.

5.5 RECORD(1) A record, or records, shall be kept in each establishment by the employer wherein shall be entered:-

(a) the employee’s name and, if the employee is under 21 years of age, his or her date of birth;(b) any industrial instrument that applies;(c) the date on which the employee commenced employment with the employer;(d) for each day —

(i) the time at which the employee started and finished work;(ii) the period or periods for which the employee was paid; and(iii) details of work breaks including meal breaks;

(e) for each pay period —(i) the employee’s designation;(ii) the gross and net amounts paid to the employee under the industrial instrument; and(iii) all deductions and the reasons for them;

(f) all leave taken by the employee, whether paid, partly paid or unpaid;(g) the information necessary for the calculation of the entitlement to, and payment for long service leave under the

Long Service Leave Act 1958, the Construction Industry Portable Paid Long Service Leave Act 1985 or theindustrial instrument;

(h) the nature of the work performed by each employee;(2) Such record, or records, shall be open to a duly accredited representative of the union during the usual business hours for

the purpose of inspecting and recording such information. Before exercising a power of inspection the representative shallgive reasonable notice of not less than 24 hours to the employer.

PART 6 - HOURS OF WORK, BREAKS, OVERTIME, SHIFTWORK, WEEKEND WORK6.1 HOURS OF WORK(1) The ordinary hours of work shall not exceed thirty-eight hours per week.(2) (a) The spread of ordinary hours for employees shall be Monday to Friday between 7.00am and 6.00pm, with the

ordinary hours not exceeding eight hours on any one day, providing that by agreement between an employer andemployee the spread of ordinary hours may be up to 10 hours on any one day.

(b) A meal break of not less than thirty minutes nor more than one hour shall be taken at a time mutually arrangedbetween the employer and the employee. The maximum period to be worked without a lunch break is fivehours.

(3) An employer shall compensate an employee for all authorised time worked in excess of the ordinary hours of duty, asdefined in Clause 6.1, as agreed in accordance with Clause 6.2. - Overtime.

6.2 OVERTIME(1) Overtime shall mean all work performed in excess of, or outside, the ordinary hours of duty worked in accordance with

the provisions of Clause 6.1. - Hours of Work of this Award.(2) (a) Overtime worked on any day, Monday to Friday inclusive, shall be paid for at the rate of time and one half for

the first two hours and double time thereafter.(b) Overtime worked on a Saturday prior to 12 noon shall be paid for at the rate of time and one half for the first

two hours and double time thereafter.(c) Overtime worked on any day prescribed as a public holiday under this Award shall be paid for at the rate of

double time and one half.(3) In computing overtime each day shall stand alone, but when any employee works overtime which continues beyond

midnight on any day, the time worked after midnight shall be deemed to be part of the previous day’s work.(4) (a) When overtime work is necessary it shall, wherever reasonably practicable, be so arranged that employees have

at least ten consecutive hours off duty between the work of successive days.(b) An employee (other than a casual employee), who works so much overtime between the termination of his/her

ordinary work on one day and the commencement of his/her ordinary work on the next day that he/she has nothad at least ten consecutive hours off duty between those times shall, subject to this subclause, be released aftercompletion of such overtime until he/she has had ten consecutive hours off duty without loss of pay for ordinaryworking time occurring during such absence.

(c) If, on the instructions of his/her employer, such an employee resumes or continues work without having hadsuch ten consecutive hours off duty, he/she shall be paid at double time until he/she is released from duty forsuch period and he/she shall then be entitled to be absent until he/she has had ten consecutive hours off dutywithout loss of pay for ordinary working time occurring during such absence.

(5) When an employee is recalled to work after leaving the job he/she shall be paid for at least three hours at overtime rates.(6) An employee shall not be compelled to work for more than five hours without a break for a meal.(7) (a) An employee required to work overtime for more than two hours without being notified on the previous day or

earlier that he/she will be so required to work shall be supplied with a meal by the employer or paid $8.00 for ameal.

(b) If the amount of overtime required to be worked necessitates a second or subsequent meal the employer shallprovide such meals or pay an amount of $5.30 for each second or subsequent meal unless he/she has notified theemployee concerned on the previous day or earlier that such second or subsequent meal will also be required.

(8) An employer may require any employee to work reasonable overtime at overtime rates, and such employee shall workovertime in accordance with such requirement.


(9) Notwithstanding the provisions of subclause (2) of this clause, and subject to the provisions of subclause (10) hereunder,any employee, who is paid as or higher than, a Manager/Professional - Project/Specialist as defined in Clause 5.1.2(l)shall receive compensation for any overtime worked either by—(a) payment of overtime at a single time rate, or(b) payment of additional remuneration on an annual salary basis provided that the additional remuneration

calculated over a calendar year is not less than would otherwise be payable under (9)(a)(10) Notwithstanding any other provision of this clause, an employer and an employee may agree that, in lieu of payment for

overtime worked, an employee may, at a mutually convenient time, be granted time off at the rate at which the overtimewould otherwise have been paid. Time off in lieu should be taken within 6 months of it accruing and where it is not taken,or where the employment is terminated, the time off in lieu should be paid as per 6.2(2).

PART 7 - LEAVE OF ABSENCE AND PUBLIC HOLIDAYS7.1 PUBLIC HOLIDAYS(1) (a) The following days or the days observed in lieu shall, subject to this clause and to Clause 6.2 - Overtime, be

allowed as public holidays, without deduction of ordinary salary; namely, New Year’s Day, Australia Day,Good Friday, Easter Monday, Anzac Day, Labour Day, Foundation Day, Sovereign’s Birthday, Christmas Dayand Boxing Day, provided that another day may be taken as a holiday by arrangement between the parties inlieu of the days named in this subclause.

(b) When any of the days mentioned in paragraph (a) hereof falls on a Saturday or a Sunday, the holiday shall beobserved on the next succeeding Monday and when Boxing Day falls on a Sunday or a Monday, the holidayshall be observed on the next succeeding Tuesday. In each case, the substituted day shall be observed as apublic holiday and paid as such and that for which it is substituted shall not be observed as a public holiday andshall be paid at the appropriate rate.

(2) On any public holiday not prescribed as a holiday under this Award, the employer’s establishment or place of businessmay be closed, in which case an employee need not present for duty and payment may be deducted, but if work be done,ordinary rates of pay shall apply.

(3) The provisions of this clause shall not apply to casual employees.7.2 ANNUAL LEAVE(1) (a) Except as hereinafter provided, a period of four consecutive weeks’ leave with payment of ordinary salary, as

prescribed by this Award for the appropriate classification, shall be allowed annually to an employee by theemployer after a period of 12 months’ continuous service with such employer.

(b) During a period of annual leave, an employee shall be paid a loading of 17.5% calculated on an employee’sordinary salary for that period of leave. Provided that the loading will not amount to an entitlement in excess ofthe Australian Bureau of Statistics’ Average Weekly Earnings per employed male unit (Original - Australia) forthe September quarter of the year preceding the year in which the date of the accrual of leave falls.

(c) The loading prescribed by this subclause shall not apply to proportionate leave on termination.(d) An employee may agree in writing with the employer, an arrangement other than the loading, such as (a) annual

bonus payment (b) additional amount of salary. Such an arrangement made under the provision shall not give avalue less than the value of the loading.

(2) If any public holiday falls within an employee’s period of annual leave on a day which for the employee would have beenan ordinary working day, there shall be added to that period one day being an ordinary working day for each such holidayobserved as aforesaid.

(3) (a) If after one month’s continuous service in any qualifying period an employee leaves employment or theemployment is terminated by the employer through no fault of the employee, the employee shall be paid one-thirteenth of a week’s pay at the ordinary rate of salary in respect of each completed week of continuous service.

(b) In addition to any payment to which the employee may be entitled under paragraph (a) of this subclause, anemployee whose employment terminates after the employee has completed a 12 monthly qualifying period andwho has not been allowed the leave prescribed under this Award in respect of that qualifying period, shall begiven payment in lieu of that leave or, in a case to which subclauses (7) and (8) of this clause applies, in lieu ofso much of that leave as has not been allowed, unless:-(i) the employee has been justifiably dismissed for misconduct; and(ii) the misconduct for which the employee has been dismissed occurred prior to the completion of the

qualifying period.(4) Any time in respect of which an employee is absent from work except time for which the employee is entitled to claim

sick pay or time spent on holidays or annual leave as prescribed by the Award shall not count for the purpose ofdetermining the employee’s right to annual leave.

(5) Annual leave may be taken in not more than two periods at a time mutually convenient to the employee and employer.(6) Notwithstanding anything else herein contained, an employer who observes a Christmas close-down for the purpose of

granting annual leave may require an employee to take annual leave.(7) No employee shall be required to take annual leave unless two weeks’ prior notice is given.(8) The provision of this clause shall not apply to a casual employee.7.3 ABSENCE THROUGH SICKNESS(1) (a) An employee who is unable to attend or remain at the place of employment during the ordinary hours of work

by reason of personal ill health or injury shall be entitled to payment during such absence in accordance with thefollowing provisions.

(b) Entitlement to payment shall accrue at the rate of one sixth of a week for each completed month of service withthe employer.

(c) If in the first or successive years of service with the employer, an employee is absent on the ground of personalill health or injury for a period longer than the employee’s entitlement to paid sick leave, payment may beadjusted at the end of that year of service, or at the time the employee’s services terminate if before the end ofthat year of service, to the extent that the employee has become entitled to further paid sick leave during thatyear of service.


(2) The unused portions of the entitlement to paid sick leave in any one year shall accumulate from year to year and subjectto this clause may be claimed by the employee if the absence by reason of personal ill health or injury exceeds the periodfor which entitlement has accrued during the year at the time of the absence. Provided that an employee shall not beentitled to claim payment for any period exceeding ten weeks in any one year of service without the agreement of theemployer.

(3) To be entitled to payment in accordance with this clause, the employee shall as soon as reasonably practicable advise theemployer of the inability to attend for work, the nature of the illness or injury and the estimated duration of the absence.Provided that such advice, other than in extraordinary circumstances shall be given to the employer within 24 hours of thecommencement of the absence.

(4) The provisions of this clause do not apply to an employee who fails to produce a certificate from a medical practitionerdated at the time of the absence or who fails to supply such other proof of the illness or injury as the employer mayreasonably require provided that the employee shall not be required to produce a certificate from a medical practitionerwith respect to absences of two days or less unless, after two such absences in any year of service the employer requestsin writing that the next and subsequent absences in that year, if any, shall be accompanied by such certificate.

(5) (a) Subject to the provisions of this subclause, the provisions of this clause apply to an employee who sufferspersonal ill health or injury during the time when absent on annual leave and an employee may apply for and theemployer shall grant paid sick leave in place of paid annual leave.

(b) Application for replacement shall be made within seven days of resuming work and then only if the employeewas confined to his/her place of residence or a hospital as a result of personal ill health or injury for a period ofseven consecutive days or more and the employee does produce a certificate from a registered medicalpractitioner that he/she was so confined.Provided that the provisions of this paragraph do not relieve the employee of the obligation to advise theemployer in accordance with subclause (3) of this clause if unable to attend for work on the working day nextfollowing annual leave.

(c) Replacement of paid annual leave by paid sick leave shall not exceed the period of paid sick leave to which theemployee was entitled at the time of proceeding on annual leave and shall not be made with respect to fractionsof a day.

(d) Where paid sick leave has been granted by the employer in accordance with paragraphs (a), (b) and (c) of thissubclause, that portion of the annual leave equivalent to the paid sick leave is hereby replaced by the paid sickleave and the replaced annual leave may be taken at another time mutually agreed to by the employer and theemployee or, failing agreement, shall be added to the employee’s next period of annual leave or, if terminationoccurs before then, be paid for in accordance with the provisions of Clause 7.2 - Annual Leave.

(e) Payment for replaced annual leave shall be at the rate of wage applicable at the time the leave is subsequentlytaken.

(6) Where a business has been transmitted from one employer to another and the employee’s service has been deemedcontinuous in accordance with subclause (3) of Clause 2 of the Long Service Leave provisions published in Volume 69 ofthe Western Australian Industrial Gazette at pages 1-4, the paid sick leave standing to the credit of the employee at thedate of transmission from service with the transmittor shall stand to the credit of the employee at the commencement ofservice with the transmittee and may be claimed in accordance with the provisions of this clause.

(7) The provisions of this clause with respect to payment do not apply to employees who are entitled to payment under theWorkers’ Compensation Act nor to employees whose injury or illness is the result of the employee’s own misconduct.

(8) The provisions of the clause do not apply to casual employees.

7.4 CARER’S LEAVE(a) Paid Leave Entitlement

An employee is entitled to use up to 40 hours personal leave each year to care for members of their immediatefamily or household who are sick and require care and support. This entitlement is subject to the employeebeing responsible for the care and support of the person concerned. In normal circumstances an employee is notentitled to take carer’s leave where another person has taken leave to care for the same person.

(b) Notice Required(i) When taking carer’s leave the employee must, as soon as reasonably practicable and during the

ordinary hours of the first day or shift of such absence, inform the employer of their inability to attendfor duty. If it is not reasonably possible to inform the employer during the ordinary hours of the firstday or shift of such absence, the employee will inform the employer within 24 hours of such absence.

(ii) The notice must include—• The name of the person requiring care and support and their relationship to the employee;• The reasons for taking such leave;• And the estimated length of absence.

(iii) The employee must, if required, establish by production of medical certificate or statutorydeclaration, the illness of the person concerned and that such illness requires care by another.

(c) Unpaid Carer’s LeaveAn employee may take unpaid carer’s leave by agreement with the employer.

7.5 BEREAVEMENT LEAVE(1) An employee, other than a casual employee, shall, on the death within Australia of a spouse or defacto spouse, father,

mother, brother, sister, child or stepchild, be entitled on notice of leave up to and including the day of the funeral of suchrelation and such leave shall be without deduction of ordinary pay for a period not exceeding the number of hours workedby the employee in two ordinary working days. Proof of such death shall be furnished by the employee to the satisfactionof the employer.

(2) Payment in respect of bereavement leave is to be made only where the employee otherwise would have been on duty andshall be granted in any case where the employee concerned would have been off duty in accordance with any work rosteror on long service leave, annual leave, sick leave, workers’ compensation, leave without pay or on a public holiday.


7.6 PARENTAL LEAVE(1) Parental Leave

Subject to the terms of this clause employees other than casuals are entitled to maternity, paternity and adoption leave andto work part-time in connection with the birth or adoption of a child.DefinitionsFor the purposes of this clause—“Child” means a child of the employee under the age of one year except for adoption of a child where “child” means aperson under the age of five years who is placed with the employee for the purposes of adoption, other than a child orstep-child of the employee or of the spouse of the employee or a child who had previously lived continuously with theemployee for a period of six months or more.

(2) Entitlement(a) After twelve months’ continuous service, parents are entitled to a combined total of 52 weeks’ unpaid parental

leave on a shared basis in relation to the birth or adoption of their child. For females, maternity leave may betaken and for males, paternity leave may be taken. Adoption leave may be taken in the case of adoption.

(b) Parental leave is to be available to only one parent at a time, except that both parents may simultaneouslyaccess the leave in the following circumstances—(i) for maternity and paternity leave, an unbroken period of one week at the time of the birth of the child;

and(ii) for adoption leave, an unbroken period of up to three weeks at the time of the placement of the child.

(3) Maternity Leave(a) An employee must provide notice to the employer in advance of the expected date of commencement of

parental leave. The notice requirements are—(i) of the expected date of birth (included in a certificate from a registered medical practitioner stating

that the employee is pregnant) – at least 10 weeks; and(ii) of the date on which the employee proposes to commence maternity leave and the period of leave to

be taken – at least 4 weeks.(b) When the employee gives notice under sub-clause 3(a)(i) the employee must also provide a statutory

declaration stating particulars of any period of paternity leave sought or taken by her spouse and that for theperiod of maternity leave she will not engage in any conduct inconsistent with her contract of employment

(c) An employee will not be in breach of sub-clause (3) if the failure to give the required notice period is becauseof the birth occurring earlier than the presumed date.

(d) Subject to clause 7.6(2)(a) and unless agreed otherwise between the employer and employee, an employee maycommence parental leave at any time within six weeks immediately prior to the expected date of the birth.

(e) Where an employee continues to work within the six week period immediately prior to the expected date ofbirth, or where the employee elects to return to work within six weeks after the birth of the child, an employermay require the employee to provide a medical certificate stating that she is fit to work on her normal duties.

(f) Where the pregnancy of an employee terminates after 28 weeks and the employee has not commencedmaternity leave, the employee may take unpaid special maternity leave of such period as a registered medicalpractitioner certifies as necessary, except that where an employee is suffering from an illness not related to thedirect consequences of the birth an employee may be entitled to paid sick leave in lieu of, or in addition to,special maternity leave.

(g) Where leave is granted under 7.6(3)(d) during the period of leave an employee may return to work at any time,as agreed between the employer and the employee provided that time does not exceed four weeks from therecommencement date desired by the employee.

(h) (i) Where an employee is pregnant and, in the opinion of a registered medical practitioner, illness orrisks arising out of the pregnancy or hazards connected with the work assigned to the employee makeit inadvisable for the employee to continue at her present work, the employee will, if the employerdeems it practicable, be transferred to a safe job at the rate and on the conditions attaching to that jobuntil the commencement of maternity leave.

(ii) If the transfer to a safe job is not practicable, the employee may elect, or the employer may requirethe employee, to commence parental leave.

(4) Paternity LeaveAn employee will provide the employer at least ten weeks prior to each proposed period of paternity leave with—(a) A certificate from a registered medical practitioner which names his spouse, states that she is pregnant and the

expected date of birth, or states the date on which the birth took place; and(b) Written notification of the dates on which he proposes to start and finish the period of paternity leave; and(c) A statutory declaration stating—

(i) he will take that period of paternity leave to become the primary care-giver of a child;(ii) particulars of any period of maternity leave sought or taken by his spouse; and(iii) that for the period of paternity leave he will not engage in any conduct inconsistent with his contract

of employment.(5) Adoption Leave

(a) The employee will notify the employer at least ten weeks in advance of the date of commencement of adoptionleave and the period of leave to be taken.

(b) Before commencing adoption leave, an employee will provide the employer with a statutory declarationstating—(i) the employee is seeking adoption leave to become the primary care-giver of the child;(ii) particulars of any period of adoption leave sought or taken by the employee’s spouse; and(iii) that for the period of adoption leave the employee will not engage in any conduct inconsistent with

their contract of employment.


(c) An employer may require an employee to provide confirmation from the appropriate government authority ofthe placement.

(d) Where the placement of a child for adoption with an employee does not proceed or continue, the employee willnotify the employer immediately and the employer will nominate a time not exceeding four weeks from receiptof notification for the employee’s return to work.

(e) An employee will not be in breach of this clause as a consequence of failure to give the stipulated periods ofnotice if such failure results from a requirement of an adoption agency to accept earlier or later placement of achild, the death of a spouse, or other compelling circumstances.

(6) Variation of Period of Parental LeaveUnless otherwise agreed between the employer and employee, an employee may apply to their employer to change theperiod of parental leave on one occasion. Any such change to be notified at least four weeks prior to the commencementof the changed arrangements.

(7) Parental leave and Other Leave EntitlementsAn employee may in lieu of or in conjunction with parental leave, access other paid leave entitlements which they haveaccrued, such as annual leave or long service leave, subject to the total amount of leave not exceeding 52 weeks.

(8) Returning to Work After a Period of Parental Leave(a) An employee will notify of their intention to return to work after a period of parental leave at least four weeks

prior to the expiration of the leave.(b) An employee will be entitled to the position of which they held immediately before proceeding on parental

leave. In the case of an employee transferred to a safe job pursuant to clause 7.6(3)(h) the employee will beentitled to return to the position they held immediately before such transfer.

(c) Where such position no longer exists but there are other positions available which the employee is qualified forand is capable of performing, the employee will be entitled to a position as nearly comparable in status and payto that of their former position.

(9) Replacement Employees(a) A replacement employee is an employee specifically engaged, part time or full time, or temporarily promoted

or transferred, as a result of an employee proceeding on parental leave.(b) Before an employer engages a replacement employee the employer will inform that person of the temporary

nature of the employment and of the rights of the employee who is being replaced.7.7 LONG SERVICE LEAVEThe Long Service Leave provisions published in Volume 82 of the Western Australian Industrial Gazette at pages 1 to 4 bothinclusive, are hereby incorporated in and shall be deemed to be part of this Award.7.8 CONTINUING PROFESSIONAL DEVELOPMENT LEAVE

(i) To facilitate skill acquisition and career progression, an employee is entitled to one week’s paid study leave, atthe ordinary rate of pay, for each completed year of service.

(ii) The entitlements in clause 7.8(i) may accumulate up to two weeks, but unused entitlements shall not be paid ontermination. Agreement to utilise these entitlements during employment shall not be unreasonably withheld.

(iii) The employer and the employee should agree on criteria for professional development having regard to the cost,accessibility and availability of courses relevant to the business needs and the number of employees seekingsuch opportunity.

(iv) The employer shall pay any course registration fees for agreed professional development activities. Theemployer, at its discretion, may agree with employee to pay for other expenses relating to these activities(travel, accommodation etc)

(v) Nothing in this clause shall prevent an employer and an employee from entering into an agreement to reimbursean employers payment for professional development activities should the employee resign from employmentwithin a year of such activity.

(vi) Where the employer pays course registration fees, the employee has the duty to disseminate the knowledgegained to other members of the business in which he/she is employed. All conference publications from paidcourses remain the property of the employer.

(vii) The employer may pay any registration or licensing fee, and/or the membership fee of the relevant professionalbody when such fees become due.

(viii) On request, the employer shall provide all employees including part time and casual employees, with writtenproof that the employer holds professional indemnity and public liability insurance to cover the employee inrelation to the exercise of the employee’s duties with the employer.

7.9 JURY SERVICE LEAVE(a) A full time employee required to attend for jury service during his or her ordinary working hours shall be reimbursed by

the employer an amount equal to the difference between the amount paid in respect of his or her attendance for such juryservice and the amount of wage he or she would have received in respect of the ordinary time he or she would haveworked had he or she not been on jury service.

(b) Where a part time employee is required to attend for jury service and such attendance coincides with a day on which theemployee would normally be required to work, payment shall be made to the employee in accordance with Clause5.1 Salaries.

(c) An employee shall notify the employer as soon as possible of the date upon which he or she is required to attend for juryservice. Further, the employee shall give the employer proof of attendance, the duration of such attendance and theamount received in respect of jury service.

PART 8 - TRANSFERS, TRAVELLING AND WORKING AWAY FROM USUAL PLACE OF WORK8.1 VEHICLE ALLOWANCE(1)(a) Where an employee agrees with the employer to use his/her own motor vehicle in the course of their duties, the employee

shall be paid an allowance as agreed between the employer and the employee based on—(i) the motor vehicle business running costs guide published by the Royal Automobile Club of Western Australia

and as amended from year to year (see table set out below for rates as at 1 October 2002), or


(ii) the set rates for business kilometres as published by the Australian Taxation Office and as amended from yearto year (see table set out below for 2001/2002 year), or

(iii) any other arrangement as agreed, not less favourable to the employee than any allowance payable under (i) or(ii).

(b) (i) Private Vehicle Reimbursement Rates published by Royal Automobile Club of Western Australia as at1 October 2002.Standard Drive Rates/km<1.6L 38.65c 1.6L <2.6L 56.84c>2.6L 68.87cFour wheel Drive 84.02cPassenger van/People Mover 69.95c

(ii) Set rates for business kilometres as published by the Australian Taxation Office for 2001/2002.Normal engine Rates/km<1.6L 49.3c 1.6L <2.6L 59.0c>2.6L 60.0c

(2) Where agreed between the employer and employee additional recompense shall be paid where the motor vehicle is usedin rough terrain, remote areas, or on unsealed roads.

8.2 FARES AND TRAVELLING TIME(1) (a) An employee who, on any day, or from day to day is required to work at a job away from the employees

accustomed office shall, at the direction of his/her employer, present himself/herself for work at such job at theusual starting time.

(b) An employee to whom paragraph (a) of this subclause applies shall be paid at ordinary rates for time spent intravelling between home and the job and shall be reimbursed for any fares incurred in such travelling, but onlyto the extent that the time so spent and the fares so incurred exceed the time normally spent and the faresnormally incurred in travelling between the home and accustomed office.

(c) An employee who with the approval of his/her employer uses his/her own means of transport for travelling to orfrom outside jobs shall be paid the amount of excess fares and travelling time which he/she would have beenincurred in using public transport unless there is an arrangement with the employer for a regular allowance.

(2) For travelling during working hours from and to the employer’s place of business or from one job to another, theemployee shall be paid by the employer at ordinary rates. The employer shall pay all fares and reasonable expenses inconnection with such travelling.

8.3 DISTANT WORK ALLOWANCES(1) DISTANT WORK ACCOMMODATION AND EXPENSES

(a) Where an employee is directed by the employer to proceed to work at such a distance that the employee cannotreturn to home each night and the employee does so, the employer shall provide the employee with suitableboard and lodging or shall pay the expenses reasonably incurred by the employee for board and lodging.

(b) Suitable board and lodging, for the purpose of this subclause, shall mean full board and lodging at a hotel,motel, guest house, construction camp, or sea-going vessel.

(2) CAMPING CONDITIONSWhere an employee is required to camp, the employer shall—(a) Pay the employee a daily camping allowance as follows—

Permanent Camp Rough Camp/Daily Set UpNorth of 26 parallel $44.95 $64.50South of 26 parallel $39.05 $58.60

(b) Provide camping accommodation and cooking utensils and camp stores. If food is provided by the employer arate shall be agreed as to the cost of the food and deducted from the employee’s daily camping allowance.

(3) CONSTRUCTION OR SITE ALLOWANCESWhere a Construction Allowance or a Site Allowance is in operation, as defined in a site agreement, an employee underthis Award shall be paid the construction or site allowance.

(4) INCIDENTAL ALLOWANCE(a) An employee shall be paid an incidental allowance for each completed day worked at a place from which he/she

cannot return to his/her home each night at a rate of—North of 26th parallel - $12.85South of 26th parallel - $10.05

(b) Incidental allowance shall be paid in addition to any other allowance payable under Clause 8.3. - Distant WorkAllowances, with the exception of Camping Allowance under subclause (2) or a Construction or Site Allowanceunder subclause (3) hereof.

(5) EMPLOYEE ABSENT FROM WORKThe provisions of Clause 8.3 - Distant Work Allowances do not apply with respect to any period during which anemployee is absent from work without reasonable excuse and in such a case, where the board and lodging is supplied bythe employer, he/she may deduct from monies owing or which may become owing to the employee an amount equivalentto the value of that board and lodging for the period of the absence.


8.4 LOCATION ALLOWANCE(1) Subject to the provisions of this clause, in addition to the rates prescribed in the Salary clause of this Award, an employee

shall be paid the following weekly allowances when employed in the towns prescribed hereunder. Provided that wherethe salaries are prescribed as fortnightly rates of pay, these allowances shall be shown as fortnightly allowances.

Town Per Week$

Agnew 16.60Argyle 43.50Balladonia 16.60Barrow Island 28.30Boulder 6.90Broome 26.50Bullfinch 7.80Carnarvon 13.50Cockatoo Island 29.10Coolgardie 6.90Cue 16.90Dampier 23.00Denham 13.50Derby 27.50Esperance 5.00Eucla 18.50Exmouth 23.90Fitzroy Crossing 33.30Goldsworthy 14.80Halls Creek 38.10Kalbarri 5.70Kalgoorlie 6.90Kambalda 6.90Karratha 27.30Koolan Island 29.10Koolyanobbing 7.80Kununurra 43.50Laverton 16.80Learmonth 23.90Leinster 16.60Leonora 16.80Madura 17.60Marble Bar 41.70Meekatharra 14.60Mount Magnet 18.10Mundrabilla 18.10Newman 15.90Norseman 14.20Nullagine 41.60Onslow 28.30Pannawonica 21.50Paraburdoo 21.30Port Hedland 22.80Ravensthorpe 8.80Roebourne 31.40Sandstone 16.60Shark Bay 13.50Shay Gap 14.80Southern Cross 7.80Telfer 38.60Teutonic Bore 16.60Tom Price 21.30Whim Creek 27.10Wickham 26.30Wiluna 16.80Wittenoom 36.90Wyndham 41.00

(2) Except as provided in subclause (3) of this clause, an employee who has—(a) a dependent shall be paid double the allowance prescribed in subclause (1) of this clause;(b) a partial dependent shall be paid the allowance prescribed in subclause (1) of this clause plus the difference

between that rate and the amount such partial dependent is receiving by way of a district or location allowance.(3) Where an employee—

(a) is provided with board and lodging by his/her employer, free of charge; or(b) is provided with an allowance in lieu of board and lodgings by virtue of the award or an order or agreement

made pursuant to the Act;such employee shall be paid 66 2/3 per cent of the allowances prescribed in subclause (1) of this clause.

(4) Subject to subclause (2) of this clause, junior employees, casual employees, part time employees, apprentices receivingless than adult rate and employees employed for less than a full week shall receive that proportion of the locationallowance as equates with the proportion that their wage for ordinary hours that week is to the adult rate for the workperformed.


(5) Where an employee is on annual leave or receives payment in lieu of annual leave he/she shall be paid for the period ofsuch leave the location allowance to which he/she would ordinarily be entitled.

(6) Where an employee is on long service leave or other approved leave with pay (other than annual leave) he/she shall onlybe paid location allowance for the period of such leave he/she remains in the location in which he/she is employed.

(7) For the purposes of this clause—(a) “Dependent” shall mean—

(i) a spouse or defacto spouse; or(ii) a child where there is no spouse or defacto spouse;who does not receive a location allowance or who, if in receipt of a salary or wage package, receives noconsideration for which the location allowance is payable pursuant to the provisions of this clause.

(b) “Partial Dependent” shall mean a “dependent” as prescribed in paragraph (a) of this subclause who receives alocation allowance which is less than the location allowance prescribed in subclause (1) of this clause or who, ifin receipt of a salary or wage package, receives less than a full consideration for which the location allowance ispayable pursuant to the provisions of this clause.

(8) Where an employee is employed in a town or location not specified in this clause the allowance payable for the purposeof subclause (1) of this clause shall be such amount as may be agreed between Australian Mines and Metals Association,the Chamber of Commerce and Industry of Western Australia and the Trades and Labor Council of Western Australia, orfailing such agreement, as may be determined by the Commission.

(9) Subject to the making of a General Order pursuant to s.50 of the Act, that part of each location allowance representingprices shall be varied from the beginning of the first pay period commencing on or after the 1st day in July of each year inaccordance with the annual percentage change in the Consumer Price Index (excluding housing), for Perth measured tothe end of the immediately preceding March quarter, the calculation to be taken to the nearest ten cents.

PART 9 - MISCELLANEOUS9.1 PROTECTIVE EQUIPMENTThe employer shall have available a sufficient supply of protective equipment (as for example safety glasses, ear protectors,gumboots, helmets, overalls, dust coats or other efficient substitutes thereof) for use by his/her employees when engaged on workfor which protective equipment is reasonably necessary.9.2 RIGHT OF ENTRY(1) An authorised union representative may enter, during working hours, any premises where relevant employees work for

the purposes of holding discussions on the premises with any of the relevant employees who wish to participate in thosediscussions.

(2) Relevant employees are employees who are members of that union or eligible to become a member of that union.(3) An authorised union representative must give the employer of the relevant employees at least 24 hours’ written notice.(4) An employer shall, wherever practicable, provide a notice board for the posting of union notices.9.3 INSPECTION OF RECORDS REQUIREMENTS

For the purposes of inspecting records, by employees or authorised representatives, the provisions of s49E and s49I of theIndustrial Relations Act, 1979 apply.

9.4 LIBERTY TO APPLYLiberty is reserved to the parties to apply to amend this Award in respect to the following matters—(a) Redundancy and severance pay(b) Occupational superannuation(c) Clerical Salary and Classification Structure and DefinitionsSCHEDULESSCHEDULE OF PARTIES COVERED BY THIS AWARDA Grade Surveys7 Koolama PlaceKALLAROO WA 6025Aerial Surveys Australia5 Cressall RoadBALCATTA WA 6021AAM Surveys Pty Ltd23 Hamilton StreetSUBIACO WA 6008Adept Boundary Duplex & Site Surveys7 Merrifield PlaceMULLALOO WA 6027AG Quinn and Co Pty Ltd18 Canning AvenueMT PLEASANT WA 6153AR Williams and partners Pty Ltd2/1 Alvan StreetMT LAWLEY WA 6050Automated Surveys3 Ord StreetWEST PERTH WA 6005Benetti Grogan and Associates6 Page RoadKELMSCOTT WA 6111


Berryman and Ptolomey Pty Ltd66 Canning HighwayVICTORIA PARK WA 6100Brook and Marsh25 Wheatley StreetGOSNELLS WA 6110Brown McAllister (WA) Pty Ltd43 BroadwayNEDLANDS WA 6009Busselton Survey Office72 Duchess StreetBUSSELTON WA 6280Carlton SurveysSuite 4160 Burswood RoadBURSWOOD WA 6100Chris Elks Surveyor3 Edrey WayKARRATHA WA 6714Cottage and Engineering SurveysUnit 2219 Onslow RoadSHENTON PARK WA 6008Crossland and Hardy Pty Ltd177 Railway ParadeMAYLANDS WA 6051Dennys William Hayes and Associates7 Merrifield PlaceMULLALOO WA 6027DM Gerloff and Associates Pty LtdUnit 1, 88 Anderson StreetPORT HEDLAND WA 6721Douglas Surveying266 Urch RoadROLEYSTONE WA 6111Finlaysons Land Development Consultants6/89 Winton RoadJOONDALUP WA 6027FR Rodda and Co70 Churchill AvenueSUBIACO WA 6008FJ & CA Le Faucher28 Wessex StreetCARINE WA 6020Fugro Survey Pty Ltd18 Prowse StreetWEST PERTH WA 6005Garry Callaghan6 Owen RoadDARLINGTON WA 6070GHD SurveysGHD HOUSE239 Adelaide TerracePERTH WA 6000GI Cole and Associates229 Marlock WayMANDURAH WA 6210Graham Gath Surveys98 Dempster StreetESPERANCE WA 6450Harley Hedderwick and Webber Pty Ltd11 Prinsep StreetBUNBURY WA 6230Hawker Moss SurveyorsSuite 7, 89 Forrest StreetCOTTESLOE WA 6011Hille – Thompson and Delfos48 Marine TerraceGERALDTON WA 6530Ian Kelly105 Gregory StreetGERALDTON WA 6530


Ian Ross Surveyors215 Summit RoadMUNDARING WA 6073Ion Services Pty Ltd14/23 Gibberd RoadBALCATTA WA 6021JH Kelly8/14 Main StreetOSBORNE PARK WA 6017John Giudice and Associates8 Stirling StreetFREMANTLE WA 6160John HighamConsulting SurveyorsPO Box 317WILLETTON WA 6955John Kinnear & Associates61 Duke StreetALBANY WA 6330Kevron Aerial Surveys Pty Ltd121 Hill StreetEAST PERTH WA 6004Kingston Surveys Pty Ltd113 Dugan StreetKALGOORLIE WA 6430Links Surveying623 Albany HighwayVICTORIA PARK WA 6100MAKJaP Pty Ltd61 Walters DriveHERDSMAN WA 6017Mandurah Survey Services6 Hill StreetHALLS HEAD WA 6210Margaret River Survey Company27 Station RoadMARGARET RIVER WA 6285McMullen Nolan and Partners Surveyors Pty Ltd2nd floor, 2 Hardy StreetSOUTH PERTH WA 6151Midland Survey Services39 Morrison RoadMIDLAND WA 6056Morris Heyhoe and Richards8 Anzac TerraceGERALDTON WA 6530Mr RAS MachinLicensed Surveyor21 Steere StreetBRIDGETOWN WA 6255Mr RT WellingtonLicensed Surveyor52 Cricklewood WayCARINE WA 6020Palladin Surveys20 Colgrain WayDUNCRAIG WA 6023Pascott Grant38 Kings Park RoadWEST PERTH WA 6005Paterson Tudor Owen & Parker123 Fitzgerald StreetWEST PERTH WA 6872Paul Kraft and AssociatesLot 8 West Toodyay RoadTOODYAY WA 6566Peter Driscoll and Associates Pty Ltd7/237 Stirling HighwayCLAREMONT WA 6010


PGS Hope PartnersUnit 1124 Thorogood StreetVICTORIA PARK WA 6100PJ Neale Surveys Pty Ltd16 Marr StreetMYAREE WA 6154Property People Surveying9/1076 Hay StreetWEST PERTH WA 6005Qasco Western Surveys Pty LtdSuite 28, 63 Shepparton RoadVICTORIA PARK WA 6100Richard Lester & Associates103 Flora TerraceNORTH BEACH WA 6020RM SURVEYSBurrendah House7 Woodpecker AvenueWILLETTON WA 6155Rullo & AssociatesPO Box 1875MIDLAND WA 6936Scanlan Surveys Pty Ltd23 Spring Park RoadMIDLAND WA 6056Sorensen Short and Associates4 O’Connor WayWANGARA WA 6065Spectrum Surveys Pty Ltd5 Cressall RoadBALCATTA WA 6021Statewest Surveys69 Great Northern HighwayMIDLAND WA 6056Steffanoni Ewing and Cruickshank Pty Ltd282 Rokeby RoadSUBIACO WA 6008Strata StartersSuite 91076 Hay StreetWEST PERTH WA 6005Survey Graphics Pty Ltd5/17 Hulme CourtMYAREE WA 6154Survey West Pty Ltd5/42 Farrall RoadMIDVALE WA 6056Surveyors Perth and Environs9 Myra PlaceSHELLEY WA 6148Swan Surveys Pty Ltd9/12 Farnaby LaneBECKENHAM WA 6107Thompson Consulting Surveyors16 Edward StreetBUNBURY WA 6230Trevor MarkeyLicensed Surveyor58A Tuam StreetVICTORIA PARK WA 6100Tuscom & Associates Pty Ltd19a Dunvegan RoadAPPLECROSS WA 6153Warren Johnson and Co588 Coolibah DriveKUNUNURRA WA 6743Warren King and Co4 Wattle AvenueGOOSEBERRY HILL WA 6076


Whelans Survey & Mapping Group Pty Ltd133 Scarborough Beach RoadMT HAWTHORN WA 6016Wilson and MacKay116 Copley RoadUPPER SWAN WA 6056

AWARDS/AGREEMENTS—Interpretation of—2003 WAIRC 08529

WESTERN AUSTRALIAN POLICE SERVICE ENTERPRISE AGREEMENT FOR POLICE ACT EMPLOYEESNO. PSA AG8 OF 2001

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSIONPARTIES THE WESTERN AUSTRALIAN POLICE UNION OF WORKERS, APPLICANT

v.COMMISSIONER OF POLICE, RESPONDENT

CORAM COMMISSIONER P E SCOTTPUBLIC SERVICE ARBITRATOR

DATE OF ORDER MONDAY, 23 JUNE 2003FILE NO. P 23 OF 2002CITATION NO. 2003 WAIRC 08529_________________________________________________________________________________________________________

Result Application Dismissed_________________________________________________________________________________________________________

OrderWHEREAS this is an application pursuant to Section 46 of the Industrial Relations Act 1979; andWHEREAS on the 23rd day of July 2002, the Public Service Arbitrator convened a conference for the purpose of conciliatingbetween the parties; andWHEREAS at the conclusion of the conference the parties sought time to have further discussions between themselves in anattempt to resolve the matter; andWHEREAS on the 12th day of June 2002, the parties advised the Public Service Arbitrator that the matter was resolved and an orderof dismissal could issue.NOW THEREFORE, the Public Service Arbitrator, pursuant to the powers conferred under the Industrial Relations Act, 1979,hereby orders—

THAT this application be, and is hereby dismissed.(Sgd.) P. E. SCOTT,

[L.S.] Commissioner,Public Service Arbitrator.

AGREEMENTS—Industrial—Retirements from—RESIDENTIAL SUPERVISORS STAFF AGREEMENT 1995

PSA AG 1 of 1995WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

No. 937 of 2003IN THE MATTER of the Industrial Relations Act 1979

andIN THE MATTER of the filing in the Office of the Registrar of a Notice of Retirement from Industrial Agreement in accordance

with section 41(7) of the said ActThe Civil Service Association of Western Australia Incorporated will cease to be a party to the Residential Supervisors StaffAgreement 1995 PSA AG 1 of 1995 on and from the 19th day of July 2003.DATED at Perth this 24th day of June 2003.

(Sgd.) J. A. SPURLING,[L.S.] Registrar.


NOTICES—Award/Agreement matters—WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

APPLICATION NO. 904 OF 2003APPLICATION FOR VARIATION OF AWARD

ENTITLED“HOSPITAL SALARIED OFFICERS (SILVER CHAIN) AWARD, 1980”

No. R 38 of 1978 NOTICE is given that an application has been made to the Commission by the Hospital Salaried Officers Association of WesternAustralia (Union of Workers) under the Industrial Relations Act 1979 for a variation of the above Award.As far as relevant, those parts of the variation which relate to scope are published hereunder—Clause 3. Scope: delete this clause and insert in lieu thereof the following—

3. - SCOPEThis award shall apply to Clerical, Administrative, Supervisory and Technical and Professional employees employed by therespondent employer.A copy of the proposed variation may be inspected at my office at 111 St George's Terrace, Perth.

(Sgd) J. A. SPURLING,Registrar.

13 June 2003.

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSIONAPPLICATION NO. 931 OF 2003

APPLICATION FOR VARIATION OF AWARDENTITLED

“SALARIED OFFICERS (ASSOCIATION FOR THE BLIND OF WESTERN AUSTRALIA) AWARD, 1995”No. A5 of 1995

NOTICE is given that an application has been made to the Commission by the Hospital Salaried Officers Association of WesternAustralia (Union of Workers) under the Industrial Relations Act 1979 for a variation of the above Award.As far as relevant, those parts of the variation which relate to area of operation or scope are published hereunder—Clause 3. – Effect, Area and Scope: Delete this number, title and clause and insert thereof the following—

3. - SCOPEThis award shall apply to all Salaried Officers employed by the Association for the Blind of Western Australia (Incorporated).Clause 3. – Scope: Immediately after this clause insert new number, title and clause as follows—

4. – AREAThis award shall operate throughout the state of Western Australia.A copy of the proposed variations may be inspected at my office at 111 St George’s Terrace, Perth.

(Sgd) J. A. SPURLING,Registrar.

3 July 2003.

____________________



“THE SHOP AND WAREHOUSE (WHOLESALE AND RETAIL ESTABLISHMENTS) STATE AWARD 1977”No. R 32 of 1976

NOTICE is given that an application has been made to the Commission by The Shop, Distributive and Allied Employees’Association of Western Australia under the Industrial Relations Act 1979 for a variation of the above Award.As far as relevant, those parts of the variation which relate to area of operation or scope are published hereunder—In Clause 3. – Scope

Add the following two sentences after the existing sentence—“This award shall apply to each industry mentioned in schedule “C” and applies to all employees employed in each suchindustry in any calling specified in this award.”“This award shall apply to all employees employed in a calling specified in this award who are employed by labour hirecontractors to work in an industry specified in schedule C.”


The following variations to Clause 6. – Definitions are sought—In Clause 6. –Definitions

In sub clause (1) placita (iv) after the word “sale” add the words “hire or lease”In sub clause (2) in the definition of Storeman Operator Grade I delete the words “the following mechanical equipment inthe performance of his duties” and insert the words after the word “operate”, “any one or more of the following items ofmechanical equipment in the performance of his/her duties”.In sub clause (2) in the definition of Storeman Operator Grade II delete the words “the following mechanical equipmentin the performance of his duties” and insert the words after the word “operate”, “any one or more of the following itemsof mechanical equipment in the performance of his/her duties”.In sub clause (5), delete the words “25 miles” and insert the words “40.2 kilometres”.Delete the current definition of canvasser and insert in lieu—

“‘Canvasser’ shall mean an employee who collects or requests orders for goods/or services in places other than theemployer’s establishment, but shall not include motor vehicle salesmen”.

In sub clauses (12) (c) and (13) (a) delete the words “Department of Labour” and insert the words “Department ofConsumer and Employment Protection”.

A copy of the proposed variations may be inspected at my office at 111 St George’s Terrace, Perth. Due to the page number lengthof Schedule C within the application the schedule can be inspected at my office or examined on the Commission’s/Department’swebsite at www.wairc.wa.gov.au

(Sgd) J.A. SPURLING,Registrar.

25 June 2003.

____________________



“STOREMEN INDEPENDENT WOOLDUMPERS PTY LTD AWARD 1982”NOTICE is given that an application has been made to the Commission by The Shop, Distributive and Allied Employees'Association of Western Australia under the Industrial Relations Act 1979 for a variation of the above Award.As far as relevant, those parts of the variation which relate to area of operation or scope are published hereunder:-

Clause 3. – AREA AND SCOPEReplace the name “Independent Wooldumpers Pty Ltd” with the name “IWD Pty Ltd”.

A copy of the proposed variation may be inspected at my office at 111 St George's Terrace, Perth.(Sgd) J. A. SPURLING,

Registrar.10 July 2003.

PUBLIC SERVICE ARBITRATOR—Matters Dealt With—2003 WAIRC 08528

ALLEGED EXPENSES TO BE PAID BY RESPONDENTWESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES WESTERN AUSTRALIAN POLICE UNION OF WORKERS, APPLICANTv.COMMISSIONER OF POLICE, RESPONDENT


DATE OF ORDER MONDAY, 23 JUNE 2003FILE NO. PSAC 35 OF 2002CITATION NO. 2003 WAIRC 08528_________________________________________________________________________________________________________

Result Memorandum of Agreement issued_________________________________________________________________________________________________________


OrderWHEREAS this is an application pursuant to Section 44 of the Industrial Relations Act 1979; andWHEREAS on the 10th day of April 2003 the Public Service Arbitrator convened a conference for the purpose of conciliatingbetween the parties; andWHEREAS at the conclusion of that conference the parties reached agreement in part settlement of the dispute and sought time toundertake further discussions; andWHEREAS on the 10th day of June 2003 the parties reached agreement in settlement of the dispute; andWHEREAS the parties have requested that a Memorandum of Agreement be issued pursuant to Section 44(8) of the IndustrialRelations Act, 1979;NOW THEREFORE, the Public Service Arbitrator, pursuant to the powers set out in Section 44(8) of the Industrial Relations Act1979, hereby orders—

THAT the terms of the agreement between the parties set out in the attached memorandum reflect the final resolution ofthe matter in dispute between the parties.

(Sgd.) P. E. SCOTT,[L.S.] Commissioner,

Public Service Arbitrator._________

MEMORANDUM OF AGREEMENTBETWEEN

WESTERN AUSTRALIAN POLICE UNION OF WORKERS- and -

COMMISSIONER OF POLICE(No. PSAC 35 of 2002)

The parties agree to the following—1. THAT Senior Constable Jason Boyce (registered number 8928) injured his right knee on 29 November 2000, when

jumping through a window in a counter terrorist training exercise with the Tactical Response Group.2. THAT the Commissioner of Police has at all times treated and will continue to treat the injury sustained by Senior

Constable Boyce on 29 November 2000 as an injury resulting from duties for the purposes of clause 39 – Medicaland Hospital Expenses Through Illness or Injury Resulting from Duties of the Western Australia Police ServiceEnterprise Agreement for Police Act Employees 2001 PSA AG 8 of 2001. Accordingly the Commissioner of Policehas paid the reasonable medical expenses associated with that injury to date.

3. THAT the Commissioner of Police has negotiated an arrangement with the Health Insurance Fund of WesternAustralia to share the cost of an autogenous cartilage surgery procedure to be performed upon Senior ConstableBoyce’s knee. The autogenous cartilage surgery procedure is intended to rectify the total, cumulative damagecaused to Senior Constable Boyce’s knee over a number of years.

4. THAT pursuant to the arrangement detailed in point 3 of this memorandum, Senior Constable Boyce will not berequired to contribute to the cost of this surgery.

5. THAT this memorandum resolves the dispute between the parties.

INDUSTRIAL MAGISTRATE—Complaints before—2003 WAIRC 08540

WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATE’S COURTPARTIES COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL,

PLUMBING, AND ALLIED WORKERS UNION OF AUSTRALIA, ENGIN & ELECT DIV, WABRANCH, CLAIMANTv.BENCHMARK RECRUITMENT (WA) PTY LTD, RESPONDENT

CORAM MAGISTRATE WG TARR IMDATE OF ORDER THURSDAY, 5 JUNE 2003CLAIM NO M 165 OF 2002CITATION NO. 2003 WAIRC 08540_________________________________________________________________________________________________________

RepresentationClaimant Mr C Young for the ClaimantRespondent Mr J Brits (of Counsel) of The Chamber of Commerce and Industry of Western Australia (Inc) for the

Respondent_________________________________________________________________________________________________________


Reasons for Decision(Given extemporaneously at the conclusion of the hearing, extracted from the transcript of

proceedings and edited by His Worship)1 The claim in this matter is made pursuant to the provisions of the Industrial Relations Act 1979, and it alleges that the

Respondent employer failed to comply with the Electrical Contracting Industry Award No R22 of 1978 (the Award) in that itdid not pay its employee moneys according to the provisions of the Award. The Claimant union is seeking the payment ofthose moneys plus pre-judgment interest and a penalty.

2 I was given a minute of agreed facts and it has been accepted by the parties that the only issue in this matter is whether or notthe respondent is bound by the Award. The area and scope of the Award is set out in clause 3 which reads as follows—

“This award relates to the Electrical Contracting Industry within the State of Western Australia and to all work done byemployees employed in the classification shown in the First Schedule - Wages and employed by the respondents inconnection with the wiring, contracting, maintenance and the installation and maintenance of electrical, light and powerplants, and the installation of all classes of wiring, repair and maintenance of electric and electronic installations andequipment including switchboards and appliances carried out by the respondents as electrical contractors. …”

3 There is a proviso, and that is that the Award does not apply to the manufacturing section of the business of any of therespondents.

4 I was referred by the claimant to the Electricity (Licensing) Regulations 1991, which for the purpose of the regulations madeunder the Electricity Act 1945, defines “electrical contractor” as meaning—

“a person who carries on business as an electrical mechanic but does not include an electrical mechanic when acting inthe capacity of an employee”

5 “Electrical mechanic” is defined as meaning—“an electrical worker who is authorised under these regulations to carry out electrical installing work”

6 I was then referred to regulation 33(3), which reads—“A person is taken to carry on business as an electrical contractor whether or not electrical installing work is only part,or is not a principal part, of the business carried on by him or her.”.

7 It seems to me that the purpose of the legislation is to ensure the quality and safety of electrical work performed within theState, and it does that by licensing those engaged in the electrical contracting industry.

8 It has been suggested that the work of an employee would “drag” a respondent into an award. In my view there is no merit inthat submission as it is clear from the authorities that the exercise to see whether an employer or employee is bound by anaward requires a separate consideration for both the employee and the employer. It does not follow that, if an employee doesthe work of those employees in the employee classifications in an award, an employer is bound by the award; nor is anemployee of an employer bound by an award as a matter of course, because the employer comes within the scope of an award.

9 In my view this has been made quite clear in a number of cases, but certainly in the Bell-A-Bike case (Bell-A-Bike RottnestPty Ltd v AFMEPKIU 82 WAIG 2655) where, as I mentioned earlier, the employee was a cycle repairer, a large part of thebusiness of Bell-A-Bike Rottnest Pty Ltd was cycle repair by the very nature of the fact that there were over 2000 bikes hiredout by the Bell-A-Bike business. But, as the Full Bench concluded, bike hire did not fall within the industry of cycle repairers,which was the industry referred to in the relevant award.

10 In this case the test is that set out, I believe, in the Donovan case, (RJ Donovan & Associates Pty Ltd v Federated Clerks’Union of Australia, Industrial Union of Workers, WA Branch 57 WAIG 1317) which was followed by Fielding C, as he thenwas, in the Signlight case (Electrical Trades Union of Workers of Australia (Western Australian Branch) Perth v SignlitePty Ltd 69 WAIG 2658), and the Full Bench in the Shenton Pumps case (Shenton Enterprises Pty Ltd trading as JohnShenton Pumps v CEEEIPPU 80 WAIG 2842). In the Shenton Pumps case His Honour the President said at page 2844—

“The appellant employer was not an employer named in the schedule and, therefore, the question for decision waswhether it employed the employee named in the complaint in a calling mentioned in the award, in the industry to whichthe award applied. The scope clause is, as Fielding C, as he then was, observed in the Signlight Case, a Donovan clause….”

11 and he applied the ratio in the Signlight case to make the observations that are cited on page 2845.12 I was referred to the Signlight case by Mr Brits, Counsel for the Respondent, and in particular, the paragraph at page

2659 which reads—“The first task is to construe the area and scope clause according to its ordinary meaning …. The area and scope clauseprovides that the award relates to the “electrical contracting industry” within the State of Western Australia. That is atfirst blush, the industry to which the award applies. It also refers to all workers employed in the classification shown inthe First Schedule - Wages and employed by the respondents in connection with the named sorts of work. Thus, the firstapproach referred to in Glover’s case …is to be used.The industry is defined as the electrical contracting industry. The industry is not defined by the enterprises carried on bythe named respondents.”

13 Further on at page 2660 it was said—“In this case, the electrical contracting industry means in plain words the industry involving those employers whocontract to do electrical work. That would seem to us to be the ordinary meaning of the words. The description of workdone by the employees does not hold the answer.”

14 The plain ordinary words used are “who contract to do electrical work”.15 The Respondent in this case does not contract to do electrical work. It contracts to provide labour to, in this case, Interlec

Electrical & Instrument Contractors who no doubt carry out electrical work for its clients, with whom Interlec has a contract oragreement. Benchmark Recruitment (WA) Pty Ltd does not contract with anyone to do electrical work. It contracts to providelabour, albeit at times, qualified licensed electricians. The Respondent is a licensed employment agent, and in my view there isnothing in what it does which would interest the Electrical Licensing Board or require the Respondent to be licensed under theElectricity Act 1945 or the regulations made thereunder.

16 I find, therefore, that the Claimant has not established that the Respondent is bound by the Award, and the claim will bedismissed.

W. G. TARR,Industrial Magistrate.

____________________


2003 WAIRC 08476WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES’ COURT

PARTIES NYREE COLLINS, DEPARTMENT OF CONSUMER AND EMPLOYMENT PROTECTION,CLAIMANTv.YULE BROOK COLLEGE PARENTS AND CITIZENS’ ASSOCIATION INCORPORATED,RESPONDENT

CORAM MAGISTRATE WG TARR IMDATE OF ORDER TUESDAY, 10 JUNE 2003CLAIM NO M 20 OF 2003CITATION NO. 2003 WAIRC 08476_________________________________________________________________________________________________________

RepresentationClaimant Mr W Milward, of Counsel, for the Claimant.Respondent Ms Julia Doig, President of the Respondent Association, for the Respondent._________________________________________________________________________________________________________

Reasons for Decision1 The action before me is a claim made pursuant to the provisions of section 83 of the Industrial Relations Act 1979 alleging

that the Respondent has failed to comply with the provisions of the Restaurant, Tearoom and Catering Workers’ Award1979 No 48 of 1978 (the Award).

2 The parties have agreed that—1. The Respondent is Yule Brook College Parents and Citizen’s Association Incorporated.2. The Respondent employed Ms Kathleen Daintith on 1 February 2001.3. Ms Daintith was employed as a part-time Canteen Co-Ordinator.4. The Respondent attempted to employ Ms Daintith on a workplace agreement. However, the document was never

signed by Ms Daintith nor was it registered with the Office of the Commissioner for Workplace Agreements.5. Ms Daintith was paid an hourly rate of $10.70 for all hours worked during her period of employment.6. Ms Daintith ceased employment on 7 March 2002.

3 It is not in issue that the Respondent has the responsibility at Yule Brook College, formerly known as the Maddington SeniorHigh School, of operating the school canteen.

4 The duties performed by Ms Daintith are contained in a duty statement headed “Canteen Co-Ordinator Duty Statement” whichwas tendered as exhibit F. Those duties were acknowledged by the President of the Yule Brook College Parents and Citizens’Association and agreed to by the Claimant on the tendered document.

5 The duties of the Canteen Co-Ordinator, in the precise terms that they are set out in exhibit F, are as follows—• Maintains a P & C established workbook recording attendance days/times/signatures of voluntary and paid staff.• Check cost prices, List selling price on each invoice/delivery docket assess necessary selling price goods.• Wastage to be recorded on a daily basis listing items including Volunteer lunches. (List to be passed on to treasurer

weekly)• Daily stock placed our for sale to be listed (to be passed on to treasurer weekly)• Daily orders taken to be listed• Daily sales to be passed on to the Treasurer weekly• Establish and maintain a voluntary roster of helpers.• Establish menus in conjunction with the canteen Committee in accordance with the Associations nutritional policy and

decide method for ordering and distributing lunches.• Order and check supplies. Orders placed by phone to be recorded• Organize the work force (voluntary and paid) to maintain a satisfactory work flow.• Ensure that the canteen and equipment are hygienically kept and in good repair.• Check, record and bank money daily. (Daily banking records to be signed by two people when available)• Reconcile petty cash as required• Prepare food for sale (in conjunction with other assistants as applicable).• Prepare reports each month or as required for the Canteen Committee and general meeting of the P & C Association.• Stock take monthly and the end of each term (for time being as required by Caitlin).• Undertake any other duties as may be reasonably be requested by the Association.• Notify the P & C Association Hon President or Treasurer of any accident involving any person working in the canteen –

the Hon President/Treasurer will take action required regarding Workers Compensation Insurance or Voluntary WorkersInsurance.

• Keep a daily record bok/sheet to supply data for weekly and monthly information.6 It is the Claimant’s contention that Ms Daintith and the Respondent were subject to the provisions of the Award.7 There has been some suggestion that the Respondent intended that Ms Daintith was to be employed on a workplace agreement,

however, it is agreed that a workplace agreement was never entered into by the parties.8 The Scope clause (clause 4) of the Award provides that the Award shall apply “to all workers employed in the callings

described in Clause 21 of this award, in Restaurants and/or Tearooms and/or Catering Establishments and/or by CateringContractors, as defined in Clause 6 of this Award”.


9 Clause 6(1) defines “Restaurant and/or Tearoom” as meaning “any meal room, dining room, grill room, coffee shop, tea shop,oyster shop, fish cafe, cafeteria or hamburger shop and includes any place, building, or part thereof, stand, stall, tent, vehicle orboat in or from which food is sold or served for consumption on the premises and also includes any establishment or placewhere food is prepared and/or cooked to be sold or served for consumption elsewhere”.

10 The evidence before me is that the canteen at the Yule Brook College is typical of a school canteen and provides food anddrinks for the students and staff at morning recess and lunch time every school day. Inside the canteen there are stoves, piewarmers, a fridge, a freezer and other items one would expect to find where food is prepared for sale including sinks, benchesand kitchen type tables. In the main, the hot food was of the type where the product only required heating and includedhamburgers, chiko rolls, hot dogs and pies. Cold meat and salad rolls and sandwiches were also available together with snacks,sweets and a variety of drinks.

11 As I understand the evidence, lunch orders were taken earlier in the day and prepared by Ms Daintith or her voluntary helpersand served during the lunch break. Food was consumed generally in the school grounds, either on the lawns or under coverdepending on the weather.

12 Clause 6(1), in my view, is very wide and the canteen at the Yule Brook College is a “place … in or from which food is sold orserved for consumption…” and, as it is part of the school, it can be said, in my view, that the food sold is consumed on thepremises, albeit not inside the canteen kitchen. In any event clause 6(1) includes any “place where food is prepared and/orcooked to be sold or served for consumption elsewhere”.

13 I find therefore that the Respondent’s canteen falls within the definition of “Restaurant and/or Tearoom” and is thereforesubject to the Award if it employs a worker in any of the callings described in clause 21.

14 Clause 21 of the Award, as it was until 20 February 2001, classified the callings for the purpose of clause 4 as follows—(1) (a) Classification

(1) Chef(2) Qualified Cook(3) Cook Employed Alone(4) Breakfast and/or Other Cooks(5) Bar Attendant—

Category 1(6) Bar Attendant

Category 2(7) Head Waiter/Waitress(8) Head Steward/Stewardess(9) Hostess(10) Waiter/Waitress(11) Steward/Stewardess(12) Cashier(13) Counterhand(14) Kitchenhand(15) Laundress(16) Cleaner(17) Yardman(18) General Hand

15 It is argued by the Claimant that the classification of Counterhand, for which there is no definition, applied to Ms Daintithinitially.

16 The Award was varied with effect from 21 February 2001 and the classification of Counterhand was left out of the list ofcallings. The amended Award provided for the following classifications from 21 February 2001 to 1 July 2001—

ClassificationColumn A Column BN/A IntroductoryCleaner Guest Service Grade 1Gardener GardenerGeneral Hand General HandLaundress Guest Service Grade 1Lift Attd Guest Service Grade 1Kitchen Hand Kitchen Attendant Grade 1Yardman YardmanHousemaid Guest Service Grade 2Comm’aire Guest Service Grade 2Night Porter Night PorterWaiter Food & Beverage Attendant Grade 2Steward Food & Beverage Attendant Grade 2Snack Bar Food & Beverage Attendant Grade 2Storeman Storeperson Grade 1B’fast Cook Cook Grade 1Bar Attd Food & Beverage Attendant Grade 2Cashier Food & Beverage Attendant Grade 2Butcher Cook Grade 1Security Off Security Officer Grade 1Cook Alone Cook Grade 2Timekeeper Timekeeper/Security Officer Grade 2Cellarman Food & Beverage Attendant Grade 3Head Waiter Food & Beverage Attendant Grade 3


Head Steward Food & Beverage Attendant Grade 3Hostess Food & Beverage Attendant Grade 3Maintenance HandypersonHousekeeper/Supervisor Guest Service Grade 3Qual Cook Cook Grade 3Butcher (Qual) Tradesperson ButcherChef Cook Grade 4——— Cook Grade 5

17 With effect from 1 July 2001 the classifications again changed to come within 6 levels as set out hereunder—Classification

LevelIntroductory

Level 1 Food & Beverage Attendant Grade 1Kitchen Attendant Grade1Guest Services Grade 1General HandYardman

Level 2 Food & Beverage Attendant Grade 2Cook Grade 1Kitchen Attendant Grade 2Guest Services Grade 2

Level 3 Food & Beverage Attendant Grade 3Cook Grade 2Kitchen Attendant Grade 3Guest Services Grade 3

Level 4 Cook Grade 3 Food & Beverage Attendant Grade 4(Tradesperson)Guest Service Grade 4

Level 5 Cook Grade 4Food & Beverage Supervisor

Level 6 Cook Grade 5

18 It is the Claimant’s position that following the amendments to the Award Ms Daintith was classified as a Food and BeverageAttendant Grade 3 and from 1 July 2001 as a Level 3 which includes the former classification.

19 Food and Beverage Attendant Grade 3 is defined in clause 6 of the Award as follows:(5) Food and Beverage Attendant Grade 3 means an employee who has the appropriate level of training and is engaged

in any of the following:(a) supplying, dispensing or mixing of liquor including the sale of liquor from the bottle department;(b) assisting in the cellar or bottle department, where duties could include working up to four hours per day

(averaged over the relevant work cycle) in the cellar without supervision;(c) undertaking general waiting duties of both food and liquor including cleaning of tables;(d) receipt and dispensing of monies;(e) engaged on delivery duties; or(f) in addition to the tasks performed by a food and beverage attendant grade 2 the employee is also involved in—

(i) the operation of a mechanical lifting device; or(ii) attending a wagering (e.g. TAB) terminal, electronic gaming terminal or similar terminal.

(g) and/or means an employee who is engaged in any of the following:(i) full control of a cellar or liquor store (including the receipt, delivery and recording of goods within

such an area);(ii) mixing a range of sophisticated drinks;(iii) supervising food and beverage attendants of a lower grade;(iv) taking reservations, greeting and seating guests;(v) training food and beverage attendants of a lower grade.

20 It is argued that because Ms Daintith received and dispensed monies (see clause 6(5)(d)) and supervised food and beverageattendants of a lower grade (see clause 6(5)(g)(iii)) namely, those volunteers who assisted in the canteen, she was engaged intwo of the duties listed in the above definition and could, therefore, be classified as a Food and Beverage Attendant Grade 3.

21 For completeness I should include the definition of Food and Beverage Attendant Grade 2 and I do as follows—(4) Food and Beverage Attendant Grade 2 means an employee who has not achieved the appropriate level of

training and who is engaged in any of the following:(a) supplying, dispensing or mixing of liquor including the sale of liquor from the bottle department;(b) assisting in the cellar or bottle department;(c) undertaking general waiting duties of both food and/or beverage including cleaning of tables;(d) receipt of monies;(e) attending a snack bar;(f) engaged on delivery duties.


22 The Grade 2 duties are duties included in the duties of a Grade 3 as mentioned in clause 6 (5)(f) which would include attendinga snack bar.

23 On the evidence before me, which has been agreed by the parties, Ms Daintith was employed as a part-time CanteenCo-Ordinator.

24 It is apparent from her duty statement that she was responsible for the day to day management of the canteen and her dutieswent way beyond those in the classifications relied on in the Award.

25 There is no calling in the Award of Canteen Co-Ordinator. It is the case that Ms Daintith could be said to have been “attendinga snack bar”, received and dispensed monies and had supervisory duties, however, any objective assessment of the overallduties of a Food and Beverage Attendant must conclude that the classification is more appropriate for premises licensed underthe Liquor Licensing Act. The classifications which precede the Food and Beverage Attendant classification, including waiter,steward, snack bar, bar attendant, cashier, cellarman, head waiter, head steward and hostess all support that view, I believe.

26 On Ms Daintith’s own evidence she was employed as a Canteen Co-Ordinator, a calling which is not a classification in theAward. Her duties were those of a Canteen Co-Ordinator and there is no suggestion by her that the title was a sham.

27 To determine whether a worker is employed in a calling described in an award requires, in my view, more than identifying oneduty performed by the worker which is mentioned in the definition of a calling unless that is the predominate duty. Forexample, it is easy to see how a cashier fits within the definition of Food and Beverage Attendant Grade 2.

28 When one considers the duties of Ms Daintith, duty by duty, it is clear, in my view, that they are well in excess of those listedin the classification of a Food and Beverage Attendant Grade 3 and more consistent with her classification of a CanteenCo-Ordinator.

29 The Full Bench of the Western Australian Industrial Relations Commission in Richardson v Action Food Barns WA Pty Ltd65 WAIG 1087 upheld the Industrial Magistrate’s finding that a worker employed as an Assistant Manager was not a ShopAssistant within the calling mentioned in the award, although her duties included those of a shop assistant.

30 In this case Ms Daintith’s duties may have included some of those of a Food and Beverage Attendant Grade 3 and otherclassifications in the Award, nevertheless, she was a Canteen Co-Ordinator and that is not a classification found in the Award.

31 The claim therefore is dismissed.W. G. TARR,

Industrial Magistrate.

UNFAIR DISMISSAL/CONTRACTUAL ENTITLEMENTS—2003 WAIRC 08601

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSIONPARTIES MICHAEL JOSEPH AMMOSCATO, APPLICANT

v.MCINERNEY SALES PTY LTD T/A MCINERNEY FORD, RESPONDENT

CORAM COMMISSIONER J F GREGORDATE WEDNESDAY, 2 JULY 2003FILE NO. APPLICATION 2038 OF 2002CITATION NO. 2003 WAIRC 08601_________________________________________________________________________________________________________

Catchwords - Harsh, oppressive and unfair dismissal – whether there was constructive dismissal – standing ofmedical certificate – reasonable steps to investigate complaint

Result Dismissed for want of jurisdictionRepresentationApplicant Mr K. Trainer appeared for the ApplicantRespondent Mr E. Rea appeared for the Respondent_________________________________________________________________________________________________________

Reasons for Decision(Given extempore as edited by the Commissioner)

1 This application was filed in the Commission by Michael Joseph Ammoscato (the Applicant) on 10th December 2002. It relatesto employment he had as a technician performing mechanical repairs with McInerney Sales Pty Ltd trading as McInerney Ford(the Respondent). A brief history of the relationship is that the Applicant was apprenticed to the Respondent. At the completionof his time he was engaged as a tradesman. He worked in the workshop on vehicles being service maintained and/or repairedby the Respondent for the last year of the relationship. A workplace agreement which had been registered before theWorkplace Agreements Commission governed the relationship. It is trite that the Workplace Agreements Act has beenrepealed and that the agreements registered under the Act are now common law agreements with some exceptions, this is notone of those and the agreement, as I will call it, is before the Commission (Exhibit T1).

2 There has been some discussion during the hearing about the provisions of one of the clauses of the agreement relating to sickleave. I have expressed some views about the proper interpretation of that clause on the face of it and I have reserved the rightfor Mr Trainer, who appeared for the Applicant, to consider the document further and to make whatever submissions in writingthat he thinks appropriate in support of the contention that the Applicant is owed $2,220.00 in unpaid sick leave. The right isalso reserved for Mr Rea to respond to any submission that Mr Trainer makes in respect of that claim.

3 The balance of the claim is made under s.29(1)(b)(i) of the Industrial Relations Act, 1979 (the Act). That section identifiespersons who may refer matters to the Commission. In the case of an employee a matter can be referred if that employee claimshe has been harshly, oppressively or unfairly dismissed from his employment or has not been allowed by his employer a


benefit not being a benefit under an order or award to which he is entitled under his contract of employment. That last placitumrefers to the sick leave claim the first refers to the unfair dismissal claim. There are two conditions precedent for s.29(1)(b)(i)and (ii) to have effect; that is, that a person has standing under the section to file a claim, and they have standing if they werean employee and they were dismissed.

4 The Applicant in this case was an employee. The Commission needs to determine whether or not he was dismissed because ifhe was not then he is unable to make the application. Rather than recite a history of the events, in view of what I find I intendto refer first to the witness evidence and again unusually I intend to refer to the evidence of the witness for the Respondent firstand that was Mr Peatey.

5 Of the two witnesses that I heard, Mr Peatey is clearly the most believable. He displayed a good knowledge of an employer’sobligations. He demonstrated in response to what I can say is a most forensic cross-examination by Mr Trainer, that he was arepresentative of an employer who went much farther than was needed. He was careful and thorough about what he did inresponse to the claims which were made by the Applicant and the longer the cross-examination went on, the more convincingMr Peatey’s story became.

6 Concerning the Applicant, I do not enjoy the same comfort with the quality of his evidence. In a number of instances hisevidence was completely self-serving. Not only was it self-serving, it was inconsistent. He failed to relate crucial events and bydoing so coloured his version of the events to his benefit. His is evidence which must be treated with caution and I do. On thebalance of probabilities where there are differences between the evidence of Mr Peatey and the Applicant, the evidence givenby Mr Peatey on behalf of the Respondent is to be accepted as the most accurate recitation of the events as they happened.

7 I deal with the jurisdictional matter and it will become clear why I made credibility findings before I dealt with the jurisdictionissue. The onus on the Applicant, to establish that he was dismissed. He clearly gave no resignation. He was not and was neverinvited to do so. On the contrary, he was asked, consistently on the evidence, to continue to work. The only time the questionof resignation was mentioned to him was by way of an option to see whether he wanted to resign and get 2 weeks’ pay. Thateventually was not accepted to him apparently because the way Mr McInerney, the principal of the firm, wanted to transmit the2 weeks’ pay was for him to work out notice and he did not want to.

8 That is a crucial finding in this case when one applies the case law because for him to be constructively dismissed, as healleges, he must fit within the principles set out in Attorney General v Western Australian Prison Officers Union (1995)75 WAIG 3166) where Kennedy J held that ‘the position for the present purposes is … summarised in the judgement ofStephenson LJ in Sothern v Franks Charlesly & Co [1981] IRLR 278 at 280’—

“Did he trip or was he pushed? Was it murder or was it suicide? I know that such a simple consideration of starklycontrasted alternatives is too often outlawed by authority in deciding the issue of dismissal vel non. Even if the question,‘Was the employee dismissed?’ cannot always be answered by answering the question, ‘Who really terminated hiscontract?’ the real answer to the second question gives the right answer to the first question in this case.”

That is the essence of how one determines whether there has been a constructive dismissal or not. This Applicant clearlyjumped. He clearly made his own decision to go. He was not pushed in any shape or form by Mr Peatey. It is clear that, on thesimple and fundamental test to be applied to determine constructive dismissal, this employee was not constructively dismissed.

9 Every effort was made by Mr Peatey to preserve the relationship. He had meetings with the Applicant outside of work. Therewere a number of occasions on which he tried to keep the relationship alive but to no avail. It is clear, that this was anabandonment of contract, not by resignation, and it is not a dismissal. I need to make some other comments about some otherevents in case I am wrong about that and I will comment about the sick leave certificates because they create part of thepicture.

10 It appears that the employer accepted the first two certificates, even though those certificates are startling because of their lackof information. An employer is entitled to be satisfied on the medical evidence presented that the person was indeed ill. Whatan employer is entitled to know is set out in Caroline Rorke v Karratha & Districts Tourist Information Centre (1991)77 WAIG 2779) where the Commission said “That a medical practitioner in general practice issues a certificate that a patientshould work in a particular way is by no means holy writ. It is a professional judgement to be respected for what it is worth butby no means is an employer bound to blindly respond to the medical assessment when it is in possession of facts which may nothave been available to the medical practitioner.”

11 It is an employer who pays the sick leave, not a medical practitioner and it is for the employer to make a decision whether themedical certificate will be accepted or not. Because of the sparseness of the information on the medical certificates provided inthis case it is not surprising that when the third one come along for 30 days, which merely proclaims the Applicant is unfit for30 days, that there were attempts made to find out from the medical practitioner what the certificate was all about.

12 The assumption was that there was a workers compensation issue arising from stress, but merely an assumption, and to test theassumption the Respondent sent workers compensation forms to the Applicant’s doctor but they were never returned. There area number of issues about which one could speculate. One is that the doctor did not think that the Applicant was on a workerscompensation claim so he was not going to sign it. But whatever the real reason is, the employer never knew, even though itmade further inquiries, what the medical reason for this quite inordinate length of leave was based upon. The Applicant’sdoctor was asked to cooperate but he did not.

13 It is open to conclude that the certificates show all the signs of being obtained by the Applicant to support his actions. Theyidentify no diagnosis and they must be regarded as dubious and for that reason it is understandable that the final medicalcertificate was not accepted and surprising that the others were.

14 I make some comments about the substance of the claim concerning harassment. The Applicant says to the Commission “Ihave been harassed by other workers in the workplace”.

15 There is just not sufficient evidence before me to make a conclusion about the allegation. I can not make a finding aboutwhether there was or there was not. Ultimately it is not for this jurisdiction to make such a finding. What has to be done whenthere is an allegation of unfairness in a dismissal is establish whether the employer took reasonable steps to investigate thoseallegations. It is open for the Commission to examine what happened to determine whether the Respondent has acted properly.The investigation does not need to be conducted at the standards that would a police officer, or a professional investigator or ajudicial officer. What an employer has to do is take reasonable steps to satisfy itself about the truth of the allegation and Iaccept the evidence of Mr Peatey that every effort was made to do so (see BiLo Pty Ltd v Hooper (1992) SAIR 342 at 352-3).

16 For instance, dealing with the issue concerning the conduct of the Applicant and Mr Simpson when the Applicant sat in a chairwhich had previously been occupied by Mr Simpson, Mr Simpson as a result of that received a warning (Exhibit R1), but inthe evidence of Mr Peatey, Mr Simpson did not receive the warning because of the incident itself; that is, the Respondent didnot attribute blame to him for the incident itself. The warning was issued because his conduct was unacceptable as a senioremployee. That seems to be in all of the circumstances to have been open to the Respondent as it could not establish theidentity of the instigator of the incident.


17 In the next matter, involving the mobile telephone screen saver, it must be accepted that after 14th October 2002 there was agreat sensitivity in the Australian community to terrorism. That someone would carry identification on them, through a screensaver, of a terrorist group or a terrorist person was insensitive. I can understand that if it was seen by someone there could be acomplaint made.

18 It is very simple to remove a screen saver from a mobile telephone. It is quiet unbelievable that someone who has got a mobiletelephone and knows how to use it could not remove it. But even if the Applicant in this case was one of the few people whodid not know how to remove it, he was offered assistance to do so, he was even asked to remove the phone from the premises,but he was not prepared to do any of those things. He obviously thought that was his right to do what he wanted.

19 As for the matters arising from the screen saver event, the photocopy of the newspaper reporting terrorist activity attached tohis tool box, notwithstanding his own insensitivity, the Applicant was entitled to complain. Mr Peatey responded correctly byconducting an investigation. He talked to the person who was the most likely suspect, Mr Simpson. As a result of that query hedecided that it was not Mr Simpson and the tracking down of the culprit would be too difficult. He did what was necessary tobe done in that event. In short he again made a reasonable investigation.

20 So even if it could be said that at the end of the day there was a dismissal, I can not see that when applying the test set out inUndercliffe Nursing Home v Federated Miscellaneous Workers Union (1985) 65 WAIG 385 it was unfair in all of thecircumstances. I do not need to make a finding about that because I have found there is no jurisdiction. What I am trying totransmit is the weight of the evidence is so strongly against unfairness in this case that it is unlikely that even if theCommission had jurisdiction it would find that the Applicant has discharged the onus of proof necessary to establish that therehas been unfairness. It must be remembered that it is for the Applicant to establish the unfairness of the dismissal. It is not forthe Respondent to prove that it was not unfair.

_________


PARTIES MICHAEL JOSEPH AMMOSCATO, APPLICANTv.MCINERNEY SALES PTY LTD T/A MCINERNEY FORD, RESPONDENT

CORAM COMMISSIONER J F GREGORDATE WEDNESDAY, 2 JULY 2003FILE NO. APPLICATION 2038 OF 2002CITATION NO. 2003 WAIRC 08602_________________________________________________________________________________________________________

Result Dismissed for want of jurisdiction_________________________________________________________________________________________________________

OrderHAVING heard Mr K. Trainer who appeared on behalf of the Applicant and Mr E. Rea who appeared on behalf of the Respondent,the Commission pursuant to the powers conferred on it under the Industrial Relations Act, 1979, hereby orders:

THAT the application be, and is hereby dismissed for want of jurisdiction.(Sgd.) J. F. GREGOR,

[L.S.] Commissioner.

____________________


PARTIES PETER WILLIAM COUSENS, APPLICANTv.ALL BENT ENGINEERING, RESPONDENT

CORAM COMMISSIONER S J KENNERDATE FRIDAY, 16 MAY 2003FILE NO/S. APPLICATION 305 OF 2003CITATION NO. 2003 WAIRC 08484_________________________________________________________________________________________________________

Catchwords Termination of employment – Harsh, oppressive and unfair dismissal – Extension of time forapplication to be referred to Commission – Application referred outside of 28 day time limit – Failureto appear by the Applicant – Application dismissed for want of prosecution – Extension of time toaccept referral not granted – Industrial Relations Act 1979 (WA) s 29(1)(b)(i),(2)&(3)

Result Order issuedRepresentationApplicant No appearanceRespondent Mr D Johnston as agent_________________________________________________________________________________________________________

Reasons for Decision(Ex tempore)

1 The substantive application filed is one by Peter William Cousens against what is described as All Bend Engineering allegingthat he was harshly, oppressively or unfairly dismissed on or about 23 November 2001 from his position as a metal polisher.The notice of application was filed on 10 March 2003, self-evidently a considerable period of time beyond the 28-day timelimit prescribed by s 29(2) of the Industrial Relations Act 1979 (“the Act”) for matters such as these.


2 The respondent by notice of answer and counter-proposal filed on 1 April 2003 contests the applicant’s claim and moreoveropposes any extension of time being granted for reasons set out in schedule B to the notice of answer and counter-proposal.

3 By notice of hearing dated 24 April 2003 the Commission of its own motion has listed the application today for the purposes ofhearing from the applicant and the respondent as to why the Commission ought exercise its discretion which it undoubtedly haspursuant to s 29(3) of the Act to extend time within which the herein application may be referred to the Commission fordetermination.

4 Despite being called, the applicant has failed to appear on this application which is his application and could properly becharacterised as his last opportunity to seek to invoke the Commission’s jurisdiction. However, he has failed to present himselfto put his case.

5 The Commission is satisfied that the applicant was notified duly by notice of hearing at his last known address for service inDoubleview. Moreover, my Associate contacted both parties on 9 May 2003 for the purposes of reminding the parties that thismatter is listed for hearing and determination this morning, that being Friday, 16 May 2003.

6 There has been no indication whatsoever from the applicant since that time, or since the time of the notice of hearing beingsent to the parties that he was unable to appear this morning, and moreover, nothing has been communicated to my Chamberssince those times as to why this matter ought not proceed, or any other good reason why the application cannot be heard thismorning.

7 In light of the application made by the agent for the respondent and in light of the fact that it is entirely for an applicant tomove the Commission to make orders in present circumstances where he has no automatic right to proceed with this claim inany event, it is extraordinary, to say the least, that the applicant has not appeared this morning in respect of this application.

8 For all of those reasons, without hesitation, I am of the view that the applicant in failing to appear has patently failed todischarge his obligations to conduct this proceeding diligently and properly, and for those reasons the application is dismissedfor want of prosecution.

_________


PARTIES PETER WILLIAM COUSENS, APPLICANTv.ALL BENT ENGINEERING, RESPONDENT

CORAM COMMISSIONER S J KENNERDATE FRIDAY, 16 MAY 2003FILE NO. APPLICATION 305 OF 2003CITATION NO. 2003 WAIRC 08349_________________________________________________________________________________________________________

Result Application dismissed for want of prosecutionRepresentationApplicant No appearanceRespondent Mr D Johnston as agent_________________________________________________________________________________________________________

OrderTHERE being no appearance on behalf of the applicant and Mr D Johnston as agent on behalf of the respondent the Commission,pursuant to the powers conferred on it under the Industrial Relations Act, 1979 hereby orders—

THAT the application be and is hereby dismissed for want of prosecution.(Sgd.) S. J. KENNER,


____________________


PARTIES DARYL WAYNE EVANS, APPLICANTv.CIVIL INFRASTRUCTURE, RESPONDENT

CORAM COMMISSIONER S WOODDELIVERED TUESDAY, 10 JUNE 2003FILE NO. APPLICATION 1763 OF 2002CITATION NO. 2003 WAIRC 08461_________________________________________________________________________________________________________

Result Applicant dismissed harshly and unfairly; compensation awardedRepresentationApplicant Mr D EvansRespondent Mr J Catchpole_________________________________________________________________________________________________________


Reasons for Decision1 This is an application pursuant to s.29(1)(b)(i) of the Industrial Relations Act, 1979 (“the Act”). The applicant, Mr Daryl

Evans, alleges that he was unfairly dismissed by Mr Jim Catchpole, a director of the respondent company, Civil Infrastructure,on 15 September 2002. In his application Mr Evans says of Mr Catchpole as follows:

“The Company had purchased a new bobcat and the operator at that time had scratched the front lift arms and hydraulicsand that had put him in a bad mood. He started going around telling everybody that this is what he expected from hisyounger operators, Brendon (my son) and Jamie. Brendon operates the loader. He said it to my son and this got him angryand when I seen him next he told me what Jim was saying. I went down to see Jim and I said to him that it was a bitunfair to say that about Brendon. He was still angry about the bobcat and he just sacked the both of us.”

2 The respondent in the Notice of Answer and Counterproposal contended as follows:“Daryl Evans was working for the company as a subcontractor and not an employee. He worked as and when required ona casual basis as evidenced by the attached invoices. His services were no longer required.”

Mr Catchpole attached to the notice four tax invoice statements that contained the following details: Date Hours Total1. 28/08/2002 59 ½ $13082. 4/09/2002 49 $10783. 11/09/2002 30 $6604. 18/09/2002 54 $1188

3 This matter originally came on for hearing pursuant to s.29(3) of the Act as the application on its face was out of time by2 days. The dismissal occurred on 15 September 2002, the application was lodged on 15 October 2002. By order dated 7 May2003, the Commission accepted the referral of the application out of time declaring that it would be unfair not to do so. Thesubstantive hearing was conducted on 14 May 2003. At the hearing Mr Evans gave evidence on his own behalf. On behalf ofthe respondent evidence was given by Mr Catchpole, Mr Michael Ashbolt, a co-director of the Company and Ms Jan Assan,who has worked as a secretary in the company for the previous 2 years.

4 The evidence of Mr Ashbolt and Ms Assan go to the issue of whether Mr Evans was an employee or subcontractor. Mr Ashbolt saysthat Mr Evans was originally paid as an employee and subsequently he asked to be paid as a subcontractor when the Goods andServices Tax commenced. Mr Ashbolt says he instructed Ms Assan to seek advice from the tax office. Mr Evans signed taxationforms to have his payment adjusted [Exhibit R1]. He commenced invoicing the company for his hours. A 20% deduction for taxationwas taken from his payments. Ms Assan says that she was advised that the applicant wanted to be paid as a subcontractor and fromthat time on he sent in invoices and was paid as a subcontractor. He was originally paid as an employee. Mr Evans’ evidence is that hewas not a subcontractor and was not paid as a casual employee. In his view he was a permanent employee.

5 The decision of the Full Bench in Brian Ryder v Beaulieu of Australia Limited 83 WAIG 1133, and the decisions referred totherein, outline the criteria for considering whether a contract of service or a contract for service applies. After seeing MrEvans and Mr Catchpole give evidence it is clear that Mr Evans was under the direction of Mr Catchpole, operated themachinery of the company, was originally engaged as an employee to be a grader operator and the only thing that changed wasthe method of payment. Mr Evans could take time off if needed and would not be paid for that time. Given those facts and theauthorities cited it is clear that Mr Evans was an employee of Civil Infrastructure. Mr Evans was clearly under the directionand control of Mr Catchpole. The fact that he chose to be paid differently is not of itself a factor which determines therelationship of employer-employee. Accordingly, I find that Mr Evans was an employee of Civil Infrastructure and that I havejurisdiction to hear this matter.

6 The next issue to determine is whether Mr Evans’ termination was unfair. There is not much dispute between the parties as towhat happened on 15 September 2002. Mr Evans says that a bobcat was returned on a truck in a damaged condition and MrCatchpole got angry. He then proceeded to say that he expected this from the younger operators namely, Mr Evans’ son,Brendon, and one other employee. Mr Evans approached Mr Catchpole to challenge him regarding what he had said about hisson and Mr Evans says that Mr Catchpole then said, “You are both sacked, just go”. Mr Evans then, with his son, parked themachines, returned home and emptied his gear from the utility and returned the utility to the respondent’s premises. Mr Evanssays that he contacted Mr Catchpole several times following the dismissal but Mr Catchpole was not interested in talking tohim. Mr Evans was not paid any notice or accrued annual leave on his termination.

7 Mr Catchpole’s evidence is that Mr Evans previously complained to him about picking on his son Brendon. He says thatBrendon had damaged equipment on other occasions. He says that he had warned Mr Evans about continually coming to himand complaining on behalf of his son. He suggested to Mr Evans to let his son grow up and indicated to Mr Evans that he hadhad enough. When Mr Evans came to him on 15 September 2002 to complain about what he had said about Brendon, MrCatchpole says that he had had enough and told Mr Evans that, “we may as well part company, and you can take him withyou”. He says that work had slackened off at that time and that his business has operated without a grader driver for the last4 to 5 months and he now has a part time grader operator. Mr Catchpole says also that Mr Evans was sitting idle at times andthat he was advised that when he was not around, Mr Evans would slacken off his work. This later issue was not put to theapplicant in any form when Mr Evans gave evidence, even though Mr Catchpole was instructed by the Commission.

8 In simple terms, albeit there is a difference in the evidence as to what was said precisely, it is common ground, that Mr Evans wassummarily dismissed on 15 September 2002 by Mr Catchpole as Mr Catchpole was angry and had had enough of Mr Evanscoming to him complaining about matters on behalf of his son. The actions of Mr Evans in defending his son can hardly be seen tojustify a summary dismissal. The evidence of Mr Evans unchallenged is that he sought to contact Mr Catchpole several times afterthe event. Even though it was not stated explicitly it can be inferred that this was to see if Mr Catchpole had calmed down andwhether he could, that is Mr Evans, retrieve his job. Mr Catchpole was not interested in discussing it and remained uninterested indiscussing the matter. In Mr Catchpole’s eyes his actions were fair. He refers to the arrangement as being a gentleman’s agreementand says that his actions in dismissing Mr Evans on the spot were justified. If I apply the principles as expressed in UndercliffeNursing Home –v- Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, WA Branch65 WAIG 385 of a fair go all round, Mr Evans clearly has not received a fair go. I thus find that Mr Evans was harshly andunfairly dismissed on 15 September 2002. He was dismissed summarily without good reason.

9 The next issue is that Mr Catchpole says that Mr Evans sat idle at times. He says he was told by other workers that the gradernever moved when Mr Catchpole was not there. I have two difficulties with this evidence. Firstly, Mr Catchpole was clearlyinstructed by the Commission to put to Mr Evans in cross-examination anything that was adverse. Mr Catchpole did not do sobut put forward this evidence, which amounts to hearsay, in his own evidence in chief. Mr Evans in his cross-examinationemphatically denied that he was a “bludger”. There is no challenge in the Notice of Answer and Counterproposal to Mr Evans’performance. Additionally, the notice is clear that Mr Evans billed on an hourly basis for his work. The number of hours hebilled varied. There was no suggestion in evidence or in the notice that Mr Catchpole ever challenged the number of hours Mr


Evans had claimed for. I think it is more likely that Mr Catchpole raised this issue during the course of the hearing as asecondary issue to justify the dismissal. It is also the impression I formed on seeing Mr Catchpole give evidence. It seems clearto me when I look at the flow of evidence his prime complaint was that he was challenged by Mr Evans about his son Brendon.Mr Catchpole thought that Mr Evans should let his son stick up for himself. His prime source of complaint was not that MrEvans was in someway not pulling his weight at work.

10 Mr Evans says that he had tried unsuccessfully to get another job and has been in receipt of Centrelink payments. His recall ofhis attempts to secure employment were sketchy at best and unconvincing. This is in contrast to his precise recall of events andconversations some eight months earlier. Mr Catchpole challenged the applicant’s sincerity in seeking work and I consider thatMr Evans has not properly sought to mitigate his loss.

11 In the decision of Ramsay Bogunovich –v- Bayside Western Australia Pty Ltd 79 WAIG 8 @ 13 Kenner C states—“As to loss and injury, it is not the case that an applicant who has been found by the Commission to have been unfairlydismissed, and who is to be awarded compensation, is automatically entitled to an award of compensation for lossrepresenting the loss of wages or salary from the date of dismissal to the date of the hearing. That may be the ultimateoutcome after findings are made and an assessment by the Commission, as to the quantum of compensation having regardto s 26 of the Act and factors such as the employee’s duty to mitigate his or her loss. All the circumstances of the caseneed to be considered. For example, it well may be that despite the Commission’s finding that the dismissal was harsh,oppressive and unfair, it was characterised as such by reason of the manner or process leading to the dismissal rather thanthe substantive reasons for the dismissal itself, in the sense in which that principle is referred to in Shire of Esperance vMouritz (1991) 71 WAIG 891. In such a case, it may be open to find as a fact on the evidence, that the unfairly dismissedemployee could have been fairly dismissed by the employer shortly after the actual dismissal in any event. In a case suchas this, it would be open for the Commission to find that the unfairly dismissed employee’s loss is limited to that periodbetween the date of the employee’s actual dismissal, and when he or she could have been fairly dismissed in any event.In the same context, the circumstances of the case may be such that it is open for the Commission to find, that based uponthe evidence before it, it was more likely than not that but for the unfair dismissal, the employee may have left theemployment of the respondent voluntarily at some future time. Alternatively, it may well be that in accordance with anunfairly dismissed employee’s duty to mitigate his or her loss, that the employee obtains other employment immediatelyor a short time after the dismissal. In such a case, there may be no loss or indeed only minimal loss caused by the unfairdismissal, and the Commission could find accordingly.”

12 It is the case in this matter that Mr Evans was dismissed harshly and unfairly on 15 September 2002. It is also the case that MrEvans has not properly sought to mitigate his loss. As is clear I have difficulty accepting in full both the evidence of Mr Evans andMr Catchpole. It is the common evidence that mostly guides me in this matter. Having said that, Mr Catchpole says that he did notreplace Mr Evans for 4-5 months and this point was unchallenged by Mr Evans in cross-examination, whereas other evidence wasstrongly challenged. The other evidence of Mr Catchpole which was unchallenged is that all his employees were employed asneeded; namely when the contracts he obtained provided work, employees were engaged. Given both of these points and given thetension that existed between Mr Evans and Mr Catchpole over Mr Evans’ son, I do not consider that Mr Evans would haveenjoyed ongoing employment for much longer. Exactly how long the employment would have lasted is not clear on the evidence.However, in the circumstances I do not consider that Mr Evans’ employment would have lasted more than a further four weeks.

13 The next issue is how to calculate the weekly pay given the irregularity of hours. The applicant was paid at the rate of $22 perhour. The respondent put forward unchallenged figures as to the hours worked by the applicant for the final four weeks. Ifthese hours are averaged then the weekly figure is 48.125 hours. Multiplied by the hourly rate of $22.00 this equates to aweekly pay of $1,058.75. I would then award the applicant 4 weeks compensation being $4,235.00, less any taxation payableto the Commissioner of Taxation.

_________


PARTIES DARYL WAYNE EVANS, APPLICANTv.CIVIL INFRASTRUCTURE, RESPONDENT

CORAM COMMISSIONER S WOODDATE OF ORDER THURSDAY, 19 JUNE 2003FILE NO. APPLICATION 1763 OF 2002CITATION NO. 2003 WAIRC 08507_________________________________________________________________________________________________________

Result Applicant dismissed harshly and unfairly; compensation awardedRepresentationApplicant Mr D EvansRespondent Mr J Catchpole_________________________________________________________________________________________________________

OrderHAVING heard Mr D Evans on his own behalf and Mr J Catchpole on behalf of the respondent, the Commission, pursuant to thepowers conferred on it under the Industrial Relations Act, 1979, hereby—

(1) DECLARES that the applicant, Daryl Wayne Evans, was harshly and unfairly dismissed by the respondent on the15th day of September 2002;

(2) DECLARES that reinstatement is impracticable;(3) ORDERS that the respondent do hereby pay within 21 days of this order, as and by way of compensation, the

amount of $4,235.00 to Daryl Wayne Evans less any taxation that may be payable to the Commissioner of Taxation.(Sgd.) S. WOOD,


____________________



PARTIES ANNA ELISE FRANK, APPLICANTv.OPTIONS FOR PEOPLES ACCOMMODATION AND LIFESTYLES INC. , RESPONDENT


Catchwords Termination of employment – Harsh, oppressive and unfair dismissal and denied contractual benefits– Probationary employment – Performance and conduct issues - Insubordination – Unilateral variationto contract – No reduction in earnings - Contractual benefits claim not made out - Applicationdismissed – Industrial Relations Act 1979 (WA) s 29(1)(b)(i) & (ii)

Result Application dismissedRepresentationApplicant Ms A Frank on her own behalfRespondent Mr D Johnston as agent_________________________________________________________________________________________________________

Reasons for Decision1 The applicant has commenced these proceedings pursuant to s 29(1)(b)(i) and (ii) of the Industrial Relations Act 1979 (“the

Act”).2 The applicant claims that she was harshly, oppressively or unfairly dismissed on or about 26 August 2002. Additionally, the

applicant claims she was denied certain contractual benefits which ultimately were particularised in the sum of $1,400.00Unfair Dismissal Claim3 At the outset of the proceedings, the applicant amended her claim to no longer seek reinstatement but rather compensation.4 The applicant testified that she was employed by the respondent on or about 23 May 2002 as a carer. She applied for the

position which was advertised in a local newspaper. The respondent is an organisation that provides for accommodationservices and support for people with disabilities in the Goldfields region of this State. It is a non-government not for profitorganisation run by a management committee.

5 The applicant entered into a contract of employment with the respondent described as “support worker employment contractcasual”, a copy of which was tendered as exhibit A3 (“the Contract”). Pursuant to the Contract, the applicant commencedemployment on 24 May 2002. She was to be paid a casual rate of $14.00 per hour, inclusive of a loading of 15 per cent. As theCommission understood the evidence, the applicant was generally to work weekends to provide carer services.

6 Shortly after commencing employment, the respondent requested the applicant to undertake caring services for a particularfamily in the area. The applicant agreed to work Friday, Saturday and Sunday nights between 8.00pm and 10.00am thefollowing day. The applicant agreed to be remunerated on a “package” basis for the overnight component at $70.00 per nightwith hours outside of 8.00pm to 8.00am paid at the $14.00 per hour rate. It would appear on the evidence that the applicantcontinued to work these weekend hours, up until the end of August when the employment was terminated.

7 The applicant testified that when she attended the home of the family she was to provide care for, the house was in a state ofpoor hygiene; guidelines for medication did not exist; sleeping conditions for the carer were poor and there was inadequatetelephone access to the house.

8 The applicant testified that she raised these matters with the respondent.9 On and from 1 July 2002, the applicant’s rate of pay for the overnight component of her weekend work was changed such that

she was paid $4.00 per hour for each hour in the overnight period, instead of the $70.00 package rate, originally agreed. Theapplicant testified that she never consented to this change. She said the first she was aware of this, was when she received herfirst pay slip after this period. When the applicant raised this with Ms Helen Kirkland, the executive officer of the respondent,she was told that the reason for the change was a funding change with the Disability Services Commission and she could notpay anymore until further funding was available. The applicant testified that she was informed that she would be back paidwhen further funding was available.

10 During the course of providing care for the family, the applicant said that she became the father’s authorised advocate. Thiswas for the purpose of finding further housing for the family and to act generally as the family’s advocate, in relation to careissues.

11 When this came to the attention of the respondent, the applicant testified that the respondent viewed the applicant’s role as anactive advocate as involving a conflict of interest between her duties as an employee of the respondent, and acting as advocatefor the family. The applicant denied such a conflict.

12 The applicant testified that she received a letter dated 26 August 2002, complaining about her work performance during theprevious three month period, which was common ground, a probationary period. The letter indicated that the applicant wouldnot be offered further casual work, after the completion of hours rostered for the month of August 2002. The applicant said thatshe thought the termination of her employment was unfair, because she had received no indication of concerns from theemployer.

13 As the Commission understood it, the applicant’s contractual benefits claim was based upon the change to her weekendpayments, to which she said she did not consent.

14 As with many claims of this kind, many of the allegations raised by the applicant were at odds with the respondent’s case.15 The daughter of the father of the family cared for by the applicant, Ms Byk, gave evidence. She testified that as soon as the

applicant came on the scene to care for her brothers and father, considerable conflict developed in the household. It was MsByk’s evidence that she had a very good relationship with her father, but that relationship, according to the daughter, becamesomewhat strained as a result of the applicant’s advocacy on behalf of the family. She testified that the applicant causeddisruption with other carers who came to work in the family home. Ms Byk also strongly denied that the family home wasunhygienic or was in any way decrepit.


16 Ms Byk testified that on one occasion, because of the disruption caused by the applicant, she confronted the applicant on thetelephone who informed her that Ms Byk’s father no longer loved her or wanted her. This was despite Ms Byk’s evidence, thather father and she had a close relationship.

17 Moreover, Ms Byk testified that she had an enduring power of attorney from her father to handle all his affairs. Because herfather was 76 years old and in poor health, she testified that he would not know what he was signing, if the applicant put beforehim any documents in relation to her advocacy on the family behalf. In relation to complaints by the applicant that there wasno communications book in the house, this was denied by Ms Byk who said there always was such a book present, and othercarers wrote in it. Apparently, the applicant refused to do so.

18 It is fair to observe, having heard and seen both Ms Byk and the applicant give evidence, that there was obviously a degree ofanimosity between them.

19 Ms Green, another support worker employed by the respondent, was also called to give evidence. She said that she had abouteight years experience as a carer and worked in the same household where the applicant was the carer. She testified that shehad stayed overnight in the sleeping accommodation used by the applicant, and said there was no difficulty with it and thehouse was not dirty or unhygienic. Ms Green also testified that there was always a communications book present and that shemade entries in it, in relation to her activities at the household.

20 Ms Kirkland testified as to how the applicant was employed and the terms and conditions of her employment. Ms Kirklanddescribed the payment structure and the $70.00 “package” overnight payment, subsequently agreed between the respondentand the applicant, for attendance at the family household.

21 Ms Kirkland testified that for the new financial year she applied for further funding from the Disability Services Commission.This led to a change in the payment structure, such that for night work described as “inactive” hours, the payment would be$4.00 per hour, with the previous $14.00 per hour still paid for other hours worked. It was Ms Kirkland’s evidence that she didnot discuss this change immediately with the carers employed by the respondent, but said that this led to an increase in pay. MsKirkland in evidence in chief was taken to the time sheets tendered in evidence by the applicant. Taking the usual workinghours of 8.00pm to 10.00am as examples, Ms Kirkland compared the daily payment under the old rate of $84.00, with$96.00 based on the different rate structure.

22 In terms of the applicant’s work performance, Ms Kirkland testified that there were a number of difficulties experienced withthe applicant. When she attended carer meetings, Ms Kirkland said that because of the applicant’s personality, she tended todominate meetings. Furthermore, the applicant’s attitude in how she provided assistance to the family concerned, gave rise toconcerns by Ms Kirkland, for example, complaints about the cleanliness of the house etc, which appeared unfounded.

23 Ms Kirkland also gave evidence that allegations were made by the applicant that the occupants of the household lit fires andengaged in fighting, however, no other reports were made of such incidents and no reference was made to them in thecommunications book, kept in the house. Other matters raised by Ms Kirkland, were breaches of confidentiality by theapplicant in discussing client details with others. Furthermore, Ms Kirkland received complaints that the applicant, contrary topolicy, left clients in her car whilst she visited the family household.

24 Other matters raised by Ms Kirkland in her evidence, included the applicant being critical of the respondent’s programs toother carers, and, somewhat startlingly, referred to a visit by the applicant to her, where the applicant informed her that she was“sacking Opal”, on behalf of the family, because of dissatisfaction with the respondent’s conduct and management of thefamily’s funding. In her evidence also, Ms Kirkland referred to the applicant becoming an advocate for the family, which sheconsidered was a conflict of interest, given the applicant was the respondent’s employee.

Consideration25 Given the nature of the evidence adduced in these proceedings, the Commission carefully observed the witnesses giving their

evidence and considered the documentary evidence tendered. Where there is a conflict in the evidence I prefer that of therespondent. In relation to the applicant’s claim that she was unfairly dismissed, I am not persuaded that the respondentexercised its lawful right to terminate the employment, that is, if there was a dismissal, unfairly. The Commission refers toclause 11.3 of the Contract, which provides that the first three months of the employment is on a probationary basis. At the endof the three month period, the employer is to advise the employee either that no further casual work will be offered, oralternatively, that the employee is considered suitable for further offers of casual employment.

26 Even if it could be said that the terms of exhibit A9, that being the letter from the respondent dated 26 August 2002, constitutednotice of termination of employment, I am not persuaded that any such dismissal was harsh, oppressive or unfair.

27 I accept that during the course of the employment, issues were raised in relation to the applicant’s performance. Whilst I haveno doubt about the applicant’s genuineness in her concerns for the welfare of the family she was caring for each weekend, theapplicant’s primary obligation as an employee, was to her employer pursuant to the terms of the Contract. For an employee totell an employer, that she was going to “sack” them as the appointed carer for the family, amounted in my opinion, toinsubordination, probably warranting summary dismissal for misconduct at common law: Pepper v Webb (1969) 1 WLR 514. Ialso accept, no doubt again as a result of her genuine concern for the family’s interest, that by her conduct, the applicantgenerated considerable tension between Ms Byk and her father and other family members.

28 Furthermore, in my opinion, acting as an advocate for the Byk family involved a conflict of interest between the applicant’sduties as an employee to the respondent, and her duty to the family.

29 Additionally, I do not accept that the state of the cleanliness and hygiene of the house was as portrayed by the applicant. Noram I persuaded that there was no communications book present at the house. It is more likely in my view, that for what everreason, the applicant elected not to write in it.

30 Employment on probation is not a licence to dismiss unfairly: Hutchinson v Cable Sands (1999) 79 WAIG 951. However, I amsimply not persuaded on all that was before the Commission, that the applicant has established her claim in this regard.

31 In relation to the contractual benefits claim, from the evidence before the Commission, whilst somewhat confusing, I am notpersuaded that the applicant has established, on balance, that she has been underpaid. Whilst it is the case that the structure ofthe overnight payments were varied unilaterally by the respondent some time in or about July 2002, in the final analysis,applying the new formula, it seems that the applicant in fact received more money than she would have under the previousstructure. Taking for example the pay period commencing on 8 August 2002, contained in the bundle of time sheets as exhibitA4, it would appear that applying the original formula of $70.00 for 8.00pm to 9.00am and $14.00 per hour between 9.00amand 10.00am, would lead to a gross payment of some $378.00. Applying the revised method of payment, that being for 9.00pmto 7.00am at $4.00 per hour, and for time worked outside of this at $14.00 per hour, leads to a total gross figure of $400.00.Similar calculations can be made in respect of the other pay periods.


32 Therefore, whilst in my view the employer was wrong to purport to unilaterally vary the contract of employment, contrary tocommon law principles, which it cannot do, at the end of the day, as a matter of equity and good conscience, the applicant hassuffered no financial detriment.

33 Accordingly, the application is dismissed._________


PARTIES ANNA ELISE FRANK, APPLICANTv.OPTIONS FOR PEOPLES ACCOMMODATION AND LIFESTYLES INC., RESPONDENT


Result Application dismissedRepresentationApplicant Ms A Frank on her own behalfRespondent Mr D Johnston as agent_________________________________________________________________________________________________________

OrderHAVING heard Ms A Frank on her own behalf and Mr D Johnston as agent on behalf of the respondent, the Commission, pursuantto the powers conferred on it under the Industrial Relations Act, 1979, hereby orders—

THAT the application be and is hereby dismissed.(Sgd.) S. J. KENNER,


____________________


PARTIES SUSAN JEANETTE GEORGE, APPLICANTv.STIRLING ARMS HOTEL, RESPONDENT

CORAM COMMISSIONER S WOODDELIVERED FRIDAY, 13 JUNE 2003FILE NO. APPLICATION 138 OF 2003CITATION NO. 2003 WAIRC 08633_________________________________________________________________________________________________________

Result Application dismissed for want of jurisdictionRepresentationApplicant Ms S GeorgeRespondent Mr F Lunny_________________________________________________________________________________________________________

Reasons for Decision(Given extemporaneously and subsequently edited by the Commissioner)

1 This is an application pursuant to section 29(1)(b)(i) of the Industrial Relations Act, 1979 (“the Act”). The applicant allegesthat she was dismissed unfairly by Mr Lunny on 28 January 2003. Ms George worked as a bar attendant at the hotel on a casualbasis. The source of the conflict between the parties was that Mr Lunny chose to search Ms George’s handbag after closingtime, and after he had checked the till, on Friday, 24 January 2003.

2 In respect of the relevant finding in this matter, I find that Ms George resigned her employment on 28 January 2003. Sheresigned her employment after the incident on the Friday night when her handbag was searched. She then worked on thefollowing Monday and Tuesday. She resigned her employment on the Tuesday prior to working her shift on that day. That isthe evidence of the applicant and, given that I have heard only the applicant’s evidence, then that is the evidence for theapplicant at its highest point.

3 In other words, the evidence of the applicant at its highest point is that she decided to leave her employment on Tuesday,28 January 2003 prior to working her shift. She then worked her shift and resigned because of the respondent’s actions on theprevious Friday night. On the applicant’s submission and evidence, she resigned because she had no choice but to resign as shewas humiliated.

4 There is no evidence to suggest that the applicant was dishonest in anyway. There was no policy in the work place for thesearching of bags. The respondent tendered an exhibit [Exhibit R2], “Notice to all staff”, which is a policy as to where bagsmay be placed. It is not a policy as to whether bags may or may not be searched, and whether employees can expect this.


5 Given that the applicant resigned the question is whether the termination can be construed as a constructive dismissal. Macken,McCarry & Sappideen’s The Law of Employment, Fourth Edition states—

“In Western Excavating ECC Ltd v Sharp, Lord Denning MR described the basis of constructive dismissal as follows:“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment,or which shows that the employer no longer intends to be bound by one or more of the essential terms of thecontract, then the employee is entitled to treat himself as discharged from any further performance. If he does so,then he terminates the contract by reason of the employer’s conduct. He is constructively dismissed. The employeeis entitled in those circumstances to leave at the instant without giving any notice at all or … he may give notice andsay he is leaving at the end of the notice. But the conduct must in either case be sufficiently serious to entitle him toleave at once. Moreover, he must make up his mind soon after the conduct of which he complains: for, if hecontinues for any length of time without leaving, he will lose his right to treat himself as discharged. He will beregarded as having elected to affirm the contract.”

Hence the employee must treat the contract as having ended at that time or soon thereafter.6 The facts in this matter are that Ms George proceeded to have a weekend away, came back and worked on two other occasions;

she worked on Monday, then resigned, then continued to work. In that respect the facts do not fit a constructive dismissal.Macken at p.225 also states—

“Recently there has been a suggestion that a wider test of “conduct likely to destroy or seriously damage the relationshipof trust and confidence between the employer and employee” should apply. However, it would appear that this does notcreate a new test. Rather, it is a recognition that the implied term that the employer should not, without reasonable cause,do anything to destroy the relationship of trust and confidence between the employer and the employee is a sufficientlyessential term of the contract of employment that its breach by the employer entitles the employee to treat the contract asat an end.”

7 Again in respect of the conduct by the respondent, it may be that that conduct would fit within this more general test. However,given the applicant chose to work on, given the applicant did not see the respondent between the time of the incident on theFriday night and her resignation on the Tuesday, given the respondent did nothing further to cause the applicant to resign, otherthan she wished to receive an apology from the respondent and did not; In these circumstances I do not find that the applicantwas constructively dismissed.

8 I am mindful also that the applicant’s employment was casual in nature, and subject to termination by either party on an hour’snotice. Given my finding that the applicant resigned I would dismiss the application for want of jurisdiction.

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PARTIES SUSAN JEANETTE GEORGE, APPLICANTv.STIRLING ARMS HOTEL, RESPONDENT

CORAM COMMISSIONER S WOODDATE OF ORDER FRIDAY, 4 JULY 2003FILE NO. APPLICATION 138 OF 2003CITATION NO. 2003 WAIRC 08635_________________________________________________________________________________________________________

Result Application dismissed for want of jurisdictionRepresentationApplicant Ms S GeorgeRespondent Mr F Lunny_________________________________________________________________________________________________________

OrderHAVING heard Ms S George on her own behalf and Mr F Lunny on behalf of the respondent, the Commission, pursuant to thepowers conferred on it under the Industrial Relations Act, 1979, hereby orders—

THAT the application be and is hereby dismissed for want of jurisdiction.(Sgd.) S. WOOD,


____________________


PARTIES KATHLEEN GROSVENOR, APPLICANTv.JOHN SEPTIMUS ROE ANGLICAN COMMUNITY SCHOOL (A SCHOOL OF THE ANGLICANSCHOOL’S COMMISSION), RESPONDENT

CORAM COMMISSIONER J L HARRISONDATE MONDAY 30 JUNE 2003FILE NO/S. APPLICATION 638 OF 2002CITATION NO. 2003 WAIRC 08580


_________________________________________________________________________________________________________

Result Application alleging unfair dismissal dismissedRepresentationApplicant Ms K Grosvenor on her own behalfRespondent Mr R Gifford (as agent)_________________________________________________________________________________________________________

Reasons for Decision1 This is an application by Kathleen Grosvenor (“the applicant”) pursuant to s.29(1)(b)(i) of the Industrial Relations Act

1979 (“the Act”). The applicant alleges she was unfairly dismissed from her employment as Deputy Assistant PrincipalPrimary (“DAPP”) with John Septimus Roe Anglican Community School (a School of the Anglican School’s Commission)(“the respondent”) on 19 March 2002. The respondent denies the applicant was unfairly terminated. The respondent argues thatthe applicant tendered her resignation on 19 March 2002.

Background2 The applicant commenced employment at John Septimus Roe Anglican Community School (“the School”) as a relief primary

teacher in June 1995. The School operates over two campuses, one at Beechboro and one at Mirrabooka. The Beechborocampus has classes from kindergarten through to Year 6 and the Mirrabooka campus includes kindergarten through to Year 12.There are approximately 1,760 students at the School.

3 In 1996 the applicant was employed by the respondent under a one year contract and at the beginning of 1997 she was made apermanent employee. In July 2001 the applicant applied for a DAPP position with the respondent. The applicant was advisedin August 2001 that she was successful in her application for this position and in November 2001 the applicant finalised hercontract for the position of DAPP, effective from 1 January 2002.

4 It was common ground that the applicant was on sick leave from 14 to 18 February 2002 and that on 12 March 2002 theapplicant again took sick leave. Medical certificates were supplied by the applicant for the period from 12 March 2002 to15 May 2002.

5 On 19 March 2002 the applicant gave the respondent ten weeks’ notice of her intention to resign and the applicant commencedemployment as a classroom teacher at a different school on 6 May 2002.

Applicant’s Evidence6 The applicant gave evidence that she had a good work history with the respondent. The applicant was appointed to be the

School’s Primary Program Co-ordinator in the years 2000 and 2001. This position involved undertaking some administrativeduties and filling in for Mr Neil Clucas, the Assistant Principal Primary when he was absent from the campus. She stated thather success in the co-ordinator position and being selected for the position of DAPP in August 2001 to commence in January2002 reflected the high regard in which she was held by the School.

7 The applicant stated that subsequent to being given notice that she was to be appointed DAPP an issue arose involving MrGavin Devine, another teacher at the School. The applicant stated that in August 2001 Mr Devine approached her requestingpermission to approach students at the School who had cancer to promote products which could assist in the students’treatment. The applicant told Mr Devine that she would approach the respondent’s Principal, Mr Matthew Hughes, about hisrequest. The applicant stated that Mr Hughes told her to tell Mr Devine that if he approached the students about promotingproducts he would be terminated. The applicant asked Mr Clucas to inform Mr Devine of Mr Hughes’s position on this matterhowever he refused to do so. In early September 2001 the applicant then approached Mr Devine in the School staff room andinformed him that he was not to approach the students who had cancer about distributing information to their parents. Theapplicant stated that whilst she was speaking to Mr Devine he had a knife in his hand. After speaking to Mr Devine theapplicant turned her back on him and whilst she was standing at the hot water system Mr Devine stated to the applicant wordsto the effect that “I’ll see you at the funerals”. The applicant then heard a crash. She stated that she then saw a knife on thebench beside her. Mr Devine then left the staff room. The applicant stated that three days after this incident she approached MrClucas to complain about Mr Devine’s behaviour however Mr Clucas did not respond to her complaint.

8 The applicant stated that subsequent to this incident colleagues at the School changed their attitude towards her. An example ofthis was that the initial contract the applicant had been given to sign in relation to her appointment to the DAPP position wasincorrect. The applicant also stated that there was confusion about another person being appointed to the position of DAPPinstead of the applicant. She claimed that whilst she was waiting for a renewed contract to be drawn up for signing anotherteacher at the School, Ms Sandi Grime was offered her DAPP position.

9 The applicant stated that there was another incident concerning Mr Devine which took place on or about 23 November 2001.The applicant refused to deal with a student who had behaviour problems, whose behaviour Mr Devine had raised with her.During a discussion between the applicant and Mr Devine in the applicant’s classroom about this student, Mr Devine snatcheddocuments from the applicant’s hand and in doing so scratched her on the wrist. The applicant stated that after this incident MrDevine wrote a complaint about the applicant addressed to the School’s Assistant Principal Primary, Mr Clucas (Exhibit A13).After the incident the applicant informed Mr Clucas that she could not deal with Mr Devine any longer as she claimed MrDevine had scratched her on the wrist.

10 Another incident involving Mr Devine took place in November 2001. Mr Devine had put unsolicited promotional informationinto a student’s bag which was taken home to his parents. The parents complained about receiving this material, and theapplicant discussed this with Mr Devine who undertook to apologise to the parents. A report of this incident was given to Mr.Clucas (Exhibit A12).

11 On 21 November 2001 the applicant was asked to attend a disciplinary meeting with Mr Clucas, Mr Hughes and Mr Devinewhich was held to discuss issues relating to Mr Devine’s ongoing employment. The applicant stated that she did not want to beat the meeting but was informed that she had to attend. Reports were written by Mr Clucas and the applicant in relation to theevents leading up to this meeting (Exhibits A14 and A15). Subsequent to this meeting Mr Devine was terminated by therespondent.

12 By the end of November 2001 the applicant took the view that she was left with no option but to resign as her normal dutieswere being withdrawn from her and the applicant was convinced that she would be back as a classroom teacher in 2002.

13 The applicant became increasingly concerned about her ongoing employment at the School given that no action had been takenby the School in regard to the knife incident involving Mr Devine and given that Ms Grime had been appointed to her DAPPposition. Thus, the applicant sought employment in other schools. In December 2001 the applicant tendered her resignation asshe was offered a teaching position at Guildford Grammar College. However, Mr Hughes would not accept the applicant’s


resignation. Mr Hughes spoke to the applicant on 17 December 2001 and encouraged her to remain at the School. Given thisdiscussion the applicant informed Guildford Grammar School that she was no longer interested in taking up the position shehad been offered (Exhibit A16).

14 The applicant gave evidence that she was contacted by Mr Clucas on 7 January 2002 to commence work at the School for the2002 school year. She attended work on 8 January 2002 and spent three days cleaning the kitchen and staff room. She statedthat this was not the appropriate way to treat a person who was appointed to the DAPP position.

15 The applicant stated that she was given insufficient resources to undertake her DAPP role at the beginning of 2002. Thus, shewrote to Mr Hughes outlining her concern about the lack of appropriate furniture on 21 January 2002 (Exhibit A17).

16 The applicant was informed in late December 2001 and again in January 2002 that people were “out to get” her. She informedMr Clucas and Mr Hughes about her concerns regarding these threats and was told not to worry.

17 The applicant became frustrated about her treatment and wrote a memorandum to Mr Clucas about the difficulties she wasexperiencing in undertaking her role on 20 February 2002. The memo was copied to Mr Hughes (Exhibit A19). As sheunderstood that Mr Clucas was upset by this memo, and given that Mr Hughes had discussed with her an allegation that MrDevine had made about the applicant, she wrote a letter of apology to Mr Hughes on 25 February 2002 (Exhibit A20).

18 The applicant gave evidence that as her health was deteriorating during this period she had been seeing a psychologist on aregular basis. By mid February 2002 the applicant was not well enough to undertake her duties thus she took sick leave for fourdays. She later took extended sick leave in March 2002.

19 The applicant believed that the respondent was refusing to deal with the numerous issues that she had raised with the Schooltowards the end of 2001 and early 2002. Thus, on 19 March 2002, she resigned giving 10 weeks’ notice (Exhibit A22). Theapplicant confirmed that subsequent to tendering her resignation she spoke to Mr Hughes, who stated that he wanted theapplicant to return to work.

20 Under cross examination the applicant agreed that she signed a revised contract for the DAPP position on 10 November 2001,and that this was subsequent to signing the first contract for this position on 28 September 2001 (Exhibit A10). The applicantconfirmed that she was aware that the additional DAPP position that Ms Grime filled, was announced to School staff in earlyOctober 2001.

21 The applicant was asked why she withdrew her resignation in December 2001. She stated that as Mr Hughes had told her thatshe was the one whom he wanted for the DAPP job, she understood that Mr Hughes wanted the applicant to remain employedby the School. Therefore she did not take up the job that she had been offered at Guildford Grammar School.

22 The applicant was asked about the incident in the staff room with Mr Devine which took place in early September 2001. Theapplicant stated that she was shaken and upset by the incident as none of the other staff members in the staff room came to heraid. The applicant was asked if she had overreacted to this incident. The applicant stated that she raised the incident with thepolice and filed a complaint, however, the matter was not pursued by the police. The applicant maintained that given therespondent did not deal seriously with this issue involving Mr Devine she believed that this was sufficient reason for her toresign. The applicant was asked if she raised the incident involving Mr Devine with Mr Hughes. The applicant stated that shedid not because Mr Clucas did not want her to raise this incident with senior management. The applicant was aware that MrHughes knew of the incident because it was mentioned at the meeting held about Mr Devine’s ongoing employment at theSchool which took place on 21 November 2001. The applicant was surprised Mr Hughes did nothing about the incident oncehe became aware of it.

23 The applicant stated that she believed that her involvement in the process of terminating Mr Devine was inappropriate. Therespondent inextricably linked the applicant to the process by having her attend a disciplinary meeting concerning Mr Devine.She stated that Mr Devine was a popular teacher who was well liked at the School and the applicant did not want to be seen asthe cause of his demise.

24 The applicant was asked about the claim that people were “out to get” her. It was put to the applicant that Mr Hughes told theapplicant that the School would deal with these threats. The applicant stated that in her view Mr Hughes did not deal with thisissue to her satisfaction.

25 The applicant stated that in early November 2001 she looked for employment elsewhere as the revised contract for the DAPPposition had not been given to her. The applicant confirmed that by the end of February 2002 she had sufficient resources, suchas a computer and desk to undertake her role as DAPP. She also confirmed that at the School’s Mirrabooka campus, where theapplicant was located in 2002, the administration block was recently set up and she confirmed that her DAPP position was anew position. She stated that the School knew that this position was to come into effect as early as July 2001 but nothing wasin place when she commenced work on the 8 January 2002 as the School’s new DAPP.

26 The applicant was asked why she returned to work at the beginning of 2002. The applicant confirmed that notwithstanding theSchool’s failures in relation to the handling of her problems with Mr Devine she was prepared to make a new start with therespondent at the beginning of 2002.

27 The applicant stated that she took sick leave from the 14 to 18 February 2002 because she was upset after receiving a telephonecall from one of the School’s relief teachers who told her that three people were “out to get her”. She informed Mr Clucasabout the call when she returned from sick leave. She stated that after she returned from sick leave the School staff, inparticular Mr Clucas, would not speak to her. The applicant confronted Mr Clucas about this lack of communication and MrClucas responded to her by saying that she was direct, dogmatic and efficient. Mr Clucas also stated that he was very upsetabout the memo written about him by the applicant dated 20 February 2002 (Exhibit A19). Subsequent to writing this memothe applicant confirmed that the apology letter she wrote (Exhibit A20) was strongly worded as she was upset that Mr Clucaswas distressed by the letter that she wrote.

28 On 12 March 2002 the applicant again took sick leave as she was suffering from depression. She stated that she sought medicalassistance because the School would not respond to the issue that people were “out to get her”.

29 The applicant stated that she resigned because of the ramifications for her of Mr Devine’s termination and because the Schooldid not give her sufficient support in order to deal with the numerous problems which she was facing.

30 On 15 March 2002 the applicant sent her curriculum vitae to Kingsway Christian College as she was aware that a classroomposition was available at this school. She had two interviews for this position and was appointed to a classroom teacherposition on 30 April 2002. Since 6 May 2002 she has been employed as a temporary Year 6-7 teacher at this College, on asalary of $54,000 per annum.

31 The applicant summonsed a number of witnesses in support of her claim. Much of the evidence given by these witnesses didnot relate to the issues relied upon by the applicant in her claim. Following is a summary of the evidence which in my viewwas relevant.


32 Since 1999 Ms Jennifer Massey worked with the applicant at the School. She stated that the applicant performed well in herjob as the Primary Program Co-ordinator.

33 Ms Sue Wahl has worked at the School as a Teacher for ten years both in a full-time and part-time capacity and is currentlyinvolved in student support. She stated that the applicant was supportive of her when the applicant undertook the role ofPrimary Program Co-ordinator. Ms Wahl understood that she was one of the persons named as being “out to get” the applicant.Ms Wahl stated that it was not the case that she was “out to get” the applicant. Under cross examination Ms Wahl confirmedthat she attended the same church as the applicant and that she was aware that she and two other persons were mentioned in arumour that some people were “out to get” the applicant. She stated that there was no truth to the rumours and she wassurprised by the rumours.

34 Ms Wahl stated that she visited the applicant after she resigned because she was concerned about the applicant’s welfare. Theapplicant had been supportive of her whilst she was employed at the School and she visited the applicant to give her support inreturn. Ms Wahl stated that Mr Hughes was aware that she had visited the applicant. In re-examination Ms Wahl stated that shedid not discuss the rumour that she was “out to get” the applicant with the applicant because the rumour was so far fetched itdid not warrant being addressed.

35 Mr Devine worked for 11 years as a teacher at the School. In 1999 he started to promote a health product called Mannatech,but he stated that did not promote this product at the School. He confirmed that in November 2001 he was terminated by therespondent effective 31 December 2001.

36 Mr Devine was asked about the incident involving the applicant in the School staff room which took place in September 2001.Mr Devine stated he was preparing lunch at the counter when the applicant approached him and told him that he could notapproach parents to disseminate Mannatech information to students who had cancer. Mr Devine was upset that the applicanthad raised a private matter publicly in the staff room and he believed that the parents were being denied information whichcould assist their sick children. He stated that he slammed down his cup or hand in frustration. He denied that he threw a knifeat the applicant. Soon after this incident he approached the applicant and apologised for his behaviour.

37 Mr Devine was asked to comment on the incident with the applicant which took place on 23 November 2001 relating to thedisciplining of a particular student. Mr Devine stated that he approached the applicant in her classroom and spoke to her abouthis complaints regarding the student. He stated that after discussing the matter with the applicant she reprimanded him in frontof her class about the issue being trivial and he was embarrassed and upset by this. He stated that the note that he had given tothe applicant in relation to the incident was given back to him by the applicant.

38 In cross examination Mr Devine was again asked about the incident in the staff room in September 2001. Mr Devine stated thatthe applicant was on the other side of the counter to him when he was preparing his lunch. He was asked if he threw a knifeinto the sink. He stated that he did not think he would have done this even if he was upset. He stated that it was preposterous tobe accused of throwing a knife dangerously towards the applicant. He could not recall whether or not he slammed the knife hewas using in the sink. He stated that his relationship with the applicant deteriorated significantly after this incident.

39 Mr Devine was asked about the incident relating to sending Mannatech material home in a student’s bag. He acknowledged itwas inappropriate to send the material to the student’s home in this way. He confirmed that he met with the applicant forapproximately half an hour about this issue and he offered to apologise to the parents concerned. He understood the matter wasresolved because he received no further feedback from the applicant about this incident.

40 Mr Devine stated that at the disciplinary meetings held on 21 and 28 November 2001 with Mr Hughes, Mr Clucas and theapplicant, the applicant was not involved in the discussions which took place. Mr Devine stated that even though he was upsetat being terminated by the respondent, he did not see his problems with the applicant as being integral to his termination.

41 Ms Caitlin Mills has taught at the School for five years. Ms Mills was in the staff room in September 2001 when the incidentinvolving Mr Devine and the applicant took place. She stated that she and approximately seven other staff members were in thestaff room at the time. Ms Mills was sitting at a table and saw the applicant and Mr Devine having a discussion. She then sawthe applicant and Mr Devine move towards the kitchen and observed Mr Devine chopping fruit on the bench. She recalled thatshe heard Mr Devine refer to children dying. Ms Mills stated that Mr Devine then turned away from the applicant and pushedthe knife that he was using into the sink, and left the staff room.

42 Ms Mills was shown a hand drawn map of the staff room (Exhibit A25). She stated that at the time of the incident when theknife was pushed into the sink by Mr Devine, the sink was to the left of Mr Devine and the applicant was to the right of MrDevine. Ms Mills stated that at some stage Mr Devine pushed the knife into the sink and as nothing was in the sink this createda noise. Ms Mills stated that Mr Devine did not throw the knife into the sink and that it did not bounce up. It was her view thatMr Devine was frustrated but not angry at the time of this incident and she understood Mr Devine had a tantrum which was notdirected at anyone in particular. Ms Mills recalled the applicant being on the opposite side of the counter to where Mr Devinewas situated. Ms Mills did not recall the applicant being close to the sink. Ms Mills stated that it was her view that MrDevine’s conduct was not threatening, and she recalled that at the time the applicant did not appear to be upset by the incident.Ms Mills had a discussion with the applicant after the incident and the applicant told her not to worry.

43 Ms Grime is currently a DAPP at the School and was appointed to this position in October 2001. Ms Grime was in the staffroom when the incident involving the applicant and Mr Devine occurred in September 2001. In her view the incident was notmajor. She recalled the incident because the staff room went quiet as a result of what happened. She stated that Mr Devine wascutting fruit and the applicant then spoke to him. In frustration Mr Devine turned and dropped the knife onto the sink drainingboard and the knife then dropped into the sink. She stated that Mr Devine was on the opposite side of the counter to theapplicant when this incident took place thus, the applicant was not in any danger when Mr Devine dropped the knife into thesink. Ms Grime did not see Mr Devine’s actions as being threatening towards the applicant. She stated that if Mr Devine’sbehaviour was threatening she would have intervened in the incident as she was the Primary Program Co-ordinator at the time.She stated that even though Mr Devine was frustrated he was in control of his actions. Ms Grime had worked with Mr Devinefor a long time and had never seen him lose his temper. She recalled clearly that the applicant was on the opposite side of thecounter to Mr Devine and not next to the sink when the incident occurred. Ms Grime confirmed that once Mr Devine releasedthe knife it went into the sink it did not come out. She saw the issue as insignificant and was not aware that the applicant wasupset at the time of the incident. Ms Grime stated that everyone carried on as normal after the incident.

44 Ms Grime confirmed that she was offered her DAPP position sometime in September 2001 and she agreed in mid October2001 to accept the position. Prior to this date Ms Grime had accepted a position at another school. She was given time to thinkabout whether or not she was interested in taking up the DAPP position with the School. Ms Grime stated that it was theapplicant who encouraged her to apply for the DAPP position and it was her understanding that there was a long term plan tohave two DAPP positions at the School and it was a matter of timing as to when both positions were to be filled. Sheunderstood that her appointment was not in lieu of the applicant’s appointment as Ms Grime’s DAPP position has an earlychildhood focus and the applicant’s position has a middle to upper primary focus.


45 Ms Helen Abrahams has been involved with the School for 14 years as a parent. During this period she has been a member ofthe School’s Parents and Friends organisation and she has undertaken causal relief teacher duties. She telephoned the applicantin January 2002 and relayed a discussion that she had at a shopping centre with a parent of a child at the School. She told theapplicant that the parent had said that there was a group of people “out to get” both the applicant and Mr Hughes terminated.

46 Ms Wendy Lee is the respondent’s Bursar and is the Secretary to the School Council. She stated that in March 2002 MrHughes had a discussion with her about his concern about not being able to discuss the applicant’s resignation with her. MsLee offered to visit the applicant and thus met with her in March 2002. Ms Lee wanted to understand why the applicant hadresigned as her resignation was unexpected and to encourage her to possibly return to work. She recalled the applicant statingthat one of the reasons she resigned was because of lack of support from the School.

47 Under cross examination Ms Lee stated that on most occasions she found the applicant to be an easy going person. Ms Leeconfirmed that she visited the applicant subsequent to the applicant resigning from her employment because she had a goodworking relationship with her. It was not clear to her why the applicant had resigned. Prior to visiting the applicant sheconfirmed that she discussed visiting the applicant with Mr Hughes. Ms Lee stated that it was her view that the applicant wasparanoid given some of the comments that she made when she met with the applicant. She stated that it was her view theapplicant was linking unrelated events to the impact on her of Mr Devine’s termination. The applicant told her that people were“out to get her” and that she was being treated rudely by Mr Clucas.

Respondent’s evidence48 Mr Hughes has been the School’s Principal since April 1996. Mr Hughes confirmed that his position is supported by three

Assistant Principals, one of whom is responsible for the Primary section and that Mr Clucas currently holds that position.49 Mr Hughes gave evidence about the events surrounding the applicant’s resignation in March 2002. When Mr Hughes received

the applicant’s resignation letter in March 2002, he stated that her resignation was unexpected and that he was unaware whythe applicant had resigned. Further, it was unclear whether the applicant was resigning from her promotional position as DAPPor resigning as a teacher at the School. Subsequent to receiving the applicant’s letter of resignation Mr Hughes spoke to theapplicant on the telephone. During this discussion he raised the issue of Mr Devine’s termination. Mr Hughes stated that hetried to reassure the applicant by saying that the School and not the applicant was responsible for Mr Devine’s termination. Asa result of this telephone discussion Mr Hughes arranged to meet with the applicant and a date and time was agreed. Howeverthe applicant later cancelled this appointment. Subsequently Mr Hughes wrote to the applicant by letter dated 28 March2002 accepting her resignation (Exhibit A23). Mr Hughes regretted that the applicant had resigned. She had been appointed ona competitive basis to the DAPP position, she was an exemplary teacher and she was highly regarded by Mr Hughes. As MrHughes was concerned that the applicant may have decided to resign without proper consideration he discussed the applicant’stermination with Ms Lee. As a result of this discussion Ms Lee visited the applicant. Ms Lee reported back to Mr Hughes thatthe applicant had said that some people, including Ms Wahl were “out to get her” and that there was a conspiracy afoot to getrid of the applicant and Mr Hughes from the School. Mr Hughes spoke to Ms Wahl about this issue and Ms Wahl denied thatshe was conspiring to get rid of the applicant. Mr Hughes then encouraged Ms Wahl to visit the applicant to clarify anymisunderstanding. After Ms Wahl visited the applicant Ms Wahl informed Mr Hughes that it was her view that the applicantwas stressed.

50 Mr Hughes confirmed that the applicant was interviewed for the DAPP position at the School in August 2001 and that she wasadvised in August 2001 that she was to be appointed to the DAPP position. An announcement to this effect was later made tothe School staff. Even though the applicant was initially given an incorrect contract for this position, a new contract was issuedto her in early November and was signed by the applicant on 10 November 2001, confirming her acceptance of the position.Even though Ms Grime was initially unsuccessful for this DAPP position, it was brought to Mr Hughes’ attention in September2001 that Ms Grime had been offered a position with another school. On this basis Mr Hughes decided to appoint Ms Grime tothe second DAPP position even though it was earlier than the time-frame that he anticipated for this appointment. Prior todeciding to fill this position he spoke to the applicant about appointing Ms Grime to this position. The applicant stated that shethought that this appointment was appropriate and Mr Hughes then asked the applicant to explore with Ms Grime thepossibility of her taking up this position. Ms Grime was given an opportunity to consider the offer and she finally accepted theposition in October 2001. It was clear that the two DAPP positions were to be complementary and at no stage was Ms Grimegoing to take over the duties and role of the applicant’s position.

51 Mr Hughes stated that he was unaware that there were problems between the applicant and Mr Devine until November2001 when he reviewed Mr Devine’s ongoing employment with the School. One of these issues related to a complaint from aparent relating to Mr Devine distributing information and tapes to parents via their child. When this matter was brought to hisattention Mr Hughes asked Mr Clucas to investigate the issue. Mr Hughes understood that the applicant was asked to prepare abackground briefing about this matter. A meeting then took place on 21 November 2001 between Mr Devine, Mr Clucas andMr Hughes and the applicant. The applicant was asked to be present because she had investigated the initial complaintconcerning Mr Devine. During the meeting Mr Hughes was aware for the first time that there had been an incident in the staffroom in September 2001 between the applicant and Mr Devine. He stated that if the issue was as bad as the applicant had madeit out to be then a report about the incident should have been made. However, neither the applicant nor Mr Clucas saw fit tomake an official report.

52 Mr Hughes stated that the applicant was not involved at any stage in the decision to terminate Mr Devine. Her only role was toattend the initial meeting to provide background information.

53 Mr Hughes was asked about the applicant’s resignation in December 2001. He stated that he was aware on 14 December2001 that the applicant intended to resign. Mr Hughes was surprised by this and met with the applicant to discuss the reasonsfor her resignation. The applicant told him that she wanted to resign to obtain broader experience in different schools and thatit was in the School’s best interests that she resign. Mr Hughes encouraged the applicant to remain at the School. He also toldher that as she had been appointed to the DAPP position he required at least one term’s notice of her intention to resign. Hestated that at no stage during this discussion did the applicant mention the September 2001 incident involving Mr Devine nordid she raise any issues relating to her role as DAPP. Subsequent to this meeting the applicant withdrew her resignation.

54 Mr Hughes confirmed that as the appointment of the School’s two DAPPs had been rushed and a new administration block hadjust been built there was insufficient office equipment and office space available for both the applicant and Ms Grime at thebeginning of 2002. He did not understand that this was an issue for the applicant until it was brought to his attention inFebruary 2002. He stated that he had a general discussion with the applicant in the first week of Term 1, 2002 and the applicantindicated that she was feeling good about working at the School.

55 Mr Hughes stated that on or about 9 February 2002 the applicant rang his home concerned about rumours that some peoplewere “out to get” Mr Hughes and the applicant. On the following Monday Mr Hughes spoke to the applicant and tried toreassure her not to take the matter seriously nor worry about these rumours and that nothing would happen as the rumours werebaseless. Mr Hughes understood that there was no sense in which either his or the applicant’s jobs were under threat and that


both Mr Hughes and the applicant had the confidence of the School’s governing council. He stated that it was very difficult todeal with rumours of this nature as the threats were not specific and there were numerous people linked to the Schoolcommunity. Mr Hughes stated that in any event nothing happened, and no action was taken in relation to these threats. Nowrits were issued, no letters were received by the School and the issue has since died down.

56 Mr Hughes confirmed that he received a copy of the memo that the applicant wrote to Mr Clucas on 20 February 2002 (ExhibitA19). It was clear to Mr Hughes at this time that the applicant was not coping. He deliberately did not respond to thememorandum but he encouraged Mr Clucas to approach the applicant to discuss the contents of the memo.

57 Mr Hughes was unaware why the applicant went on extended sick leave on 12 March 2002 and he stated that he was surprisedto receive a letter from the applicant on 19 March 2002 informing him that she was resigning with notice. He stated that whenthe applicant resigned it was entirely her own decision.

58 Under cross examination it was put to Mr Hughes that he told the applicant to tell Mr Devine he would be terminated if heapproached the parents of students with cancer. Mr Hughes stated that he did not tell the applicant to tell Mr Devine that thiswould happen. He stated that he asked the applicant to tell Mr Devine that if he approaches the parents then Mr Devine’scontract of employment was likely to be terminated. It was put to Mr Hughes that he was aware in November 2001 that it wasbecause of the lack action over the staff room incident in September 2001 that the applicant intended to resign. Mr Hughesstated that at that stage he was unaware that there had been any incident in the staff room in September 2001 between theapplicant and Mr Devine.

59 Mr Hughes was asked what steps were taken to protect the applicant once Mr Devine was given notice in November that hiscontract of employment was to be terminated on 31 December 2001. Mr Hughes stated that he took no steps to protect theapplicant as he saw no need to.

60 Mr Hughes was asked why the incident in September 2001 involving the applicant and Mr Devine was never investigated. MrHughes stated that he was not aware that it was a major issue as this matter had never been raised by the applicant as an issuewarranting investigation.

61 Mr Hughes was asked about the meeting held with the applicant on 14 December 2001 to discuss the applicant’s resignation.Mr Hughes stated that he was told that the applicant wanted to expand her curriculum vitae and that there was a discussionabout the way in which Mr Clucas undertook his role. He stated that the applicant was not forthcoming about the specificissues about why she was resigning as she did not raise any problems about Mr Devine or any issue about wanting protectionbecause Mr Devine had been given his notice of termination. Mr Hughes stated that at this meeting he encouraged theapplicant to stay on and that he did not want the applicant to resign.

62 Mr Hughes was asked about the lack of equipment in the applicant’s DAPP office. Mr Hughes confirmed that even though theapplicant’s office had a substantial amount of equipment, he acknowledged that there were some problems in the short termensuring that all necessary equipment was available for the applicant. Mr Hughes was asked why he took no action after hewas contacted on 9 February 2002 about rumours that people were out to get him and the applicant. He stated that no actionwas necessary to be taken as nothing could be done other than to reassure the applicant that she need not be concerned aboutthe rumours. Mr Hughes was asked why the issue of rumours, which were mentioned in the applicant’s memo to Mr Clucas(Exhibit A19), was not taken up. He stated that he viewed the memorandum as a rant and therefore he did not take a number ofthe issues raised seriously.

63 It was put to Mr Hughes that prior to the applicant resigning she had a number of her usual DAPP duties withdrawn from her.Mr Hughes stated that it was his view that this did not occur and that at no stage did he issue any instructions to this effect. Itwas put to Mr Hughes that he should not have accepted the applicant’s resignation in March 2002 because she was unwell. MrHughes stated that both Ms Wahl and Ms Lee visited the applicant to clarify her position. He had endeavoured to arrange tomeet with the applicant subsequent to receiving her letter of resignation however, once this meeting was postponed by theapplicant, and given the feedback from Ms Wahl and Ms Lee that the applicant had no intention of returning to work, he madethe decision to accept the applicant’s resignation.

64 Mr Clucas has been the respondent’s Assistant Principal Primary for two and a half years. His role is to oversee the day to dayrunning of the primary school as delegated by the Principal. Below the Assistant Principal positions there are four program co-ordinator positions and two DAPP positions. Currently only one of these DAPP positions is filled.

65 Mr Clucas confirmed that he was pleased that the applicant was appointed to a DAPP position in August 2001 for thefollowing year. He stated that he had a good working relationship with the applicant. He gave evidence that there was asubstantial difference between the DAPP and the Primary Program Co-ordinator position. He stated that the DAPP role had alesser teaching load and required greater curriculum development work than the Primary Program Co-ordinator position. Hewas aware that the applicant had approached Mr Hughes about appointing Ms Grime to the second DAPP position and that MrHughes thought that Ms Grime’s appointment would be good for the School.

66 Mr Clucas was asked if he had ever withdrawn duties from the applicant. He stated that at no stage was this ever done. MrClucas was asked about the September 2001 incident in the staff room concerning the applicant and Mr Devine. Mr Clucasstated that he was aware that Mr Devine threw a knife into the sink after a disagreement with the applicant. He understood thatMr Devine was frustrated at the time. He did not investigate the incident after it was raised with him as he understood it wasnot a significant issue. Mr Clucas confirmed that the applicant did not play an active role at the disciplinary meeting held on21 November 2001 concerning Mr Devine. The applicant was there to give background on Mr Devine’s approach to parents aswell as her interaction with Mr Devine over Mr Devine wishing to distribute material to the families of the two students withcancer. He stated that the applicant was not present at a meeting held on 28 November 2001 when Mr Devine was terminated.

67 Mr Clucas confirmed that he was aware on or about 14 December 2001 that the applicant had applied for a position as aclassroom teacher at Guildford Grammar School. He stated that he was surprised by this and he spoke to the applicant andencouraged her to remain at the School.

68 Mr Clucas confirmed that as the applicant’s office was not fully equipped when she commenced DAPP duties in 2002, headvised the applicant to contact the School’s Information Technology section to access a computer.

69 Mr Clucas stated that he the applicant had told him that people were “out to get” both the applicant and Mr Hughes. Headvised the applicant to take this issue up with Mr Hughes and he had no further involvement in this matter. He stated that heknew this issue was of concern to the applicant but in his view this was a matter for Mr Hughes to deal with.

70 Mr Clucas was asked about the applicant’s memo to him dated 20 February 2002 (Exhibit A19). He stated that after receivingthe memo, as he was advised by Mr Hughes to contact the applicant, he arranged to meet with the applicant. He stated thatwhen he met with the applicant she lectured him about his management failings. He told the applicant that he still had highregard for her however, in his view there were issues about how she perceived certain matters. The applicant told him that shethought she was a whistleblower because Mr Devine was terminated. Mr Clucas reassured her that was not the case as she wasonly fulfilling the role expected of her.


71 Mr Clucas was asked about Mr Devine snatching papers from the applicant and Mr Devine’s subsequent complaints about theapplicant as detailed in Exhibit A13. Mr Clucas stated that he was aware that Mr Devine snatched paper out of the applicant’shand when Mr Devine visited the applicant’s classroom to complain about a student on 22 or 23 November 2001, but he wasnot aware that Mr Devine scratched the applicant’s hand in doing so until it was raised with him by the applicant. Mr Clucaswas asked why he did not follow up the issue of the applicant being scratched. He stated that he intended to meet with MrDevine about this incident however the disciplinary proceedings against about Mr Devine overtook this issue.

72 It was put to Mr Clucas that he told the applicant to throw away the report which she wrote regarding to Mr Devine’sbehaviour (Exhibit A15). Mr Clucas stated that he had no knowledge of this report.

73 Mr Clucas stated that he could not recall contacting the applicant to commence duties on 8 January 2002 whilst she was onannual leave however, he confirmed that the applicant attended work on that date. He was unaware why the applicant attendedwork on this date and stated that it was the applicant’s choice to recommence work at the School on 8 January 2002, prior tothe school year commencing.

No case to answer74 At the conclusion of the applicant’s evidence the agent for the respondent sought an order that the Commission dismiss this

application on the basis that the respondent had no case to answer. This application was based on the respondent’s contentionthat the evidence led by the applicant was insufficient to demonstrate that the applicant had been unfairly terminated.

75 After hearing from the parties I formed the view that on the evidence before me there was sufficient to be satisfied that theremay be substance to the applicant’s claim. I therefore declined the respondent’s application to dismiss the application.

Submissions76 The applicant maintains that she was constructively dismissed. She states that the respondent forced her to resign because the

School neglected its duty and obligations toward her. Further, the applicant argues that the respondent breached its contractwith her by removing the applicant from her DAPP position and instead offered her a position as a classroom teacher.

77 The applicant argues that the School’s management neglected its duty towards her and failed to appropriately deal with severalincidents at the School, and this omission had a deleterious impact on her health. The relevant incidents included thealtercation between Mr Devine and the applicant in the respondent’s staff room in September 2001, Mr Devine scratching theapplicant during a discussion with the applicant in her classroom, and threats made to the applicant towards the end of2001 and early 2002 relating to her ongoing employment at the School. The applicant also maintained that the respondent didnot adequately deal with Mr Devine’s intimidating behaviour towards her over a period of 18 months, and the letter ofcomplaint written by Mr Devine about the applicant (Exhibit A13). The applicant argues that the School failed to provide herwith notification of the establishment of a second DAPP position and that following this second DAPP position being filled,the respondent withdrew a number of DAPP duties from the applicant.

78 The applicant maintains that the respondent made no effort prior to or after her resignation to provide her with adequatesupport. The only offer that was made to the applicant was by way of a demotion to a classroom teacher position with aconsequent salary loss of $16,000.00 per annum. This offer was made to the applicant by three staff members following theapplicant tendering her letter of resignation to Mr Hughes on 19 March 2002, and prior to the applicant’s resignation beingformally acknowledged or accepted by Mr Hughes.

79 Given these actions the applicant claims that she had no alternative but to give the respondent notice of her resignation on19 March 2002.

80 The respondent submits that the applicant was not dismissed, thus there is no jurisdiction for the Commission to entertain thisclaim. The respondent maintains that the applicant resigned on her own volition, and there was no conduct by the Schoolwhich was the principal factor contributing to the applicant’s resignation.

81 When evaluating the factors upon which the applicant relies in claiming that she was constructively dismissed and onreviewing the evidence, the respondent maintains that it has demonstrated that the applicant elected to resign of her own accordon 19 March 2002. The respondent maintains that it acted appropriately upon receipt of the applicant’s resignation. Mr Hughessought discussions with the applicant, and when a meeting set up for this purpose did not eventuate other staff members whowere colleagues of the applicant visited her to discuss her resignation. Further, the respondent maintains that at the end of2001 Mr Hughes actively dissuaded the applicant from seeking or accepting alternative employment at other schools. Whenthe applicant again resigned in March 2002 the respondent formed the view that given the circumstances of this particularresignation there was no prospect of persuading the applicant to change her mind.

82 The respondent maintains that the incident in the staff room involving Mr Devine in September 2001 did not constitute a threatto the applicant. The respondent maintains that once Mr Clucas became aware of the incident he correctly formed the view thatthere was no cause for any follow up action to be undertaken. In relation to the applicant’s claim that she was blamed for MrDevine’s dismissal because the respondent involved the applicant in the process relating to Mr Devine’s dismissal, therespondent maintains that the applicant misconceived the impact on her of the events surrounding Mr Devine’s dismissal.

83 The applicant relies on the respondent’s inability to deal with rumours in the community that certain persons were “out to gether”. The respondent maintains that Mr Hughes behaved appropriately towards the applicant regarding this issue. He gave theapplicant sufficient support once he became aware of these rumours and he reassured the applicant that her job was not injeopardy.

84 The respondent maintains that the applicant’s assertion that she was to be replaced by a person appointed to the second DAPPposition at the School has no substance. The applicant also complained that she was not given appropriate equipment oncommencement of her DAPP role in 2002. The respondent maintains that once Mr Hughes was made aware of the problemsrelating to the equipment required by the applicant this matter was addressed expeditiously.

85 In summary, the respondent argues that the respondent did not breach a fundamental term of its contract of employment withthe applicant and there is no substance to the applicant’s claim that the respondent behaved in such a way as to give theapplicant no choice but to resign.

Findings and ConclusionsCredibility

86 I carefully observed all of the witnesses whilst they gave evidence.87 The applicant gave evidence that was emphatic and very detailed and she tendered a number of exhibits in support of her

evidence. Even though the applicant gave her evidence in this way I have difficulty in accepting the applicant’s evidence inrelation to a number of significant events because the weight of evidence given by other witnesses in these proceedings wasagainst the evidence given by the applicant. The applicant summonsed a number of witnesses in support of her claim, andmuch of the evidence given by these witnesses in relation to a number of significant issues contradicted her evidence.


88 Even though the applicant had a very clear recollection of the incident involving Mr Devine in September 2001 in the Schoolstaff room, her version of events was substantially different to the evidence given by at least three other witnesses, all of whomthe applicant called in support of her case. In relation to this particular incident I prefer the evidence of Ms Mills and MsGrime. They gave their evidence concerning this incident clearly and deliberately and their explanations of the eventssurrounding this incident were plausible and consistent particularly when taking into account the staff room layout as detailedin Exhibit A25. Further, Ms Mills and Ms Grime closely corroborated each other’s recollection about this incident. I wasconcerned by the evidence given by Mr Devine about this incident. He gave his evidence in a hesitant manner and his evidencewas at odds with the evidence of Ms Mills and Ms Grime relating to whether or not he was using a knife at the time of thisincident. Further, some of the evidence he gave about his classroom altercation with the applicant was inconsistent with hiswritten documentation about this incident which was tendered during the hearing (Exhibit A13). However, even though I havedoubts about some of Mr Devine’s evidence in my view his evidence is not critical to my findings in this case.

89 In relation to the evidence given by other witnesses during these proceedings in my view the evidence was given honestly andto the best of their recollection. I therefore accept their evidence.

90 As the weight of evidence given by a number of witnesses in these proceedings relating to significant events was against theevidence given by the applicant, where there is an inconsistency in the evidence I prefer the evidence given by all witnesses,except Mr Devine, in preference to the evidence give by the applicant.

91 In relation to an unfair dismissal claim brought pursuant to s.29(1)(b)(i) of the Act, it is incumbent upon an applicant, on thebalance of probabilities, to demonstrate that he or she has been dismissed by the employer to attract the Commission’sjurisdiction.

92 A resignation can constitute a dismissal for the purposes of the Act but whether or not a particular resignation will do sodepends upon the circumstance of each case. The relevant law to be applied in this matter was set out by Beech, SC in GrantRaymond Lukies v AlintaGas Networks Pty Ltd [2002] 82 WAIG 2217 at 2220—

“The Industrial Relations Commission of South Australia in Lucky “S” Fishing Pty Ltd v Jex (1997) 75 IR 158 at164 also considered the decision of the Court of Appeal of New Zealand [Auckland Shop Employees’ Union vWoolworth’s (NZ) Ltd (1985) 2 NZLR 372]. It noted that the Court of Appeal stated that there has been a modification ofthe test in the in the Western Excavating (ECC) Ltd v Sharp case (1978) ICR 221 at 226 which stated that if the employeris guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that theemployer no longer intends to be bound by one or more of the essential terms of the contract, then the employee isentitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract byreason of the employer’s conduct. He is constructively dismissed. The Court of Appeal suggested that in constructivedismissal cases the relevant test is whether the conduct complained of is calculated or likely to seriously damage therelationship of confidence and trust between the parties and is such that the employee cannot be expected to put up withit.”

93 Taking into account my views on witness credit I make the following findings.94 When applying the test outlined above to the facts of this case I find that the applicant was not constructively dismissed. In my

view the respondent did not act in such a way which constituted conduct calculated or likely to seriously damage therelationship of confidence and trust between the parties such that the applicant could not be expected to put up with it. I findthat the applicant brought the contract of employment to an end of her own volition.

95 The applicant commenced employment with the respondent as a relief teacher in June 1995. In the School years 2000 and2001 the applicant successfully undertook duties as a Primary Program Co-ordinator. In August 2001 the applicant wasselected on merit for the DAPP position with the respondent, which was to commence from 1 January 2002. I find that theapplicant was held in high regard by the School and that as a result of her dedication and efforts she was promoted to thisDAPP position. The applicant remained employed by the respondent until 19 March 2002 when the applicant submitted a letterof resignation giving the respondent ten weeks’ notice of her intention to resign from her DAPP position (Exhibit A22), andshe remained on sick leave throughout her notice period.

96 In my view a number of incidents occurred towards the end of 2001 which affected the applicant’s ability to undertake anongoing role at the School. As a result of the impact of these events the applicant became unwell and was unable to continue inher DAPP role at the School in early 2002. Even though these incidents may have had a bearing on the applicant’s health it ismy view that the incidents were not part of a deliberate strategy on the part of the respondent which left the applicant with noalternative but to resign.

97 The first incident that the applicant relies on in support of her claim that the respondent did not give her sufficient support andneglected its duty towards her was the incident in September 2001 in the School’s staff room involving Mr Devine. Thisincident appeared to be the catalyst for the commencement in the deterioration of the applicant’s health, and the reason for theapplicant seeking out employment with other schools towards the end of 2001.

98 In August 2001 the applicant was asked by Mr Hughes to inform Mr Devine that he was not to approach two students who hadcancer about distributing health related information to them. I have already stated that I accept Ms Mill’s and Ms Grime’srecollection of the events relating to this incident in preference to the applicant’s recollection. I find, on the basis of theirevidence that when the applicant approached Mr Devine to discuss this issue in the School staff room, even though theapplicant maintains Mr Devine threw a knife towards her, that this did not occur. It is my view that subsequent to the applicantrelaying Mr Hughes’ position on this matter to Mr Devine, Mr Devine reacted angrily and threw the knife that he was using tocut up his lunch, into the sink. In my view there was no danger to the applicant by Mr Devine throwing the knife into the sinkin the way he did. I find that the applicant was some distance away from Mr Devine when he threw the knife into the sink.Whilst the applicant may have felt threatened by Mr Devine’s behaviour at the time of the incident, in my view this event wasnot as serious as the applicant claimed. I accept Ms Grime’s evidence that if it was serious the applicant would have followedthe issue up as she held a senior position at the School. I also find that the applicant lacked judgement in raising this issue withMr Devine in the staff room in the way she did. I accept Mr Devine’s evidence that he was upset that the applicant raised thisissue in the staff room whilst a number of other staff members were present.

99 I accept that the applicant raised her concerns about Mr Devine’s actions in the staff room with Mr Clucas a few days after theincident. I find that it was appropriate for Mr Clucas not to take this matter any further on the basis that the applicant had askedthat it not be raised with Mr Hughes and that no other staff member had raised this issue with him.

100 Subsequent to this incident the applicant became concerned about other issues involving Mr Devine. On or about 23 November2001 Mr Devine had a discussion with the applicant in her classroom about a student with behaviour problems. The applicantmaintains that Mr Devine became upset during this discussion and scratched her arm when he snatched paperwork from theapplicant’s hand. I accept Mr Clucas’ evidence that the applicant raised this issue with him and that he was in the process ofinvestigating this issue at the time that disciplinary proceedings were instituted by the School against Mr Devine, thus there


was no opportunity for him to pursue this issue with Mr Devine. However, in my view this incident was taken out of contextby the applicant as there was no evidence given in the proceedings that the applicant suffered a significant injury as a result ofthis incident. Further, the applicant later conceded she could have handled this situation more appropriately. This isdemonstrated by the applicant’s comments in a letter to Mr Hughes dated 25 February 2002 (Exhibit A20).

101 In late 2001 the applicant became anxious and worried when she believed she was being blamed by staff and communitymembers for Mr Devine’s dismissal. In my view there is no substance to the applicant holding this view. It was appropriate forthe respondent to involve the applicant in the initial disciplinary meeting concerning Mr Devine as this meeting related to theapplicant investigating the events surrounding Mr Devine’s unsolicited distribution of health promotional material. Eventhough the applicant attended this initial disciplinary meeting in my view this attendance did not implicate the applicant in MrDevine’s dismissal. Further, apart from a reference to rumours that people were “out to get her” no evidence was given duringthe proceedings to support the applicant’s contention that she was being blamed for Mr Devine’s dismissal. In the event it wasMr Hughes who effected Mr Devine’s termination after forming the view that it was inappropriate that Mr Devine’s contract ofemployment should be continued. The evidence was clear that the applicant was never involved in making decisions about MrDevine’s termination nor was she directly involved in effecting his termination. Thus, I find there is no basis to the applicant’sview that she was being blamed by some of the School’s staff and community members for Mr Devine’s dismissal.

102 The applicant maintained that the respondent failed to adequately deal with rumours relating to various persons who were outto get her and Mr Hughes because of Mr Devine’s termination. Apart from hearsay evidence, there was nothing put before theCommission at the hearing to confirm that people were ‘out to get’ the applicant. I accept the respondent’s evidence that onceMr Hughes became aware of these rumours he attempted to reassure the applicant that there was no substance to the rumoursand he told the applicant that he would deal with anything that may arise in relation to the rumours. I accept Mr Hughes’evidence that he told the applicant that neither his nor the applicant’s jobs were under threat as both he and the applicant hadthe confidence of the School’s governing council and the applicant was reassured of this. I also accept Mr Hughes’ view thatthere was little he could do to deal with these threats as the threats were indirect and not specific.

103 I do not accept the applicant’s argument that it was the School’s intention to have Ms Grime take over her DAPP position. Therespondent appointed Ms Grime to a second DAPP position in October 2001. It is clear that the School made a decision toappoint an additional DAPP position more quickly than originally anticipated. The applicant’s own evidence demonstrates thatshe was consulted about the decision made by Mr Hughes in Term 3, 2001 to appoint Ms Grime to the other DAPP position.The applicant’s evidence also confirms that as DAPPs both she and Ms Grime had responsibility for different areas. Thus, Ifind no substance to the applicant’s allegation that the respondent tried to withdraw her DAPP position from her. Further, theapplicant was not able to corroborate her assertions that a number of her normal DAPP duties and responsibilities werewithdrawn from her subsequent to her taking up the DAPP appointment. I accept the respondent’s evidence that in 2002 theapplicant was expected to undertake the normal DAPP duties expected of her.

104 I accept the respondent’s position relating to the delay in having the applicant’s office equipment available to her at thecommencement of 2002. It was clear that the applicant’s DAPP position was a new appointment and it is not surprising thatsome time would be required to ensure that all of the required necessary equipment was available to the applicant at thecommencement of the school year. I accept Mr Hughes’ evidence that once this issue came to his attention he dealt with thematter expeditiously.

105 It was not in issue that the applicant tendered her resignation on 19 March 2002 and that Mr Hughes accepted her resignationby letter dated 28 March 2002. The applicant maintains that the respondent should have given her greater assistance during hertime of illness in early 2002 and should not have accepted her resignation. It is my view that the respondent acted appropriatelyin exploring the reasons for the applicant’s termination subsequent to receiving the applicant’s letter of resignation on 19 April2002. The applicant had resigned previously towards the end of 2001 and when the applicant sought out alternativeemployment, the respondent had gone to efforts to dissuade the applicant from taking up an alternative position. I do notbelieve it was incumbent upon the respondent in March 2002 to refuse to accept the applicant’s resignation. It is clear that MrHughes was concerned about the applicant’s resignation as prior to the respondent accepting the applicant’s resignation inMarch 2002, and at Mr Hughes’ initiative, both Ms Lee and Ms Wahl visited the applicant to ascertain the reasons for theapplicant’s termination and to encourage her to return to work and to see if the applicant required any assistance. In my viewthese enquiries demonstrated that the respondent was concerned about the applicant’s decision to resign. The applicant couldhave reconsidered her decision to resign subsequent to these visits taking place as the School did not immediately accept herresignation, but she chose not to.

106 I do not accept the applicant’s assertion that the respondent tried to demote the applicant. Even thought Ms Lee and Ms Wahlencouraged the applicant to return to work after she resigned their comments could not be seen as telling the applicant that shehad been demoted to a classroom teacher position. In any event, the applicant relies on approaches made to her in relation tothis issue after she had tendered her resignation.

107 In all of the circumstances it is my view that the applicant has not made out a case demonstrating that the actions of therespondent were such that she had no alternative but to resign. It is my view that the applicant resigned of her own volition,thus there was no constructive dismissal. Therefore there is no jurisdiction for the Commission to deal with this claim.

108 I am concerned about the number of witnesses summonsed by the applicant to give evidence in support of her case. I am awarethat some of the summonsed witnesses waited for two days to give evidence, but were not called by the applicant. I am alsoaware that some of these witnesses lost wages as a result of being summonsed to attend the hearing. In the circumstances Igrant liberty to apply, up to a period of 28 days from the date of this order, to the witnesses summonsed to the hearing, but whowere not called, to put submissions to the Commission in relation to costs.

109 An Order will now issue dismissing this application._________


PARTIES KATHLEEN GROSVENOR, APPLICANTv.JOHN SEPTIMUS ROE ANGLICAN COMMUNITY SCHOOL (A SCHOOL OF THE ANGLICANSCHOOL’S COMMISSION), RESPONDENT

CORAM COMMISSIONER J L HARRISONDATE OF ORDER MONDAY, 30 JUNE 2003FILE NO/S. APPLICATION 638 OF 2002CITATION NO. 2003 WAIRC 08578


_________________________________________________________________________________________________________

Result Application alleging unfair dismissal dismissed_________________________________________________________________________________________________________

OrderHAVING HEARD Ms K Grosvenor on her own behalf and Mr R Gifford as agent on behalf of the respondent, the Commission,pursuant to the powers conferred on it under the Industrial Relations Act, 1979, hereby orders—

THAT the application be and is hereby dismissed.(Sgd.) J. L. HARRISON,


____________________


PARTIES ROBERT WILLIAM HARNETT, APPLICANTv.ECONOMIC COMMERCIAL CLEAN RWH, RESPONDENT

CORAM COMMISSIONER S J KENNERDATE THURSDAY, 17 APRIL 2003FILE NO/S. APPLICATION 249 OF 2003CITATION NO. 2003 WAIRC 08354_________________________________________________________________________________________________________

Catchwords Harsh, oppressive and unfair dismissal – Extension of time for application to be referred toCommission – Application referred outside of 28 day time limit –Relevant principles to be applied –Commission satisfied applying principles that discretion should be exercised – Extension of time toaccept referral granted – Industrial Relations Act 1979 ss 29(1)(b)(i),(2)&(3)

Result Order issuedRepresentationApplicant Mr R Harnett on his own behalfRespondent Mr D Jones_________________________________________________________________________________________________________


1. The Commission has before it application 249 of 2003 by Robert William Harnett against the respondent EconomicCommercial Clean. The allegation made by the applicant is that on or about 26 November 2002 he was unfairly dismissedby the respondent for what is alleged to have been theft.

2. The application was filed on 27 February 2003 and, self-evidently, is some three months out of time for the purposes ofthe Commission’s jurisdiction to entertain the claim, which in these matters must be brought within 28 days of the date oftermination of employment. The Commission, of course, has a discretion pursuant to s 29(3) of the Industrial RelationsAct 1979 (“the Act”) to accept a referral by an employee under s 29(1)(b)(i) that is out of time, if the Commissionconsiders that it would be unfair not to do so. That is a discretionary judgment and in relation to the relevant principles tobe applied I refer to the decision of the Commission as presently constituted in the matter of Azzalini v Perth InflightCatering (2002) 82 WAIG 2992, in particular my observations at para 28 of that judgment as to the relevant principles.

3. The applicant has given evidence in this matter, albeit briefly, as is the nature of applications of this kind. His complaintessentially is that on a date which he could not identify, but it appears about one week or thereabouts prior to the date oftermination of the employment, he was attending cleaning duties at the Methodist Ladies’ College. He told theCommission in evidence that during the course of those duties he found what appeared to be an opened and partiallycomplete box of chocolates. He told the Commission in evidence that he removed those chocolates, believing that theywere discarded.

4. Subsequently that matter came to the attention it seems, of the respondent, no doubt through the teacher, as theCommission understands it. There is also evidence before the Commission that when the matter did come to the attentionof the teacher Mr Harnett told the Commission that he explained to the teacher that he would replace the goodsconcerned, and wrote a letter subsequently, which was tendered as exhibit A1, intended to be to the respondent, inparticular, as the Commission understands it, Mr Linfoot, who appears from the application to be the managing director.In this letter the applicant explained his position, denying that he stole the goods concerned, admitted to an appalling lackof judgment and referred to an offer to replace the goods.

5. Mr Harnett also says that his cleaning record with the respondent has been very good, and described what theCommission understood to be a rating of four and one half out of five for cleaning performance on his evidence.

6. The reason Mr Harnett has given for not filing his application within time is, in essence, his state in being accused of theftfor what he considered to be not theft as a matter of law and, secondly, his complete ignorance of any remedy that he maybe able to take as against the respondent in relation to his complaint of unfair dismissal. His evidence was that he did nottell anyone about the incident for some 13 weeks in relation to the accusation of theft, and when he did he was advisedthat he did have a remedy and he told the Commission that he promptly thereafter commenced these proceedings. Whenhe sought to do so he was informed of the requirement imposed by the Act to file within 28 days and, given his claim wasoutside of that time, he would need to persuade the Commission that it ought to be received out of time.

7. The respondent simply says that when the matter ultimately is heard at trial that, on the evidence, in effect, it regards thematter as a clear cut case and, in that respect, tendered in evidence by the respondent were the respondent’s policies andalso copies of various documents, including a police certificate in respect of the applicant.


8. The respondent also, through Mr Jones, appeared to confirm the applicant’s evidence that he was dismissed over thetelephone by the respondent’s area manager, and it would appear, on what little is before the Commission at this stage,that there was little or no investigation into the circumstances of the alleged theft and, moreover, it appears that theapplicant was given no real opportunity of explaining his position prior to his dismissal.

9. I note the applicant’s evidence, however, that he did endeavour to explain his position after his dismissal, as contained inexhibit A1, and in a discussion which he said he had with Mr Linfoot who, of course, is not here today to testify inrelation to that matter.

10. I turn to consider the relevant factors as considered by the Commission as presently constituted in Azzalini. In relation tothe length of delay, there obviously is a considerable delay between the date of the termination of employment and whenthese proceedings were commenced by application, that being on 27 February 2003, so in my view that factor is asignificant factor, as against the applicant.

11. In terms of the applicant’s explanation for the delay I accept on his evidence that he was profoundly, it seemed on theevidence, disturbed by the allegation that he had committed theft, and I accept his evidence that he did not tell anyoneabout that for some considerable period of time until, it seems, at least some 13 weeks or thereabouts after the terminationof the employment. On that event it seems through persons unidentified, possibly a friend of the applicant, the applicantwas informed that there was an ability to challenge that decision of the employer in this Commission, and his evidencewas that he promptly thereafter sought to commence these proceedings.

12. Thirdly, in terms of the steps taken, if any, by the applicant to evidence non-acceptance of the termination of employmentand that it would be contested. It is of note that immediately after the dismissal the applicant wrote the letter, which isexhibit A1, to explain his position. It seems to me that whilst he was not foreshadowing a contesting of the dismissal, itcertainly was, at first blush at least, an attempt to explain his position, which opportunity it appeared on the evidence thusfar at least, he had not been given prior to his dismissal.

13. In terms of the merits of the substantive application, the test is whether there is an arguable case. The Commission is notat this stage determining in any sense the ultimate merits of the matter, simply whether, on what evidence is before it atthis point, there is an arguable case, and in my view, on the evidence, there is, and I say no more than that at this stage.

14. Finally, in relation to whether there would be any prejudice to the respondent in granting the application, it seems fromwhat is before the Commission there would be nothing more than the usual prejudice of having to defend the matter.

15. Having concluded that the applicant has, at least in my view, an arguable case, and having regard to the explanation forthe delay, albeit the delay is substantial in my view, I am prepared to exercise my discretion in the circumstances toextend time to accept the application out of time, and therefore there will be an order that the application be accepted outof time and, secondly, the matter will be referred to a Deputy Registrar for conciliation pursuant to s 32 of the Act in duecourse.

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PARTIES ROBERT WILLIAM HARNETT, APPLICANTv.ECONOMIC COMMERCIAL CLEAN RWH, RESPONDENT


Result Extension of time grantedRepresentationApplicant Mr R Harnett on his own behalfRespondent Mr D Jones_________________________________________________________________________________________________________

OrderHAVING heard Mr R Harnett on his own behalf and Mr D Jones on behalf of the respondent the Commission, pursuant to thepowers conferred on it under the Industrial Relations Act, 1979 hereby orders—

THAT the referral of the herein application be and is hereby accepted out of time.(Sgd.) S. J. KENNER,


____________________


PARTIES CLAYTON MATTHEW KOSOVICH, APPLICANTv.NEIL PATRICK DUNNE & DEBBIE ANNE DUNNE TRADING AS D & M WASTE SERVICES,RESPONDENTS

CORAM COMMISSIONER P E SCOTTDATE OF ORDER TUESDAY, 3 JUNE 2003FILE NO. APPLICATION 80 OF 2003CITATION NO. 2003 WAIRC 08423


_________________________________________________________________________________________________________

Result Dismissal found to be unfairRepresentationApplicant Mr B StokesRespondents Ms M Jones (of Counsel)_________________________________________________________________________________________________________

Reasons for DecisionExtempore

1 The applicant claims that he was unfairly dismissed from his employment with the respondents. The remedy he seeks is anamount of $2125.84 being loss of earnings, and he seeks compensation for injury on account of hurt and humiliation said to becaused by the dismissal. The respondents’ evidence is that the intention was not to dismiss the applicant, but to suspend him toenable him to deal with ongoing illness which the respondents say was affecting the applicant’s overall health and his ability toperform the job. I have heard the evidence of the applicant and of Christine Kosovich, the applicant’s wife. I have also heardevidence from Neil Patrick Dunne, who with his wife, Debbie Anne Dunne, are the respondents.

2 Generally speaking, I accept the evidence of the applicant and of Mrs Kosovich, where it conflicts with the evidence of MrDunne, up to the point of 17 January 2003 and I will make further comments in respect of the evidence as to what occurred onthat date later in these reasons. Having considered the evidence, I make the following findings.

3 The respondents conduct a business which, under contracts with local government authorities, collects and disposes of wasteput on road side verges from households within those local government areas. The applicant was engaged by the respondentsin January 2002 to undertake that work. He did so as part of a team, usually of three workers, who would collect the rubbishusing front-end loaders and trucks, and also by physically raking and lifting the waste. Other than driving the truck or theloader, the work was of a physically demanding nature in raking and lifting, and moving in and out of the vehicles.

4 The respondents acknowledge that the applicant was a good worker. The applicant says that he was diligent and hard working,however the applicant suffers from irritable bowel syndrome and he says that when this flares up, it causes nausea, vomiting,diarrhoea and headaches. His evidence is that notwithstanding these flare ups he would continue to attend for work andperform work other than on a limited number of occasions when he was not able to do so. The evidence is that in theapproximately 11 months of his employment with the respondents he had five days paid sick leave and also had some otherdays off without pay. He says that some of those days were at his employer’s convenience and some were for his ownconvenience.

5 The evidence is that during the course of work or at the commencement of the work day, the applicant would often vomit.According to him, he would occasionally need access to a toilet at reasonably short notice. Due to the effects of the illness,from time to time, he would have headaches and have difficulty sleeping. The evidence is that he took a towel to work withhim on which he would rest or sleep on the side of the road during work breaks for lunch or smokos. Otherwise the applicantsays that he performed his work well and that his illness did not impact upon the respondents’ productivity and ability to meettheir obligations under their contracts.

6 On the other hand, Mr Dunne says that the applicant’s illness caused remarks to be made by other workers about the effect onthe workload and productivity. I take the comments also to indicate the fellow workers’ concern about the applicant’scondition, both from the workers’ perspective and from the applicant’s perspective. I note the graphs presented by therespondents in evidence (Exhibit E). I must say, though, that that information covers two weeks only, of work in a particulararea, at different times of the year. There would clearly be differing conditions, different people on the route concerned, and itis very difficult to conclude from those graphs, in isolation, that the applicant’s presence in a team working in that particulararea caused a significant deficit in tonnage compared to hours worked.

7 The applicant has given evidence that he takes medication to deal with his illness, although it is clear that that medication is notentirely successful in relieving his symptoms or the illness itself. He has given evidence that immediately prior to the threeweek Christmas close down, he was to commence a 28 day course of new medication. This was recommended by his doctor,with a view to seeing if his condition was not irritable bowel syndrome but some other problem. Notwithstanding someconflict in his evidence as to when he commenced taking that medication, I conclude that the applicant actually commencedthat 28 day course of medication immediately prior to the three week Christmas close down, and, of course, at the expiration ofthat three week period he had not finished that medication. That medication caused his symptoms to be considerably worse,and he was suffering from increased nausea, vomiting, headaches, sleeplessness and diarrhoea. However, he returned to workat the end of the Christmas close down, in the week commencing Monday, 6 January 2003, and he worked that week. Heattended for work on the Monday of the next week.

8 I pause here to note that on the previous Friday, he had left work early by arrangement with his supervisor to attend achiropractor’s appointment.

9 As I have already noted, he attended for work on the Monday. On the Tuesday, either he or his wife rang Mr Dunne, prior tohis shift starting, and indicated that he was unwell. The intention was that he would return to work the next day, having seenhis doctor that afternoon. However, on the Tuesday night the applicant suffered considerably worse symptoms, he did not sleepwell and on the Wednesday morning he asked his wife, Christine, to ring the employer and indicate that he would not be in thatday. She did so and was asked by Mr Dunne whether they had cleared their letterbox the previous day. She said that she hadnot done so, the telephone conversation ended and she went to check the letterbox.

10 According to Mr Dunne’s evidence, on Tuesday 14 January 2003, having spoken to the applicant, he was concerned about theapplicant’s health, and I accept that his concern was genuine. I accept too, though, that he was concerned at disruption to theperformance of the applicant’s work and to his business’s contracts. I find that he went to see the applicant but there was noone at home. He went back to the office and drafted a letter. He says that it was his intention in drafting that letter to suspendthe applicant’s employment until the applicant was fit to return to work. If that had been his intention, having discussed thematter with the applicant, it might have been a perfectly reasonable thing to do, in terms of sensitivity to the applicant’scondition and for the interests of his own business. However, he drafted that letter and left it at the applicant’s home, theapplicant not being there when he called back at about 11.00am. As the applicant was not there Mr Dunne left a note on theenvelope to the effect that the applicant should call him. I believe that his intention was that the applicant would call him todiscuss this so-called suspension and what arrangements were to be made. However, the letter he wrote to the applicant, formalparts omitted, reads as follows—

“Due to your ongoing health problems that you had before starting employment with D&M Waste and I rely on you Icannot afford my business to suffer anymore than it has too (sic). I have to think of your fellow workers positions also,who have put up with your illness and carried the extra workload when you are sick or not available to work.


Your and anybody’s health is far more important than working for me and suffering the discomfort you are experiencing.Due to the nature of the position it is not always possible for you to seek the required facilities (wash room etc) to overcome any emergency.Your work is excellent, but your illness needs to be more stable for the job you are employed to carry out.It is with regret to suspend your employment until you have a full clearance from the doctor to return to if a positionbecomes available.Hope to see you fully fit soon.SignedNeil DunneD&M Waste Services

• All your pay will be available on Friday 17th with a week in Lue(sic).”11 I conclude that when the applicant read this letter he was reasonably entitled to assume that it was a letter of dismissal. I say

that on the basis that the letter says that it is a suspension of his employment until he had a full clearance from his doctor toreturn to work, if a position becomes available, and that it referred to all of his pay being available on Friday 17 January20003, with a week’s pay in lieu of notice. If an employer has the right to suspend an employee pursuant to the contract ofemployment, an employer would not necessarily pay the employee all entitlements with a week’s pay in lieu of notice. Further,the employer would not suspend the employment until there is a full clearance from a doctor to return to work, “if a positionbecomes available”. If the employment were truly suspended, then a position would be kept available. I am satisfied and findthat this is a letter of termination of employment and that the applicant was entitled to read it as such.

12 The applicant made a telephone call to the respondents. He did not speak with Mr Dunne but spoke with another employee inthe office. In accordance with the letter prepared on 14 January 2003, he attended on Friday 17 January 2003 to collect his pay.

13 I find that the termination of employment occurred when the applicant received the letter of 14 January 2003 on 15 January2003. Whatever occurred subsequently might have some impact in respect of whether there was any assistance to the applicantin mitigating his loss associated with the termination if it were an unfair dismissal, but it does not affect the dismissal.

14 I find that the dismissal was unfair. The applicant was a diligent employee, he attended work in the face of illness and he was agood worker. He was given no counselling or warning that his illness was causing difficulties for his employer or for hisworkmates. There were comments made to him over time as to his illness, and he had been encouraged to go home, if he wasill, on a number of occasions. If the employer genuinely believed that it was inappropriate for him to be at work while he wasill, the employer had the right to direct him not to attend for work until he was able to furnish proof that he was fit. Theemployer did not do that. The employer did not seek to discuss with the applicant, in a reasonable manner, the applicant’shealth and its impact upon the business, with a view to addressing the problems associated with that. Had the employer soughtto do so prior to issuing the letter of 14 January 2003, there may have been some resolution on the basis that the applicant’sexacerbated symptoms associated with the different medication were soon to be alleviated as he was due to complete thatcourse of medication in the immediate future, if it had not already been finished. There was no discussion as to arrangementswhich might be made for his illness to be better managed, or the effects on the business. I am of the view that the applicantthought that he was doing the right thing by attending for work, notwithstanding that he was ill, and I believe that he gave hisbest endeavours, notwithstanding the difficulties he faced. In those circumstances, the respondents’ decision was prematureand was unfair.

15 As to what occurred on 17 January 2003, there are widely divergent versions of events between the applicant and his wife, andMr Dunne. There are some inconsistencies in Mrs Kosovich’s evidence as there are in the applicant’s evidence, and also in MrDunne’s evidence. However, it is clear that by that time the applicant rightly viewed his employment as having been brought toan end by a dismissal, which he viewed as harsh and unfair, and he had come to collect his pay. I am not satisfied that MrDunne genuinely attempted to offer the applicant his job back or any job. I believe that the circumstances between Mr Dunneand the applicant were tense and aggravated by them both being of different views as to what had occurred and not beingprepared to discuss the matter further. I am not satisfied that any genuine offer was made to the applicant to be reinstated andthat might be on the basis that the applicant had indicated an intention to make a claim against the respondents and instead ofMr Dunne attempting to resolve that matter, he was provoked into anger.

16 To his credit, and in accordance with his obligations to mitigate his loss, the applicant then went out and within two weeks ofthe termination of employment, found other work. However, there has been an ongoing loss to his income.

17 I have also heard evidence from the applicant and from the applicant’s wife as to the applicant’s reaction to the dismissal. Ifind it somewhat difficult to come to a conclusion that the cause for that reaction warrants consideration of compensation forinjury. Clearly, the applicant was unwell, he did not slept well, and he was distressed. I am not sure, and not satisfied on thebalance of probabilities, that the cause of his distress and the assertions by both the applicant’s wife and himself that theapplicant was depressed and suicidal is more than the culmination of his illness and the medication, with the dismissal on topof that, or whether the dismissal should be taken to have the greatest part of the responsibility for that reaction. There was noevidence of a medical nature that could satisfy me that the dismissal was the cause of the strength of his purported reaction. Inany event, his reaction was not so debilitating that it prevented his seeking and finding work within 2 weeks. Soon afterstarting work, his purported depression and suicidal inclinations dissipated. Further, there is a degree of distress associatedwith any dismissal. Accordingly, I am not satisfied that there ought be compensation for injury.

18 In any event, I need to consider the remedy to be applied to the aspect of the dismissal being unfair. I am satisfied from havingheard the evidence, that the relationship between the applicant and Mr Dunne could not reasonably be re-established and giventhe relatively small nature of the respondents’ business and the apparent need for communication between the applicant and MrDunne, I find that that relationship could not reasonably be re-established for the purposes of the applicant returning to work.Accordingly, reinstatement is not practicable.

19 I need to consider the calculations then, for compensation for loss. I intend to reserve my decision in that regard, but note thatthe claim includes the pay period of 15 to 21 January 2003. That period is covered by the pay in lieu of notice received by theapplicant. Accordingly, it is not my intention to include within any compensation to be awarded any amount in regard to thatweek as there is no loss of income incurred for that week.

20 I need to give consideration to the calculation in respect of the remainder of the weeks claimed and whether or not I ought toorder compensation to the applicant for the entire period of the claim, and one of the matters which I will give consideration tois the applicant’s employment history.

_________




CORAM COMMISSIONER P E SCOTTDATE TUESDAY, 3 JUNE 2003FILE NO. APPLICATION 80 OF 2003CITATION NO. 2003 WAIRC 08424_________________________________________________________________________________________________________

Result Compensation awarded for unfair dismissalRepresentationApplicant Mr B StokesRespondents Ms M Jones (of Counsel)_________________________________________________________________________________________________________

SupplementaryReasons for Decision

1 On 15 May 2003 at the conclusion of the hearing of this matter, I gave my reasons for decision in respect of whether or not thedismissal had been harsh, oppressive or unfair, and concluded that it had been unfair, also deciding that reinstatement wasimpracticable and that the claim for compensation for injury was not made out, and I reserved my decision in respect of theamount of compensation to be awarded for loss. I had decided that there ought to be no compensation for injury for a numberof reasons outlined in that decision.

2 The next issue to be considered is the amount of compensation which ought to be awarded to the applicant on account of theloss occasioned by the unfair dismissal. The applicant seeks compensation for the loss of wages arising until he commencedalternate employment and then the difference in the rate of pay for the period of the 26 weeks following the dismissal.Therefore, what I need to consider is whether the applicant could have expected to remain in employment for any particularperiod of time, and in this case for the 26 weeks following the termination of employment for which the applicant seekscompensation. The applicant’s employment history is demonstrated in his resume (Exhibit 1). I note that the schedule whichsets out the terms of each job lists only the month of commencement and cessation of each job. This makes a precisecalculation of the length of each job impossible. However, calculated as accurately as possible, within a period of month,(Exhibit 1) indicates that from July 1991, the applicant was employed in 14 jobs; one each of two months, four months, fivemonths, eight months, 10 months, 12 months, 15 months and 23 months; two each of three months and 11 months; and themost recent two jobs, each of seven months, were with the same employer, but in different businesses.

3 I also note that the applicant gave evidence that in the months following the commencement of his employment with therespondents he had applied for a job with a local government authority which would have required far less physicallydemanding work. In addition, he had a reference from GTSA Engineering (Exhibit A) dated 10 November 2001 which relatedto his employment between 11 October 2000 and 7 November 2001. This letter indicates that on 7 November 2001 it wasmutually agreed that his employment would end at least in part because of his need to be closer to home to assist his wife withher rehabilitation from illness. Accordingly, the applicant was seeking a job closer to home in the Safety Bay/Rockinghamarea. This letter also noted that he was looking to enhance his office and business skills and to move from physical work to theoffice arena. He has indicated during his evidence that had his employment not been terminated in the circumstances in whichit did, it would have been his intention to seek a less physically demanding job and if Mr Dunne had spoken to him about thedifficulties, he could have looked for another position while he was still employed.

4 In all of those circumstances, I find that it is difficult to conclude that on the balance of probabilities the applicant would havecontinued his employment with the respondents for more than a further 3 months, particularly given the state of his health.

5 Accordingly, any compensation to be awarded to the applicant should be no more than to cover the period of 3 months fromthe date of termination of his employment. This would take it to approximately 11 April 2003 and this would be the mostappropriate in the circumstances.

6 According to the applicant’s schedule of loss of earnings (Exhibit 10), and deducting the amount claimed for the week 15 to21 January 2003, being the week for which the applicant received pay in lieu of notice, I conclude that the appropriate amountof compensation for him is $1,161.92. I intend to award accordingly.

7 The applicant also claims that he is entitled to payment for 1.5 hours when he was absent from work to attend a chiropractorfor an appointment to do with a previous motor vehicle accident. There is no evidence to indicate that there was any agreementthat this time would be taken as sick leave. The applicant and his employer had previously agreed to his taking time for achiropractor’s appointment as leave without pay. Although the Minimum Conditions of Employment Act 1993 imports into thecontract of employment the entitlement to payment on account of absence due to illness or injury, this absence relates to aninjury for which the applicant was involved in a claim associated with an accident. It seems inequitable to me that therespondents should bear the cost of that absence.

8 Further, the applicant, in completing his time sheet, appears not to have claimed for the time that he took for that appointment.I am of the view that he made the claim for the payment partly in the heat of the moment following the discussion on17 January 2003 when he had gone to collect his pay. Accordingly, I would dismiss the application for the payment of1.5 hours for Friday, 10 January 2003.

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CORAM COMMISSIONER P E SCOTTDATE OF ORDER WEDNESDAY, 11 JUNE 2003FILE NO. APPLICATION 80 OF 2003CITATION NO. 2003 WAIRC 08466_________________________________________________________________________________________________________

Result Unfair dismissal found, compensation awarded_________________________________________________________________________________________________________

OrderHAVING heard Mr B Stokes on behalf of the applicant and Ms M Jones (of Counsel) on behalf of the respondents, theCommission, pursuant to the powers conferred under the Industrial Relations Act 1979, hereby—

(1) Declares—(a) THAT the applicant was unfairly dismissed from his employment by the respondents;(b) THAT reinstatement is impracticable;

(2) Orders—(a) THAT the respondents shall pay to the applicant the amount of $1,161.92;(b) THAT the amount referred to in paragraph (2)(a) shall be paid within 7 days of the date of this Order;

and(3) The application be, and is hereby otherwise dismissed.


____________________


PARTIES JESSE LI, APPLICANTv.HAYDAR FAMILY RESTRAUNTS T/A MCDONALDS, RESPONDENT


Catchwords Harsh, oppressive and unfair dismissal – Whether constructive dismissal, resignation or abandonmentof employment – Intent of parties considered – No dismissal at the initiative of the employer –Commission lacks jurisdiction - Application dismissed – Industrial Relations Act 1979 ss 23 &29(1)(b)(i)

Result Order issuedRepresentationApplicant Mr D Li as agentRespondent Mr C Taylor of counsel_________________________________________________________________________________________________________


1 This application is brought by Jesse Li against Haydar Family Restaurants trading as McDonalds Dianella. The applicationalleges that on or about 3 August 2002 the applicant was harshly, oppressively and unfairly dismissed from his employment asa front counter operator with the respondent company which, self-evidently, is a fast food restaurant. The applicant, it iscommon ground, was employed as a casual employee. He worked between four to six hours per week and was paid weekly, itseems.

2 The evidence in this matter in summary form is as follows. Mr Li junior, the applicant, commenced employment with therespondent, some five or six weeks prior to the events in question on 3 August 2002. He testified that at the time hecommenced employment he undertook a period of training for about two to three weeks and was rostered to work shifts at leasttwo weeks in advance, on a regular basis.

3 As I have observed, the applicant was employed in counter service involving serving customers, taking orders and cleaning therestaurant dining room. The relevant events which are controversial in this matter occurred, it seems, on or about 3 August2002. The applicant testified that on that day he worked his ordinary shift. Towards the end of that shift he was approached bythe respondent’s manager and was requested to see her in the office at the restaurant.


4 Miss Hendry, the manager, then began to discuss with the applicant some allegations that she had received from otheremployees, it would appear some three employees, to the effect that the applicant had, on an occasion it seems, at least a weekor so prior, unlawfully and improperly removed food from the respondent’s premises contrary to its various policies, all ofwhich were in evidence.

5 The evidence was, through the applicant, that Miss Hendry said to him that she had statements from three other employees tothis effect and that she also had a video, according to the applicant. The applicant’s evidence was that when these matters wereput to him he was speechless and he did not accept the allegations put against him. It is fair to observe, on the evidence, thatthe applicant said that at the end of the meeting he was quite upset with what had occurred. The evidence then was thatsubsequently the applicant was to be collected by his parents that afternoon. He spoke to his father, Mr Li, who representedhim in these proceedings about what had just transpired in the office of the respondent. It is also the case that subsequent tothat the applicant’s father, Mr Li, entered the restaurant and also endeavoured to speak with Miss Hendry about the allegationsagainst his son.

6 I should observe that at all times the applicant denied that at any stage he stole or otherwise unlawfully or improperly removedfood from the respondent’s premises contrary to its various policies. The applicant also denied that as a consequence of thatmeeting he resigned his employment and maintained, in his view, that as a consequence of that meeting he was effectivelydismissed.

7 The applicant was cross-examined in relation to that particular meeting with Miss Hendry. He accepted, during the course ofthat evidence, that there was no mention of dismissal or resignation, either by Miss Hendry or by him during the course of themeeting. He also said, in response to questions put to him, that he left the employment because he did not want to have to faceup to having to go back to the respondent’s employ on his next rostered shift.

8 The applicant reaffirmed that he did not say that he resigned, and nor did Miss Hendry indicate that he was dismissed, althoughI observe that the applicant did say in his evidence that by that stage he had formed the view that he did not want to return tothe respondent’s premises.

9 The manager, Miss Hendry, was also called to testify. She has been employed as the store manager at Dianella since aboutAugust 2002 and has been employed by the McDonald’s operation for some years prior to that. She gave evidence generallyabout the orientation process that all employees undertake when they commence employment with the respondent and, as Ihave observed, already in evidence as exhibits R1, R2 and R3 are the various orientation and policy documents which aregiven to employees as a consequence of that process.

10 Miss Hendry testified that on or about 30 July 2002 it came to her attention from at least two other employees that there was anallegation, and I put it no higher, that the applicant removed food from the respondent’s premises without paying for it,contrary to the respondent’s policies. Miss Hendry testified that she requested those persons to record their observations inwriting, which they duly did, and a copy of those letters were tendered as exhibit R4. However, the Commission notes thatthose documents were tendered only for the purposes of establishing that those documents were before Miss Hendry in themeeting on 3 August 2002, and for no other purpose, given that they were manifestly hearsay, unless the witnesses were calledto testify.

11 Miss Hendry’s evidence was that she discussed at the end of the applicant’s shift the matters which had been brought to herattention. She said that she took the applicant into the office and, contrary to what the applicant thought had occurred, did notlock the office door and the lighting in the office was good.

12 Miss Hendry said that she had reports from other staff members as to the allegations of removal of food and she was obliged toput those allegations to the applicant and to ask for his response. Miss Hendry said that the applicant denied that he took anyfood unlawfully or improperly. Miss Hendry further testified that during the course of that meeting she needed to investigatethese matters and, as a consequence of what had been discussed, would further raise the issues with the other employees whohad made the allegations in the first place, it seems.

13 Miss Hendry then testified that towards the end of the meeting, whilst accepting the applicant was upset by the discussionwhich had taken place, there was some discussion between her and the applicant regarding his next rostered shift and to theeffect that the applicant had another commitment which precluded him from working his shift and he felt that the requirementto make arrangements for his own replacement was unfair. Her evidence was that as a result of this discussion the applicant, ineffect, terminated his employment with the respondent and said he did not want to return to work any more shifts. According toMiss Hendry, the meeting was fairly short, and lasted about ten minutes.

14 Her evidence also was that after the applicant left the meeting, shortly thereafter the applicant’s father, Mr Li, came into therestaurant and raised a number of issues with her and became agitated, on Miss Hendry’s evidence, and in particular wasconcerned about the allegations regarding his son and demanded that evidence be produced in relation to those allegations, inparticular the existence of any video tape evidence.

15 Subsequently, it would appear on the evidence, and I do not need to go to this in any detail, the applicant did not return to therespondent’s premises. There were some attempts it seems on the evidence between the respondent’s management, to meetwith both Mr Li and his son. There were telephone discussions, some of which appear to have been, on the evidence, quiteheated. Nonetheless, it appears there was no meeting that subsequently took place that could provide any real basis to resolvethe issue by agreement between the parties.

16 The concern of the applicant is, in this matter, that his reputation has been damaged and Mr Li, representing the applicant, saidin his submissions that he was concerned that these unfounded allegations had been made against his son and he was seekingan apology from the respondent.

17 The respondent, in short, denies that it dismissed the applicant in any event to attract the Commission’s jurisdiction and, evenif it did for reasons set out in the written outline of submissions provided to the Commission by counsel for the respondent, anydismissal so effected was not harsh, oppressive or unfair.

18 Having set out in summary form the evidence, I turn now to my brief findings. I accept, on the evidence, that a meeting tookplace on 3 August 2002 between the applicant and Miss Hendry, the store manager of the respondent. At that meeting in theoffice at the Dianella restaurant premises, Miss Hendry raised with the applicant that she had brought to her attentionallegations by co-employees of the applicant that he had removed food from the respondent’s premises at some timepreviously, contrary to the respondent’s policies and procedures. Again I emphasise, and I find, that Miss Hendry was puttingto the applicant allegations that had been raised with her, and I do not find that Miss Hendry herself accused the applicant oftheft or removal of food contrary to the respondent’s policies, and in my opinion there is an important distinction.

19 Once those allegations were put and, in my view, there was an obligation on the respondent to do so, given that the allegationshad been made by other employees, it appears on the evidence, and I find, that the applicant became quite upset and emotionalas a result of the discussion with Miss Hendry.


20 In my opinion, based upon that evidence, it is more than likely the case that the applicant had a degree of misunderstanding asto the issues that were being raised by Miss Hendry. It would seem on the evidence that he took what was said to him as anaccusation or, effectively, a finding of guilt in relation to theft of food from the respondent. However, in my opinion, theevidence does not bear that out.

21 I am satisfied that Miss Hendry was doing no more than she was obliged to do and that is raise the allegations with theapplicant, give him an opportunity of commenting and responding to those allegations and then advising him that she wouldneed to take the matter further with those who made the allegations to undertake further investigations.

22 As I have observed on the evidence the applicant was upset and no doubt went to his father shortly thereafter, Mr Li, andcommunicated what had occurred to him earlier that afternoon. I accept on the evidence that whilst the applicant said he had nohesitation in telling his father what had occurred, it may well be the case that during the course of that process there might havebeen a less than clear explanation as to the events that transpired and understandably Mr Li, as the applicant’s father, took itupon himself to take steps in order to make further inquiries about what had occurred in the meeting with Miss Hendry.

23 It is important to note that as a result of the meeting of 3 August, there were only allegations raised by the respondent and I donot accept that any findings can be made, were made, or could be made, as to whether those allegations were properly foundedor not.

24 I also accept on the evidence that as a consequence of the meeting, the applicant, being upset, indicated, as his own evidencemakes clear, that he was of the view that he did not want to return to the respondent in light of what had occurred. In myopinion, that is in fact what did occur that is, that there was no dismissal in my view, as a matter of fact and law, to found thejurisdiction of the Commission.

25 It is trite to observe in this jurisdiction that for an applicant to have his or her claim dealt with, that is, a claim of harsh, unfairor oppressive dismissal, it must be established that the employee was, as a matter of law, dismissed. The relevant principles inrelation to that matter in this jurisdiction are now well settled and I simply refer to the decision of the Industrial Appeal Courtin Attorney General v The Western Australian Prison Officers Union of Workers (1995) 75 WAIG 31, at 66 in that regard,which is to the effect that there must be some action on behalf of the employer which constitutes or ultimately leads to thetermination of the employment; that being a calculated act by the employer to bring the relationship to an end, or such conductwhich makes it simply unbearable for the employee to remain and to have no alternative other than to tender their resignation.

26 I am not persuaded in this matter that the facts as I have found them to be fit either of those indicia. That is, I am not persuadedthat the circumstances of 3 August 2002 were such that the applicant had no alternative but to abandon his employment or toresign, or that the employer had any conscious design or engaged in a course of conduct to force the employee to leave theemployment. It would seem to me that the applicant made this decision based upon his perceptions of the meeting which, as Ihave said, it would seem, constituted a misunderstanding of the events as they occurred.

27 It is clearly the case, on the evidence, that the investigation which the respondent employer was obliged to conduct as a matterof employment law, did not proceed beyond the events of 3 August 2002 for reasons which are manifestly plain on theevidence. Therefore I make no findings, as I have said, about the allegations and it ought be made very clear from theseproceedings that they are only allegations. They have not been established in any way to have been satisfied. The conductalleged not being established, ought not and should never be held against the applicant as a young 15 year old boy, and I makeit plain now that all those associated with this case and they ought to make that very clear to others, that the matter cannot beheld against him in any way, shape or form. If that was to be the case, then that would be a matter of great concern to thisCommission.

28 I am therefore of the view, having regard to all of the evidence, that the applicant has not established the jurisdictionalprerequisite that he has been dismissed. However, for the reasons that I have already expressed in relation to the allegations oftheft or removal of food, those matters, in my opinion, ought well be at an end as of now.

29 On that basis, the application will be dismissed._________


PARTIES JESSE LI, APPLICANTv.HAYDAR FAMILY RESTRAUNTS T/A MCDONALDS, RESPONDENT


Result Application dismissed for want of jurisdictionRepresentationApplicant Mr D Li as agentRespondent Mr C Taylor of counsel_________________________________________________________________________________________________________

OrderHAVING heard Mr D Li as agent on behalf of the applicant and Mr C Taylor of counsel on behalf of the respondent theCommission, pursuant to the powers conferred on it under the Industrial Relations Act, 1979 hereby orders—

THAT the application be and is hereby dismissed for want of jurisdiction.(Sgd.) S. J. KENNER,


____________________



PARTIES THERESA ADELE MILES, APPLICANTv.G K TRIMMERS, RESPONDENT

CORAM SENIOR COMMISSIONER A R BEECHDATE TUESDAY, 24 JUNE 2003FILE NO. APPLICATION 611 OF 2003CITATION NO. 2003 WAIRC 08542_________________________________________________________________________________________________________

Result Application lodged out of time dismissed.RepresentationApplicant Ms T.A. MilesRespondent Mr G. Kellock and with him Mrs J. Kellock_________________________________________________________________________________________________________

Reasons for Decision(Extemporaneous)

1 Ms Miles was dismissed on 4 April 2003 after 1 week’s employment as a sewing machinist. Her claim of unfair dismissal waslodged 7 days outside the required 28 day period following her dismissal. By s.29(3) of the Industrial Relations Act 1979 theCommission may accept her claim if it would be unfair not to do so. The application was listed for hearing to allow Ms Milesand GK Trimmers to put their respective positions to the Commission on that issue. In considering Ms Miles’ application, Ihave concentrated on four particular matters. The first of those matters is the reason why the application was referred to theCommission out of time. I have not found persuasive what Ms Miles has said regarding the reason. Ms Miles stated thatoriginally she was not going to do anything about the dismissal which occurred. That has allowed me to conclude that althoughshe may have objected to her dismissal she did not wish to take the matter any further but rather it has been others who havethought that she should do something about it.

2 I appreciate from her written submission that the $50 filing fee was an issue, although that does not seem to have been thewhole reason.

3 To my mind, whether it would be unfair not to accept her claim of unfair dismissal turns principally upon the issue ofprobation.

4 The fact is that Ms Miles was on probation. The nature of probation is to provide a period of time in which the employee canbe assessed regarding aptitude and capacity to do the work once trained or once partly trained. The submissions made byMs Miles and Mr Kellock together with the documents that have been filed, show that Ms Miles was asked to re-do her workon a significant number of occasions. In my view it is likely that one week may have been sufficient for Mr Kellock with25 years’ experience to assess whether or not Ms Miles’ employment was likely to have worked out.

5 I also take into account that the size of the workforce is nine persons and that it is also important that an assessment be made ofthe ability of the employees to work in a small group. Conflict within the workforce within a business of nine employeeswould therefore be important.

6 I consider that a substantial part of the reason why the dismissal occurred was due to the interaction between Ms Miles and aperson called Lesley. It does also seem to me that the fact that there was some conflict between them is also an indication thatthe workplace might not have been a harmonious workplace in the longer term.

7 In my view, what happened was what really Ms Miles agreed to occur when she signed the contract. That is, either party couldterminate the employment within the probationary period. In my view, if this matter was to go to a formal hearing, theevidence of Ms Miles re-doing her work and of the conflict within the workforce makes it likely that the merit of Ms Miles’claim is not strong.

8 If I also take into account that the respondent was not aware prior to the expiry of the 28 days that Ms Miles intended tochallenge the dismissal, that is also a reason why the claim should not be accepted although I accept that there was noprejudice to the respondent arising from the fact that the application was lodged out of time.

9 The conclusion that I have reached, particularly because the employment was probationary, is that it would not be unfair not toaccept the claim. The decision that I make is that Ms Miles’ application will be dismissed.

10 Ms Miles has confirmed that she is not pursuing the claim that she is entitled to be paid for the remainder of her probationaryperiod.

11 Order accordingly.

_________


PARTIES THERESA ADELE MILES, APPLICANTv.G K TRIMMERS, RESPONDENT

CORAM SENIOR COMMISSIONER A R BEECHDATE WEDNESDAY, 25 JUNE 2003FILE NO. APPLICATION 611 OF 2003CITATION NO. 2003 WAIRC 08543


_________________________________________________________________________________________________________

Result Application lodged out of time dismissed.RepresentationApplicant Ms T.A. MilesRespondent Mr G. Kellock and with him Mrs J. Kellock_________________________________________________________________________________________________________

OrderHAVING HEARD Ms T.A. Miles on her own behalf as the applicant and Mr G. Kellock and with him Mrs J. Kellock on behalf ofthe respondent, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby orders—

THAT the application be hereby dismissed.(Sgd.) A. R. BEECH,

[L.S.] Senior Commissioner.

____________________


PARTIES ASHLEY JOSEPH PECZKA, APPLICANTv.BE & WJ GANGELL, RESPONDENT

CORAM COMMISSIONER J F GREGORDATE WEDNESDAY, 18 JUNE 2003FILE NO. APPLICATION 437 OF 2003CITATION NO. 2003 WAIRC 08490_________________________________________________________________________________________________________

Result DismissedRepresentationApplicant Mr A.J. Peczka appeared on his own behalfRespondent No appearance for the Respondent_________________________________________________________________________________________________________

Catchwords – Unfair dismissal – extension of time – invalid if to punish employerReasons for Decision(Given ex tempore)

1 The Commission has before it an application by Ashley Joseph Peczka (the Applicant) for an order to extend the time in whichto file application No. 437 of 2003 against BE & WJ Gangell (the Respondent). That application being a claim for orderspursuant to section 23A of the Industrial Relations Act 1979 (the Act) arising from what the Applicant says was an unfairdismissal of him by the Respondent on the 7th December 2002.

2 It is clear on the face of the documents on the file and from the evidence from the Applicant that he did not file the applicationuntil 3rd April 2003, four days short of two months after the dismissal took place.

3 Whether or not an extension of time is granted is to be established by application of the principles that have been referred to inthe cases before this Commission and others considering the nature of s.29(1)(b)(i) and s.23A of the Act (Azzalini v PerthInflight Catering 2002 WAIRC 06766). This is an application which moves the Commission to invoke the powers vested in itunder s.29(3) of the Act. By that section the Commission may accept a referral by an employee under s.29(1)(b)(i) that is outof time if the Commission considers it would be unfair not to do so. Subject to s.29(3), s.29(2) requires that a referral be madenot later than 28 days after the date in which the employee’s employment was terminated.

4 It follows that for there to be a right for an employee to file an application under s.29, he/she must have been an employee andhe/she must have been dismissed. It is clear from the submissions which have been received in writing from the Respondentand from the Applicant’s evidence, which I accept in that respect, that he was an employee and he was dismissed, so theconditions precedent to make an application are present. The question is, should the Commission grant an extension to theprescribed 28 days in which to file an application when clearly that time has not been met?

5 The Applicant says the fundamental reason for making this application is that he wants to use it as an example to otheremployers not to do to others what his former employer did to him. That is the fundamental driving motivation.

6 In his evidence the Applicant told the Commission that after dismissal he had not raised the issue of the termination with theemployer. He did see the employer one month after the dismissal took place and when he visited the Respondent on a friendlybasis he says that what he saw then, that is, the Respondent had employed another worker, caused him distress and upset and itis then he became angry about his termination. It was not until that time that he reached that state of mind. This event occurredmore than 28 days after he was dismissed.

7 On the face of it, time limits imposed by the Act in s.29(2) are to be complied with and an Applicant in proceedings such asthese has to establish the circumstances such that the Commission should exercise the discretion to extend time that is vested init in s.29(3). The Commission is only to exercise that discretion if it considers it would be unfair not to do so.

8 To extend time is not an automatic exercise and the discretion residing in the Commission to do so is for the purpose ofenabling the Commission to do justice between the parties, that is, to act if it would be unfair not to do so. The onus lies on theapplicant to demonstrate that a strict compliance with s.29(2) would be unjust and unfair.

9 The conditions which are relevant in deciding whether there would be unfairness or not are as follows. I address each of themin the succeeding paragraphs:


10 The length of delay, almost 2 months passed between the date on which the Applicant was dismissed and the date he filed hisapplication. That is an unreasonable delay given that the intent of the Act is to ensure that applications relating to unfairdismissal are dealt with at the time most contemporaneous to the dismissal as is practicable. The Act specifies 28 days is thattime. The delay in this case is double the time allowed.

11 The explanation for the delay in this case is that when the Applicant was first dismissed he did not raise any issues at all. It wasonly a month later when he visited the Respondent he says he became distraught, over the Respondent employing a newperson, and decided he would do something about the claim. It then took him another month to file.

12 The explanation that he relies upon in his application for extension of time is that he wants to use this application as ademonstration to others. In this respect he misunderstands the intention of the Act. It is not the intention of these sections of theAct to provide an opportunity for what amounts to a penal action against an employer. The idea of the Act is to provide relieffor the person who alleges they have been unfairly dismissed.

13 To centre his application upon what amounts to a punishment of the employer is misconceived and if that is the sole reason forthe application then it must fail on that basis alone.

14 The steps taken by the Applicant to evidence non-acceptance of the termination are necessary to be demonstrated. TheApplicant cannot demonstrate any of those for the first 30 days after the termination, nor has he ever, on his own evidence, toldthe employer prior to the filing of the application that the dismissal would be contested.

15 In my view when contesting a dismissal an applicant should advise a respondent within a period close to the date oftermination that there is a contest. I think a month is too long to raise issues of this nature, and even then in this case, no issuesof contest were raised even then.

16 Finally, the substance of the substantive application needs to be considered. This is an application which, on a short exposureto the facts when comparing what the Applicant has said and what has been submitted on behalf of the Respondent, does not,in my view, erect a strong case.

17 It is difficult to assess the merits but I have doubts about whether there would be sufficiently arguable case in the applicationproper. I think the Applicant has honestly told me that his motivation is to stop the employer doing to others what it did to him.That does not create, for the reasons I have said before, a sufficiently arguable case.

18 I need to consider whether there would be prejudice to the Respondent in granting an application to extend time, although theabsence of prejudice to the Respondent without more is not sufficient in itself to grant an application. There are not discernibleissues of prejudice to the Respondent here. The decision is capable of being reached on the basis of the other criteria that Ihave enumerated.

19 This is not an application where the Commission ought to extend the time under the powers vested in it under s.29(3) of theAct. I can accept a referral by an employee that is out of time if I consider it would be unfair not to do so. On what has beenput to me today that unfairness has not been established and the application to extend time to file an application in this matterwill be dismissed. That will bring the application proper to an end as a nullity.

_________


PARTIES ASHLEY JOSEPH PECZKA, APPLICANTv.BE & WJ GANGELL, RESPONDENT


Result Dismissed_________________________________________________________________________________________________________

OrderHAVING heard Mr A.J. Peczka on his own behalf and there being no appearance for the Respondent, the Commission pursuant tothe powers conferred on it under the Industrial Relations Act, 1979, hereby orders:

THAT the application be, and is hereby dismissed.(Sgd.) J. F. GREGOR,


____________________


PARTIES MATKO RADISIC, APPLICANTv.AUSTAL SHIPS PTY LTD, RESPONDENT

CORAM COMMISSIONER J L HARRISONDATE MONDAY 7 JULY 2003FILE NO. APPLICATION 495 OF 2003CITATION NO. 2003 WAIRC 08628


_________________________________________________________________________________________________________

Result Application for extension of time dismissedRepresentationApplicant Mr M Radisic on his own behalfRespondent Mr S Heathcote (of counsel)_________________________________________________________________________________________________________

Reasons for Decision1 On 15 April 2003, Matko Radisic (“the applicant”) referred a claim to the Western Australian Industrial Relations Commission

(“the Commission”) pursuant to s.29(1)(b)(i) and (ii) of the Industrial Relations Act 1979 (“the Act”). The applicant claimsthat he was unfairly dismissed by Austal Ships Pty Ltd (“the respondent”) on 6 February 2003. The applicant is also claimingentitlements due to him pursuant to his contract of employment. Section 29(2) of the Act requires that an application pursuantto s.29(1)(b)(i) be lodged within 28 days of the date of termination. As this application was lodged on 15 April 2003, it is40 days out of time.

2 Section 29(3) of the Act reads as follows—“(3) The Commission may accept a referral by an employee under subsection (1)(b)(i) that is out of time if the

Commission considers that it would be unfair not to do so.”3 In reaching a decision in this matter I take into account whether there was an acceptable explanation for the delay, the merits of

the substantive application, whether the applicant took steps to make it clear to the respondent that he was unhappy with histermination and that he would contest his termination and prejudice to the respondent. These guidelines were recentlydiscussed as being relevant to a matter of this nature by Beech S C in Anthony William Andrew v Metway Property Consultants& Auctioneers (2002) 82 WAIG 3260. In applying these guidelines I am mindful that there is a 28 day time frame to lodge anapplication and the Commission’s discretion in relation to a matter of this nature should not be exercised unless there is goodreason to do so.

Findings and Conclusions4 The applicant gave evidence that he only found out about the possibility of contesting his termination around the middle of

April 2003 after he had a discussion with his ex-wife. Subsequent to this discussion he lodged this application. As English isnot his first language the applicant argued that he was unaware of his rights relating to lodging a claim of this nature. Further,even though he was unhappy about his termination he was unaware that he could do anything about it. On this basis theapplicant argued that it would be unfair not to accept his claim even though the claim was lodged 40 days after the due date forlodgement.

5 The applicant argues that there is merit to his claim. He gave evidence that he refused to undergo an alcohol test on 6 February2003 as he claimed that he had been drinking the previous night and he was concerned that he would test positive. Further, hedid not take the test because he wanted to have discussions with the respondent about taking the test. The applicant claimedthat he was not told by the respondent that if he had been drinking the previous night and if he tested positive then he could besent home without being terminated. The applicant confirmed that he was told by his supervisor, Mr David Pye that if he didnot take a test for determining alcohol consumption he would be sacked. The applicant was aware that his contract ofemployment contained a provision enabling the respondent to undertake random drug and alcohol testing of its employees. Itwas put to the applicant that Mr Zjelko Antic told him in his native Croatian language that if he did not take the test he wouldbe terminated. The applicant responded by saying that he was not listening to what Mr Antic was saying and that he did notunderstand him.

6 The applicant confirmed that prior to lodging this application he did not indicate to the respondent that he was unhappy abouthis termination.

7 Mr Pye and Mr Antic gave evidence for the respondent. Mr Pye confirmed that the respondent has a drug and alcohol policywhich enabled random drug and alcohol testing of its employees (Exhibit R2), and that the applicant was made aware of thispolicy during his induction when he commenced employment with the respondent. Mr Pye stated that on 6 February 2003 itwas brought to his attention that the applicant may have been under the influence of alcohol whilst at work. On this basis hearranged for the applicant to be tested for alcohol consumption, however, when the applicant was approached about doing thetest he refused to co-operate. Mr Pye gave evidence that the applicant told him that he had been drinking the night before. Inresponse Mr Pye told the applicant that if he was found to have been drinking he would be sent home, but if he did not take thetest at this time he would be terminated. As Mr Pye was concerned that the applicant may not have understood what he wasbeing told, he asked Mr Antic to explain his instructions to the applicant in Croatian. Even though Mr Antic told the applicantin Croatian that he had to undergo an alcohol test Mr Pye stated that the applicant was adamant that he would not take the test.As a result of the applicant refusing to take the test he was summarily terminated by Mr Pye on 6 February 2003.

8 Mr Antic confirmed that he told the applicant in Croatian that he had to undertake an alcohol test otherwise he would beterminated. Mr Antic explained to the applicant that it was in his best interests to take the test. Mr Antic also confirmed that hetold the applicant that if he tested positive he would be sent home and would not be terminated. Mr Antic stated that theapplicant was upset at the time and because of this he may not have been listening to what was being said to him.

9 The respondent argued that the delay of approximately two months in lodging this application was unacceptable and it wasclear that no steps were taken by the applicant to inform the respondent that he was unhappy with his termination until thisapplication was lodged. The respondent submitted that there was no merit to the applicant’s claim as the evidence was clearthat it was a condition of the applicant’s employment that he undergo random alcohol and drug testing and that when he wasasked to undertake an alcohol test, he refused. The applicant was then told that if he refused to take the test he would beterminated. He was given a second chance to reconsider his position when the situation was explained to him in Croatian.Thus, the applicant was fully aware of the consequences of his refusal to take the test.

10 When looking at the merit of this application I am not convinced that the applicant has a strong case on the evidence currentlybefore me. However, even though it was a condition of the applicant’s contract of employment that he may have to undergorandom drug and alcohol testing, if required, there could well have been other options available to the respondent in this case,apart from termination, particularly given the applicant’s language difficulties.

11 The evidence is clear that the applicant did not act promptly in prosecuting his claim. I do not accept that it is appropriate forthe applicant to rely on lack of awareness about remedies available to him to contest a claim of this nature. The applicant gaveevidence that it was not until the middle of April that he became aware of his ability to protest his claim. He took no steps priorto this date to investigate his options. By this time over two months had elapsed after he was terminated, thus prejudicing therespondent’s ability to defend the claim against it. Even though English is not the applicant’s first language it is my view that


40 days delay in lodging this claim is unacceptable. The applicant did not take any steps prior to lodging this application toeither notify the respondent that he was unhappy with his termination or to seek options to contest his termination.

12 In all of the circumstances I consider that it would be unfair if this application was accepted. Even though there may be somesubstance to the applicant’s claim this is outweighed by the excessive delay in the lodgement of this application, prejudice tothe respondent and the lack of notice to the respondent that the applicant was unhappy with his termination.

13 An order will now issue dismissing the applicant’s claim under s.29(1)(b)(i) of the Act._________


PARTIES MATKO RADISIC, APPLICANTv.AUSTAL SHIPS PTY LTD, RESPONDENT

CORAM COMMISSIONER J L HARRISONDATE OF ORDER MONDAY, 7 JULY 2003FILE NO/S. APPLICATION 495 OF 2003CITATION NO. 2003 WAIRC 08629_________________________________________________________________________________________________________

Result Application for extension of time dismissed_________________________________________________________________________________________________________

OrderHAVING heard Mr M Radisic on his own behalf and Mr S Heathcote who appeared on behalf of the Respondent, the Commissionpursuant to the powers conferred on it under the Industrial Relations Act, 1979, hereby orders:

THAT the part of the application referred under s.29(1)(b)(i) be, and is hereby dismissed.(Sgd.) J. L. HARRISON,


____________________


PARTIES KENNETH RODRIGUES, APPLICANTv.BUNNINGS BUILDING SUPPLIES PTY LTD, RESPONDENT

CORAM SENIOR COMMISSIONER A R BEECHDATE THURSDAY, 3 JULY 2003FILE NO. APPLICATION 2051 OF 2002CITATION NO. 2003 WAIRC 08619_________________________________________________________________________________________________________

Result Application alleging unfair dismissal dismissed.RepresentationApplicant Mr R. Gillon (of counsel)Respondent Mr A. Smetana (of counsel)_________________________________________________________________________________________________________

Reasons for Decision1 By this application Mr Kenneth Rodrigues claims that his dismissal on 25 November 2002 was harsh, oppressive or unfair. He

seeks reinstatement. Mr Rodrigues had been employed with the respondent (and its predecessors) since 29 September 1987. Hewas employed as Assistant Manager at the respondent’s Distribution Centre (“DC”) in Welshpool. The centre is wholly andsolely responsible for receiving imported product and distributing it to the stores. Mr Rodrigues’ employment was terminatedfor serious misconduct. He was not paid in lieu of notice and pro-rata annual leave and long service leave was withheld. Hisdismissal was confirmed in writing in a letter from the respondent of 4 December 2002 signed by Mr Bill Pearce the RegionalManager. That letter notes that the dismissal resulted from an investigation into a number of transactions at the DC.Relevantly, the letter states as follows—

“During the investigation you agreed it was strict company policy that no item leave the DC without an invoice and thatno sales are made directly from the DC. You also agreed that all products in the DC are to be properly priced by a buyerand that none of the team members at the DC, including yourself, had authority to price the products.The investigation revealed that on 8 separate occasions you knowingly and willingly breached the above policy for yourown benefit. Each of the 8 instances of misconduct are outlined—1. On and following 25 February 2002 you made arrangements for an auction of items to team members at the DC.

You then arranged for the items auctioned to leave the DC without appropriate documentation over a number ofdays.

2. On 8 March 2002 you arranged for team member Jason Martin to take a hydroponics drum from the DC withoutauthorisation and without being priced.

3. On 16 May 2002 you arranged for a number of swing sets to be transferred from the DC to the Innaloo store forpurchase by yourself and other DC team members. You priced the swing sets, in contradiction to policy, at aprice considerably less than their worth.


4. On 6 June 2002 you arranged for the purchase of two chimineas, which you again priced in contradiction topolicy.

5. On 3 October 2002 you made arrangements for pallets of furniture to be delivered to the Innaloo store. Youpersonally priced one particular pallet of furniture for your own purchase at a price considerably less than itsworth. You arranged with the Complex Manager, Kevin Xavier, to ensure the pallet would be waiting at thestore for your purchase.

6. On 24 October 2002 you arranged for the purchase of two ovens and range hoods. Whilst you asked for a pricefrom Shelley Begley you then purchased the products at a considerably lower price without authorisation.

7. On 1 October 2002 you permitted sample boot liners to be taken by team member Danny from the DC withoutany authorisation. This is in contradiction to Bunnings’ policy with regard to sample products. A policy you areaware of and expected to enforce given your position at the DC.

8. At some time in the period June to October 2002 you priced and arranged for the purchase of a table from theDC.

It is clear that in each of the above instances you chose to deliberately flout strict company policy. In essence you havemade dishonest and deceptive arrangements of the purchase of goods at very low prices for your own benefit.In response to these matters you have claimed that you were either authorised to price the product or deny the transactiontook place. However, the evidence found during the investigation indicates that is not the case.”

2 The respondent acknowledged that in cases of summary dismissal the onus lies upon the respondent employer to establish thatthe summary dismissal was justified (Porter v. Eltin Underground Operations Pty Ltd (2000) 80 WAIG 5349 at [90]). Theonus lies upon Mr Rodrigues at all times to establish that the dismissal was unfair (ibid; and see also Newmont AustraliaLimited v. The Australian Workers’ Union, West Australian Branch Industrial Union of Workers (1988) 68 WAIG 677 at 679;Franklins Ltd v. Webb (1996) 72 IR 257 at 260). In order to discharge that evidentiary onus, the respondent presented itsevidence first. It called evidence from 14 witnesses. Mr Rodrigues gave evidence on his own behalf. Mr Rodrigues did nothimself call any person to give evidence.

3 The background to the matter can be gained from the evidence of Bill Pearce (the Regional Manager) and Peter Roberts (theLoss Prevention Manager). The respondent was alerted by a report from a gateman employed at the DC. In the report dated7 November 2002 (exhibit R29) the gateman listed chronologically events that had occurred since approximately mid February2002 according to his observation. That report in turn caused Mr Roberts to interview a large number of employees, includingMr Rodrigues. Mr Pearce attended some of the interviews. His evidence is that as a result, he found Mr Rodrigues not to behonest and that he chose to say very little at the interviews. The investigation took approximately two weeks. Mr Pearce’sevidence is that he had respected Mr Rodrigues. Mr Rodrigues had 15 years’ experience and seniority in employment (he hadbeen acting manager on one occasion) but Mr Pearce lost trust in him as a result of the interview process. In Mr Pearce’s view,Mr Rodrigues was not honest, that he distorted the truth and tried to deflect responsibility to others. It was Mr Pearce’sdecision that Mr Rodrigues would be dismissed.

4 I now set out the eight instances described in Mr Pearce’s letter and the relevant findings I have made from the evidence beforeme.1. On and following 25 February 2002 you made arrangements for an auction of items to team members at the DC.

You then arranged for the items auctioned to leave the DC without appropriate documentation over a number ofdays

5 This instance concerns approximately six pallets of stock which were returned to the DC following the closure of the BunningsMelville store. The evidence of Mr Rodrigues is that he and the DC Manager Mr Plowman agreed that the stock ought beauctioned for the benefit of the DC social club. Mr Plowman’s evidence is that it was Mr Rodrigues who approached himregarding the idea. On balance, I prefer the evidence of Mr Plowman on this point because I have the impression from MrRodrigues’ evidence overall that he was alert to opportunities for DC stock deemed to be of no commercial value (NCV)which could then be disposed of.

6 In any event, I find that both Mr Plowman and Mr Rodrigues agreed that the stock would be auctioned. I am assisted in thisconclusion by the written statement of Mr Bates, the gateman in exhibit R29. Mr Bates gave evidence in these proceedings andimpressed me as a witness who has a relative disinterest in the proceedings. I note that Mr Rodrigues accuses Mr Bates ofhaving a grudge against him because Mr Bates missed out on the auction. Mr Bates denies this. For present purposes, the pointI wish to make regarding Mr Bates’ evidence is that his written statement states that both he and the other security officer wereadvised by the acting manager Russell Plowman that there was some stock ex Melville which was to be auctioned off amongstthe staff. I therefore conclude that irrespective of whether it was Mr Rodrigues who approached Mr Plowman or vice versa, MrPlowman agreed with the holding of the auction.

7 I also find that the holding of the auction of itself is something that had occurred on one, and possibly two, previous occasionsunder previous management. That is the evidence of Mr Doulton. Mr Hinton stated that there were no previous auctions in histime as manager which was a period between September 1998 to October 2001. Mr Pearce states that he was unaware thatthere had been a previous auction. However, on the evidence before me, there had been at least one, or perhaps two, on aprevious occasion even if management outside the DC had been unaware of it.

8 It is common ground between Mr Rodrigues and the respondent that neither Mr Plowman nor Mr Rodrigues had the authorityto price stock. The only persons with the authority to price stock are the buyers or, where the stock belongs to a store, theappropriate store manager. The stock to be auctioned was from the Melville store and Mr Plowman made contact with therelevant store manager Mr Ford regarding the pricing of the stock. I am satisfied from the evidence of Mr Ford that he viewedthe stock concerned and put a price of $200 on it all.

9 Mr Rodrigues then purchased the stock for $200. The purpose of the auction was to reimburse Mr Rodrigues for the $200 andanything additional over and above the $200 would go towards the social club. This was done.

10 It is significant, as I find, that once Mr Rodrigues paid $200 for the stock priced by Mr Ford, Mr Rodrigues owned that stock.Therefore, what was auctioned was not the respondent’s property. What was auctioned at the DC was Mr Rodrigues’ property.What ought to have occurred, in accordance with the procedures discussed in evidence before me, is that Mr Rodrigues shouldhave removed his property from the DC. It should have been removed as one lot according to the invoice generated by Mr Fordshowing Mr Rodrigues had purchased it.

11 What in fact occurred was that firstly Mr Rodrigues auctioned his own property on the respondent’s premises. Secondly, andmore significantly, the items purchased by the other staff, including Mr Plowman, from the auction were removed from the DCby presenting to the gateman photocopies of the original Rodrigues/Ford invoice. The point is made, and conceded by MrRodrigues in his evidence, that the use of photocopies of the invoice was not a good process and no doubt was the wrong thing


to do. It was a procedure that was open to abuse because it was impossible for the gateman to check from a series ofphotocopies of the same invoice whether or not the items being removed had been validly purchased.

12 I add that on the evidence before me, no stock other than the stock priced by Mr Ford was sold or removed from the premises. Imake that finding from the evidence of Mr Plowman and Mr Lim. Further, and contrary to Mr Rodrigues’ evidence, the timetaken for those employees who purchased Mr Rodrigues’ property at the auction to pay for their purchases and remove themoccurred over 15 days. I find this is contrary to Mr Rodrigues’ evidence that it occurred over “a couple of days”. Indeed, I wasnot impressed by Mr Rodrigues stating in his cross-examination that, to him, “a couple” of days could be 15 or 20 (transcriptp.369). That is quite misleading. A “couple” is defined as “two of the same sort connected or considered together” (theMacquarie Dictionary 2nd Revised Edition, page 424). Had Mr Rodrigues been the only person to give evidence on thisparticular point, the Commission would have concluded that the admittedly “wrong thing to do” occurred only overapproximately two days. This evidence has made me cautious of accepting Mr Rodrigues’ evidence where it conflicts with theevidence of others.

13 I conclude on this point, and with reference to the instance set out in the respondent’s letter of dismissal, that Mr Rodrigues didmake arrangements for an auction of his own property to team members at the DC. I do not think that of itself was seriousgiven that it was not the first such auction. He did so in conjunction with, and thus under the authority of, the acting managerMr Plowman. I also find that Mr Rodrigues did arrange for the items auctioned to leave the DC over at least 15 days withoutappropriate documentation, which was a serious matter.

2. On 8 March 2002 you arranged for team member Jason Martin to take a hydroponics drum from the DC withoutauthorisation and without being priced.

14 It is not denied that Mr Martin did remove a hydroponics drum from the DC. Mr Rodrigues stated in evidence that thisoccurred “a couple of days” after the auction. Mr Rodrigues says that Mr Martin stated that it was part of the auction. MrRodrigues states that Mr Plowman instructed him to give a docket to Mr Martin for him to remove it from the DC. However, Iregard Mr Rodrigues’ evidence before the Commission as being slightly different from his earlier understanding (as reflectedin the document Applicant’s Response to Paragraph 4 of the Reply filed in the Commission on 10 April 2003) that the drumhad been part of the hydroponics kit which had been purchased and paid for by Mr Martin at the auction.

15 Mr Martin states that he did not buy a hydroponics kit at the auction. Mr Plowman says that he did not see a hydroponics drumand does not recall speaking to Mr Rodrigues about it. I observe that the fact that proper invoices were not raised for itemsremoved from the DC on the occasion of the auction means that neither Mr Martin nor Mr Rodrigues is able to prove whetheror not Mr Martin did buy a hydroponics kit at the auction. This is precisely the vice for which the respondent has properverifiable procedures.

16 Ultimately, I conclude that Mr Rodrigues did authorise Mr Martin to take a hydroponics drum from the DC withoutauthorisation. I do so because I am not able to conclude on the balance of the evidence that Mr Plowman did instruct MrRodrigues to give Mr Martin a docket. If the drum had been part of the auction (and that is my understanding of Mr Martin’sevidence) then the drum was Mr Rodrigues’ property. The issue is its removal from the DC without proper documentation andMr Rodrigues was in error in allowing it to occur.3. On 16 May 2002 you arranged for a number of swing sets to be transferred from the DC to the Innaloo store for

purchase by yourself and other DC team members. You priced the swing sets, in contradiction to policy, at a priceconsiderably less than their worth.

17 In relation to the first sentence of this heading, Mr Rodrigues agrees that he bought three swing sets. Indeed, the invoice of himhaving done so is in evidence before the Commission (exhibit R22). Mr Rodrigues’ evidence on this point is that the swing setshad been at the DC for “a couple” of years. He drew them to the attention of Mr Plowman and asked whether they could begiven to staff. Mr Rodrigues says that Mr Plowman agreed. Indeed, it is Mr Rodrigues’ evidence that Mr Plowman mentionedit to a number of staff at the end-of-the-day staff meeting. Mr Plowman, in his evidence, denies that he said it to staff at an end-of-the-day meeting.

18 On the balance of the evidence, I find it more likely than not that Mr Plowman did tell the staff. The evidence of Mr Lim is thatit is likely that Mr Plowman did do so because he remembers Mr Plowman saying it would be “pot luck”. Further, the evidenceis that Mr Hayes purchased a swing set, Mr Lim was aware of the sale of swing sets and Mr Xavier bought a swing set. I amleft with the impression that the number of people who were aware of the sale of, or who bought, swing sets together with thefact that the swing sets were eventually sent to Innaloo and Cannington for the convenience of those DC employees livingnorth or south of the river, makes it more likely in my view that Mr Plowman announced the availability to an end-of-the-daymeeting.

19 Mr Rodrigues’ evidence is that he was told the swing sets were $50 by Mr Plowman (transcript p.330). In cross-examination,Mr Rodrigues stated that he was the one who drew the swing sets to Mr Plowman’s attention on the basis that the staff werevery much interested in purchasing them. Mr Plowman also denies that he mentioned a price of $50 for each set. His evidenceis that the garden co-ordinator would value such stock and prices.

20 There is, nevertheless, the evidence of Mr Xavier, which I accept, that Mr Rodrigues telephoned him at the Innaloo store to tellhim that a pallet of sample swing sets and three damaged customer-returned swing sets were being sent to Innaloo. Thesamples were to be kept aside for Mr Rodrigues’ team members and not sold to customers. He states Mr Rodrigues told himthey were $50 each and Mr Xavier could not sell them to his own team members. The swing sets sent by Mr Rodrigues toInnaloo were marked for the attention of Mr Xavier so that he could identify them and set them to one side for Mr Rodrigues’team members. In total six swing sets were sent to Innaloo, with the balance going to Cannington for those DC employeesliving south of the river.

21 It was Mr Xavier’s understanding that Mr Rodrigues had determined the price. Mr Xavier’s evidence is that because MrRodrigues was second in charge of the DC, if Mr Rodrigues had set a price, he Mr Xavier would not query it. It was not thefirst time Mr Rodrigues had sent him sample stock. I note also Mr Clarke’s denial that he priced the swing sets.

22 In conclusion, I find on the balance of probabilities that it is more likely than not Mr Rodrigues played an active part inarranging for the pricing of the swing sets. In doing so he acted in breach of the respondent’s policy.4. On 6 June 2002 you arranged for the purchase of two chimineas, which you again priced in contradiction to policy.

23 On the evidence before the Commission there were a number of damaged chimineas at the rear of the DC. On Mr Rodrigues’evidence, Mr Hinton, during his time as manager of the DC arranged for Mr Lim to purchase one at a cost of $5.00. MrRodrigues also states that he later observed Mr Plowman assisting Mr Lim to load the chiminea into Mr Lim’s car. Mr Limconfirmed this in his evidence. Mr Hinton denied this in his evidence. Mr Lim, however, states that he did buy one and that heorganised it with Mr Hinton as part recompense for the loss of Mr Lim’s services cleaning the lunchroom. I find, on thebalance of the evidence, that Mr Rodrigues is correct in his evidence. I accept the evidence of Mr Lim on this point given hiscomment regarding his services for cleaning the lunchroom.


24 Mr Rodrigues’ evidence is that Mr Hinton arranged for a chiminea to be purchased by another manager, Mr Novell. This isconsistent with the evidence of Mr Doulton who states that he had heard Mr Novell had bought a chiminea.

25 Mr Rodrigues’ evidence is that a further chiminea was purchased by Mr Haste for $20. Mr Haste agreed that he did. MrRodrigues says that the chiminea was priced by Mr Plowman in his capacity as acting manager of the distribution centre. MrHaste, however, says that he really cannot remember who gave him the price and that he did not discuss the price withMr Plowman but “imagined” it would have been Mr Rodrigues. Mr Rodrigues telephoned Mr Plowman at Mr Plowman’sMaddington store and reminded him of the arrangement he had with Mr Haste regarding the chiminea for $20. However, MrRodrigues conceded that in relation to the sale to Mr Haste, two invoices had been raised for the one sale. He says thatMr Plowman authorised the sale. Mr Plowman does not admit it in these proceedings.

26 While I was not entirely persuaded about the veracity of Mr Haste’s evidence, the fact that two invoices were raised when MrRodrigues said there was only one sale is sufficient for me to conclude on the balance of probabilities that Mr Rodrigues didarrange for the purchase of two chimineas. It is not entirely clear from the evidence who priced the chimineas. The evidence isconclusive however of Mr Rodrigues’ involvement in organising for their purchase from the DC via a Maddington store.5. On 3 October 2002 you made arrangements for pallets of furniture to be delivered to the Innaloo store. You

personally priced one particular pallet of furniture for your own purchase at a price considerably less than itsworth. You arranged with the Complex Manager, Kevin Xavier, to ensure the pallet would be waiting at the storefor your purchase.

27 On the evidence before the Commission, there were approximately 20 pallets of outdoor furniture and samples in the DCcomprising largely excess items from previous years and some incomplete sets. The imports manager, Mr Clarke requiredspace in the DC pending the arrival of new stock. Mr Clarke arranged for the stock to be placed in a particular shed which wasvacant at the time. On Mr Rodrigues’ evidence, Mr Clarke then proceeded to price the stock. Mr Clarke, in his evidence,confirms that this occurred. I am satisfied that Mr Clarke had the authority to price the stock. With Mr Rodrigues, Mr Clarkewent through the stock identifying what would be available for sale through the stores and what was unsaleable and was to bedestroyed. Mr Clarke had clearance stickers on which he would write down a clearance price for the store concerned. In MrClarke’s estimate there were approximately six pallets.

28 Mr Rodrigues asked Mr Clarke whether he could purchase some of the items. Mr Clarke told Mr Rodrigues to buy the itemsdirectly from the stores. This is entirely consistent with the policy which, as I find, was understood by Mr Rodrigues, that staffwere not able to make purchases at the DC. The DC was not in any sense a retail outlet. It was a warehouse distribution centrefor distributing stock to stores. Purchases therefore had to be made through the stores.

29 Significantly, I find that this policy means that if stock goes to the stores it necessarily implies that if a staff member from theDC goes to the stores to purchase an item of stock, the staff member goes as would any customer and buys from the store thesame as any other customer. To hold otherwise would mean that stock is sent to the stores merely as a device to allow the storemember to buy the stock as if it was still at the DC.

30 In fact, that is what occurred. As Mr Rodrigues himself concedes, he arranged for the pallets which had been priced to be sentto the stores however, before doing so, he selected from each of the pallets the items he wished to buy and put them on aseparate pallet. He wrapped this pallet separately and put a label on it with Mr Xavier’s name. He rang Mr Xavier at theInnaloo store and informed him that three pallets were being delivered, plus one with Mr Xavier’s name on it which was forMr Rodrigues himself. Either at the end of that day, or at the end of the next day after he had made the telephone call, MrRodrigues went to the Innaloo store. He met with Mr Xavier and paid $170 for the pallet. There is no doubt that this occurredgiven that Mr Rodrigues himself concedes that is what occurred. Indeed, the fact that it occurred is supported not only by theprice docket which was produced in evidence but also from the evidence of Mr Xavier and two other employees of the store,Mrs Davies and Mr O’Donnell.

31 There are a number of issues which arise regarding this particular transaction. It should be immediately observed that theseissues arise from the very beginning of the transaction. That is, it was organised only by Mr Rodrigues, that only Mr Rodriguesknows what was in the separate pallet he reserved for himself that he alone wrapped, that the pallet was purchased by himunopened and that the docket recording the payment does not state in detail the stock purchased.

32 This, as Mr Smetana (who appeared on behalf of the respondent) quite correctly stated, was a process involving no checks andbalances in favour of the respondent. Such a transaction involves a considerable level of trust in Mr Rodrigues not to act in amanner which advantages himself and disadvantages his employer. Where, as here, that trust is called into question, there isnot only no certainty on the part of the respondent regarding what in fact was on the pallet, there is also no protection forMr Rodrigues who is now unable to prove what in fact occurred.

33 This has arisen directly because it cannot be said by any stretch of the imagination that the respondent’s policy whereby stockfrom the DC is only able to be purchased from its stores, allows a staff member at the DC to make up his own pallet, label it sothat it is reserved for him and to buy it as a pallet through the device of having it delivered to a store.

34 There are other issues. Mr Rodrigues was asked to explain what it was that he purchased for his $170. He states that thecontents of the pallet were two doors with damaged glass panels at $30 each; two bench seats at $30 each, two outdoorumbrellas at $20 each and two park bench ends at $5.00 each. These total $170. However, the evidence of Mr Clarke, who didthe pricing, is that while he agreed with Mr Rodrigues’ prices regarding the doors, Mr Clarke says that he priced bench seats“about $80 to $90” (transcript p.147/148) and $50 for the umbrellas. There were park bench ends in the shed but he would nothave priced park bench ends because the respondent did not send incomplete product to stores for retail sale. The park benchends therefore were not priced by him and would have been required to have been put into a bin to be destroyed.

35 The procedure which Mr Rodrigues has followed means that Mr Rodrigues is unable to prove by any separate evidence that hisrecollection of all of the prices is correct.

36 I have found it significant, however, that in order to remember the prices for the Commission proceedings Mr Clarke needed toread from some handwritten notes of the prices which he had made the night before after his discussions with Mr Smetana.While the Commission had no objection to Mr Clarke referring to the notes, the fact that Mr Clarke apparently had noindependent recollection of the prices he actually set, and did not even have confidence that he could remember the prices hehad told Mr Smetana the previous night prior to giving evidence, leaves me with no confidence that Mr Clarke accuratelyrecollected the prices he did in fact set.

37 Further, Mr Doulton, who was then the acting manager of the DC and came in during the pricing by Mr Clarke, observed thepricing and his recollection is that most of the stock priced was of the “$20 mark”. Mr Doulton even recognised some of theitems from photographs taken just prior to the Commission hearing by Mr Rodrigues. On balance, therefore, I do not accept MrClarke’s evidence of the pricing and I am unable to find that Mr Rodrigues either set, or altered, or paid less than, the pricesthat were in fact set for the stock he purchased.


38 I notice that Mr Clarke also recognised items from the photographs taken by Mr Rodrigues. It leaves me with the conclusionthat either Mr Rodrigues took park bench ends which had not been priced and included them on the pallet for his own benefit,or that Mr Clarke is unable to recollect accurately whether he did price the park bench ends notwithstanding his evidence thathe would not have done so.

39 It is also quite apparent to the Commission from this exercise that there was a complete failure to have administrativeprocedure whereby the buyer (such as Mr Clarke) recorded within the respondent’s administrative system the clearance priceshe wrote on the items. While I accept that the stores that received the goods would record the prices for the store’s purposes,that does not remove the need for the buyers to record the prices they themselves set. I add as a postscript my understandingthat as a result of the practices at the DC exposed by Mr Bates’ initial statements which sparked the investigation, therespondent has directed that surplus or sample stock from the DC is not able to be purchased but is to be destroyed.

40 There is also controversy regarding just what Mr Rodrigues in fact purchased. It is Mr Rodrigues’ evidence that he onlypurchased the stock set out above. However, the evidence of Mrs Davies who is the operations manager at the Innaloo storesuggests differently. It is to Mrs Davies’ credit that she thought the transaction which she observed involving Mr Rodriguesbuying a pallet was so unusual that she recorded it in her work diary. Although, ultimately, Mrs Davies cannot now recallwhether the pallet was delivered the day before, or two days before, her diary entry there is no question that as result of herdiary entry she has very properly recorded the purchase of the pallet on the day that it occurred. She had observed the palletwith Mr Xavier’s name on it wrapped in black plastic in the Innaloo yard. She remembers seeing some jarrah chair legssticking from the top. She understood from Mr Xavier that they were settings involving benches and matching tables. Herevidence thus raises doubts about what Mr Rodrigues actually purchased which he cannot now dispel.

41 Mrs Davies’ reservations were heightened by the fact that subsequently Mr Xavier contacted her three times at home wantingher to correct his attendance record for the day of the purchase to show that he had not been present when Mr Rodrigues hadpurchased the pallet. I have no hesitation in finding Mrs Davies’ evidence to be absolutely credible on this issue. It is quiteconsistent with Mr Xavier’s own evidence that when Mr Rodrigues’ transaction came to light, and he was interviewed by MrRoberts, he panicked and got scared and varied his story over two or three interviews. He concedes he had severalconversations with Mrs Davies and concedes that he may have asked her to alter the October roster record.

42 On the evidence of Mrs Davies, I therefore find it is more likely than not that there were items in the pallet made up by MrRodrigues in addition to those which he now concedes he purchased. In relation to this instance, therefore, I find that MrRodrigues did make arrangements for a pallet of furniture to be delivered to the Innaloo store for his own purchase. The price,however, was as I find consistent with the pricing of Mr Clarke. Mr Rodrigues did arrange with Mr Xavier to ensure the palletwould be waiting at the store for his purchase.6. On 24 October 2002 you arranged for the purchase of two ovens and range hoods. Whilst you asked for a price

from Shelley Begley you then purchased the products at a considerably lower price without authorisation.43 Mr Rodrigues’ evidence on this issue is that he did not purchase any range hoods. However, ovens and range hoods were

returned to the DC following the closure of the O’Connor store. Mr Rodrigues’ evidence is that a memo was sent to allBunnings’ team members advising them the ex showroom models had been returned to the DC and were available for purchaseat various prices. A number of items were sold and the balance of the stock remained in the DC for several weeks.

44 Mr Rodrigues approached the relevant buyer Ms Begley and asked if he could buy two ovens for $50 each. His evidence is thatMs Begley did not accept the offers and said that the lowest price at which she could sell the ovens was $100 each. He paid$100 (effectively a unit price of $90 plus GST of 10% making $99) for each oven.

45 Ms Begley gave evidence in these proceedings. Her evidence is that when she was at the DC on one occasion, Mr Rodriguesstated that staff members would be interested in buying the ovens and she recalls him offering $100 for each oven and she saidthat she would check the pricing lists. She does not recall agreeing to $100. She maintained in cross-examination that there wasno final agreement.

46 The issue from the Commission’s point of view is that once again the failure of the respondent to have in place a systemwhereby a record is kept of the price set by a buyer to dispose of stock. Exhibit R14 does not fulfil that role. On balance, I donot prefer the evidence of Mr Rodrigues over Ms Begley. The evidence of Ms Begley was given clearly and, in myobservation, with accurate recollection of the events that occurred. In contrast, and particularly because of my findings inrelation to the next item, I do not entirely accept Mr Rodrigues’ evidence on the point.

47 I therefore find that Mr Rodrigues did purchase two ovens at a lower price than authorised.7. On 1 October 2002 you permitted sample boot liners to be taken by team member Danny from the DC without any

authorisation. This is in contradiction to Bunnings policy with regard to sample products. A policy you are awareof and expected to enforce given your position at the DC.

48 The evidence in relation to this instance is that the boot liners (which are apparently made of plastic and available forcustomers to put in the boot of their car to protect the boot from garden products) were samples provided by Ms Mason ofHome Wrap. Mr Rodrigues’ evidence is that he spoke to Ms Mason and she told him that she did not want the samplesreturned but rather Mr Rodrigues could have them. Mr Rodrigues said that she must give him a docket in order to take theproduct out of the DC. Mr Rodrigues’ evidence in examination-in-chief was that Ms Mason gave him a docket and he in turngave that docket to Mr Lim. He accompanied Mr Lim to the gate with the boot liners and Mr Lim gave the docket to thegateman, Mr Bates.

49 Ms Mason was summonsed to give evidence but the respondent did not press for the enforcement of the summons given thatMs Mason produced a medical certificate stating that in her doctor’s opinion for her to give evidence would aggravate herpresent nervous condition. The Commission was therefore deprived of Ms Mason’ direct evidence on this point, althoughwithout fault on the part of the respondent.

50 However, the Commission does have the evidence of Mr Lim on this point. Mr Lim’s evidence is that Mr Rodrigues wrote anote for him. It was therefore in Mr Rodrigues’ handwriting. Mr Lim’s evidence therefore contradicts Mr Rodrigues’ evidence.

51 Further, the respondent called Mr Bates to give evidence on this particular point. Mr Bates was the gateman on duty when MrLim removed the liners from the DC. His evidence is that both Mr Rodrigues and Mr Lim came to the gate. Mr Rodrigueshanded Mr Bates a note authorising Mr Lim to remove the boot liners. The note was a note from Mr Rodrigues.

52 I accept Mr Bates’ evidence. He has been employed at the DC for four years and is a retired police officer of some 30 years. Ifound his evidence entirely credible. Moreover his evidence is entirely consistent with the contemporaneous note made on thelog sheet (exhibit R29 attachment B). Mr Bates recalls physically taking the note and stamping it. It was a note by itself. It wasin Mr Rodrigues’ handwriting. There was not another note (for example from Ms Mason) attached to it. Given thecontemporaneous log sheet, any attack on Mr Bates’ credibility because he missed out on the auction and might wish to “get”Mr Rodrigues is entirely without foundation.


53 The calling of Mr Bates and the production of the contemporaneous log sheet shows that this single instance, out of all of thoserelied upon by Mr Pearce in deciding to dismiss Mr Rodrigues, is one where it is quite clear to the Commission that MrRodrigues’ evidence is not to be believed. Mr Rodrigues would have the Commission believe that Ms Mason authorised theremoval of her own sample product and gave him a note from her authorising the removal. In other words, Mr Rodrigueswould say that while the incident occurred it was not of his doing or was not his responsibility. Rather, it was someone else’sresponsibility. That, I observe, is entirely consistent with Mr Pearce’s assessment of Mr Rodrigues’ statements at the enquiries.This is a demonstration to the Commission that Mr Pearce’s assessment of Mr Rodrigues is correct. It has also made mecautious in accepting Mr Rodrigues’ evidence. That is not to say that I have disbelieved Mr Rodrigues on each and everyoccasion. On those occasions when there is some corroborative evidence to support Mr Rodrigues’ evidence I am more likelyto accept it. Nevertheless, this instance is made out.

8. At some time in the period June to October 2002 you priced and arranged for the purchase of a table from the DC.54 The evidence on this matter can be quite shortly stated. The evidence is only from Mr Plowman to the effect that Mr Rodrigues

rang him at the Maddington store to indicate that the table would be sent to Maddington for sale. The cross-examination of MrRodrigues reveals that Mr Rodrigues did discuss a table but when he spoke to Mr Haste he said that he had no authority to sellthe table to Mr Haste. Nevertheless, the table was discussed but eventually there was no sale.

55 The evidence of Mr Haste is that he could have discussed the table with either Mr Rodrigues or Mr Doulton. Significantly,from the point of view of the Commission, whilst Mr Haste’s evidence was often vague, uncertain and involved a pause beforeanswering questions about the table, I tend to accept his evidence that he did not go ahead with the purchase because “thistrouble” (being a reference to the interviews and eventual dismissal of Mr Rodrigues) started and he “dropped it”. On balance,I find it more likely than not that Mr Rodrigues discussed with Mr Haste the selling of a table to Mr Haste via the Maddingtonstore. The evidence does not confirm that a price was mentioned, or if it was, what sum was mentioned. Certainly, no saleoccurred. This instance is not made out on the evidence.

Conclusion56 I find from the evidence that there have been many instances where Mr Rodrigues permitted items to leave the DC with

inappropriate documentation, that he breached the respondent’s policy on pricing and that he arranged for the direct purchaseby himself of DC stock by the device of wrapping it in a pallet and sending it to a store to be held for him alone. In doing so hehas put his own interest ahead of that of his employer. I find that more often than not, Mr Rodrigues had a ready eye for abargain in relation to surplus or damaged stock and even samples. In pursuing his own interest, he adopted procedures that areconsistent with him taking advantage of the situation for his own benefit.

57 I have little hesitation in reaching the conclusion that by putting his own interests ahead of that of his employer Mr Rodrigues,in his capacity as the second in charge of the DC, was in breach of the duty he had to look after his employer’s interests. Indoing so he profited on his own account. I find that the respondent has discharged the evidentiary onus upon it to show themisconduct occurred upon which it relied in dismissing Mr Rodrigues.

58 I have considered the evidence of Mr Rodrigues. I give due weight to the very able submissions of Mr Gillon who appeared onbehalf of Mr Rodrigues that an analysis of all of the evidence of the witnesses called by the respondent shows manyinconsistencies. It may well be that in some cases a doubt regarding the evidence exists. For example, it is entirely consistentwith Ms Begley’s evidence that she would have returned to check the lists and yet her evidence does not go to say that she did.However, in my view Mr Rodrigues’ position is not advanced by merely creating a doubt regarding some aspects of therespondent’s evidence. For that reason, I have not in these reasons analysed every detail of the evidence.

59 Ultimately, the issue is whether the respondent’s right to dismiss Mr Rodrigues was exercised so harshly or oppressivelyagainst him so as to amount to an abuse of that right (Undercliffe Nursing Home v FMWU (1985) 65 WAIG 385). It is perhapshelpful, in this regard, to observe that:

“It is, however, only in exceptional circumstances that an ordinary employer is entitled at common law to dismiss anemployee summarily. Whatever the position may be in relation to isolated acts of negligence, incompetence orunsuitability, it cannot be disputed (statute or express contractual provision aside), that acts of dishonesty or similarconduct destructive of the mutual trust between the employer and employee, once discovered, ordinarily fall within theclass of conduct, which without more, authorises summary dismissal. Exceptions to this general position may exist fortrivial breaches of the express or implied terms of the contract of employment. Other exceptions may arise where thebreaches are ancient in time and where they may have been waived in the past, although known to the employer. Somebreaches may be judged irrelevant to the duties of the particular employee and an ongoing relationship with theemployer. But these exceptional cases apart, the establishment of important, relevant instances of misconduct, such asdishonesty on the part of an employee …, will normally afford legal justification for summary dismissal. Such a casewill be classified as amounting to a relevant repudiation or renunciation by the employee of the employment contract,thus warranting summary dismissal.”

Concut v. Worrell (2000) 75 ALJR 312 per Kirby J at [51]60 On the facts as I find them to be, Mr Rodrigues’ conduct was destructive of the mutual trust between an employer and an

employee. At the very least the arrangements he made for items of furniture at the DC, which he selected for himself, which hethen reserved for his own purchase and which he sent to a store to enable him, and him alone, to purchase them, is not a trivialbreach of the respondent’s policy. He used his position and the system to advantage himself. In do so, he acted in breach of hisduty toward his employer.

61 In Concut, the High Court reaffirmed the well known case of Blythe Chemicals v. Bushell (1933) 49 CLR 66. In that matter,Dixon and McTiernan JJ stated as follows—

“Conduct which in respect of important matters is incompatible with the fulfilment of an employee’s duty, or involvesan opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of hisobligations, or is destructive of the necessary confidence between employer and employee is a ground of dismissal; butthe conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive ofconfidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground foruneasiness as to future conduct arises.” (at p.81/82).

62 I find Mr Rodrigues’ conduct did involve a conflict between his interest and his duty to his employer.63 It is also well to observe that where an employee is dismissed for serious misconduct, it is sufficient for the employer to

demonstrate that it had reasonable grounds for believing on the evidence before it that the misconduct alleged occurred andthat taking into account any mitigating circumstances such as the employee’s long service, dismissal was the only result(Hooper v. Bi-Lo Pty Ltd (1992) 53 IR 224; Western Mining Corporation v AWU (1997) 77 WAIG 1079 at 1084). In this case,the evidence of Mr Pearce in particular shows that he took into account Mr Rodrigues’ circumstances and length of service.


Given his relatively senior position within the DC I find that the respondent had no alternative other than to dismissMr Rodrigues. On the evidence before me I can find no circumstances which could permit the conclusion that any stated lossof trust in Mr Rodrigues was misplaced.

64 For all of the above reasons, his dismissal was not unfair and his application is therefore dismissed.65 Order accordingly.

_________


PARTIES KENNETH RODRIGUES, APPLICANTv.BUNNINGS BUILDING SUPPLIES PTY LTD, RESPONDENT

CORAM SENIOR COMMISSIONER A R BEECHDATE THURSDAY, 3 JULY 2003FILE NO. APPLICATION 2051 OF 2002CITATION NO. 2003 WAIRC 08620_________________________________________________________________________________________________________

Result Application alleging unfair dismissal dismissed.RepresentationApplicant Mr R. Gillon (of counsel)Respondent Mr A. Smetana (of counsel)_________________________________________________________________________________________________________

OrderHAVING HEARD Mr R. Gillon (of counsel) on behalf of the applicant and Mr A. Smetana (of counsel) on behalf of therespondent, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979 hereby orders—

THAT the application be dismissed.(Sgd.) A. R. BEECH,

[L.S.] Senior Commissioner.

____________________


PARTIES HOWARD STEINBERG, APPLICANTv.HOUGHTON MOTORS PTY LTD, RESPONDENT

CORAM COMMISSIONER S J KENNERDATE WEDNESDAY, 28 MAY 2003FILE NO. APPLICATION 1535 OF 2001CITATION NO. 2003 WAIRC 08527_________________________________________________________________________________________________________

Catchwords Termination of employment – Contractual benefits claim –– Entitlements under contract ofemployment - Respondent in receivership – No funds available to satisfy order even if applicantsuccessful - Not in the public interest that the matter proceed – Application dismissed – IndustrialRelations Act 1979 (WA) s 27(1)(a); s 29(1)(b)(ii); Corporations Act 1990 (WA) s 556

Result Application dismissed. Order issuedRepresentationApplicant Mr H Steinberg on his own behalfRespondent Mr R Carthew of counsel_________________________________________________________________________________________________________


1. This application was commenced on 22 August 2001, self-evidently, more than 18 months ago now. Regrettably,circumstances are such that by reason of the official management of the respondent and in light of the uncontested evidencebefore the Commission through the affidavit of Mr Lewis, it would appear clearly more likely than not that even if this matterwent to trial and the applicant was successful ultimately, and I express no view about whether there is a contractual entitlementor not, debts proved in relation to what are described as retrenchment payments as defined in the Corporations Act, which inmy view the applicant’s claim clearly is, fall within the ranking and priorities of s 556 of the Corporations Act.

2. On the strength of the affidavit of Mr Lewis, the Commission must have regard to the public interest in whether these claimsproceed to a hearing or not and that the public interest consideration here is the likelihood of any recovery at all, even if theapplicant was successful. That is, even if the applicant could establish that he was promised an extra one week’s salary, and ifit could be established that was a benefit under the applicant’s contract of employment on termination of it, the issue that fallsfairly and squarely is whether there would be any recovery of that amount possible. Upon what is before the Commissionpresently, which appears to be entirely uncontested, I have very considerable reservations indeed as to whether there would beany ability for recovery of that sum of money.


3. The Commission’s view therefore is that pursuant to s 27(1)(a) of the Industrial Relations Act 1979 (“the Act”), it has powersat any stage of the proceedings to dismiss the matter or any part thereof, or refrain from further hearing or determining thematter, if it is satisfied in respect of a number of things. Relevantly, s 27(1)(a) of the Act provides as follows—(1) Except as otherwise provided in this Act, the Commission may, in relation to any matter before it —

(a) at any stage of the proceedings dismiss the matter or any part thereof or refrain from further hearing ordetermining the matter or part if it is satisfied —

(i) that the matter or part thereof is trivial;(ii) that further proceedings are not necessary or desirable in the public interest;

(iii) that the person who referred the matter to the Commission does not have a sufficient interest in thematter; or

(iv) that for any other reason the matter or part should be dismissed or the hearing thereof discontinued, asthe case may be;

4. My view of this matter is that s 27(1)(a)(ii) and (iv) of the Act have application. In the regrettable circumstances which clearlyhave arisen, and it is regrettable not only for the applicant but no doubt for other employees as well of the respondent who mayhave missed out on entitlements they would otherwise be lawfully entitled to receive as a matter of law, I am simply notpersuaded that it would be in the public interest for this matter to proceed any further given the evidence before theCommission as to the likelihood of recovery of any sum, even if the applicant was successful in his action.

5. For all of those reasons I am persuaded to exercise my discretion to dismiss the application pursuant to section 27(1)(a) of theAct. An order will issue accordingly.

_________


PARTIES HOWARD STEINBERG, APPLICANTv.HOUGHTON MOTORS PTY LTD, RESPONDENT

CORAM COMMISSIONER S J KENNERDATE WEDNESDAY, 28 MAY 2003FILE NO. APPLICATION 1535 OF 2001CITATION NO. 2003 WAIRC 08524_________________________________________________________________________________________________________

Result Application dismissed.RepresentationApplicant Mr H Steinberg on his own behalfRespondent Mr R Carthew of counsel_________________________________________________________________________________________________________

OrderHAVING heard Mr H Steinberg on his own behalf and Mr R Carthew of counsel on behalf of the respondent, the Commission,pursuant to the powers conferred on it under the Industrial Relations Act, 1979 (“the Act”), hereby orders—

THAT the application be and is hereby dismissed pursuant to s 27(1)(a) of the Act.(Sgd.) S. J. KENNER,


____________________


PARTIES DAVID LESLIE NEWTON, APPLICANTv.EXUMA P/L T/A IAN DIFFEN WORLD OF TYRES, RESPONDENT

CORAM COMMISSIONER S J KENNERDATE THURSDAY, 24 OCTOBER 2002FILE NO/S. APPLICATION 1597 OF 2002CITATION NO. 2003 WAIRC 08483_________________________________________________________________________________________________________

Catchwords Termination of employment – Harsh, oppressive and unfair dismissal – Extension of time forapplication to be referred to Commission – Application referred outside of 28 day time limit –Relevant principles to be applied – Commission satisfied applying principles that discretion should beexercised – Extension of time to accept referral granted – Industrial Relations Act 1979 (WA) s29(1)(b)(i),(2)&(3)

Result Order issuedRepresentationApplicant Mr D NewtonRespondent Mr D Chinnery_________________________________________________________________________________________________________



1 Presently before the Commission is an application pursuant to s 29(1)(b)(i) of the Industrial Relations Act 1979 (“the Act”) bywhich David Leslie Newton alleges he was unfairly dismissed by Exuma Pty Ltd trading as Ian Diffen World of Tyres on orabout 21 August 2002.

2 The application was filed on 23 September 2002, and given the applicant’s date of dismissal the application is out of time forthe purposes of s 29(2) of the Act. That section of the Act requires that a referral of an application such as this is to be madenot later than 28 days after the day on which the employee’s employment is terminated. However, s 29(2) is subject to s 29(3)which provides ability for the Commission now to accept a referral by an employee under s 29(1)(b)(i) that is out of time if theCommission considers that it would be unfair not to do so.

3 For the purposes of s 29(2), the 28 day time limit expired in the context of this application on 18 September 2002. Theapplicant who represents himself informed the Commission that he was on sick leave at the time of his dismissal as a result ofa car accident. The applicant informs the Commission that he was at home at the time he received a letter of dismissal whichwas attached to the respondent’s notice of answer filed in these proceedings on 3 October 2002. This was acknowledged, Imight add, by the respondent represented by Mr Chinnery who the Commission understands is its general manager. Theapplicant says his initial step immediately after his dismissal was to seek another position through a friend of his, but this wasapparently not successful.

4 It was also common ground that the applicant spoke to Mr Chinnery of his former employer a few days after his dismissal, andnotified the respondent that he was not happy with the situation that he found himself in, and that he would take the matterfurther.

5 As to the 28 day time limit, the applicant says he was not aware of any such time limit until he spoke to a representative ofWageLine and obtained some advice. He then says he promptly commenced these proceedings.

6 The respondent opposes the extension of time. The respondent says that because of some suggestion in the telephonediscussion, to which I have referred, to involvement or assistance by a union, the respondent took the view that it sounded as ifthe applicant was aware of his rights, and there was no good reason why the application should not have been brought withintime.

7 In a recent decision of the Commission as presently constituted in Azzalini v Perth Inflight Catering Services (2002), I set outat para 28 what I regard to be the appropriate principles to deal with a s 29(3) extension of time matter. In that case I stated thefollowing—

“Having regard to the principles referred to in these cases, and considering the nature of ss 29(1)(b)(i) and 23A of the Actin my opinion, for the purposes of s 29(3) of the Act as it now is, consideration by the Commission of whether it oughtextend time for the purposes of this subsection should include the following—

(a) Prima facie, time limits imposed by the Act are to be complied with and it is for an applicant to establish thecircumstances such that the discretion to extend time should be exercised in his or her favour;

(b) An extension of time is not automatic and the discretion residing with the Commission to extend time is forthe purpose of enabling the Commission to do justice between the parties;

(c) It is for an applicant to demonstrate that strict compliance with s 29(2) of the Act will work an injustice andbe unfair in all of the circumstances;

(d) Considerations relevant to whether it would be unfair to not extend time include—(i) the length of any delay;(ii) the explanation for the delay;(iii) steps taken if any, by the applicant to evidence non-acceptance of the termination of employment and

that it would be contested;(iv) the merits of the substantive application in the sense that there is a sufficiently arguable case; and

(e) Whether there would be any prejudice to the respondent in granting the application to extend time althoughthe absence of prejudice to the respondent, without more, is not a sufficient basis of itself, to grant anapplication for an extension of time.”

8 I apply those principles for the purposes of this matter.9 I am persuaded in this matter that the Commission ought to exercise its discretion to extend time in the context of the present

application. A number of factors have influenced my decision in this regard. Firstly, the relatively short period of time outsidethe 28 day time limit imposed by the Act. Secondly, I accept prima facie the applicant was not aware of time limits until hespoke to WageLine and at least obtained some advice and thereafter acted promptly. Thirdly, the applicant did indicate, as itwas common ground, shortly after the dismissal that he did not accept the respondent’s decision and would take the matterfurther. Fourthly, I consider that at least there is an arguable case. Finally, there is no particular prejudice identified by therespondent put to the Commission.

10 Therefore in those circumstances the Commission orders that pursuant to s 29(3) of the Act it accepts the application referredunder s 29(1)(b)(i) of the Act out of time, and the application will now be listed for a conciliation conference at a date to befixed by the Commission.

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PARTIES DAVID LESLIE NEWTON, APPLICANTv.EXUMA PTY LTD TRADING AS IAN DIFFEN WORLD OF TYRES, RESPONDENT

CORAM COMMISSIONER S J KENNERDATE THURSDAY, 24 OCTOBER 2002FILE NO/S. APPLICATION 1597 OF 2002CITATION NO. 2002 WAIRC 07013


_________________________________________________________________________________________________________

Result Extension of time grantedRepresentationApplicant Mr D NewtonRespondent Mr D Chinnery_________________________________________________________________________________________________________

OrderHAVING heard Mr D Newton on his own behalf and Mr D Chinnery on behalf of the respondent the Commission, pursuant to thepowers conferred on it under the Industrial Relations Act, 1979 hereby orders—

THAT the referral of the herein application be and is hereby accepted out of time.(Sgd.) S. J. KENNER,


____________________


PARTIES LINDA CECELIA SOUTHEE, APPLICANTv.KEVIN DAVEY COUNTRY REGIONAL MANAGER OF PATHCENTRE, RESPONDENT

CORAM COMMISSIONER S J KENNERDATE FRIDAY, 6 DECEMBER 2002FILE NO/S. APPLICATION 1786 OF 2002CITATION NO. 2003 WAIRC 08481_________________________________________________________________________________________________________

Catchwords Termination of employment – Harsh, oppressive and unfair dismissal – Extension of time forapplication to be referred to Commission – Application referred outside of 28 day time limit –Relevant principles to be applied – Commission satisfied applying principles that discretion shouldnot be exercised – Extension of time to accept referral not granted – Industrial Relations Act1979 (WA) s 29(1)(b)(i),(2)&(3)

Result Order issuedRepresentationApplicant Ms L Southee on her own behalfRespondent Mr M Taylor_________________________________________________________________________________________________________


1 The Commission has before it application 1786 of 2002, an application by Linda Southee against a respondent described asKevin Davey, Country Regional Manager of PathCentre, although it is my view that the employer’s proper identity is TheWestern Australian Centre for Pathology & Medical Research, a part of a government agency.

2 The application has been brought on at the Commission’s own motion because on the face of the materials before theCommission the application is well outside of the 28 day time limit required to bring proceedings such as these, and thereforeit is for the Commission to consider under s 29(3) of the Industrial Relations Act 1979 (“the Act”) whether it would be unfairor not to not accept the application out of time.

3 It is common ground that the applicant was employed on a casual basis, with that employment commencing on or about30 November 2001 and it also would appear from the record before the Commission and the submissions of both the applicantand the respondent that the applicant last worked for the respondent on or about 19 April 2002.

4 It is also common ground in my view, from the submissions of both the applicant and the respondent, that the applicant wasindeed engaged truly casually and, by that, the Commission means on an intermittent and as and when required basis, ratherthan there being ongoing and regular consistent patterns of employment each day or every week, which of course, whilst itmight be described as casual, may not be in fact as a matter of law. So I am therefore persuaded on what is before theCommission that the applicant’s employment was truly casual in character.

5 As I have said, the last day on which the applicant worked for the respondent was 19 April 2002 when it appears she sufferedan unfortunate injury which precluded her from engaging in any further employment, it seems, until on or about 28 August2002.

6 Annexed to the notice of application is a letter from the respondent to the applicant, dated 22 April 2002, which confirms thatthe applicant’s period of engagement prior to 19th April was on 3 and 4 April 2002 for 2 calendar days, and the appointment isbeing confirmed in that letter as being made pursuant to s 100(2) of the Public Sector Management Act 1994, which providesfor the engagement in public service agencies of employees on a casual basis. I am therefore well satisfied, and indeed, it iscommon ground, that the applicant was truly casually employed.

7 In my opinion, and it is important for the applicant to realise that to even attract consideration of the Commission’s jurisdictionin matters of this kind, there is an onus on an applicant to establish that he or she has been dismissed.

8 The Commission is not persuaded that the applicant was dismissed on what is before it. In my opinion, the employment cameto an end by effluxion of time on 19 April 2002.

9 It appears to be somewhat regrettable that it was common ground that there was some undertaking given, or at least a promiseof a further possible engagement when the applicant was again fit for work, which no doubt raised the applicant’s expectations,but in my view, as a matter of law, that did not constitute in the interim period an ongoing contract of employment.


10 Reference was made to a separation certificate which was requested by the applicant from the respondent for insurance andsocial security purposes. I note from the employment separation certificate that although it is dated 3 October 2002, the lastday of work recorded in the certificate is indeed 19 April 2002. That document also confirms that employment was on a casualbasis. Merely because the separation certificate was requested and issued on or about the date of 3 October 2002 does notmean, as a matter of law, that there was an ongoing contract of employment between 19 April and that latter date. In myopinion, the employment came to an end as and when I have said that it did.

11 Even if, however, there was a dismissal on 19 April 2002, for reasons that the Commission as presently constituted expressedin the matter of Nicole Azzalini v Perth Inflight Catering 2002 WAIRC 06766, I came to the view that s 29(3) of the Actdealing with the ability for the Commission to extend time is not retrospective in effect; that is, the provisions don’t apply todismissals that occurred before 1 August 2002, and therefore, on any view, the applicant’s termination of employmentoccurred well before that time in any event.

12 For all of those reasons, and whilst the applicant might find it somewhat disappointing that the circumstance she is in is thus, Iam not persuaded in the circumstances that the Commission can entertain the claim and the application is dismissed for want ofjurisdiction.

_________


PARTIES LINDA CECELIA SOUTHEE, APPLICANTv.KEVIN DAVEY COUNTRY REGIONAL MANAGER OF PATHCENTRE, RESPONDENT

CORAM COMMISSIONER S J KENNERDATE FRIDAY, 6 DECEMBER 2002FILE NO/S. APPLICATION 1786 OF 2002CITATION NO. 2002 WAIRC 07172_________________________________________________________________________________________________________

Result Application dismissed for want of jurisdiction.RepresentationApplicant Ms L SoutheeRespondent Mr M Taylor_________________________________________________________________________________________________________

OrderHAVING heard Ms L Southee on her own behalf and Mr M Taylor on behalf of the respondent the Commission, pursuant to thepowers conferred on it under the Industrial Relations Act, 1979 hereby orders—

THAT the application be and is hereby dismissed for want of jurisdiction.(Sgd.) S. J. KENNER,


____________________


PARTIES BERNARD ROY WORTHINGTON, APPLICANTv.FALKIRK NOMINEES PTY LTD (IN ADMINISTRATION) T/A ROSS HUGHES ANDCOMPANY AND AUSTRALIAN PROPERTY CONSULTANTS, RESPONDENT

CORAM SENIOR COMMISSIONER A R BEECHDATE WEDNESDAY, 2 JULY 2003FILE NO. APPLICATION 1577 OF 2001CITATION NO. 2003 WAIRC 08605_________________________________________________________________________________________________________

Result Application alleging unfair dismissal and denied contractual entitlements dismissedRepresentationApplicant Ms H. Ketley (of counsel)Respondent No Appearance_________________________________________________________________________________________________________

Reasons for Decision1 The claim before the Commission by Mr Worthington is that he was unfairly dismissed and that he is entitled to benefits under

his contract of employment which have been denied by his employer. The jurisdictional point taken by the respondent that MrWorthington was not an employee for the purposes of the Industrial Relation Act 1979 was decided by the Commission in adecision dated 15 March 2002: Worthington v. Falkirk Nominees Pty Ltd t/a Ross Hughes and Company and AustralianProperty Consultants (2001) 82 WAIG 667. An appeal against that decision was dismissed: Falkirk Nominees Pty Ltd t/a RossHughes and Company and Australian Property Consultants v. Worthington (2001) 82 WAIG 2388.

2 A request dated 20 September 2002 from Mr Worthington’s solicitors for the substantive claims to be listed for hearing as soonas possible was subsequently withdrawn and not renewed until 3 December 2002. An order regarding interlocutory matters


was made on 5 February 2003 and the substantive matter set down for 5 and 6 May 2003. The Commission was subsequentlyadvised on 1 April 2003 that the respondent was placed under administration. However, the Commission was advised that on30 April 2003 in the Supreme Court Master Newnes granted unconditional leave for the application before this Commission tocontinue (a formal order dated 15 May 2003 being extracted and provided to the Commission under letter fromMr Worthington’s solicitors of 21 May 2003).

3 The substantive matters then proceeded to hearing. However, the respondent was not represented at the hearing. A file notefrom my associate records that on 2 May 2003 at 4:10pm a Mr Levi rang the Commission to inform it that there would be noappearance on behalf of the respondent at the hearing scheduled for 5 May 2003. He informed my associate that the creditors(including Mr Worthington) are owed significant amounts of money. He felt it would erode funds to continue to appear anddefend the application.

4 Mr Worthington gave his evidence by way of witness statement and gave oral evidence regarding the allegations made againsthim set out in the respondent’s Notice of Answer and Counter Proposal. Mr Worthington tendered a number of exhibits. Indeciding this matter the Commission also has before it the transcript of the earlier proceedings.

5 I turn to consider the claim by Mr Worthington that he was unfairly dismissed. Mr Worthington’s evidence (exhibit A14) isthat on Friday, 3 August 2001 he attended the office of the respondent as usual and handed his fellow directors a memo inwhich he raised issues of concern to him in relation to inequality of income amongst the directors in light of the forthcomingprofit distribution following the end of the 2000/2001 financial year. The memo expressed concern that other directors weretaking home more than Mr Worthington and one other director (both of whom Mr Worthington described as the “biggestproducers”) were taking home.

6 Mr Worthington’s evidence is that fellow director John Martin approached him at about midday and indicated that there were anumber of important issues raised and that perhaps it would be better that a meeting be held out of the office. Subsequently ameeting was organised at the West Australian Club at 3:30pm on that day. At that meeting, Mr Worthington stated that hebelieved he had received an inequitable distribution for the previous year and that neither John Martin nor Graeme Hopkinshad performed their duties as required. The meeting proceeded to discuss the relative equality of income and profit distributionamong the directors. Mr Martin agreed with Mr Worthington that Mr Worthington’s production entitlement was inequitableand that a number of the other items listed in his memorandum had not been addressed. Mr Worthington’s evidence is that theother directors similarly agreed that his effort and contribution for the year were equal to anyone else.

7 Mr Worthington then states that Mr Martin said that there was another issue which had been concerning him greatly. This was“the Sandgate matter”. Mr Worthington explains in paragraph 25 of his witness statement as follows—

“This matter concerned a valuation I had done on a property in 1998 which had subsequently (sic) where I had failed toinclude in the valuation a statement that the valuation was subject to a number of improvements on the property in beingcompleted, and which resulted in a significantly lesser value than that I had provided.As a result I had been called to appear before the Land Valuer’s Licensing Board in June 2001.”

8 Mr Worthington states that the matter came to “our attention” in approximately April/May 2000 through the Receivers’Manager’s letter to creditors for the company involved. Mr Worthington states he kept all directors fully informed of events atall times. The managing director, John Martin attended each meeting Mr Worthington had with his legal representative. MrWorthington’s statement of evidence continues—

“28. I pleaded guilty to the charges because I wanted the issue to be resolved and to minimise any publicity whichmay eventuate.

29. As a result I was fined $500 on each charge and issued with a reprimand from the Board.30. Subsequently the matter was listed as part of the Royal Commission into the financing brokers’ affair. I was

never called before the Board and was issued with advice from the Royal Commission advising that the matterhad been completed and that I could recover my files.

31. To my knowledge no legal proceedings have been or are anticipated to be brought in relation to the matter.”9 Mr Worthington states that the Sandgate matter had been raised generally in directors’ meetings but no specific issue had been

raised with him by the directors. Mr Worthington states it was not unusual for one of the directors to be the subject of legalproceedings. Glen O’Brien had been involved in a claim over a sales dispute only a few months before. Ross Hughes had beeninvolved in a significant professional indemnity claim. Many valuers have and have had professional indemnity claims madeagainst them including some valuer friends of Mr Worthington but to his knowledge none of them was ever sacked.Mr Worthington states that he had no reason whatsoever to believe that his job was in jeopardy. Although things had becometense between the directors in the week of the meeting, this was often the case after the end of each financial year as there was“the usual jockeying for position with regard to profit distribution”.

10 Mr Worthington’s evidence is that Mr Martin stated that he felt his personal reputation might be damaged as a result ofpossible future publicity arising from the Sandgate matter. Mr Martin had privately discussed these concerns with Mr Hopkinsand Mr O’Brien and as result they had decided that Mr Worthington would be told to leave the company. He was asked toleave the room for a few minutes. When he returned Mr Martin stated that it was the desire of the other three directors that MrWorthington leave the company.

11 Mr Worthington states that he asked about work in progress, which in his view could take many months to work through butMr Martin said that this was not a problem and Mr Worthington then asked whether he was being asked to leave immediately.Mr Hopkins replied in the affirmative. Mr Worthington he stated he “declined this offer and stated that it was unreasonable”and that he would only agree to leave if suitable terms and conditions were negotiated about which he would need a few daysto think. Mr Worthington’s evidence is that it was agreed that the meeting would reconvene on the following Wednesday. MrHopkins asked for Mr Worthington’s office keys. Mr Worthington asked if he was being sacked which Mr Hopkins answered“No, you just resigned”. Mr Worthington gave an undertaking that he would not attend the office without other partners beingpresent and he left the meeting.

12 On Sunday, 6 August 2001 Mr Worthington drove down to Albany with his wife to complete a valuation assignment. Hiswife’s sister contacted them by the telephone that evening and read to him over the telephone a letter from the respondentwhich states “we confirm acceptance of your resignation as a director and employee of Falkirk Nominees Pty Ltd effectiveimmediately” (exhibit 11). Mr Worthington’s evidence is that he called Mr Martin at 5:50pm on that day and advised him thatcontrary to the contents of the letter he had not resigned and would not be leaving the office on Wednesday and would do soonly once terms and conditions of departure were finalised. He confirmed this in a letter dated 7 August 2001 (document BRW3 attached to exhibit A14).

13 On Wednesday, 8 August 2001 Mr Worthington arrived at the respondent’s office at 8:30am to attend a real estate mastercourse which was a course he had arranged for the valuers several weeks previously. He found his desk had been tidied up and


his computer packed away. Mr Hopkins and Mr Martin stated that Mr Worthington had to leave immediately. Mr Martin saidthe decision had been made and Mr Worthington had to leave and if he refused the police would be called. Mr Worthingtoncollected his personal gear and work-in-progress files. He left at approximately 10:00am. Mr Worthington’s evidence is that atthat point he felt humiliated, embarrassed and very distressed. He did not say goodbye to any of his staff most of whom he hadknown for years.

14 Mr Worthington’s evidence is that the respondent had reneged on its agreement with him of 3 August 2001 to negotiate withhim about the terms of his departure. This made him even angrier and upset. He states that in the course of the eventualwinding up of the respondent in 2003 he has been provided with a copy of the administrator’s report to creditors (documentBRW 4 in exhibit A14) where it is noted that on 23 July 2001 the respondent’s Board of Directors’ resolved “to terminateBernie Worthington as an employee of Falkirk effective from 3:00pm 3 August 2001”. Mr Worthington now feels he has beentotally deceived and tricked by his fellow directors and employer as well as being sacked in humiliating circumstances.

15 Mr Worthington’s evidence is that he has received no payment in lieu of notice at any time.16 It is not clear from the respondent’s Notice of Answer whether, if Mr Worthington was an employee, it is conceded that he was

dismissed. I find for the following reasons that Mr Worthington was dismissed. It is apparent from the evidence that therespondent decided on 23 July 2001 to dismiss Mr Worthington as an employee effective from 3 August 2001. That decision isevidenced by the extract of the minutes of the Board of Directors in the report to creditors distributed after the company’sdemise (Attachment BRW 4 in exhibit A14). Mr Worthington’s evidence that he did not resign is supported by his letterwritten only 4 days after the events of 3 August 2002. It is conceptually difficult to regard Mr Worthington’s position as a freeand voluntary resignation given the evidence that the respondent decided on 23 July 2001 to dismiss Mr Worthington as anemployee effective from 3 August 2001 and that his departure on 3 August 2001 was after the initiative taken by Mr Martin.

17 Further, the particulars to the respondent’s Notice of Answer and Counterproposal which were filed in February 2003 state atpage 5 that the other directors indicated that Mr Worthington could either elect to withdraw from the association or be removedaccording to the shareholders’ agreement. The particulars state that Mr Worthington indicated that his preference was towithdrawn by resignation. In the circumstances of this matter, even if Mr Worthington resigned after having being told that heshould either resign or be fired, his resignation would constitute a dismissal for the purposes of the Act (Attorney General ofWA v WAPOU (1995) 75 WAIG 3166; 62 IR 225). The only conclusion open on the evidence is that it is the respondent whoreally terminated the employment relationship.

18 Finally, the respondent’s own letter to Mr Worthington of 8 August 2001 states—“If, as discussed, you need to interpret this as termination of your employment, then so be it.”

(exhibit A12)19 Therefore, I find that Mr Worthington was dismissed.20 I now turn to consider his claim that his dismissal was unfair. An unfair dismissal is a dismissal where the employer’s legal

right to dismiss the employee is exercised so harshly or oppressively against the employee as to amount to an abuse of thatright (Undercliffe Nursing Home v FMWU (1985) 65 WAIG 385). In deciding the matter, I not only take into account theabove evidence, but also the respondent’s stated position set out in the Notice of Answer and Counterproposal and theparticulars. I do so on this basis. The Notice of Answer and Counterproposal and the particulars are part of the record beforethe Commission. The Notice of Answer is dated 3 October 2001 and is a document relatively contemporaneous to the events ofAugust 2001. It and the particulars can be accepted by the Commission as containing the reasons the respondent would haveadvanced, and is likely to have supported by evidence, in resisting Mr Worthington’s claim before the Commission. Eventhough the Commission is not a court of pleadings and is to decide matters with the minimum of legal form and technicality, aNotice of Answer is nevertheless required to specify with particularity the basis on which the answer is made: r.73A. The factthat the respondent did not to appear and call evidence in these proceedings does not rob those documents of their relevance tothe issues before the Commission.

21 In this case, the decision not to appear has been made by the respondent’s liquidator by reason of the costs involved inappearing. That reason does not suggest that the respondent now resiles from the matters set out in those documents nor thatthose matters are without foundation from the respondent’s point of view. However, the absence of evidence from therespondent goes to the weight which can be given to the allegations set out in those documents. The weight will depend uponthe other evidence which is before the Commission which may allow the Commission to reach a conclusion on any particularallegation. The other evidence before the Commission consists of contemporaneous documents, Mr Worthington’s earlierevidence and the evidence he has now given.

22 I find as follows. On 11 June 2001, seven weeks before his dismissal, Mr Worthington pleaded guilty before the Land ValuersLicensing Board to three allegations made against him under the Land Valuers Licensing Act 1978. The allegations to whichMr Worthington pleaded guilty are set out in detail in exhibit A18. In Mr Worthington’s statement of evidence (exhibit A14,paragraph 25) Mr Worthington merely states that he—

“…had failed to include in the valuation a statement that the valuation was subject to a number of improvements on theproperty in being completed, and which resulted in a significantly lesser value than that I had provided.”

23 Mr Worthington’s description may be contrasted to what in fact was before the Land Valuers Licensing Board. MrWorthington pleaded guilty to the following numbered charges—

“(2) It is alleged that in or about April 1999 [Mr Worthington] failed to clearly state the basis upon which heprepared a valuation for a client and did so negligently.

(6) Further it is alleged [Mr Worthington] represented in his valuation that the property was developed to a greaterextent than it actually was and he did so negligently.

(10) It is further alleged that the respondent erred in the valuation in the calculation of works completed and he didso negligently.”

24 These were three separate charges and not one matter as Mr Worthington’s statement implies. Indeed, notwithstanding MrWorthington’s counsel’s submission to the Land Valuers Licensing Board that charge (6) is a reiteration of charge (2), theBoard found they were three separate allegations and that this was recognised by Mr Worthington having pleaded guilty to allthree of them even if they stemmed from two mistakes (exhibit A19 p.15).

25 Contrary to the wording used in the respondent’s particulars of its Notice of Answer and Counterproposal these were not threecounts of “gross negligence”. The pleas of guilty were to “negligence”. In its decision, the Land Valuers Licensing Boardstated—

“CHAIRMAN: The respondent has pleaded guilty to allegations 2, 6 and 10 of the notice of inquiry. The board issatisfied that a proper cause exists for disciplinary action against the respondent pursuant to section 2(2)(c) of the LandValuers Licensing Act.


The board considers that negligence and incompetence of this nature would normally warrant a suspension of the licence,however taking into account the submissions of both counsel and the level of cooperation of the respondent including thequality assurance steps that he’s put in place, the board (1) severely reprimands the respondent; (2) fines the respondentthe maximum fine of $500 for each charge payable within 30 days of the date of the hearing; and (3) awards costs to theapplicant.”

26 Mr Worthington in his statement of evidence attempts to place this in a context by stating (in paragraph 32) that it was notunusual for one of the directors to be the subject of legal proceedings or a professional indemnity claim. However, I amsatisfied from Mr Worthington’s answer to a question I put to him (transcript 6.5.03 p.54) that no other director had beensubject to proceedings before the Land Valuers Licensing Board, pleaded guilty to three charges of negligent conduct and beenseverely reprimanded and fined the maximum monetary penalty.

27 In the conclusion I have reached, the seriousness of the outcome of the proceedings before the Land Valuers Licensing Boardcannot be lightly put to one side. The charges went to the very heart of Mr Worthington’s employment as a licensed valuer.The situation may be different if the negligent conduct was in an area unrelated to his employment. Mr Worthington occupiedone of the four most senior positions in the respondent. I consider the directors of the respondent were perfectly entitled toreach the conclusion that their own reputations may be affected by the outcome of proceedings against one of their fellowdirectors as Mr Martin apparently concluded.

28 The Notice of Answer states that—“…there were and are valid grounds for termination of employment based upon gross negligence and/or inappropriateand unprofessional behaviour by the applicant going to the root of and destroying the relationship of good faith andconfidence between the parties…”

29 Even taking into account that the use of the word “gross” may be an exaggeration, that statement raises the relationship ofgood faith and confidence between the employer and employee. In Blyth Chemicals Ltd -v- Bushnell (1933) 49 CLR 66 theHigh Court stated what has been described as “perhaps one of the most concise and authoritative statements of what isgenerally encompassed by the duty of fidelity and good faith” (The Law of Employment, Macken, O’Grady, Sappideen andWarburton, 5th ed. 2002, p141). In that case Dixon and McTiernan JJ stated—

“Conduct which in respect of important matters is incompatible with the fulfilment of an employee’s duty, or involvesan opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of hisobligations, or is destructive of the necessary confidence between employer and employee is a ground of dismissal; butthe conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive ofconfidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground foruneasiness as to future conduct arises.”

(ibid. at p. 81/82).30 Mr Worthington submitted that the circumstances of the Sandgate matter if they had occurred 10 years ago would never have

reached the Land Valuers Licensing Board. As I understand this submission, Mr Worthington submits that the matters to whichhe pleaded guilty were not matters of seriousness. I am unable to accept the submission. The seriousness of the Sandgatematter is reflected in the decision of the Land Valuers Licensing Board. Although Mr Worthington states that the reason hepleaded guilty was because he wanted the issue to be resolved and to minimise any publicity which may eventuate, he surelywould not have pleaded guilty to 3 charges of negligence if he was not guilty as charged.

31 In considering the fact of the decision of the Land Valuers Licensing Board it is appropriate to also consider what other factsare established on the evidence before me. The particulars of the Notice of Answer make other allegations against MrWorthington under the headings of Paragon Arcade, Mr Worthington’s own vineyard, Westpoint Valuations, Chester PassRoad, general reputation and work practices, general concerns and negative third party perceptions. Mr Worthington gaveevidence in the proceedings on 6 May 2003 in relation to each of the allegations. With one exception, the absence of evidencefrom the respondent leads only to the conclusion that none of the other allegations are made out on the evidence before me.

32 The exception is point 7 Breach of Protocol. The allegation set out in the particulars state that a quality control system wasintroduced in January 2000 requiring that valuations of over $1,000,000 be checked and countersigned before being issued.Subsequently, it is alleged, Mr Worthington signed off and issued valuations of over $1,000,000 without review and/orcountersignature on not less than 23 occasions after the introduction of the protocol.

33 In his evidence before the Commission on 6 May 2003 Mr Worthington states that the quality control system requiredvaluations by staff, not directors, of over $1,000,000 to be checked and countersigned. In the case of directors, valuations ofover $3,000,000 were to be checked and countersigned. Mr Worthington concedes that even if he did sign off and issue over23 valuations of over $1,000,000 without review and/or countersignature, that was within his prerogative provided it did notexceed $3,000,000 (transcript 6.5.03 p.59). This evidence is in marked contrast to Mr Worthington’s evidence before theCommission in the earlier proceedings. In the earlier proceedings, Mr Worthington had stated that any valuations by a directorof the company in excess of $1,000,000 had to be countersigned by a director. He stated “My valuations in excess of$1 million had to be countersigned by John Martin and vice versa. I had to comply with that” (transcript 14.2.02 p.22). On thatoccasion Mr Worthington conceded that there were “a couple of occasions” where he had been rebuked for not complying withcompany policy or procedures (ibid.).

34 When this difference in his evidence was drawn to his attention, Mr Worthington stated that the $1,000,000 may have comefrom proceedings before the Land Valuers Licensing Board (transcript 6.5.03 p.60). A review of the transcript of thoseproceedings (exhibit A19 at p.20) shows that it was submitted on Mr Worthington’s behalf that since late 1999 whenMr Worthington and his co-director John Martin became aware of the Sandgate matter they introduced a procedure wherebyany valuation over $500,000 has to be discussed between two valuers and the file initialled to that effect. Any valuation over$1,000,000 has to be read, discussed and countersigned by a valuation director. An exhibit was tendered which became exhibitA8.

35 Exhibit A8 is a memo to “All Valuers” from John Martin and is dated 28 January 2000. It states that “you are reminded of therisk management procedures previously advised…” and there are then a number of points set out. Points (8) and (9) are—

“(8) any valuation prepared by a valuer in excess of $1,000,000 must be counter-signed by a director(9) any valuation prepared by a director or valuer in excess of $3,000,000 must be discussed, read and

countersigned by a director.”36 There are two points to be made. The first is the inconsistency in Mr Worthington’s evidence before the Commission in the

earlier proceedings with his present evidence and exhibit 8 does not assist him in these proceedings when the only evidencebefore me is his evidence.


37 The second point is that although Mr Worthington stated that he had to comply with the requirement in the memo, when heexamined the 23 files to which the respondent’s allegation refers, “there were some properties that were significantly morethan $3,000,000” (transcript 6.5.03 p.59). This is consistent with Mr Hopkins’ evidence in re-examination in the earlierproceedings. Mr Hopkins was asked—

“The issue of Mr Worthington seeking approval for, or signing - - having another valuer or Mr Martin sign off onvaluations was raised. Are you aware of occasions when Mr Worthington has breached the protocol in respect ofsigning off on valuations?---Yes, I am.How many occasions would you describe?---Off the top of my head I would guess half - - of the ones that have beenmade aware to me, I’d guess at least half a dozen.And - -?---They’re a matter of record so they’ll be whatever they are.And what would be your understanding of the position that a staff valuer would be in had they made the same numberof contraventions of those protocols?---I think pretty much as Bernie described.Which was - -?---Which was they’d be given a warning, most probably the second warning and then they would beasked to leave.So with the number of contraventions that you’ve described it may well have come to the point of termination?---Of astaff member, yes.”

(transcript 14.02.02 p.93)38 Thus the evidence shows that the respondent’s allegation contains some truth to it in that Mr Worthington has signed off and

issued valuations of over $3,000,000 without review and/or countersignature even though the evidence before me suggeststhere are more likely to be 6 and not 23 such occasions. It is significant that the memo (exhibit A8) states—

“To comply with appropriate quality control the above procedures will be followed by all directors and valuers. There areno exceptions.Any director or staff member not adhering to the above will not only be operating outside the API Rules of Practice butwill also be deemed to have breached their terms of engagement as employees of the company.”

39 Thus Mr Worthington apparently has operated outside the API Rules of Practice and is “deemed” to have breached his terms ofengagement as an employee of the respondent.

40 In considering whether or not Mr Worthington’s dismissal was unfair I also take the following into account. Mr Worthingtonstates that he kept his fellow directors aware of the Sandgate matter once it was drawn to his attention. I accept this evidencenoting in the particulars of the Notice of Answer in paragraph 8 that these matters were raised in or about late 2000 at Boardlevel. The statement in paragraph 8 that the directors were prepared to accept Mr Worthington’s position “which waseffectively that he had done nothing wrong, and was innocent until proven guilty” is sufficiently similar in my view to MrWorthington’s evidence that he pleaded guilty not because he had done anything wrong but because he wanted the issue to beresolved and to minimise any publicity which may eventuate and I place some weight upon that statement.

41 It was submitted, and correctly submitted, that Mr Worthington was summarily dismissed. Mr Worthington was not paid inlieu of notice nor paid any entitlements which may have accrued to him. As such, the respondent bears an onus of proving themisconduct upon which it relies. I find for the reasons given above that the evidence establishes—

1. A finding of negligence and incompetence by Mr Worthington which would normally warrant a suspension ofhis licence;

2. A severe reprimand and fines of the maximum monetary penalty by the Land Valuers Licensing Board;3. Some occasions when Mr Worthington has signed off and issued valuations in excess of $3,000,000 without

review and/or countersignature by a director contrary to the respondent’s procedure.42 I therefore find that the respondent has discharged its evidentiary onus of proving the misconduct upon which it relies.43 The claim of unfairness which Mr Worthington brings raises the issue of whether the misconduct which has been established is

sufficient to justify the dismissal which occurred. The entitlement of an employer at common law to dismiss an employeesummarily was stated by Kirby J in Concut v. Worrell (2000) 75 ALJR 312 at paragraph 51 as follows—

“It is, however, only in exceptional circumstances that an ordinary employer is entitled at common law to dismiss anemployee summarily. Whatever the position may be in relation to isolated acts of negligence, incompetence orunsuitability, it cannot be disputed (statute or express contractual provision aside), that acts of dishonesty or similarconduct destructive of the mutual trust between the employer and employee, once discovered, ordinarily fall within theclass of conduct, which without more, authorises summary dismissal. Exceptions to this general position may exist fortrivial breaches of the express or implied terms of the contract of employment. Other exceptions may arise where thebreaches are ancient in time and where they may have been waived in the past, although known to the employer. Somebreaches may be judged irrelevant to the duties of the particular employee and an ongoing relationship with theemployer. But these exceptional cases apart, the establishment of important, relevant instances of misconduct, such asdishonesty on the part of an employee …, will normally afford legal justification for summary dismissal. Such a casewill be classified as amounting to a relevant repudiation or renunciation by the employee of the employment contract,thus warranting summary dismissal.”

44 In Mr Worthington’s written submissions it is stated that both the dismissal and the manner of the dismissal were unfair. As tothe dismissal and the reason for it, I have considered the following to be significant factors. Mr Worthington both in hiscapacity as one of four directors of the respondent as well as an employee, occupied one of the most senior positions. As hisstatement in evidence describes at [66] he was Director in Charge of Valuations of a significantly sized real estate andvaluation business and was at the time of his dismissal its highest earning valuer. He can reasonably be expected to set animpeccable example in the work that he performed (cf. BGC (Australia) Pty Ltd v Phippard (2002) 82 WAIG 2013 perHasluck J at [22]). The finding of the Land Valuers Licensing Board that the conduct to which Mr Worthington pleaded guiltywas negligence and incompetence which would normally warrant a suspension of his licence and which led to a severereprimand and the maximum monetary penalty on each admitted charge flies in the face of that expectation. An employee maybe dismissed summarily for incompetence in carrying out his duties and also be dismissed for negligently performing hisduties: Rankin v Marine Power International Pty Ltd [2001] VSC 150 at [265].

45 Whatever may have been, and still might be, Mr Worthington’s perception of the seriousness of his conduct which led to thecharges, the finding of the Land Valuers Licensing Board went to the heart of his employment. That record necessarily wouldaffect the level of “mutual trust and confidence” between employer and employee. Otherwise, in the words of Kirby J:


“To suggest that the common law would effectively insist that such parties continue in the personal, and often quiteclose and trusting, relationship of employment, as if nothing had happened, would seem remarkable. The effect of thiswould be to demand the employer put out of mind (as it were) the discovery of the misconduct, and continue to pay theemployee under the supervening Service Agreement as if nothing had occurred.”

(supra)46 In this matter if Mr Worthington had kept all directors fully informed of events at all times and they were entitled to give him

the benefit of any doubt until the outcome of any proceedings was known. However, it can hardly be acceptable to asignificantly sized real estate and valuation business to have its Director in Charge of Valuations found guilty of negligenceand incompetence in a valuation by the statutory authority created by the Parliament of the State to be the licensing andsupervisory authority for the purposes of the Land Valuers Licensing Act 1978. I have already concluded that the standardsexpected of, and to be set by, a senior management employee, who is also Director in Charge of Valuations, are greater thanmight be expected of an employee in a less senior position. I consider that the finding of the Land Valuers Licensing Boardprovided the grounds to summarily dismiss Mr Worthington.

47 Even if it could be validly argued that the finding of the Land Valuers Licensing Board did not justify summary dismissal, it isunarguable in my view that the finding together with Mr Worthington’s concession that he also breached the respondent’sprocedure regarding signing off valuations would do so. The significance of these breaches arises from the reliance he himselfplaced on the establishment of this very procedure in his plea in mitigation before the Land Valuers Licensing Board and theweight given to it by the Board in reducing the penalty from one which otherwise warranted suspension of Mr Worthington’slicence to both a severe reprimand and the maximum fine. For Mr Worthington to admit to breaching that very procedure on atleast some occasions is remarkable in itself given that he himself relied upon it as providing some safeguard against repeatnegligence in the future.

48 For all of those reasons, I do not agree with the submission that the dismissal was unfair because there was no justification forit.

49 In a comprehensive and thoughtful written submission, it was submitted by Ms Ketley on Mr Worthington’s behalf in thealternative that even if the dismissal was justified the dismissal was unfair. It was submitted that a ground of unfairness wasthat there was no forewarning that he would be dismissed. This is correct as the decision of the respondent on 23 July 2001 todismiss Mr Worthington effective from 3 August 2001 was not discussed with him. There is no evidence from the respondentbefore me which could permit any other conclusion to be reached. However, a summary dismissal overrides all considerationsof due notice (The Law of Employment, (op.cit. at p.195). I do not consider the dismissal was unfair due to lack offorewarning.

50 It was submitted there was no valid reason to terminate Mr Worthington where his performance and conduct had beenoutstanding. I consider that it is perfectly valid to submit that whether dismissal in any circumstances is justified requires abalancing of all circumstances. Thus, the conduct found by the Land Valuers Licensing Board and also the breaches of therespondent’s policy are, in fairness, to be balanced against the conduct of Mr Worthington in all other respects. However, it isdifficult to reach a conclusion that the decision of the Land Valuers Licensing Board together with the breaches of the policyare able to be effectively counter balanced. The Commission is not to put itself in the place of the respondent and decide whatit would do. Rather, the Commission is to assess the industrial fairness of what occurred. I am unable to conclude that theemployment relationship could continue in these circumstances notwithstanding any previous past good conduct. Accordingly,I do not find the dismissal to be unfair for the reason submitted.

51 Neither do I consider that the respondent, as submitted, conducted itself in the manner contrary to the implied obligation not toconduct itself without reasonable cause in a manner likely to damage or destroy the relationship of trust and confidencebetween the parties. As these Reasons for Decision demonstrate, the conduct upon which this decision turns is the conduct ofMr Worthington, and not that of the respondent.

52 It was also submitted that Mr Worthington was forced out of the respondent without any regard to the loyalty andcommitments he had given throughout his long period of service. The absence of direct evidence from the respondent meansthat there is no evidence before the Commission whether the respondent paid any regard to loyalty and commitmentMr Worthington had given throughout his long period of service. Assuming for the purpose of argument that no suchconsideration was given the issue becomes whether, had that consideration been given, a different outcome could haveresulted. For the reasons I have earlier expressed, I consider it quite unlikely that the respondent could have come to anydifferent a conclusion in the circumstances. I do not find the dismissal unfair for this reason.

53 It was also submitted that the manner of the termination was harsh, humiliating and unfair. I have found it convenient to dealwith the submission on the basis of the grounds which then follow. It was stated that Mr Worthington was assured on 3 August2001 that negotiations would take place concerning his termination prior to his completion of work for the respondent. In thisregard Mr Worthington’s evidence is that on 3 August 2001 he did advise he would agree to leave on the proviso that suitableterms and conditions of departure were negotiated and he would need a few days to think about matters. This evidence issupported by his contemporaneous letter to the respondent of 7 August 2001 (Annexure BRW 3 of exhibit A14). I accept MrWorthington’s evidence that after 3 August 2001 he travelled to the country to complete a valuation. I find on the balance ofthe evidence that an understanding had been reached at the meeting on 3 August 2001 which recognized that there were to benegotiations in order to finalise Mr Worthington’s departure. I find that Mr Worthington was to return to the office onWednesday morning (which was 8 August 2001) “for Mr Worthington to inform staff” and to discuss the method of sale of hisunits and shares: exhibit A11. This is entirely consistent with Mr Worthington’s evidence “that a meeting would reconvene onthe following Wednesday” (exhibit A14 at [41]).

54 It is submitted, however, that when Mr Worthington returned to the office on 8 August 2001 the respondent demanded that heleave immediately, that the locks on the respondent’s office had been changed and he was not provided with any opportunity tofarewell his colleagues.

55 Any consideration of this point must necessarily take into account that Mr Worthington had been dismissed on 3 August 2001.The terms of his departure had yet to be confirmed. It was at least understood that Mr Worthington would be returning to theoffice on the 8 August 2001 for some discussions. However his keys had been removed from him and even on his ownevidence Mr Hopkins told him: “You just resigned”. He undertook not to attend the office without other partners being present.Mr Worthington’s statement that he did not resign cannot change the unilateral right of his employer to dismiss him, which itdid summarily. Mr Worthington’s letter of 7 August 2001 (Annexure BRW 3 to exhibit A14) shows in its insistent wordingthat the relationship between him and his fellow directors had changed. The respondent’s letter of 8 August 2001 confirms thebreakdown in the working relationship from its point of view and confirmed the dismissal which had occurred on 3 August2001.

56 I do not consider the submission that Mr Worthington’s dismissal was harsh because of what occurred on 8 August 2001 to bemade out.


57 Rather, the fairness or otherwise of the manner of the dismissal is to be seen by reference to the events of 3 August 2001.Indeed, and taking into account the submission that the dismissal is unfair because the respondent attempted to paint thetermination as a resignation, the fact that the respondent has attempted to paint the dismissal as a resignation, and put thedismissal into effect off the premises at the West Australian Club on that day, are factors from which it is also open to inferthat some consideration was given to Mr Worthington’s position. In the absence of submissions from the respondent a findingto this effect is not open on the evidence. Nevertheless, they are factors which argue, in my observation, against the submissionof unfairness on the grounds of the manner of the dismissal.

58 I have given consideration to the detailed submissions on behalf of Mr Worthington and reviewed both the evidence before meon this occasion and the evidence before me from the earlier proceedings. In the conclusion I have reached, Mr Worthingtonhas not, and could not, show that his dismissal was harsh, oppressive or unfair and for that reason his claim is herebydismissed.Denied contractual benefits

59 The claims under this heading are as follows—(1) Unpaid notice

60 Mr Worthington claims it was a benefit under his contract to be paid reasonable notice upon his termination. He claimsreasonable notice would be a period of nine months. On the findings I have made, the entitlement of the respondent tosummarily dismiss Mr Worthington means that there is no entitlement to reasonable notice and the claim will be dismissed.(2) Unpaid vehicle expenses 1995 - 2001

61 Mr Worthington stated in paragraph 86 of his statement that “all other valuers apart from himself” were reimbursed travellingexpenses when the valuation fee was paid by the client. Mr Worthington stated he had not realised he was not beingreimbursed automatically until January 2001. His evidence is that he discussed this with Mr Hopkins who arranged for one ofthe office staff, Ms Cunning, to prepare a schedule of the travelling expenses not reimbursed to him. His evidence is that MsCunning advised him in early August 2001 that the amount outstanding and due was $15,000 from 1992 until August 2001.

62 Mr Worthington stated that he has tried to recover the schedule from Ms Cunning but he stated that she has advised him that ithad been deleted from the computer system and no documentation has been received concerning these expenses from therespondent’s discovery provided in these proceedings. He claims six years’ worth of that entitlement is $9,000.

63 I have noted Mr Worthington’s earlier evidence as follows:“We were entitled to reimburse private travel which was recouped from clients for assignments done.”

(transcript 14.2-02 p.18)64 However, I have difficulty in finding that Mr Worthington had established that he is entitled to the amount that he has claimed.

It is, as he states, merely an estimation. This problem would be overcome if Mr Worthington produced in evidence theschedule said to have been prepared by Ms Cunning, or in the absence of that schedule the evidence of Ms Cunning herself thatthe schedule was prepared. Without that evidence and in the absence of any evidence to establish the accuracy of hisestimation, then I am unable to find that Mr Worthington has made out the benefit to which he states he is entitled. While Iaccept that the respondent has elected not to appear in these proceedings, there is no apparent reason why Ms Cunning is nototherwise available to be called for this specific, and narrow, part of the claim. In the absence of Ms Cunning, and anyexplanation for that absence, this part of the claim has not been made out.

65 Mr Worthington’s other claims may conveniently be dealt with as one. They are respectively reimbursement of entertainmentexpenses for July 2001, reimbursement of land valuers licence and subscription fees, reimbursement of auctioneer’s licence,reimbursement of real estate agent’s licence and reimbursement of WA Club membership.

66 Mr Worthington’s earlier evidence was:“Falkirk Nominees paid for my mobile phone, the rental on my home phone - although that hadn’t been paid for 3 or4 years but it was meant to have been - entertainment expenses, licences to various professional bodies andsubscriptions to those bodies - - entertainment expenses included such things as dining clients, entertaining clients,tickets to the Eagles and the Perth Glory and various other sundry things.”

(transcript 14.2-02 p.17)67 This evidence was not challenged on cross-examination and I accept it was a term of the contract of employment that Mr

Worthington would be reimbursed as he claims. Significantly, he gave evidence of the manner of reimbursement as follows:“Now, what about expenses? You mentioned that there were a number of expenses paid on your behalf by the company.I understood that they paid your mobile phone?---Yes.And you mentioned Eagles tickets and Glory tickets?---50 per cent off each.So you were reimbursed 50 per cent of the cost?---I paid for the whole amount on my company Diners Card. Thecompany reimbursed that and at the end of the year 50 per cent was taken - - was offset as a salary sacrifice against myproduction entitlement.”

(transcript 14.2-02 p.56/57)68 Using this evidence as an example of how Mr Worthington was reimbursed, payment was made by using a company not a

personal credit card. It is not clear, therefore, whether Mr Worthington incurred the expense himself. Further, part of anyreimbursement was offset as a salary sacrifice. I am not sure whether Mr Worthington paid the bill or whether the respondentpaid the bill. It does not suggest he was reimbursed in the manner that now seeks, that is in money, but rather had anarrangement which counted part of any reimbursement as salary sacrifice. Had there been evidence before me from MrWorthington’s own personal financial records of a payment made, or evidence from the body to whom he paid the money henow seeks to be reimbursed, his claim that he should be reimbursed would be stronger. In each of these cases, no proof of anypayment by him is produced to the Commission.

69 Further, in each case Mr Worthington is not entirely sure of the amount he paid or whether he has paid it. Thus, in relation tothe reimbursement of entertainment expenses Mr Worthington merely states that they were “approximately $1,000”. No detailof any entertainment expenses were presented to the Commission. This in part may be due to the evidence that thereimbursement of such claims is complicated. Mr Worthington stated in his earlier evidence:

“And you mentioned entertainment expenses. What were the arrangements in respect of your entertainment expenses?---There was a - - this will take a little while to explain. With the salesmen it’s a generally accepted rule of thumb thattheir advertising component is 8 to 10 per cent of their production so, in other words, if he’s producing $100,000 hisadvertising costs will be $8,000 to $10,000.”


70 Later he said:“It was generally agreed as a principle that -—By who?---The directors that over numerous discussions from 1992 until 1999, or whatever, that a proportion amountshould be allocated as an entertaining allowance. In other words, if I wrote $200,000 a year in fees, 10 per cent of thatwas a reasonable amount to spend on directors and entertaining expenses. It was discussed to the point, in fact, whereGraeme nominated at one particular time that that amount be paid to me at the - - up front at the start of the year andthat if I chose not to use it, well, that was my good luck. I could put it in my pocket, otherwise I could use it. I wouldtypically spend - I’m guessing - about $1,000 a month on -—Wining and dining clients?---Because that’s how you get business in the valuation field.”

(transcript 14.2-02 p.56/57)71 Mr Worthington’s evidence suggests he received an “allowance” he “could put in my pocket, otherwise I could use it”. The

evidence suggests an arrangement for payment to him of a sum whether or not the expense was in fact incurred. I am far fromconvinced that Mr Worthington has incurred the expenses in the amounts he generally claims. I would not be prepared to issuean order on the basis of a “guess”. Neither am I prepared to issue an order that the respondent pay Mr Worthington theimprecise and inexact sum of “approximately $1,000”.

72 In relation to each of the other claims sought, Mr Worthington stated that he “believes” that he had paid them in “about June2001”. There is nothing in the evidence before me to suggest whether or not the amounts claimed were in fact paid or whenthey were paid. Even in the absence of discovery by the respondent, I am at a loss to understand why other proof of paymenthas not been provided from, for example, the records of the establishments concerned.

73 For those reasons, I am not satisfied on the evidence before me that Mr Worthington has made out his claims under thisheading.Other orders sought - costs and interest

74 The issue of costs is raised in the context of both the interlocutory proceedings relating to orders for the production ofdocuments and also on the basis that Mr Worthington considers the earlier proceedings which established that Mr Worthingtonwas an employee were themselves interlocutory proceedings.

75 In relation to the issue of orders for the production of documents I make the following finding The application was madepursuant to s.27(1)(o) of the Industrial Relations Act 1979 which provides as follows—

“27. Powers of Commission(1) Except as otherwise provided in this Act, the Commission may, in relation to any matter before it —

…(o) make such orders as may be just with respect to any interlocutory proceedings to be taken before the

hearing of any matter, the costs of those proceedings, the issues to be submitted to the Commission,the persons to be served with notice of proceedings, delivery of particulars of the claims of allparties, admissions, discovery, inspection, or production of documents, inspection or production ofproperty, examination of witnesses, and the place and mode of hearing;”

(emphasis added)76 As Ms Ketley pointed out previous applications for costs considered by the Commission have been made pursuant to s.27(1)(c)

which is as follows—S.27(1)“…(c) order any party to the matter to pay to any other party such costs and expenses including expenses of

witnesses as are specified in the order, but so that no costs shall be allowed for the services of anylegal practitioner, or agent;”

77 The facts of this matter are as follows. On 10 April 2002 the Commission issued an order which listed the hearing of the matteron 22 and 23 April 2002 and provided that by 4:00pm on Monday, 15 April 2002 the respondent provide to Mr Worthingtonfurther and better particulars of paragraph 13 of the Notice of Answer and Counter Proposal, and also discover to him alldocuments in the claim including but not limited to Mr Worthington’s work in progress sheets and details of Mr Worthington’sbanked production entitlements: [2002 WAIRC 05226]. The order also prescribed that the requirement to provide the furtherand better particulars and the discovery of documents would be cancelled if on or before Monday, 15 April 2002 an order wasissued pursuant to s.49(11) of the Act staying the operation of the order of the Commission declaring Mr Worthington anemployee for the purposes of the Act [2002 WAIRC 05069].

78 On 17 April 2002 his Honour the President issued an order, by consent, which stayed “the operation of the decision by SeniorCommissioner A.R. Beech made on 10 April 2002” ((2002) 82 WAIG 785). The stay was granted on 17 April 2002, two daysafter the date of 15 April 2002 specified in the Commission’s order. The point made by Ms Ketley is that the order fordiscovery and of particulars ought to have been complied with given that the stay order had not issued by 4:00pm on Monday,15 April 2002. However, in circumstances where, according to the record, the respondent applied for the stay of operation on9 April 2002, and Mr Worthington in fact agreed to the stay, I do not attach a great weight to the non-compliance with theorder for those two days. This is certainly the case where there does not appear to have been any prejudice to Mr Worthingtonover those two days.

79 The application for costs pursuant to s.27(1)(o) is made in relation to an application of 10 April 2002 to amend the order. Atthe hearing of the application, the respondent agreed to the order sought other than for the time period by which it was tosupply the documents.

80 Mr Worthington submitted that the application was not opposed and the respondent’s consent at the hearing was the first MrWorthington had heard from the respondent on the issue of reactivating the request for further and better particulars and fordiscovery of documents after the appeal had been heard and determined.

81 Mr Worthington submitted that the application could have been agreed by a simple telephone call from the respondent. Instead,Mr Worthington had had to correspond with the Commission, file a formal application and attend the Commission. Ms Ketleysubmitted that this is an extreme case where Mr Worthington had been forced to bring this application where really it wasunnecessary and there is no substantive defence to the application. This falls within the exception to the general rule that costsare not ordered in the Commission.

82 In response, the respondent submitted that the proceedings were necessary as was demonstrated by the fact that although therewas consent, the parties were unable to agree on the timing for the provision of the documents. Rather, the Commission needed


to rule on the timing of the production of particulars and the provision of documents. The respondent acknowledged it did notreply to the letter to it on this subject of 20 September 2002 from Dwyer Durack because it was seen as having been overtakenby the Commission’s letter of 10 October 2002. It was also conceded that there was no contact from the respondent toMr Worthington in response to the lodging of the Notice of Application on 3 December 2002 that led to the proceedings on3 February 2003.

83 I find that the respondent ought, as a courtesy if nothing else, have replied to the correspondence sent to it by Dwyer Durack of20 September 2002. The letter of 20 September 2002, a copy of which was provided to the Commission attached to the Noticeof Application of 3 December 2002, clearly requests advice as to when the respondent would be in a position to provide thefurther and better particulars. The letter from the Commission of 10 October 2002 confirmed Ms Ketley’s advice that thematter should not be listed presently and that Ms Ketley undertook to notify the Commission when the matter was ready toproceed.

84 On my interpretation on the face of the documents, there is no suggestion that the application was not going to proceed, ratheradvice would be given from Mr Worthington when the case was ready to proceed. Interlocutory matters were to be dealt withbetween the parties and finalised prior a matter proceeding, and I am unable to see that the letter from the Commission is areason for the respondent then to ignore both the request in the letter of 20 September 2002 and also the Notice of Applicationdated 3 December 2002.

85 As to that application, it is not necessary that answers be filed (regulations 80(3), 81(3)) however, I am unable to agree with therespondent’s point that Mr Worthington bears the initiative of pursuing his own application if in fact the respondent did notoppose the substantive application but merely had an issue with the timing of the provision of the particulars and thedocuments. That is a position which, had it been known in December 2002 or January 2003, may have meant that there was noneed for either Mr Worthington or the respondent to have to formally attend the Commission on 3 February 2003. Whilst thatconclusion cannot be held with any certainty, I consider it more likely than not that the issue of the timing of documents issomething which ought to have been able to be discussed and agreed prior to 3 February 2003, and if not agreed, the mattermay have been able to be resolved by the Commission without the need for formal proceedings.

86 The issue then becomes whether or not that is a circumstance which warrants an order for costs as requested.87 The general policy in industrial jurisdictions is that costs not be awarded except in extreme cases: Brailey v. Mendex Pty Ltd

t/a Mair & Co (1992) 73 WAIG 26. It is only in special circumstances that costs will be ordered to be paid by a party (Cousinsv. YMCA of Perth (2001) 82 WAIG 5 at [92]). There is a normal practice that costs are not generally awarded in thisjurisdiction (ibid). Further, the provisions of s.27(1)(c) of the Act prevent costs being allowed for the services of any legalpractitioner. In the circumstances of this case, and considering s.27(1)(c), it is not suggested that any costs which would beawarded are for anything other than the services of a legal practitioner.

88 It was submitted that the power to order costs in interlocutory proceedings pursuant to s.27(1)(o) allows costs to be awardedfor the services of a legal practitioner. No authority is cited for this proposition. After much consideration, I find against thesubmission for the following reason. The power given to the Commission s.27(1)(c) to award costs but not for the services of alegal practitioner carries with it a point of principle. That point of principle is against the awarding of costs to a legalpractitioner in this jurisdiction. It is to be found in also in ss.84(5), 84A(5) and (6) and, in relation to the Industrial AppealCourt, in s.86. I find nothing in the power of the Commission to deal with interlocutory proceedings before the hearing of thematter which could cause a distinction to be made between the services provided by legal practitioners and services which arenot. In other words, it is not immediately apparent that the interlocutory proceedings heard before the hearing of a matter areproceedings which are more likely to be dealt with by legal practitioners than the substantive hearing itself would be.

89 Experience might suggest a consistency of representation throughout a matter. If that is the case, then if a party is representedby a legal practitioner it is more likely than not that the legal practitioner will have carriage of the entire matter, includinginterlocutory proceedings. I am tentatively of the view that the power given to the Commission to order costs in interlocutoryproceedings merely gives the Commission power to deal with the issue of costs of interlocutory proceedings separate from orin advance of any issue of costs in relation to the substantive matter.

90 Thus, I am not persuaded that s.27(1)(o) allows the Commission to deal with a claim for costs in any different manner than theapplication of s.27(1)(c) of the Act. For those reasons the application is refused.

91 In relation to the claim for costs for the earlier proceedings which established that Mr Worthington was an employee, the claimis refused on the basis that the earlier proceedings were part of the substantive claim.

92 The word “interlocutory” as it is used in the Industrial Relations Act 1979 is not defined. The power given to the Commissionin s.27(1)(o) is to make such orders as may be just with respect to any interlocutory proceedings to be taken before the hearingof any matter. In Australian Civil Procedure, Cairns, LBC 4th Edition at 516 an interlocutory proceeding is—

“… an application where the order sought will not determine the ultimate question between the parties. Most commonlyan interlocutory application is an application made in the course of the proceedings. It is not the trial or hearing for finalrelief. In determining whether an application is interlocutory it is necessary to see whether as a matter of law the ordermade on it will finally decide the parties’ rights. If they are so decided, the application is final and not interlocutory.”

93 The declaration issued by the Commission in this matter that Mr Worthington is an employee for the purposes of the Act didnot finally determine the claim of unfair dismissal nor the claim of denied contractual benefits. To that extent, I appreciate theargument that the proceedings which led to the making of that declaration are of necessity interlocutory. However, the hearinginto whether Mr Worthington was or was not an employee was an integral part of the hearing which determines his claim ofunfair dismissal and of denied contractual benefits. It was merely a part of that hearing excised for the convenience of theparties for the reasons given by the Commission at the time. They are thus part of the hearing of the matter leading to theeventual determination of the claim.

94 In relation to the issue of costs, however, the matter is also to be approached from this perspective. The costs that are claimedare the costs of a legal practitioner. For the reasons given above, I conclude that s.27(1)(o) is not a discrete section whichotherwise permits costs to be awarded for the services of a legal practitioner for interlocutory proceedings.

95 In the circumstances, it is not necessary for the Commission to consider whether or not interest is to be paid as the decision inthis matter does not order the payment to Mr Worthington of any benefit to which he is entitled under his contract ofemployment.

96 An order now issues dismissing the claim for denied contractual benefits.

_________



PARTIES BERNARD ROY WORTHINGTON, APPLICANTv.FALKIRK NOMINEES PTY LTD (IN ADMINISTRATION) T/A ROSS HUGHES ANDCOMPANY AND AUSTRALIAN PROPERTY CONSULTANTS, RESPONDENT

CORAM SENIOR COMMISSIONER A R BEECHDATE WEDNESDAY, 2 JULY 2003FILE NO. APPLICATION 1577 OF 2001CITATION NO. 2003 WAIRC 08606_________________________________________________________________________________________________________

Result Application alleging unfair dismissal and denied contractual entitlements dismissedRepresentationApplicant Ms H. Ketley (of counsel)Respondent No Appearance_________________________________________________________________________________________________________

OrderHAVING HEARD Ms H. Ketley (of counsel) on behalf of the applicant and there being no appearance on behalf of the respondent,the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979 hereby orders—

(1) THAT the claim of unfair dismissal is hereby dismissed.(2) THAT the claim of denied contractual entitlements is hereby dismissed.

(Sgd.) A. R. BEECH,[L.S.] Senior Commissioner.

SECTION 29 (1)(b)—Notation of—Parties File Number Commissioner Result

Agustin Ramos Keith Edward Daddow andMargot Dorothy Whittington

171/2003 COLEMAN CC Discontinued

Albina Zawadka Zest Health Club Pty Ltd 2074/2002 COLEMAN CC Discontinued

Alex Cooper Eurotex Corporation Pty Ltd 1714/2001 GREGOR C Discontinued

Alexsandra Louise Galic Computer Associates Pty Ltd(ABN) 20001146345

2181/2001 BEECH C Discontinued

Andrew James Horne Cafe Amadeus 371/2003 COLEMAN CC Dismissed

Ashley Mathews National Rental Corporation Ltd 206/2003 SCOTT C Dismissed

Brad O'Callaghan Goldfields Medical Fund 2154/2001 BEECH C Discontinued

Bradley James Tilley Newbid Nominees Pty Ltd astrustee for the Beam Unit Trusttrading as Merriwa Tavern

1639/2002 WOOD C Dismissed

Brian Jonathon Wootten Eurest (Australia) Pty Ltd 398/2003 BEECH C Discontinued

Christopher Lambert Southside Mitsubishi 86/2003 KENNER C Discontinued

Colleen Gradys Williams Davro Commercial FurniturePty Ltd


Cory James Grubb Market City Tavern 531/2003 GREGOR C Discontinued

David Edward Ryan Goldwinds Corporation Pty LtdACN 100 078 395


David Waterman Alberto Culver (Australia) PtyLtd

271/2003 HARRISON C Discontinued

Diane Jardine Transition & IntegrationServices Pty Ltd

1687/2002 GREGOR C Discontinued

Errol Kilburn Ramprie Laboratories 526/2003 KENNER C Discontinued

Gary Allen Woodward Skilled Engineering Limited 368/2003 GREGOR C Discontinued

Gavin David Mayne Squires Real Estate Pty LtdACN 093 484 201 As TrusteeFor The P.L Squires FamilyTrust



Parties File Number Commissioner Result

Graham Farrall Rodney G. Symes ,Bills Bakery 463/2003 GREGOR C Discontinued

Heidi Ann Jones Peter John Hogan,DivisionalGeneral Manager Midland BrickCompany Pty Ltd (A subsidiaryof Boral Ltd)

1413/2002 SCOTT C Discontinued

James Butler Drake Training, Drake AustraliaPty Ltd (T/A DrakeInternational)


Jessica Moonflower Quinn Alex Richardson, Norman Bros.Newsagency


John Lionel Clayton Aces Air Conditioning &Mechanical Services Pty Ltd


Juanito Medina Ashok Parekh 294/2003 GREGOR C Discontinued

Julie Anne Cheek Flight Centre Limited 582/2003 KENNER C Order Issued

Keith Charles Warne Cook's Construction 512/2003 GREGOR C Discontinued

Kelly Read Arrow Pharmaceuticals Ltd 588/2003 KENNER C Discontinued

Kevin Snowden Industrial Galvanizers 269/2003 COLEMAN CC Discontinued

Kim Alfred Julian Pelsart Holdings Pty Ltd.Trading as W.H. Evans Trading


Lai Kei Yuen Win’s Café & Noodle House –Ms Huong Nguyen


Les Trevor Eades Kaata-Koorliny Enterprise &Employment DevelopmentAboriginal Corporation


Lucas Domanski Chris Moorehouse ,MirrabookaTavern ,J.C's Bistro

224/2003 COLEMAN CC Dismissed

Marino Gale Oconnor Rewind Pty Ltd 552/2003 WOOD C Discontinued

Mark David Reynolds Nebru Exports 607/2003 KENNER C Discontinued

Melanie Tennille Miller Consolidated Fitness t/a BC theBody Club


Melody Houston Minister for Education 2068/2000 KENNER C Discontinued

Michael Glazier Alliance Services Pty Ltd (ACN095 581 267)


Michael John Spalding Westhill Pty Ltd T/A AirportSecurity Parking


Micheal John O'Mara The Gym Pty Ltd 774/2002 WOOD C Dismissed

Mustafa Doygun Allpest WA 521/2003 COLEMAN CC Discontinued

Nadja Denise Saralam Alpha West Pty Ltd 1829/2002 BEECH C Discontinued

Patricia D’Silva The Bear Kids Factory 460/2003 COLEMAN CC Discontinued

Philip Alick Horner Mens Outreach Service Inc 262/2003 HARRISON C Order Issued

Regan Spencer Kevin Hood - StatewideDemolition StatewideDemolition & Salvage


Rhonda Val Dawson Miller Management Services 1698/2002 HARRISON C Settled

Robert Douglas Collins Bellvale Nominees Pty Ltd t/asSoiland


Rodney Ian Tucker BYAC Contracting Ltd Pty -Rodney Tucker

461/2003 HARRISON C Order Issued

Sandra Elizabeth Norton SSH Supplies 1444/2002 WOOD C Dismissed

Stephen Edward Ruthven Denmark Holdings Pty LtdTrade as Carlton Hotel (Mr AlanMorrison)

219/2003 WOOD C Dismissed

Stephen Jakimowice Kailis Bros 542/2003 KENNER C Discontinued

Stephen Maxwell Brown Printfroce Australia, GregCoulson

393/2003 COLEMAN CC Dismissed


Parties File Number Commissioner Result

Tammara Duncan Community Newspaper GroupLtd


Tanya Marie Mitchell Suncoast Beach Pty Ltd T/ASMoxham Motors


Thomas Frederick Tapping David Morrison ,WA StateDirector TMP Worldwide

391/2003 SCOTT C Discontinued

Tiffany Alps Carlo Ricupero, Wise FP PtyLtd


Uy Louie Wong RF Innovation Pty ltd 2076/2002 KENNER C Discontinued

Wendy Jane Sharp Perth Commercial College 387/2003 COLEMAN CC Discontinued

CONFERENCES—Matters referred—2002 WAIRC 07168

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSIONPARTIES THE AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED

INDUSTRIES UNION OF WORKERS - WESTERN AUSTRALIAN BRANCH, APPLICANTv.BHP BILLITON IRON ORE PTY LTD, RESPONDENT

CORAM COMMISSIONER S J KENNERDATE MONDAY, 9 DECEMBER 2002FILE NO/S. CR 62 OF 2002CITATION NO. 2002 WAIRC 07168_________________________________________________________________________________________________________

Result Application upheld in partRepresentationApplicant Mr L Edmonds of counselRespondent Mr A Power of counsel_________________________________________________________________________________________________________

Reasons for Decision1 By this matter referred pursuant to s 44(9) of the Industrial Relations Act 1979 (“the Act”) the applicant seeks an order that a

penalty imposed upon its member, Mr George Daccache, of a three day suspension for being absent from his workplace on26 February 2002, be quashed.

2 The respondent opposes the applicant’s claim and submitted that the penalty imposed upon Mr Daccache was justifiable in thecircumstances and should stand.

Contentions3 Mr Edmonds, counsel for the applicant, contended that Mr Daccache, a site union representative for the applicant, had

permission from the respondent to attend a meeting with Mr Davis, an organiser with the applicant, on site at Nelson Point on26 February 2002 (“the Meeting”). It was therefore submitted by the applicant that in accordance with the terms of the nowcancelled Industrial Relations Agreement (1997) - As Amended (“the Agreement”), Mr Daccache was entitled to attend theMeeting and thus no penalty should have been imposed.

4 In the alternative, the applicant submitted that if it was held that Mr Daccache did not obtain permission to attend the Meeting,then in accordance with cl 5(3) of the Agreement, the only detriment Mr Daccache should have suffered was loss of pay forthe period of the Meeting.

5 Counsel for the respondent, Mr Power, submitted that in no sense could it be said that Mr Daccache had the consent of therespondent to attend the Meeting and referred to my decision in AWU v BHP Iron Ore Pty Ltd (2002) 82 WAIG 1327 at paras123 and 124 in this regard. Further, counsel submitted that cl 5(3) of the Agreement, on its proper construction, did not limitthe penalty to only loss of pay as submitted by Mr Edmonds. It was contended by Mr Power that if one interprets cl 5 of theAgreement in the context of the Agreement as a whole, then disciplinary action is not confined to loss of pay.

6 I turn to the two issues, they being—(a) whether Mr Daccache, as a matter of fact, had permission to attend the Meeting; and(b) the interpretation of relevant provisions of the Agreement.

Permission7 Mr Daccache is a boilermaker employed by the respondent and is also an on site official for the applicant and said on the day

in question he was an acting convenor. He testified that as a consequence of some industrial issues in relation to the use ofcontractors on the respondent’s site, he spoke to Mr Davis about arranging a meeting to discuss the matter with management.He understood a meeting was to be arranged between himself, Mr Davis, and two representatives of the respondent, MessrsGoodwin and Balharrie, on 26 February 2002.


8 It was Mr Daccache’s evidence that he mentioned this to his supervisor, Mr Owen, at approximately 7.10am on 26 February.Later that morning at about 11.00am it seems, Mr Davis telephoned Mr Daccache to advise that the meeting with MessrsGoodwin and Balharrie would not take place. Mr Daccache asked Mr Davis to come to the site none the less, to discuss theissue with him.

9 Mr Davis testified that he spoke to Mr Macaree, an industrial relations consultant employed by the respondent, about comingto site to meet with Mr Daccache and requested that Mr Daccache be given “work release” for this purpose. This occurred at atime Mr Davis was on site in the morning of 26 February for other purposes.

10 According to Mr Macaree, who also gave evidence, the reason he was not prepared to arrange a meeting with Mr Goodwin,was because no formal grievance had been raised in relation to the particular issue concerning the use of contractors. It was MrMacaree’s evidence, that he relayed Mr Davis’ request to the relevant department. Mr Macaree testified that he said to MrDavis that Mr Daccache would need permission from Mr Owens, the resource co-ordinator, or a supervisor, to attend ameeting with him. This was denied by Mr Davis.

11 Mr Macaree said he made a note of this which was contained at exhibit R1, at 19. Mr Macaree testified that he noted thisconversation later in the day on 26 February, although I observe that the statement is dated 1 March 2002.

12 Subsequently, Mr Davis arrived at the site gate at about 2.00pm on the afternoon of 26 February and was met and escorted byMr Macaree, to Mr Daccache’s work area at about 2.15pm. Mr Daccache and Mr Davis then met in the ‘smoko’ room of theworkshop area for about 45 minutes. After the meeting, Mr Macaree escorted Mr Davis off the site. Also, after the meeting,Mr Macaree testified he asked Mr Davis who had given approval for Mr Daccache to attend the Meeting and was told by MrDavis that it was “Mr Low” who had given permission. This was denied by Mr Davis, who said he advised Mr Macaree thatMr Daccache had informed him he had sought permission from Mr Owen.

13 I should also observe at this point, that it was Mr Macaree’s evidence, that when he escorted Mr Davis to Mr Daccache’s workarea, he assumed, from his earlier discussions that day, that Mr Daccache had sought and was given permission to attend themeeting.

14 Mr Owen is a resource co-ordinator for the respondent. He supervises mechanical tradespersons in the respondent’s No 2 plantat the Nelson Point operations. Mr Daccache reports to Mr Owen and it was Mr Owen from whom Mr Daccache neededpermission to leave his work area, as it was said. It was Mr Owen’s evidence that employees needed to obtain permission toleave their work area for safety and work scheduling reasons. In particular in relation to safety, Mr Owen said that given thenature of the operations, it was important for supervision to know the personnel who were in their work area in case of anemergency. I pause to note that Mr Daccache accepted this on his evidence.

15 At about 7.20am Mr Owen said he met with Mr Daccache. Mr Daccache informed him that he had a meeting later that daywith Messrs Goodwin and Balharrie. He did not advise Mr Owen who had arranged the meeting or its time. It was Mr Owen’sevidence that prior to 2.00pm that day, he was not advised by Mr Daccache, nor was permission sought, to meet with Mr Davison site. I also pause to note at this stage, that Mr Daccache in cross-examination conceded that he did not ask Mr Owen forpermission to attend the meeting with Mr Davis nor did he seek permission from Mr Owen’s superior, Mr Balharrie.

16 It was Mr Owen’s evidence that at about 3.00pm he discovered that Mr Daccache had left his work area to meet with MrDavis. At about 3.15pm he saw Mr Daccache and asked who gave him permission to attend the meeting. According to MrOwen he asked Mr Daccache this question three times and only on the third occasion did Mr Daccache respond to the effectthat he should have sought permission for the meeting.

17 In cross-examination, Mr Owen testified that earlier that afternoon at about 12.50pm, he met Mr Balharrie who informed himthat apparently Mr Davis was going to meet with Mr Daccache in the workshop and did he know anything about it. Mr Owentestified that he was very busy that day, had just returned from leave and it was not until about half an hour later that herealised that Mr Daccache had not requested permission to attend the meeting. He then spoke to the team leaders and MrBalharrie, all of whom said no permission had been given by them. Mr Owen then contacted Mr Macaree to speak to himabout the matter. Mr Macaree told him that it was not his position to give permission but the responsible supervisor should doso. There was some suggestion in Mr Daccache’s evidence that after he and Mr Owen met at about 3.30pm, Mr Owen said toMr Daccache words to the effect “OK no worries” when Mr Daccache informed him that he had just met with Mr Davis. MrOwen testified he could not recall saying this.

18 Essentially, the applicant’s case on this point was that the respondent had given tacit approval for Mr Daccache to attend themeeting on site with Mr Davis. Further, there was a submission to the effect that the failure by the respondent, in particular MrOwen, to ascertain the arrangements for the afternoon of 26 February 2002 constituted some form of entrapment of MrDaccache.

19 In AWU I dealt with a not dissimilar issue, albeit in a different context, as to whether employees had consent or permission toleave their workplace for the purposes of attending a union meeting. In dealing with this matter, I said in relation to the issueof consent, as follows at paras 123 - 124—

“I turn now to consider whether there was evidence of consent having been given to the remaining employees to attendthe stop work meeting. For the purposes of determining this matter, I adopt the view that for consent to have beengiven by the respondent, then such consent must have been informed consent. By that I mean that consent was given tothe employee to attend the stop work meeting in the sense that the supervisor or manager concerned was fully aware ofa request for permission having been made and consent to that permission having been freely and properly given. Inits ordinary and natural meaning the Shorter Oxford English Dictionary defines “consent” as “agree, accord, 1. Toagree together, or with, 2. To act or be affected in sympathy 3. Voluntarily to accede to or acquiese in a proposal,request, etc.; to agree, comply, yield. 4. To allow, agree to, consent to...”It is clear from this ordinary and natural meaning of the concept of consent, that it requires more than a unilateralunderstanding. Where two parties are involved, the understanding or agreement must be mutual, with both partiesfully understanding the agreement, proposal, or request as the case may be. In my opinion, it could never be the casethat the mere telling by one person to another, of an event present or future, could be regarded as consent, unless theother party, by his or her words or conduct, made it clear that he or she was acquiescing in the subject matter of thetelling.”

20 For the purposes of determining this issue, cl 5.0 of the Agreement is also relevant and that provides as follows—“5.0 SITE UNION REPRESENTATIVES’ PERFORMANCE OF DUTIES1. The following are those site union representatives who are seen as having a role to play in the dealings between the

company and unions in industrial affairs—a) a convenor (and his deputy or nominee in his absence) from each union party to the award (representing

classifications that their union has award and constitutional coverage of) from the Newman, Nelson Point andFinucane Island operations.


b) shop stewards from each union party to the award (representing classifications that their union has award andconstitutional coverage of) from the Newman, Nelson Point and Finucane Island operations.

c) president of the MUA2. The convenor of each union, or his deputy (following advise to the site industrial relations department of the convenor’s

absence from work), may, during his rostered hours of work, become involved in the following matters as presented bythis Agreement.

- Grievances- Disciplinary matters- Termination for reasons other than misconduct- Meetings with company officers- Commission proceedings

3. Site union representatives will be required to obtain a work release from his supervision where the work release is paidbefore leaving his place of work to attend to industrial matters.Release will be granted where the requirement is in accordance with this Agreement. Where a union representative isabsent from work for any time without having obtained the permission of his supervision, he shall be off-pay for thatperiod.Additional off site work release may be approved by management where appropriate.”

21 In my opinion, on its plain and ordinary meaning, cl 5.3 of the Agreement, where it refers to “work release” necessarily meanspermission or consent. I adopt and apply what I said about the question of permission and consent in AWU, for the purposes ofdetermining this matter. In my opinion, and indeed on Mr Daccache’s own evidence to his credit, Mr Daccache clearly did notseek permission and nor was it granted, in the sense in which I had dealt with “consent” above. Additionally, to his credit, MrDaccache freely admitted that he knew that permission was required from Mr Owen to leave the workplace and was aware ofthe reasons why this was so. This seemed to be common ground.

22 Additionally, from exhibit R1, Mr Daccache had been previously counselled about leaving his work place without appropriatepermission and as a site union representative should have known better. Mr Daccache’s status as a site union representativedoes not mean that his primary duty is not to his employer, even though he has a number of rights and privileges as a unionofficial. This has been long recognised by this Commission: AWU v Cliffs Robe River Iron Associates (1982) 62 WAIG 463 at467; MEWU v Hamersley Iron Pty Ltd (1993) 73 WAIG 3028 at 3030.

23 On all of the evidence, I am of the view that Mr Daccache did leave his work place without permission. There was evidenceand I find that Mr Owen was aware of a suggested meeting from his conversation in the morning with Mr Daccache and also,he was made aware from Mr Balharrie at about 12.50pm on the day, of a requested meeting between Mr Davis and MrDaccache at the workshop to occur. I should observe, that Mr Davis very properly inquired of Mr Daccache before theMeeting, whether he did have the required permission and proceeded at all times on the assumption that he did. I also note theevidence of Messrs Balharrie and Macaree, that they saw no reason why such a meeting could not have taken place, however,Mr Macaree clearly also proceeded on the assumption, as did Mr Davis, that the required permission had been given.

24 I should also mention that there was some reference during the proceedings, to whether or not Mr Daccache was engaged inthe capacity as an acting convenor (or nominee convenor) for the purposes of cl 5.2 of the Agreement. There wasuncontradicted evidence before the Commission from both Mr Daccache and Mr Davis that Mr Daccache was occupying thisposition on the day in question. It seems to me that the question as to who occupies such positions is for the applicant union todetermine. I also note that there was some reference to this matter in correspondence from the applicant to the respondentdated 1 March 2002, prior to the disciplinary inquiry taking place. I am therefore prepared to accept on the evidence, that MrDaccache was an acting convenor on the day in question.

25 However the evidence of Mr Daccache was that there had not been any required advice to the site industrial relationsdepartment of the convenor’s absence from work, in the sense that cl 5(2) of the Agreement must be read, in my view.

Interpretation of Agreement26 In short, Mr Edmonds submission was that on its proper interpretation, cl 5.3 of the Agreement, where reference is made to

“work release”, is only relevant for the purposes of payment of wages. That is, if a site union representative as defined incl 5.1, which Daccache clearly was and is, was absent from work without a “work release”, in attending to industrial matters,the only available penalty is deduction of wages for that period. Mr Power submitted that this construction of the Agreementcould lead to the situation where a site union representative spends most if not all of his or her time away from the workplace,with the only penalty being deduction of pay. Counsel submitted that this interpretation was nonsensical.

27 The principles relevant to the interpretation of awards and agreements are well settled. One looks to the ordinary and naturalmeaning of the words used in the particular instrument, within their context, the same as the interpretation of any instrument:Norwest Beef Industries Ltd v WA Branch, Australian Meat Industry Employees Union (1984) 64 WAIG 2124. Furthermore,the Agreement was not at the material time, incorporated into nor formed part of any registered industrial agreement: AWU vBHP Iron Ore Ltd (2002) 82 WAIG 1327.

28 The question is what meaning is to be given to cl’s 5.2 and 5.3 of the Agreement when read in the context of the Agreement asa whole? Firstly, it is relevant to observe that this question is now, save for this matter, academic in light of the repeal of theAgreement following the issuance of a new award to cover the respondent’s operations in application A2 of 2001. In thoseproceedings, it was accepted by the parties, and in the conclusions of the Commission in Court Session, that an instrumentsuch as the Agreement was no longer relevant to the respondent’s workplace.

29 It is clear from the terms of the Agreement, as it then was that site union representatives, as defined in cl 5.1, were recognisedas having certain functions in workplace relations matters between the parties to the Agreement. By cl 5.2, a convenor of eachunion was permitted, during rostered working hours, to attend to various industrial matters. For convenors therefore, there wasno requirement imposed by the Agreement, to seek permission to attend to industrial matters. Questions of payment for suchtime may well be different issues. By cl 5.3 “site union representatives” are referred to. By definition, this must include bothconvenors and shop stewards. Whilst regrettably the clause as a whole is less than clear, it would appear that cl 5.3 dealsprimarily with two circumstances. Those circumstances relate to payment of wages for attendance on industrial matters.

30 The first circumstance was a requirement to obtain a “work release” “where the work release is paid” before leaving his placeof work. At this point there was a clear distinction between cl 5.2 which required no permission as such and the first paragraphof cl 5.3, which required a “work release”, which I interpret to mean permission, but for the purposes of payment. If a “workrelease” was mandatory on each occasion, at least under the Agreement, there would appear be no purpose to be achieved by


the insertion of the words “where work release is paid” in the first paragraph. The insertion of these words by the draftspersonof the Agreement must mean something.

31 The second paragraph of cl 5.3 then provided that again, where a “union representative” (which must by definition include aconvenor), was absent from work “without having obtained the permission of his supervision” the union representative was notentitled to be paid. It therefore appears that prima facie, a convenor who attended upon an industrial matter during his rosteredhours of work, but did not obtain permission from supervision in the form of a “work release”, was not entitled to be paid forthat period, but was authorised by the Agreement to attend to those matters nonetheless and thus constitute a modification orqualification to the employee’s common law obligations. As a matter of practical commonsense however, for obvious reasonsof safety and work continuity, I would imply an obligation on a convenor to notify supervision of such an involvement.

32 On the other hand, it would appear that from the combined effect of cl’s 5.2 and 5.3, where a convenor satisfied therequirement of cl 5.2 but also obtained a “work release” from his supervisor, the convenor would be entitled to attend therelevant industrial matter and be paid whilst doing so. This is the interpretation which flows from the ordinary and naturalmeaning of the words used in this clause in my opinion and is one that does not give rise to any absurdity or repugnancy withother provisions of the Agreement, when read as a whole.

33 What then of shop stewards, who are clearly “site union representatives” for the purposes of cl 5.1 of the Agreement? It seemsreasonably clear from the terms of the Agreement as a whole, in particular clauses 3.0 dealing with the method of progressingindustrial problems, that under the Agreement, shop stewards had a significant role to play in processing industrialgrievances/claims/disputes and progressing disciplinary action. It seems clear from those clauses, that the roles of shopstewards and convenors are not necessarily the same, and indeed, shop stewards were involved at least initially in a matter,with possible convenor involvement at a slightly later stage. It is also the case that reading clause 1.0 of the Agreement, theparties to the Agreement recognised and accepted their respective structures, responsibilities and accountabilities to oneanother. This must be read as meaning recognition by the unions to the Agreement of the respondent’s supervisory andmanagement structure, and conversely, the respondent’s recognition of the union structures then operating on site.

34 It was not in contest that the subject matter of the meeting between Mr Daccache and Mr Davis, was in relation to a grievancethat the applicant union had with the respondent over the use of contractors and other matters. Clearly, this was a mattercontemplated by the Agreement to be an industrial matter to which the terms of clause 5.0 was directed. The period of theabsence from work was for about 45-60 minutes, it seems on the evidence.

35 Counsel for the respondent’s argument was that all employees as site union representatives required permission to leave theirworkplace in any circumstance and, inferentially, this would attract some discipline. This would appear to be contrary to theentitlement conferred by clause 5.2 of the Agreement. I do not accept Mr Power’s submission in this regard. The Agreement,as it then was, must be taken to have modified the rights and entitlements as between the employees and the employer party toit. Clearly, even though whilst it may now be recognised as not an appropriate Agreement to apply in the workplace, in relationto site union representatives, they were conferred clear privileges as a function of their positions under the Agreement.Furthermore, if counsel for the respondent’s submission was correct, given that at common law an employee who is absentfrom his or her workplace would generally fall within the principle of “no work as directed/no pay”, then the second paragraphof clause 5.3 would be otiose. That is so, because if the respondent’s submission were correct, then the employee absentwithout permission would not be entitled to be paid in any event. The express inclusion of the second paragraph of clause 5.3,appears to reflect the possibility that under the Agreement, a union representative could be absent from the workplace to attendindustrial matters, without permission of supervision, but they would not be paid for it.

36 This is not to say that a site union representative could with complete immunity attend to industrial matters almost on a fulltime basis, albeit not being paid. I do not regard these provisions of the Agreement as conferring carte blanche to arepresentative to do what he or she pleased. That was clearly not the purpose of the Agreement, from its terms as a whole. Theconduct must be reasonable in all of the circumstances. In this sense, the Agreement will not always provide a completeanswer to the question. For example, in a case where a convenor left the workplace to attend to an industrial matter and indoing so placed their or another employee’s safety at risk, commonsense dictates that relying on the terms of the Agreementwould not be a complete defence. Similarly, if a site union representative engaged in excessive absences from workinterrupting the employer’s productive work schedule then again, they may attract some sanction. I therefore reject theapplicant’s submission that the only penalty that can be imposed is deduction of pay.

37 On the facts of this matter there was no suggestion that the absence of Mr Daccache actually compromised the safety of eitherhimself or others. He was a site union representative for the purposes of the Agreement at the time. Additionally, the absencewas not entirely away from Mr Daccache’s general work area, nor from the site, and was not for an inordinately long period.As I have noted, it was for a purpose contemplated by the Agreement. In this regard I note that the Agreement obliged therespondent to grant “work release”, where the requirement was in accordance with the Agreement. There could be no issue inmy opinion that the requirement was on the occasion in question, in accordance with the Agreement. This appears to have beenat least tacitly recognised by the respondent, on the evidence of Mr Macaree, as he could see no reason why the meeting couldnot have gone ahead.

38 Balanced against this however, was the evidence that there have been two instances in the past in February 2001, where MrDaccache was counselled in relation to absences from his workplace. The Commission was not informed as to the reason forthose absences however. There was also evidence of a written reprimand given to Mr Daccache in August 2001 for refusing tocomply with an instruction. It was Mr Daccache’s evidence however, that by February this year, he was well aware of the needto obtain permission to leave the workplace but he did not. This appeared to have been an accepted procedure on the site,whatever the terms of the Agreement may have meant.

39 In all of the circumstances of the case, and in the context of the Agreement as a whole, in my view Mr Daccache, in attendingthe meeting with Mr Davis, was certainly not entitled to be paid for that period and he was not paid. He also did leave is workduties without the necessary permission. However, in all of the circumstances, I do not consider that a penalty of a three daysuspension was appropriate. As I have noted in paras 37 and 38 above, all of the circumstances need to be considered. Therespondent’s decision to impose a three day suspension was harsh and in my opinion, it should not stand. I would howeversubstitute for it a penalty of a letter of warning regarding Mr Deccache leaving his workstation without permission, in thecircumstances.

40 The parties are directed to confer within seven days as to the form of such a letter. If that matter cannot be resolved theCommission will determine the issue.

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PARTIES THE AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDREDINDUSTRIES UNION OF WORKERS - WESTERN AUSTRALIAN BRANCH, APPLICANTv.BHP BILLITON IRON ORE PTY LTD, RESPONDENT

CORAM COMMISSIONER S J KENNERDATE MONDAY, 16 JUNE 2003FILE NO/S. CR 62 OF 2002CITATION NO. 2003 WAIRC 08488_________________________________________________________________________________________________________

Result Order issuedRepresentationApplicant Mr L Edmonds of counselRespondent Mr R Kelly of counsel_________________________________________________________________________________________________________

OrderHAVING heard Mr L Edmonds of counsel on behalf of the applicant and Mr R Kelly of counsel on behalf of the respondent theCommission, pursuant to the powers conferred on it under the Industrial Relations Act, 1979 hereby orders—

THAT the three-day suspension penalty issued to Mr George Daccache by the respondent on 25 March 2002 forabsenting himself from his workstation on 26 February 2002 be quashed and a written reprimand be placed on MrDaccache’s personal file in the terms as set out in the schedule to this order.


_________

SCHEDULE9 June 2003Mr George Daccache26 Dempster StreetPORT HEDLAND WA 6721Dear GeorgeWritten ReprimandI refer to the disciplinary investigation conducted on 21 March 2002 in relation to your absence from your work station on Tuesday26 February 2002.It has been found that you failed to obtain permission to leave your work station as required and that you were aware of the need toobtain this permission.I note in respect of the same that you have previously been issued with counselling notes to file in relation to similar instances on2 February and 6 February 2001.I advise that any further conduct of this nature may result in disciplinary action up to and including termination of youremployment.I must reiterate that you are required to seek the permission from your supervisor to absent yourself from your work station at anytime.Yours sincerely

____________________


PARTIES THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS,APPLICANTv.BHP BILLITON IRON ORE PTY LTD, RESPONDENT

CORAM COMMISSIONER S J KENNERDATE TUESDAY, 17 JUNE 2003FILE NO/S. CR 195 OF 2002CITATION NO. 2003 WAIRC 08494_________________________________________________________________________________________________________

Catchwords Termination of employment – Harsh, oppressive and unfair dismissal – Railway rules and regulations– Failure to comply - Safety inquiry and disciplinary inquiry undertaken – Common practiceconsidered – Consistency in discipline not mean equality – Dismissal not harsh, oppressive or unfairin the circumstances – Application dismissed – Industrial Relations Act 1979 (WA) s 44

Result Application dismissed. Order issuedRepresentationApplicant Mr D Schapper of counselRespondent Mr A Power of counsel_________________________________________________________________________________________________________


Reasons for Decision1 On the evening of 10 August 2002, Mr Rudland was driving train number 323 on the Yandi Branch line. On that part of the

line known as the “Yandi Bank” specifically at the Y295.5 km mark, Mr Rudland’s train, a fully loaded three rake train(313 ore cars and five locomotives) came to a stand as a consequence of an uninitiated emergency brake application.

2 As a consequence of this event, Mr Rudland notified train traffic control, Mr Le Flohic that his train had come to a stand at theY295.5 km point on the Yandi Bank. He notified train control that he would apply 40 hand brakes. Following this, Mr Rudlandnotified train control of what he had done and once a clear signal was present at Yandi Junction, he would depart theY295.5 km point. Mr Rudland then released the brakes on the train but shortly thereafter, notified train control that he wasmaking an emergency brake application to bring the loaded ore train to a stand again. Train control then contacted theRedmont location to request assistance for Mr Rudland. In the meantime, Mr Rudland began to “walk his train” and notifiedtrain control that his train had parted some three cars ahead of the “C remote” locomotive section.

3 Following receiving assistance from Redmont, Mr Rudland, after conferring with train control, decided that the “C portion” ofthe train, containing the damaged car, would be left on the Yandi Bank and he would take the A and B portions of the traindown the hill to Yandi Junction, with a view to ultimately removing the damaged car and rejoining the train.

4 Shortly following the train’s departure from the Y295.5 km point, travelling towards Yandi Junction, Mr Rudland notified traincontrol that he could not “hold” his train and made a further emergency brake application to bring the train to a stand at theY291.5 km point. Mr Rudland then walked his train and with assistance, all hand brakes were applied. Following this, the trainwas then taken to Gidgi, where the defective ore car was removed from the train, the hand brakes were released, the train re-marshalled and it returned to Port Hedland.

5 As a consequence of the events on this evening, subsequently, safety and disciplinary inquiries were undertaken by therespondent, which ultimately led to the termination of Mr Rudland’s employment, by payment in lieu of notice andentitlements, under the Iron Ore Production (BHP Billiton Iron Ore Pty Ltd) Award 2002 (“the Award”).

6 The reasons for the dismissal of Mr Rudland were his serious breaches of railroad rules and regulations and his lack of candourduring the course of the inquiries, referred to above.

7 As a consequence of the dismissal, the applicant union commenced these proceedings pursuant to s 44 of the IndustrialRelations Act 1979 (“the Act”) seeking orders for the reinstatement of Mr Rudland, and consequential relief. The respondentopposes the claim made.

The Issues8 The applicant was represented by Mr Schapper of counsel. Mr Power of counsel represented the respondent.9 At the outset, it is necessary to record that Mr Schapper, on behalf of the applicant, conceded that Mr Rudland— (a) failed to apply 100% of the train hand brakes as required in the rules; (b) failed to “walk his train” as required; and

(c) suspended the train walk procedure.10 The applicant accepted that Mr Rudland committed significant breaches of the railroad rules, regulations and procedures. What

the applicant alleged however, and why it was submitted that the dismissal was harsh, oppressive and unfair, was because ofthe inconsistent treatment by the respondent of Mr Rudland, compared to penalties imposed upon the train controller Mr LeFlohic, who was said by the applicant to have condoned Mr Rudland’s conduct; that other drivers had not put on all handbrakes in similar circumstances as a common practice; and because another driver, who was in the position of crewdevelopment officer, Mr Bird, was dismissed for essentially the same conduct, but subsequently was offered and acceptedshort term employment.

11 Counsel for the respondent, Mr Power, contended that Mr Rudland was a senior and experienced driver and was also a safetyrepresentative. It was submitted that Mr Rudland knowingly committed a serious breach of railroad rules and regulations,putting in jeopardy potentially, human life and the respondent’s property. It was also submitted that during the course of theinvestigations into the incident, Mr Rudland demonstrated a lack of candour, a factor also upon which it relied in making itsdecision to terminate his employment.

The Facts12 Extensive evidence was led in these proceedings which occupied some six hearing days and 694 pages of transcript. Much of

the evidence was somewhat technical in nature, concerning the various aspects of the air braking systems, on the respondent’slocomotives and ore cars. At the conclusion of the hearing of this matter, the Commission raised with counsel for the partiesthat it was considering whether it would engage the services of an expert, to assist it in considering the technical evidence inrelation to these matters. For reasons which will become apparent later in these reasons for decision, the Commissionconcluded it was unnecessary to take that course.

Background to the Incident13 Mr Rudland testified that he commenced employment with the respondent in January 1996 as a level two locomotive driver

and progressed to a level five driver, at the time of his dismissal. He was previously employed by Westrail as a locomotivedriver for about seven years. Additionally, Mr Rudland was elected a safety representative in 1998, to which position he wasduly elected each two years from that time up to the time of his dismissal. As a safety representative, Mr Rudland was obligedto be generally aware of safety issues in the workplace and in his words, to “keep an eye out for problems”. Mr Rudlandtestified that he had been a representative at safety inquiries conducted into other employees of the respondent.

14 For the purposes of the instant proceedings, reference was made to a prior counselling given to Mr Rudland in August 2000, inrelation to an incident that occurred during shunting operations in the South Yard at Nelson Point. This matter resulted in adisciplinary inquiry, and a written reprimand been placed on Mr Rudland’s file. Documents relevant to this incident, includingthe reprimand, appear at pages 8 to 14 of the respondent’s book of documents, tendered as exhibit R1.

15 Before considering the specific incident that occurred on 10 August 2002, it may be helpful at this stage to refer to some of thenon–contentious technical evidence in relation to locomotive braking systems, about which there was much evidence duringthe course of these proceedings. In this regard, some of this material is helpfully set out in the witness statement of MrGeoffrey Jolly, the respondent’s supervisor rail transport, Nelson Point, a copy of which statement was tendered as exhibit R2.Specifically, Mr Jolly’s witness statement at paragraphs 9 to 15, whilst quite lengthy, provides as follows—

“9 There are a number of technical terms which are used in relation to the braking system on locomotives andore cars which have the following meanings—(a) Automatic brake valve (ABV): a valve with a handle (the ABV handle) in the drivers compartment

which controls the operation of the air brake system in the cars.


[refer document “GCJ1”: BHP-Utah Iron Ore Locomotives and Airbrake Manual – figure 26:Automatic Brake Valve Handle Positions]

(b) Automatic Train Protection (ATP) system: an automated system of transponders on the rails whichsend messages to the computer monitoring systems in the locomotive about pre-set speed restrictionson that area of the track. In very simple terms, the monitoring systems in the locomotive receives theinformation from the transponder, senses the current train speed of the train and then calculates thebraking required to comply with the speed restriction and the time available for compliance. Thesystem then notifies the driver of the target (maximum) speed and the time available for compliance(called a countdown). The system will automatically apply an ATP penalty where the driver does notcomply with the countdown (called an over-speed penalty) or the system calculates that it is physicallyimpossible to comply with the countdown (an emergency penalty).

(c) ATP Penalty: an automatic application of the brakes triggered by the ATP system which brings thetrain to a stop. The reduction in brake pipe pressure as a result of—(i) an over-speed penalty is equivalent to a full service application and an emergency brake

application;(ii) an emergency penalty is equivalent to an emergency brake application. Accordingly, if there

is insufficient pressure in the air brake system to make an effective driver initiatedemergency brake application then an ATP initiated emergency penalty will also beineffective as there will not sufficient air in the brake system for the ATP system to apply thebrakes.

(d) Auxiliary reservoir: storage for compressed air which controls brake applications. The auxiliaryreservoir is located on every car and charged from the brake pipe.

(e) Brake pipe: continuos pipe from the lead locomotive to the end of the train containing pressurised air.(f) Brake pipe gradient (taper): the natural difference in brake pipe pressure from the front of the train to

the end of the train (the pressure at the end of the train is usually measured by the digitair) as a resultof air leakages and the intrinsic properties of air flowing through a pipe.

(g) Brake pipe pressure: pressure of air in brake pipe.(h) Coupler (draw gear): appliance for connecting cars and/or locomotives together.(i) Control valve (ABD valve): a three-way valve on ore cars, which charges the reservoirs and controls

the application and release of air pressure to or from the supply reservoir to the relay valve.(j) Digitair: device providing reading of brake pipe pressure at the end of the train (also called EOT

device).(k) Emergency reservoir: storage for compressed air which controls emergency brake applications.

Applies faster and greater pressure than the auxiliary reservoir. Located on every car and chargedfrom the brake pipe.

(l) Full service: a reduction of the brake pipe pressure by a maximum amount to apply maximum brakingpower (approximately 162 kpa).

(m) Hand brake: arrangement of levers, rods, gears and fulcrum (applied by a wheel) on each car andlocomotive which forces the brake shoes against the braking surfaces (wheel) to hold the car inposition.

(n) IFC: control screen located in driver’s compartment showing (amongst other information) air flow,last car pressure, brake pipe pressure, speed and projected speed.

(o) Locotrol: computerised system controlling remote locomotives through out the train using radiosignals.

(p) Minimum application: a reduction of the brake pipe pressure by a minimum amount to applyminimum braking power (approximately 63 kpa).

(q) Relay valve: controls the flow of air pressure from the supply reservoir to the brake cylinders and theexhausting of pressure in the brake cylinders to allow release of the brake.

(r) Supply reservoir: storage for compressed air for use in all brake applications. Located on every carand charged from the brake pipe.

(s) Variable Transfer Application valve (VTA valve): a valve which operates when the ore car is loadedto hold the relay valve open longer and thereby allow more supply reservoir pressure (approximately2.5 times more pressure than when empty) to flow to the brake cylinders to compensate for the weightof the car.

10 In basic terms, the braking system on cars works in an ordinary braking situation as follows—(a) the brake pipe has a fully charged pressure of approximately 620 kpa. At 620 kpa the brakes are not

in use.(b) the driver applies the brakes by reducing the brake pipe pressure which causes a difference in

pressure between the auxiliary reservoir and the brake pipe.(c) the ABD valve equalises the pressure between the auxiliary reservoir and the brake pipe by releasing

pressure from the auxiliary reservoir to the relay valve.(d) the pressure in the relay valve causes pressure to be released from the supply reservoir into the brake

cylinder.(e) the additional pressure in the brake cylinder applies the brakes by forcing the brake shoes against the

braking surface (wheel).(f) where the car is loaded, the VTA valve allows more pressure from the auxiliary reservoir to be

applied to the relay valve and so holds the relay valve open longer and thereby allows more supplyreservoir pressure to be applied to the brake cylinders.

[refer document “GCJ2”: Wagon Relayed Air Brake System – Application – Empty (diagram)][refer document “GCJ3”: Wagon Relayed Air Brake System – Application – Loaded (diagram)]


11 In an emergency braking situation—(a) the brake pipe pressure is reduced at an emergency rate (very rapid, heavy exhausting of pressure –

greater than a full service application) and a brake pipe vent valve locally vents the brake pipe ateach car (emergency dump).

(b) the ABD valve equalises the pressure between the emergency reservoir (and the auxiliary reservoir)and the brake pipe by releasing the pressure from the emergency (and auxiliary) reservoir to the relayvalve.

(c) the greater and faster pressure from the emergency reservoir (compared to the auxiliary reservoir)causes the relay valve to open fully and allow greater pressure from the supply reservoir to bepropagated into the brake cylinder.

(d) the greater pressure from the supply reservoir released into the brake cylinders applies the brakeswith greater force (than an ordinary brake application).

[refer document “GCJ4”: Wagon Relayed Air Brake System – Emergency (diagram)]12 After an emergency dump, the brake pipe, auxiliary, emergency and supply reservoirs must be fully recharged

to 620 kpa.13 Failure to fully recharge the brake pipe, auxiliary, emergency and supply reservoirs means that the brake

system does not have the full amount of pressure in the reservoirs and accordingly the brake system may nothave sufficient pressure to be able to apply the brakes as required.In particular, after the first brake application, each and every subsequent brake application (both normal andemergency brake application) without recharge further depletes the already depleted supply reservoir whichsupplies the pressure to the brake cylinders.

14 The braking system is recharged by applying the required number of hand brakes to hold the train in positionand then moving the brake handle to the release position. This causes the locomotive to start recharging thebrake pipe (and thereby the reservoirs) and releases the emergency brake system (takes about 30 seconds torelease).As the system charges, the flow of air from the locomotive decreases with the increase in air pressure (whichis reflected on the IFC). The system is fully charged when the end of train is at full pressure. This will show onthe digitair reading.

15 In the absence of release of the emergency brakes and commencement of recharge after an emergency dump,the pressure in the brake cylinder will slowly bleed out, causing the brakes to eventually disengage.”

16 In operation on the respondent’s rail road, are various rule books and procedure documents. Those most relevant for presentpurposes, and again, about which there was considerable evidence, are the BHP Iron Ore Rail Road Rules and Regulations(“the Rule Book”) and another volume known as the “General Appendix”. The Commission understands that the Rule Bookwas formulated by the respondent with the assistance of a working committee, and is based on obligations imposed by theMines Safety and Inspection Act 1994 (“the MSI Act”). The General Appendix is a more specific document, which providesspecified procedures for the large variety of circumstances that apply to employees engaged on the respondent’s rail road. TheCommission observes that both documents, tendered as exhibits A14 and A15 respectively, are fairly voluminous. TheCommission was told in evidence that copies of these documents are located in the cab of each locomotive and drivers and railcrew therefore have access to them. It was common ground that the Rule Book specifies that all operating rules, regulationsand procedures must be complied with. Additionally, rail employees have access to supervision, to deal with any matters thatmay arise.

17 Mr Holland, the respondent’s supervisor rail transport, at Nelson Point, testified that it is a part of his responsibility to overseethe training of all locomotive drivers and to ensure their attendance at regular in-service training programmes. He said that thepurpose of such programs is to ensure that drivers remain current with changes to the Rule Book and that their knowledge is upto date. Mr Holland testified that Mr Rudland, as for all locomotive drivers at level 5, was required to attend in-service trainingprograms for five days in each 12 month period. This included reaccreditation in relation to the Rule Book. It was also not indispute, that in April 2001 and March 2002, Mr Rudland attended in-service training programs, including reaccreditation withthe Rule Book. Various documents to this effect were enclosed in exhibit R1.

312 Car Trains18 In response to the need to increase product throughput, the respondent introduced 312 ore car trains (known as “three rake

trains”) from the Jimblebar mine to Port Hedland.. In about June 2002, the respondent commenced running 300 plus ore cartrains from the Yandi mine to Port Hedland. The introduction of three rake trains apparently caused some initial problems.These problems included train parting and unexpected emergency brake applications, in particular in an area of the track on theYandi line, where Mr Rudland’s incident occurred, known as the Yandi Bank. The Yandi Bank is a very steep section of trackwith a falling gradient of up to 1.5%. Mr Ireland, the respondent’s superintendent rail operations, Nelson Point, testified thatthe gradient of 1.5% means that for every one kilometre the height of the track either increases or decreases by 15m. As aconsequence of these initial problems, the respondent developed various driving strategies, in an endeavour to minimise theincidence of train partings and emergency brake applications. These driving strategies, involved training by crew developmentofficers, in methods to avoid such problems occurring on the rail lines.

19 It would appear that as at September 2002, about 681 three rake trains had been run, with some 48 of them having parted.Specifically on the Yandi line, Mr Holland gave evidence that of about 130 three rake trains run, five had parted. He testifiedthat a number of factors may lead to train parting, including human error, equipment malfunction, and uninitiated emergencybrake applications.

20 Mr Rudland had driven three rake trains previously from the Jimblebar mine and at least one three rake train from Yandi, priorto the date of the incident. Three rake trains involve multiple locomotives linked by radio remote control system called“locotrol”. This system enables the trailing locomotives to be controlled remotely from the lead locomotive without thenecessity for manual control.

10 August 2002 Incident21 Mr Rudland testified that on this day he was bringing a fully laden three rake train from the Yandi mine to Port Hedland. He

departed Yandi at approximately 4.40pm. As Mr Rudland was bringing his train over the hill of the Yandi Bank andcommenced the descent he gave evidence that he “set his train up”, which involved increasing the dynamic brake (enginebrake) of the train. Shortly thereafter, alarms rang in the cab, the train lost air brake pressure and it came to a stand at theY295.5km point on the line. At this time, and indeed during the rest of the time of the incident that evening, Mr Rudland was


in contact with traffic control, Mr Le Flohic and other drivers. These communications took place on channels one and seven,copies of the transcripts of which were extracted at pages 112 to 117 of exhibit R1. I pause to note that it appeared to becommon ground, that the commencement of the transcript of communications on channel one, referred to at page 112 ofexhibit R1, was not entirely accurate and I will return to that matter later in these reasons. I should also observe, that tenderedin evidence were CD ROM recordings of these radio communications, as annexures GCJ6 and 7 to Mr Jolly’s witnessstatement. The Commission has listened to these radio recordings carefully.

22 Mr Rudland testified that at the time his train came to a stand, the digitair reading, which tells a driver the level of air pressurein the last car of the train, was reading zero. He said that a zero reading means that the communications length between the lastcar of the train and the lead locomotive is satisfactory, but no air pressure is present. His evidence was three asterisks in thedigitair meant a loss of communication with the last car.

23 On the occurrence of this event, Mr Rudland contacted train control and advised that he would be putting on 40 handbrakes to“stop the front running out”. This was done on Mr Rudland’s evidence, because when the train braking system releases, it doesso from the front to the rear of the train. Mr Rudland also said that he requested of train control what was the procedure in thiscircumstance. Mr Rudland testified that he did not at that time, know if his train was broken or what had occurred behind him.Mr Rudland initiated the train walk procedure, which involves the train controller calling the driver every ten minutes. Thiswas done while Mr Rudland applied the 40 handbrakes.

24 Mr Rudland said he released the brakes but shortly thereafter contacted train control and said words to the effect “it does notlook promising”. Immediately thereafter, Mr Rudland placed the automatic brake in the emergency position and the train cameto a stand. This was the second successive emergency brake application made. I should pause to observe at this stage, thatreference was made in the transcript of radio contact at 17:48:48 of a comment by another driver Mr Rose, to the effect that MrRudland, before departing on the first occasion, should walk his train “to make sure it is in one bit”. Mr Rudland testified thathe did not recall this comment as at about the time it was made, he was getting out of the cab to commence train procedure andput on 40 handbrakes. This radio message became the subject of some controversy, and the Commission will return to thismatter later in these reasons.

25 After coming to a stand on the second occasion, Mr Rudland communicated with train control who advised to the effect on thetranscript, “okay it looks like you get to walk your train Jeff. I’ll get someone from Redmont to assist you.” Mr Rudland thencommenced walking his train and the train walk radio procedure started. It was Mr Rudland’s evidence, that as he was walkingalong the track on the ballast, some areas were difficult to negotiate due to rock debris and some trees.

26 Mr Beard, was another driver sent to assist Mr Rudland. At 19:15:04 Mr Rudland spoke to Mr Beard, having located the brakein the train at the third last car on the B portion, involving a damaged draw gear of car 1392. Mr Rudland also had a discussionwith train control as to how he proposed to deal with the situation, which involved removing the unserviceable car and re-joining the train further down the track at Gidgi. At 19:31:34, Mr Rudland advised train control that he was at the Y297kmcrossing point, would stay there and ceased the train walk procedure. It was Mr Rudland’s evidence that he did this because hefelt secure where he was and said that the train controller was busy. I should also observe that slightly earlier, in theconversation with Mr Beard, Mr Rudland asked Mr Beard whether any handbrakes should be applied to the broken C portion,and Mr Beard suggested that given its location, effectively straddling the crest of the hill, it was alright where it was.

27 Mr Rudland accepted in cross-examination that the total weight of the A and B portions of the train would be approximately27 to 28 thousand tonnes.

28 After assistance arrived, Mr Rudland returned to the lead locomotive. He attempted to “reclaim his air”, and charged the brakepipe pressure to 544 kpa. I pause to observe at this point, that the brake system is not fully re-charged until brake pipe pressurereaches 620 kpa.

29 After releasing the brakes, Mr Rudland’s train gathered speed and despite two further brake applications, continued to increasespeed up to 72 km per hour. It was at this point, that Mr Rudland advised train control that he could not hold the train andmade a further emergency brake application, bringing the train to a stand again at the Y291.5km point. Thereafter, Mr Rudlandcommunicated with train control, and advised that he would need to put on 100% of handbrakes, in accordance with thehandbrake chart, which being common ground, was contained in the General Appendix, located in every locomotive cab.Subsequently, assistance was provided and the train was repaired, re-marshalled and returned to Port Hedland.

30 In evidence in chief, Mr Rudland testified that at all material times, he was aware of the level of handbrakes required by therules and regulations contained in the Rule Book and the General Appendix. What he said was that he was trying to achieve aresult in the quickest possible time to clear the track, and did not give full consideration to the safety issues. It was also MrRudland’s evidence, that he understood it to be a rule of thumb, that if more than three emergency brake applications or“dumps” are required, all handbrakes must be applied.

31 Mr Rudland was extensively cross-examined about the incident and his conduct. In relation to the broken C portion, MrRudland accepted that he was not aware, having not walked the full length of the train, how many cars were on the downwardside of the Yandi Hill, leading back to Yandi. He also accepted that if there was a further draw gear failure, it would have beenpossible for loaded ore cars to have run back down the hill towards the mine. He also accepted that he really had no idea, howlong the emergency brakes on the C portion of the train would hold, without handbrakes. His evidence was he gave no realthought to this matter.

32 In terms of the requirements for handbrakes in the General Appendix, Mr Rudland said that at the material times, he was awareof the requirement to wind on all handbrakes on the entire train and he made a conscious decision to not do so. Mr Rudlandalso accepted that in bringing the train down the hill after it had came to a stand on the second occasion, and not fully re-charging the brake pipe pressure, he took a great risk as he could not be sure, that the braking system would operate to itsoptimal capacity, to bring the train to a stand again, if it ran out of control.

33 In terms of decision-making, it was also the case that Mr Rudland conceded that decisions he made during the course of thisincident, in terms of not placing all handbrakes on; of not fully re-charging his air pipe pressure; of not walking his entire trainand terminating the train walk procedure when he did, were decisions that he took and he alone took. Mr Rudland alsoaccepted that when he attempted to bring the train down the hill after the second emergency brake application, the two brakeapplications that he made had no effect on slowing the fully laden train. He accepted that the effect of these further two brakeapplications was to further deplete the train’s air braking system capacity. Mr Rudland also agreed with counsel for therespondent, that given this particular section of the track is one of the steepest on the railway line, that drivers would want tohave full braking capacity at their disposal.

34 Additionally, Mr Rudland accepted that as the driver, he was ultimately in control of the train and responsible for it, and at thetime that he made the various decisions to act, he was aware that he was doing so contrary to the requirements of the RuleBook and the General Appendix.


35 In terms of an explanation overall for his conduct that evening, Mr Rudland said that the reason he did what he did was toavoid delays for other drivers who had been working long hours in order to get back to operating procedure, even if it meantoperating the train in an unsafe manner.

36 Contrary to his evidence in chief, in cross-examination, Mr Rudland admitted to having heard Mr Rose on the radio, when hemade the comment to Mr Rudland to make sure he “walks his train” but chose to ignore him. There was some reference to thisparticular radio exchange during the inquiry process that will be dealt with later in these reasons.

37 In terms of the reporting requirements for this incident, Mr Rudland completed a note which was at page 89 to exhibit R1. It isa requirement of the Rule Book and General Appendix that train crew report unusual events or circumstances arising from atrain journey. Mr Rudland’s report made no mention of the third emergency brake application as a consequence of not beingable to hold his train. This was described at least in the evidence from the respondent, as a circumstance of a “run away” train.I pause to note that Mr Rudland accepted that he had a duty to report this incident.

Investigation38 As a consequence of these events, Mr Jolly was directed by Mr Holland to inquire into the cause of the incident, with a view to

developing procedures to avoid a recurrence. Mr Jolly testified that in preparing for the investigation, he considered MrRudland’s report; downloads from the locomotive “black boxes”, which record relevant data; records of the trainconfiguration; and recordings of radio transmissions from and to Mr Rudland on radio channels one and seven on the eveningin question. As mentioned above the first portion of the transcript of radio channel one was inaccurate. It did not contain theinitial exchange between Mr Rudland and Mr Le Flohic, where Mr Rudland asked Mr Le Flohic what the procedure was forthree rake trains. Mr Le Flohic said, completely unhelpfully and unprofessionally, “bash your head on the desk”. This portionof the conversation, somewhat inexplicably, therefore, did not appear in the transcript that was the subject of the report,contained in exhibit R1. It should have. It, to an extent, put some perspective on Mr Le Flohic’s response that was, no doubt,borne of some frustration at the consequences of the events that were unfolding on the Yandi Bank that evening.

39 The first investigation interview was conducted by Mr Jolly. For the purposes of the investigation meeting, Mr Jolly prepared anumber of questions in advance and notes were taken of the meeting. A copy of the notes, not verbatim, appears at pages 44 to47 of exhibit R1. In attendance at the meeting, were Mr Holland, Mr Gibbons, Mr Rudland and a Mr Radford, whoaccompanied Mr Rudland. The purpose of this meeting was to establish the factual background surrounding the incident thatoccurred on 10 August 2002. Mr Jolly testified that some of Mr Rudland’s answers gave him cause for concern, because theywere at variance with information downloaded from the locomotive recorders and transcripts of radio transmissions.

40 On the evening of 12 August 2002, Mr Jolly reported the result of the first interview to Mr Ireland. Mr Ireland testified that heinstructed Mr Jolly to continue his inquiries into the incident, and to conduct a safety inquiry, in accordance with usualprocedure.

Safety Inquiry41 On 27 August a safety inquiry was held. On behalf of the respondent, Messrs Jolly, Holland and Ireland attended this

interview. Mr Rudland was accompanied by Mr Ryan, a safety representative. As a part of preparing for the safety inquiry, MrJolly took photographs of relevant track sections where the incident took place, and obtained statements and reports fromMessrs Beard, Le Flohic, Quince and Keals.

42 As a consequence of the safety inquiry, Messrs Ireland and Jolly had formed the view that Mr Rudland’s train had been a “runaway train” on the evening in question. Further more, they concluded that Mr Rudland had failed to comply with a number ofrelevant procedures prescribed by the Rule Book and the General Appendix in relation to not walking his entire train asrequired; cancelling the train walk procedure; and failing to apply 100% of handbrakes as required by the grade of the track onthe Yandi Bank and that these were serious breaches. Both Mr Ireland and Mr Jolly also expressed concern in their evidence,about inconsistencies in Mr Rudland’s answers to questions put to him during the various meetings.

Disciplinary Inquiry43 As a result of the safety inquiry, a disciplinary inquiry was conducted, comprising interviews on 29 August and 6 September

2002. The purpose of the interview, according to Mr Ireland, that took place on 29 August, was to provide Mr Rudland with anopportunity to explain his version of the events flowing from the incident, and in particular, Mr Rudland’s apparent failure tofollow relevant procedures. The interview itself was conducted by Mr Holland. Mr Johncock, a convener with the CFMEU,accompanied Mr Rudland to both interviews. At the conclusion of the third interview, Mr Ireland testified that he had formedthe view that Mr Rudland had failed to comply with a number of relevant safety procedures and in particular, led to a “runaway” train situation. Furthermore, Mr Ireland formed the view from answers given by Mr Rudland at the various meetings,that he had been less than candid with the respondent in answering questions. Additionally, Mr Ireland said that he hadconcerns about an explanation Mr Rudland had given for not applying all handbrakes, in relation to a letter from Mr Rudlandto him, copied to the Mines Department, dated 12 August 2002. In that letter, Mr Rudland complained about the state ofwalkways beside the train.

44 The final disciplinary interview was held on 6 September in Mr Ireland’s office. This interview was also attended by MessrsHolland and Hoare. Mr Ireland said that this interview was to enable Mr Rudland to say anything further by way ofexplanation, in response to the issues raised with him by the respondent. According to Mr Ireland, during the course of thisinterview, Mr Rudland made a number of admissions including that—

(a) he should have wound on 100% of the handbrakes as required;(b) he admitted that he had changed his answers from one interview to the next;(c) no explanation was offered, other than being tired, for failing to report the run away train occurrence when he

returned to Port Hedland;(d) that he admitted that he had changed his answers regarding knowledge of the hand brake chart at the time;(e) Mr Rudland failed to explain his reasons for cancelling the train walk procedure; and(f) he admitted breaking various rules and regulations having application to the rail road.

45 As a consequence of the various interviews, Mr Jolly prepared a draft investigation report which was approved by Mr Holland.That report noted a range of breaches of rules and regulations, by Mr Rudland, arising from the incident on 10 August.

46 After reviewing the report, and from his own participation in the investigation process, Mr Ireland concluded that MrRudland’s conduct warranted the termination of his employment. He recommended this to Mr Morrison, the rail road managerand also testified that as a consequence of Mr Rudland’s conduct, he could no longer trust him to adequately perform his traindriving duties for the respondent.


47 Mr Morrison gave evidence that after discussing the matter with Mr Ireland, reviewing the investigation report, and listening toextracts from the voice log between Mr Rudland, the train controller and other drivers, he also formed the view thattermination of employment was the appropriate response. Mr Morrison’s evidence was he was concerned that Mr Rudland hadshown a cavalier attitude for his own safety and the safety of others.

48 As a consequence of this, Mr Rudland’s employment was terminated pursuant to the terms of the Award.Trevor Bird Incident49 Evidence was led from another former driver, Mr Bird, concerning the circumstances of his dismissal arising from an incident

which occurred on 6 August 2002. It was common ground that this particular incident, only came to light during the course ofthe investigation into Mr Rudland’s conduct.

50 Mr Bird was a crew development officer for the respondent. His role was to act as a site based trainer for locomotive drivers.51 On 6 August 2002, Mr Bird as a crew development officer accompanied by Driver Cale, departed from the Yandi 2 mine

heading for Port Hedland, on a three rake train. As the train was coming over the Yandi hill, it experienced an uninitiatedemergency brake application and came to a stand at the Y294.1 km point. Both he and Driver Cale then activated the trainwalk procedure and after discussion, agreed to put on 104 handbrakes. Thereafter, the air was re-charged and the train movedoff down the Yandi hill. Shortly thereafter, having reached 78 km per hour without being able to be slowed, the train receivedan uninitiated emergency brake application and came to a stand at the Y288.4 km point. Mr Bird and Mr Cale then applied100% of the handbrakes, the train brake was fully re-charged and the train continued on its journey.

52 As a consequence of being disclosed during the Rudland inquiry, an investigation of the same nature as conducted into MrRudland was conducted into Mr Bird’s incident. The end result of this process, were findings that there were substantialbreaches of rules and regulations, similar to that in the incident involving Mr Rudland. However, in this case, it was only MrBird, as the crew development officer, who was regarded by the respondent as the driver in charge, whose employment wasterminated. Ultimately, as a result of discussions between Mr Bird and the respondent, Mr Bird was, after his dismissal, offeredand accepted a short term employment contract in a non-operational area, before leaving the respondent entirely.

53 It was also Mr Bird’s evidence that he had heard from other drivers, that what he did on 6 August was a practice also engagedin by others. I turn to that issue now.

Common Practice54 It was submitted by Mr Schapper, that what Mr Rudland did on 10 August 2002, was a common practice amongst train drivers

employed by the respondent. In this regard, evidence was led from Messrs Richards and Symons, former and present enginedrivers respectively, of the respondent. Both witnesses gave evidence of their experience in similar circumstances to that of MrRudland, to the effect that if they experienced a similar incident, the practice was to apply 30 or 40 handbrakes to the frontportion of a train, to “hold the front in”, whilst reclaiming air in the brake pipe. I pause to note that much of this evidence wasobjected to, to the extent that it was hearsay. The Commission allowed the evidence in, on the usual basis which theCommission receives hearsay evidence that is, it is accorded appropriate weight.

55 In particular, Mr Symons testified that he always understood from discussions with other drivers, that his practice of “holdingthe front in” in those circumstances was a common practice. Mr Richards testified that for the whole period of his employmentby the respondent, he was not aware of any case in which all handbrakes had been applied following an unexplainedemergency brake application.

56 The respondent’s witnesses denied there was any such common practice. Their evidence was the practice is governed by theRule Book and the General Appendix. However, Mr Jolly testified that he was aware of a practice described as “holding thefront in”, but was quite different to what was performed by both Mr Rudland and Mr Bird. Mr Jolly’s evidence was that thepractice of “holding the front in”, is one where after a train has stopped, and the required percentage of handbrakes inaccordance with the handbrake chart is applied, and the brake pipe fully re-charged, a portion of the front handbrakes are lefton, to stop the front portion of the train releasing before the rear portion. This can occur because the braking system of trains issuch that the brakes release from front to rear sequentially. By leaving some handbrakes on the front portion of a train, thatportion’s movement is retarded and this thereby reduces strain and the prospect of a train parting.

57 It was Mr Jolly’s evidence that this procedure, as long as the brake pipe is fully re-charged in the first instance, is quitepermissible. However, Mr Jolly said the procedure adopted by both Messrs Rudland and Bird, was wrong and in breach of theRule Book and General Appendix. Mr Jolly, and also Messrs Holland and Ireland, knew of no practice that had come to theattention of or was condoned in any way by management, as suggested by Messrs Richards and Symons.

Findings and Conclusions58 The relevant principles in relation to applications of the present kind are well settled. In a case where it is alleged that an

employee was harshly, oppressively or unfairly dismissed, the question is whether the employer has exercised its legal rightharshly or oppressively so as to constitute an abuse of it: Miles v FMWU (1985) 65 WAIG 385. The question is to bedetermined objectively, and consistent with the dictates of common sense: Gibson v Bosmac (1995) 60 IR 1.

59 In this case, there is little conflicting evidence as to the fact that Mr Rudland engaged in various significant breaches of theRule Book and the General Appendix. As noted at the outset of these reasons for decision, the thrust of the applicant’s casereally turns upon an allegation, that Mr Rudland was dealt with harshly because his treatment was in essence, inconsistent withthe treatment of in particular, the train controller Mr Le Flohic and also relative to other incidents. This was also to be seen, onMr Schapper’s submission, in the context of the “common practice” alleged by Mr Rudland, such that in effect, Mr Rudlandhad been singled out for particular attention and unfair treatment by the respondent.

60 On all of the evidence, I am satisfied and I find as follows. Mr Rudland was a senior and experienced locomotive driver. Hewas also a safety representative with an obligation to have particular regard to safety matters in the workplace. At all materialtimes during the incident on 10 August 2002, Mr Rudland was an accredited train driver, was aware of the relevant safetyrequirements imposed upon train drivers, as prescribed by the Rule Book and the General Appendix. In particular, I am wellsatisfied, that despite some responses by him to questions during various investigation interviews, at the time of the incident on10 August 2002, Mr Rudland was well aware of the handbrake chart, and moreover, the requirement to apply 100%handbrakes on the Yandi Bank location.

61 I also accept the evidence and submissions of the respondent, in my opinion somewhat self evidently, that the driver of a fullyladen ore locomotive employed by the respondent, is in a particular position of trust and responsibility, given that a piece ofmachinery of that kind, fully laden with iron ore, is a potentially lethal vehicle.

62 I am also satisfied, that as a train driver, and a senior and experienced train driver at that, Mr Rudland was primarilyresponsible for the safe conduct of his train on the respondent’s rail road, in accordance with established practices andprocedures. Whilst I recognise the evidence in relation to the position of a train controller, I do not accept that the primary


responsibility for the conduct of the train, in a driving sense, rests with the train controller. In my opinion, clearly, the primaryresponsibility for decision making in terms of the actual physical management of the train, must reside with the driver. In thecircumstances of the present case, whilst I accept that Mr Le Flohic, in terms of his position as train controller, had authorityover drivers on the rail road in terms of train control movement, I am satisfied on the basis of Mr Rudland’s admissions inevidence alone, that it was he and he alone, who made all of the critical decisions in relation to—

(a) not walking his train entirely to check its continuity as required by the General Appendix;(b) not applying 100% of the handbrakes on the Yandi Hill, as required by the handbrake chart contained in the

General Appendix, which chart Mr Rudland admitted, eventually, he was aware of at the material time;(c) cancelling the “train walk” procedure, contrary to established practices;(d) failing to walk the broken C portion of the train and failing to secure that portion of the train, albeit the

Commission accepts that subsequent to the train parting, that section of the train became Mr Beard’sresponsibility; and

(e) proceeding down the Yandi Bank without fully re-charging his brake pipe and therefore on his own admission,not knowing whether he had sufficient air for further emergency brake applications, should they be required.

63 As I have mentioned earlier in these reasons, I have carefully listened to the recordings of the radio transmissions between MrRudland, Mr Le Flohic and the other drivers. As the Commission has already noted, whilst I find that Mr Le Flohic’s initialresponse to Mr Rudland, when advised of the train parting, was entirely inappropriate and unprofessional, from the entireconversations in context, it was plain to me that all of the decisions in relation to the actual management of the train on thatevening of 10 August 2002, were made by Mr Rudland and he advised Mr Le Flohic what he was going to do.

64 Mr Schapper made extensive reference to the transcript references of Mr Le Flohic acknowledging and indeed perhaps,acquiescing in the decisions taken by Mr Rudland at the time. To the extent that Mr Le Flohic did not ask more questions andrectify Mr Rudland’s proposed course of action, this was an error on his part. In hindsight, however, it is easy to criticise. Itmust be appreciated however, in my opinion, that the train controller was a long distance away from the occurrence of theevents in question, and monitored train movements by way of radio communications and indicator screens, as the Commissionunderstands it. Common sense dictates that it would be immeasurably more difficult for a train controller, to appreciate the fullcircumstances of an incident, in that environment, compared to that being experienced by a train driver at the actual locationand carrying out the procedures himself or herself. The situation is perhaps not dissimilar, to the relationship between an airlinepilot and an air traffic controller. In that circumstance, as with the respondent’s train control function, an air traffic controller isresponsible generally for air traffic movements within that controller’s air space. It goes without saying however, that theprimary responsibility for an aircraft rests with the air crew and in particular, the captain of the aircraft.

65 I cannot see any real distinction between that circumstance, and the circumstance of the relationship between locomotive driverand train control. That relative relationship is in my opinion, in the context of a misconduct event such as the present, animportant one.

66 I am satisfied and I find on all of the evidence, that Mr Rudland committed serious breaches of the respondent’s rail roadpractices and procedures as prescribed by the Rule Book and the General Appendix. I am also satisfied that at the materialtimes, Mr Rudland was quite aware that his conduct was in breach of these requirements. This is in my opinion, exacerbated bythe fact that Mr Rudland was a safety representative. As a safety representative, Mr Rudland, perhaps more than any otherlocomotive driver, ought to have been acutely aware, as indeed he admitted he was, of the unsafe conduct he engaged in.

67 In my opinion, in only putting on 40 hand brakes, inadequately re-charging the air brake system, which he clearly did, and thenattempting to bring the train down the Yandi Hill, after two prior emergency “dumps”, without knowing whether he hadsufficient air for a further emergency brake application or not, Mr Rudland, with a fully laden ore train, took an incredible risk.

68 It must be appreciated that to this point in time, there had already been two uninitiated emergency brake applications. Whilstthe material tendered in evidence states that with the locomotive braking systems used by the respondent, it is possible forthree emergency brake applications to be made in succession, it was the case that before the third emergency brake application,Mr Rudland had made two other brake applications, which had no effect at all on slowing the train, according to the datadownloaded from the train. Mr Rudland’s evidence was he simply did not know whether he would have sufficient air in hisbraking system, to be able to have another “emergency dump”. However, this circumstance clearly did not take account of anyunforseen situations. What if there had been a problem with the third emergency application and there was insufficient air tostop the train? The prospect of a fully laden ore train, running out of control at the bottom of the Yandi hill, without brakes, is afrightening one to say the least. On the application of base principles of physics, given that the train had reached some 72 kmper hour at the Y295.1 point, with that rate of acceleration, by the time that the train had reached the bottom of the hill it couldhave been travelling much faster again, if not retarded by brakes.

69 Furthermore, before Mr Rudland attempted to take the train down the hill, by reason of the phenomenon known as “braketaper”, which means brake pressure at the rear of the train is lower than at the front of the train, the actual brake pressure at therear of the train was considerably less than 544 kpa, which was the digitair reading in the lead locomotive and upon which MrRudland relied.

70 It is also important to note, that as the Commission understands the evidence, each successive brake application made by MrRudland before the last emergency dump, depleted air from the air pressure available in the supply reservoir. The effect of thefirst brake application, which did not slow the train at all, was to stop the re-charging of the braking system. Therefore, theautomatic train protection system, or the emergency brake, would only be able to bring the train to a stand, if the supplyreservoir pressure was sufficient to enable a penalty application to be made.

71 Therefore, if the third emergency brake application made by Mr Rudland had failed, there would be insufficient air for theautomatic train protection system to operate, and the train would not have been able to have been stopped. The fact that MrRudland’s train rapidly accelerated to 72km per hour, over a very short period, illustrates in my opinion, the potential danger ifthe third emergency brake application had not been effective. This situation was graver in my opinion, because at all times, MrRudland was aware of the risk he was taking.

72 I am also satisfied and I find, at all material times, Mr Rudland knowingly made the decisions that he made, in breach of theRule Book and General Appendix. That Mr Rudland was a duly elected safety representative, in my opinion, heightened hisdegree of culpability. Additionally, having carefully listened to the voice transcripts, it is apparent to the Commission, fromsome of Mr Rudland’s comments made on channel seven that Mr Rudland himself commented that he had a run away train andmoreover, in comments to Mr Beard, was clearly aware of the requirement to put on 100% of hand brakes, charge up the airbrake system, make a minimum brake application, and release all the hand brakes. This is quite contrary to what he toldofficers of the respondent, in subsequent inquiry and disciplinary meetings.


73 From the voice recording of channel seven, and the transcript at page 41 of exhibit R1, that Mr Rudland was well aware that itwas Mr Rose who made the comment earlier on channel one, that Mr Rudland had to walk his train. It was this radiotransmission that Mr Rudland subsequently denied that he heard. Mr Rudland simply chose to ignore him.

74 In my opinion, the respondent’s submissions as to Mr Rudland’s candour during the investigation process have some force.Additionally, I have some reservations about aspects of Mr Rudland’s evidence given in these proceedings. For example, as Ihave noted already, in evidence in chief when it was put to him by Mr Schapper, Mr Rudland testified that he did not recall MrRose’s comment at 17:44:48 at page 112 of exhibit R1, where Mr Rose said “Hey Jeff, I think you got to walk that train mate.Make sure it’s in one bit.” However, in cross-examination, Mr Rudland admitted that he did hear Mr Rose on the radio butchose to ignore him. He testified there was some reference to walking his train. Subsequently, at the disciplinary inquiry on6 September 2002, reference to which is made at page 72 of exhibit R1, Mr Rudland denied that he heard Mr Rose or indeed,who it was on the radio. This stands in stark contrast, to the radio communication on channel seven, between Mr Rudland andMr Beard, to which I have just referred above.

75 Furthermore and importantly, given the significance of the matter, Mr Rudland was in my view deliberately inconsistent in hisanswers in the various meetings, in relation to his knowledge of the handbrake chart in the General Appendix, and therequirement to put on 100% of hand brakes, on the Yandi Bank. From the transcripts of the voice recordings, and on his ownsubsequent admissions, it was quite clear that at all times Mr Rudland had that knowledge.

76 In my opinion, taken in its overall context, whilst I appreciate there were a number of meetings at which questions were asked,some of Mr Rudland’s answers demonstrated a considerable lack of candour with the employer.

77 I turn now to the question of alleged inconsistencies in treatment between employees. As the Commission has noted at theoutset of these reasons for decision, a central plank of the applicants case was that Mr Rudland was treated differently to otheremployees who had been involved in similar incidents, in circumstances which were either the same or not significantlydifferent. It was therefore submitted by Mr Schapper, that this inconsistency led to the dismissal of Mr Rudland being harsh.

78 In my view, each of the various circumstances must be considered in their entire context in terms of the employer’s response.Furthermore, in my opinion, as a matter of general principle, in proceedings such as these, consistency in treatment by anemployer does not necessarily mean equality in treatment. In Aluminium Ltd v SAE (1997) 75 IR 65, Madgwick J, on review oforders and a judgement given by a Judicial Registrar in proceedings under the former s 170EE of the Workplace Relations Act1996 (Cth) concerning two employees fighting in the workplace, said as follows at 67—

“It is no surprise that it was argued on Mr Sae’s behalf that the disparity in the treatment by the company of the two menindicated that the reason for the termination of Mr Sae’s employment was not a valid one. In my view, as I have expressedin Westen v Union Des Assurances De Paris (unreported, Industrial Relations Court of Australia, 28 August 1996) andother cases, it will generally be very difficult for a reason to be regarded as valid for the termination of an employee’semployment (which in the usual case means deprivation if the employee’s means of livelihood) if the reason for thetermination can be seen to be unfair or unjust. The judicial registrar applied a similar approach. She had a different viewof the facts than I had but nevertheless, on the issue of parity of treatment of the two employees concerned, as she said—

The fact that Mr Kuoch’s employment was not terminated is a relevant consideration. It is indicative of therespondent’s standards. It should be remembered that the primary purpose of disciplinary action in theworkplace is not to punish but to achieve greater efficiency and to maintain standards. The consequences ofdisciplinary action should be consistent between employees who are equally guilty of unacceptable conduct.

In argument before me, the company did not seek to play down the unsatisfactory aspects of Mr Kuoch’s conduct. Thejudicial registrar’s notion of “consistent” consequences for “disciplinary” action where employees are involved togetherin misconduct is to my mind an important and a correct one. The approach of the criminal law to sentencing provides, inmy view, a useful analogy. For example, in Lowe v The Queen (1984) 154 CLR 606 Mason J said at 613-614—

…what is the correct principle to be applied in cases of discrepancy? It is that a court of appeal is entitled tointervene when there is a manifest discrepancy such as to engender a justifiable sense of grievance, by reducinga sentence, which is not excessive or inappropriate considered apart from the discrepancy, to the point where itmight be regarded as inadequate.”

79 Further, at 68 Madgwick J continued—“The question is whether what the company did in relation to him could be regarded as consistent with what was done inrelation to Mr Kuoch or, in other words, whether the discrepancy gives rise to a justified sense of grievance on Mr Sae’spart. In my view it was well open to the company officer who made the decisions about the two men to take the view thatthey were being dealt with consistently. Consistency does not necessarily mean equality. Mr Kuoch was the aggressor ononly one occasion, not three, as was the case with Mr Sae. Mr Kuoch was guilty too of agreeing to fight later in the carpark when Mr Sae first suggested it at the workplace, but he had a compelling personal explanation for his approach. Hewas not the initial aggressor or instigator and he had been the victim of a humiliating assault by a much larger man atthe workplace without any provocation worth speaking of.”

80 With respect I agree generally with those observations. In this case, whilst I have some considerable reservations as to theleniency of the outcome on Mr Le Flohic, the train controller, taking the incident as it occurred and all of the decisions havingbeing taken by Mr Rudland, I am not of the view that there is equal culpability between Mr Rudland and Mr Le Flohic. It maywell be the case, and in my view it probably was the case, that Mr Le Flohic was remiss in not being more vigilant in terms ofthe requirements of the Rule Book and the General Appendix, when Mr Rudland reported the incident on 10 August 2002.This does not detract however, from the general proposition that all decisions made in relation to what transpired to be variousserious breaches of procedure, were all made by Mr Rudland and him alone.

81 Similarly, in relation to the incident involving Mr Bird and Mr Cale, in my view again, the circumstance is distinguishable. MrBird was a crew development officer responsible for training, and Mr Rudland was a safety representative, responsible forinsuring adherence to safe working practices. To that extent, both of them were in a particular position of responsibility. In theincident involving Mr Bird, clearly in my opinion, he was at the time in charge of the locomotive, albeit that Mr Cale wasaccompanying him on a training run. I accept that there was some discussion between Mr Bird and Mr Cale as to therequirement to apply hand brakes. It is quite apparent however, from Mr Cale’s report, at attachment 8.3 to the investigationreport into the incident, which was annexure GCJ10 to Mr Jolly’s witness statement, that Mr Cale clearly recognised thedifficulties with the course initially suggested by Mr Bird, when he referred to the fact that if things go wrong “and we end upin the dirt they will sack the both of us.” Whilst Mr Cale was a driver of very considerable experience, the fact was that MrBird was in charge of the train and moreover, was a crew development officer responsible for training other drivers. In myopinion, these circumstances were such that Mr Bird’s culpability must have been considered to have been greater, at the timeof this incident.


82 As to the subsequent offer and acceptance of a short term position for Mr Bird, whilst I found that somewhat unusual, I am notof the view that it is a matter of great significance, given that there was no evidence that such a course was not open to MrRudland.

83 Reference was also made to two other circumstances. The first is that of Mr Beard, who after the initial parting of MrRudland’s train, arrived at the location and ultimately took control of the C portion, straddling the top of the Yandi Bank.Whilst I accept that Mr Beard clearly ought to have applied all hand brakes to the C portion when he took control of the train,as was the primary responsibility initially of Mr Rudland and should have advised Mr Rudland to this effect whilst Mr Rudlandstill had control of the C portion, the fact is that it was the case on the evidence, which I accept, that the position of the Cportion was such that there was little risk that the train would move from that position if the emergency braking system hadfailed. Additionally, and significantly, Mr Beard did not commit any other breaches of practice and procedure, as did MrRudland.

84 I also note that Mr Bird, in his written report made on the evening of his incident on 6 August 2002, which was attachment8.1 to the investigation report, made a fulsome report, and included reference to putting on less than the required number ofhand brakes. Mr Bird’s report, stands in stark contrast to the report prepared by Mr Rudland, contained at page 89 to exhibitR1, which makes no reference at all to not putting on 100 per cent of hand brakes; failing to walk the entire train andterminating train walk procedures, and the fact that Mr Rudland had a run away train before the final emergency brakeapplication. Whilst I accept that after long shifts drivers may be fatigued, the same could be said for Mr Bird, when from thereport as filed, it commenced at 10:30 hours and referred to Mr Bird retiring to bed at 03:00 hours the next morning. Whilst itwas not clear on the evidence when Mr Bird actually lodged his report, there was nothing to prevent Mr Rudland lodging amore fulsome report subsequent to 10 August 2002.

85 Reference was also made to an incident involving another driver, Mr Hope. Whilst Mr Hope did not give evidence, it wascommon ground that an incident occurred involving a train parting. A written record of this incident was tendered as exhibitA13. As a consequence of this incident, Mr Hope was counselled, received simulator training and was reassessed. The incidentoccurred on 28 August 2001. On that day, some 62 loaded ore cars were left behind on the Yandi Junction to Yandi section ofthe track. The respondent witnesses, in particular Messrs Holland and Morrison, were cross-examined about this incident, tothe effect that Mr Rudland’s treatment was inconsistent with the incident involving Mr Hope. Mr Holland accepted that MrHope had also failed to wind on 100 per cent of hand brakes and did not walk his train as required by the relevant procedures.To this extent, he accepted the circumstances were similar. However, Mr Holland testified that as a result of the investigationinto that incident, it was apparent that Mr Hope had misinterpreted his instruments and was not aware that in fact he had a trainparting and left a number of cars on the Yandi Hill.

86 It was also Mr Holland’s evidence that during the investigation of this incident, Mr Hope was full and frank in his explanationsof the events that occurred. Mr Morrison, although he was copied with the incident report, did not recall the event. He didtestify however, that had the Hope incident come to his attention in October 2001, he would have been “distressed”. MrMorrison also testified that since he took up his position at the respondent, he has placed a much greater focus on safety issueson the rail road.

87 As to the issue of the alleged common practice, I accept on the evidence that it may have been the case, that some drivers didin the past, engage in a practice described as “chasing air”, whereby not all hand brakes are put on in circumstances wherestrictly they would be required. The evidence of Messrs Richards, Symonds and also Bird, to an extent, was suggestive of thispractice being engaged in from time to time by some drivers. There was no direct and probative evidence however, that such apractice to the extent that it existed, was brought to the attention of and condoned by the respondent’s railroad seniormanagement.

88 This case has caused me some not inconsiderable difficulties. In many respects the matter is finely balanced. I appreciate thatother drivers on the respondent’s railroad see Messrs Hope and Beard still driving on the mainline but Mr Rudland and MrBird have been dismissed. This no doubt causes those other drivers some anguish. However it must be recognised that there arein my opinion, qualitative differences in the circumstances applying to each set of circumstances.

89 I have carefully considered the circumstances of the incident involving Mr Rudland and those involving other drivers,including Mr Bird. The fact remains that Mr Bird was dismissed. Arguably, the circumstances of his incident were lessculpable than those applying to Mr Rudland. In relation to the circumstances of Mr Hope, in my view there is a qualitativedifference between bringing a fully laden ore train down the Yandi Hill under a mistaken state of affairs, and an experienced,senior driver who was a safety representative, knowingly operating a fully laden ore train in an unsafe condition, which wasthe position in relation to Mr Rudland.

90 For all of these reasons, the application is dismissed.

_________


PARTIES THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS,APPLICANTv.BHP BILLITON IRON ORE PTY LTD, RESPONDENT

CORAM COMMISSIONER S J KENNERDATE TUESDAY, 17 JUNE 2003FILE NO/S. CR 195 OF 2002CITATION NO. 2003 WAIRC 08489_________________________________________________________________________________________________________

Result Application dismissedRepresentationApplicant Mr D Schapper of counselRespondent Mr A Power of counsel_________________________________________________________________________________________________________


OrderHAVING heard Mr D Schapper of counsel on behalf of the applicant and Mr A Power of counsel on behalf of the respondent theCommission, pursuant to the powers conferred on it under the Industrial Relations Act, 1979 hereby orders—

THAT the application be and is hereby dismissed.(Sgd.) S. J. KENNER,


CONFERENCES—Notation of—

PartiesCommissioner

ConferenceNumber

Dates Matter Result

Australian Liquor,Hospitality andMiscellaneous WorkersUnion, WesternAustralian Branch

Activ Foundation Inc SCOTT CC74/2003

N/A Alleged unfairdismissal

Concluded


Airlite Group BEECH SC

C68/2003

22-May-03 Alleged unfairdismissal

Concluded


CBD Health Spa SCOTT CC86/2003

19-Jun-03 Termination ofemployment

Concluded


Education Department ofWA

HARRISON CC251/2002

28-Nov-02 Contractualentitlements

Concluded


West-Sure Security PtyLtd

HARRISON CC80/2003

22-May-03 Termination ofemployment

Concluded

Australian Workers’Union, West AustralianBranch, IndustrialUnion of Workers - The

Calder Stanley Reading BEECH SCC117/2001

7-Jun-01 Termination ofemployment

Referred

Australian Workers’Union, West AustralianBranch, IndustrialUnion of Workers - The

Calder Stanley Reading BEECH SCCR117/2001

12-Oct-01 Termination ofemployment

Discontinued

Automotive, Food,Metals, Engineering,Printing and KindredIndustries Union ofWorkers - The

Andrew Seywald ,TheManager, TurntekMachining

GREGOR CCR37/2003

04-Jun-03 Alleged unfairdismissal

Discontinued


Coromal Caravans GREGOR CC115/2003

N/A Overtime Concluded


G.B. Gillespie & Sons PtyLtd

WOOD CC7/2003

20-Mar-03 Time andWages Records

Concluded


Turntek Machining GREGOR CC37/2003

N/A Allegedtermination

Concluded


PartiesCommissioner

ConferenceNumber

Dates Matter Result

Civil ServiceAssociation of WesternAustralia Incorporated

Director General -Department of Mineral andPetroleum Resources

SCOTT CPSAC40/2002

10-Dec-0213-Dec-0207-May-0316-Jun-03

Allegedintimidationand threats

Concluded


Disability ServicesCommission

SCOTT CPSAC38/2002

15-Oct-02 Progress withnegotiationsbetween parties

Concluded


The Director General ofthe Department of Cultureand Arts

SCOTT CPSAC19/2003

N/A Confirmation ofunion memberspermanentemploymentwith respondent

Concluded

Communications,Electrical, Electronic,Energy, Information,Postal, Plumbing andAllied Workers Union

Millenium InorganicChemicals

GREGOR CC144/2003

26-Jun-03 Concernsregarging non-payment of SickLeave

Concluded

Construction, Forestry,Mining and EnergyUnion

Formgrow Pty Ltd ATFThe Robertson FamilyTrust t/as PlasterwisePlastering

GREGOR CC140/2003

N/A Wage Records Concluded


Odin Central Services PtyLtd trading as Gregory’sPlumbing and Pipeline

GREGOR CC125/2003

24-Jun-03 Dispute overpayment of siteallowance

Concluded


Scottform Pty Ltd GREGOR CC127/2003

24-Jun-03 Site allowance Concluded


Scottform Pty Ltd GREGOR CC134/2003

24-Jun-03 Site allowanceissues

Concluded


Sween Pty Ltd t/a WesternReo

GREGOR CC121/2003

N/A Site Allowance Concluded


Tepanas Steel Fixing PtyLtd

GREGOR CC133/2003

24-Jun-03 Site allowanceissues

Concluded


Tino & Co Pty Ltd GREGOR CC123/2003

24-Jun-03 Dispute overpayment of siteallowance

Concluded

Hospital SalariedOfficers Association ofWestern Australia(Union of Workers)

Joondalup Health Campus SCOTT CC117/2003

N/A ContractualEntitlement

Concluded

Hospital SalariedOfficers Association ofWestern Australia(Union of Workers)

Metropolitan HealthService, Sir CharlesGairdner Hospital

BEECH SCPSAC17/2002

13-Jun-02 Dispute inregards toallegedarbitraryapplication ofthe criteriaprogressionprogramme

Concluded

Transport Workers’Union of Australia,Industrial Union ofWorkers, WesternAustralian Branch

Tip Top Bakeries WOOD CC234/2002

29-Nov-02 Pay andconditions

Concluded

Western AustralianPolice Union ofWorkers

Commissioner of Police SCOTT CPSAC35/2002

10-Apr-03 Allegedexpenses to bepaid byRespondent

Concluded


PartiesCommissioner

ConferenceNumber

Dates Matter Result

Western AustralianPrison Officers Unionof Workers

Attorney General C/-Department of Justice

BEECH SCC136/2003

19-Jun-03 Issues ofconcern notbeing addresseddue to a unionexecutivedecisionrestrictingability toresolves issues.

Concluded

Western AustralianPrison Officers’ Unionof Workers

Hon. Attorney General BEECH SCC337/2000

15-Dec-00 Industrial issues Concluded

Western AustralianPrison Officers’ Unionof Workers

The Hon. Attorney General BEECH SCC37/2002

11-Mar-02 Industrial issues Concluded

CORRECTIONS—2003 WAIRC 08564

AWU NATIONAL TRAINING WAGE (AGRICULTURE) AWARD 1994No. A 1 of 1995

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSIONPARTIES ON THE COMMISSION’S OWN MOTION

TRADES AND LABOR COUNCIL OF WESTERN AUSTRALIA, AUSTRALIAN MINES &METALS ASSOCIATION WA BRANCH, CHAMBER OF COMMERCE & INDUSTRY OFWESTERN AUSTRALIA AND THE MINISTER FOR LABOUR RELATIONS

CORAM CHIEF COMMISSIONER W S COLEMANDATE THURSDAY, 29 MAY 2003FILE NO/S. APPLICATION 654 OF 2000CITATION NO. 2003 WAIRC 08564_________________________________________________________________________________________________________

Result Correction Order issued_________________________________________________________________________________________________________

OrderWHEREAS an error occurred in the General Order dated 17 July 2000 issued in application 654 of 2000, the Commission, in orderto correct this error and pursuant to the powers conferred on it under the Industrial Relations Act, 1979 hereby orders –

THAT the Variation Schedule attached to the Order dated 22 July 2000 with respect to the AWU National TrainingAward (Agriculture) Award 1994 No. A1 of 1995 in Application 654 of 2000 be amended in the terms of the followingSchedule.

(Sgd.) W. S. COLEMAN,[L.S.] Chief Commissioner.

_________

SCHEDULE1. Clause 10. – Wages: Delete subclause (1) of this clause and insert the following in lieu thereof—(1) (a) The weekly wages payable to Trainees shall be as provided in paragraphs (d), (e) and (f) of this subclause.

(b) These wage rates will only apply to Trainees while they are undertaking an approved Traineeship which includesapproved training as defined in this Award.

(c) The wage rates prescribed by this clause do not apply to complete trade level training which is covered by theApprenticeship system.

(d) Industry/Skill Level A: Where the accredited training course and work performed are for the purpose of generatingskills which have been defined for work at industry/skill level A.


HIGHEST YEAR OF SCHOOLING

School Leaver Year 10 Year 11 Year 12$ $ $

125.00 (50%)*146.00 (33%)

155.00 (33%)175.00 (25%)

215.00

plus 1 year out of school 175.00 215.00 250.00plus 2 years 215.00 250.00 290.00plus 3 years 250.00 290.00 333.00plus 4 years 290.00 333.00plus 5 years/more 333.00

The rates of pay in this award include arbitrated safety net adjustments available since December 1993, under theArbitrated Safety Net Adjustment Principle.These arbitrated safety net adjustments may be offset against any equivalent amount in the rate of pay received byemployees since 1 November 1991 above the rate prescribed in the Award, except where such absorption iscontrary to the terms of an industrial agreement.Increases in rates of pay otherwise made under the State Wage Case Principles, excepting those resulting fromenterprise agreements, are not to be used to offset arbitrated safety net adjustments.

(e) Industry/Skill Level B: Where the accredited training course and work performed are for the purpose of generatingskills which have been defined for work at industry/skill level B.



125.00 (50%)*146.00 (33%)

155.00 (33%)175.00 (25%)

205.00



(f) Industry/Skill Level C: Where accredited training course and work performed are for the purpose of generatingskills which have been defined for work at industry/level C.



125.00 (50%)*146.00 (33%)

155.00 (33%)175.00 (25%)

190.00


* Figures in brackets indicate the average proportion of time spent in approved training to which the associatedwage rate is applicable. Where not specifically indicated, the average proportion of time spent in structured trainingwhich has been taken into account in setting the rate is 20 per cent.The rates of pay in this award include arbitrated safety net adjustments available since December 1993, under theArbitrated Safety Net Adjustment Principle.These arbitrated safety net adjustments may be offset against any equivalent amount in the rate of pay received byemployees since 1 November 1991 above the rate prescribed in the Award, except where such absorption iscontrary to the terms of an industrial agreement.Increases in rates of pay otherwise made under the State Wage Case Principles, excepting those resulting fromenterprise agreements, are not to be used to offset arbitrated safety net adjustments.

____________________


2003 WAIRC 08567AWU NATIONAL TRAINING (AGRICULTURE) AWARD 1994


PARTIES ON THE COMMISSION’S OWN MOTIONTRADES AND LABOR COUNCIL OF WESTERN AUSTRALIA, AUSTRALIAN MINES &METALS ASSOCIATION WA BRANCH, CHAMBER OF COMMERCE & INDUSTRY OFWESTERN AUSTRALIA AND THE MINISTER FOR LABOUR RELATIONS

CORAM CHIEF COMMISSIONER W S COLEMANDATE FRIDAY, 30 MAY 2003FILE NO/S. APPLICATION 752 OF 2001CITATION NO. 2003 WAIRC 08567_________________________________________________________________________________________________________



THAT the Variation Schedule attached to the Order dated 25 July 2001 with respect to the AWU National TrainingAward (Agriculture) Award 1994 No. A1 of 1995 in Application 752 of 2001 be amended in the terms of the followingSchedule.


SCHEDULE1. Clause 10. – Wages: Delete subclause (1) of this clause and insert the following in lieu thereof—(1) (a) The weekly wages payable to Trainees shall be as provided in paragraphs (d), (e) and (f) of this subclause.

(b) These wage rates will only apply to Trainees while they are undertaking an approved Traineeship which includesapproved training as defined in this Award.

(c) The wage rates prescribed by this clause do not apply to complete trade level training which is covered by theApprenticeship system.

(d) Industry/Skill Level A: Where the accredited training course and work performed are for the purpose ofgenerating skills which have been defined for work at industry/skill level A


School Leaver Year 10 Year 11 Year 12

$ $ $

125.00 (50%)*146.00 (33%)

155.00 (33%)175.00 (25%)

215.00

plus 1 year out of school 175.00 215.00 250.00

plus 2 years 215.00 250.00 290.00

plus 3 years 250.00 290.00 333.00

plus 4 years 290.00 333.00

plus 5 years/more 333.00


(e) Industry/Skill Level B: Where the accredited training course and work performed are for the purpose ofgenerating skills which have been defined for work at industry/skill level B.




125.00 (50%)*146.00 (33%)

155.00 (33%)175.00 (25%)

205.00



(f) Industry/Skill Level C: Where accredited training course and work performed are for the purpose of generatingskills which have been defined for work at industry/level C.



125.00 (50%)*146.00 (33%)

155.00 (33%)175.00 (25%)

190.00


*Figures in brackets indicate the average proportion of time spent in approved training to which the associatedwage rate is applicable. Where not specifically indicated, the average proportion of time spent in structured trainingwhich has been taken into account in setting the rate is 20 per cent.The rates of pay in this award include arbitrated safety net adjustments available since December 1993, under theArbitrated Safety Net Adjustment Principle.These arbitrated safety net adjustments may be offset against any equivalent amount in the rate of pay received byemployees since 1 November 1991 above the rate prescribed in the Award, except where such absorption iscontrary to the terms of an industrial agreement.Increases in rates of pay otherwise made under the State Wage Case Principles, excepting those resulting fromenterprise agreements, are not to be used to offset arbitrated safety net adjustments.

____________________

2003 WAIRC 08604DENTAL TECHNICIANS’AND ATTENDANT/RECEPTIONISTS’ AWARD 1982

No. 29 of 1982WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES W.A. DENTAL TECHNICIANS’ AND EMPLOYEES’ UNION OF WORKERS, APPLICANTv.DEVENISH DENTAL LABORATORIES AND OTHERS, RESPONDENT

CORAM COMMISSIONER P E SCOTTDATE OF ORDER WEDNESDAY, 2 JULY 2003FILE NO. APPLICATION 1694 OF 2002CITATION NO. 2003 WAIRC 08604_________________________________________________________________________________________________________

Result Correcting Order Issued_________________________________________________________________________________________________________


Correcting OrderWHEREAS on the 26th day of June 2003 an order in this matter was deposited in the office of the Registrar; andWHEREAS the schedule attached to the said order contained an error.NOW THEREFORE pursuant to the powers vested in it by the Industrial Relations Act, 1979, the Commission herby orders—

THAT the schedule to the said order be corrected substituting the instruction at Item 34. with the following—34. Schedule of Respondents: Delete this title and schedule and insert the following in lieu thereof—


____________________

2003 WAIRC 08570

FOOD INDUSTRY (FOOD MANUFACTURING OR PROCESSING)AWARD NO. A 20 OF 1990






THAT the Variation Schedule attached to the Order dated 25 July 2001 with respect to the Food Industry (FoodManufacturing or Processing) Award No. A20 of 1990 in Application 752 of 2001 be amended in the terms of thefollowing Schedule.


SCHEDULE1. Clause 30. – Traineeships: Delete subclause (7) of this clause and insert the following in lieu thereof—(7) Wages

(a) (i) The minimum rates of wages payable weekly to trainees are as provided in subparagraph (iv) of thissubclause.

(ii) These wage rates will only apply to Trainees while they are undertaking an approved traineeship whichincludes approved training as defined in this Clause.

(iii) The wage rates prescribed by this clause do not apply to completed trade level training which is coveredby the Apprenticeship system.

(iv) Skill Level B—Where the accredited training course and work performed are for the purposes of generating skills whichhave been defined for work at Skill Level B.HIGHEST YEAR OF SCHOOLING COMPLETED

School Leaver Year 10 and below$

Year 11$

Year 12$

152.00 183.00 213.00Plus 1 year out of school 183.00 213.00 245.00Plus 2 years 213.00 245.00 287.00Plus 3 years 245.00 287.00 327.00Plus 4 years 287.00 327.00Plus 5 years 327.00

Figures in brackets indicate the average proportion of time spent in approved training to which the associated wage rate isapplicable. Where not specifically indicated, the average proportion of time spent in structured training which has beentaken into account in setting the rate is 20%.


The rates of pay in this award include arbitrated safety net adjustments available since December 1993, under theArbitrated Safety Net Adjustment Principle.These arbitrated safety net adjustments may be offset against any equivalent amount in the rate of pay received byemployees since 1 November 1991 above the rate prescribed in the Award, except where such absorption is contrary tothe terms of an industrial agreement.Increases in rates of pay otherwise made under the State Wage Case Principles, excepting those resulting from enterpriseagreements, are not to be used to offset arbitrated safety net adjustments.(b) The skill level of approved Traineeships in the food industries has been agreed to be Skill Level B.(c) For the purposes of this provisions, “out of school” shall refer only to periods out of school beyond Year 10, (or

below) and shall be deemed to—(i) Include any period of schooling beyond Year 10 (or below) which was not part of nor contributed to a

completed year of schooling;(ii) Include any period during which a Trainee repeats in whole or part a year of schooling beyond Year 10 (or

below); and(iii) Not include any period during a calendar year in which a year of schooling is completed.(iv) Have effect on an anniversary date being January 1 in each year.

(d) At the conclusion of the Traineeship, this clause ceases to apply to the employment of the Trainee and the awardshall apply to the former trainee.

____________________

2003 WAIRC 08571FURNITURE TRADES INDUSTRY AWARD

No. A 6 of 1984WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION





THAT the Variation Schedule attached to the Order dated 25 July 2001 with respect to the Furniture Trades IndustryAward No. A6 of 1984 in Application 752 of 2001 be amended in the terms of the following Schedule.


_________

SCHEDULE1. Appendix III - National Training Wage: Delete subclause (a) of clause (9) of this appendix and insert the following

in lieu thereof—(a) (i) The weekly wages payable to Trainees are as provided in paragraph (iv), (v), (vi) of this sub-clause.

(ii) These wage rates will only apply to Trainees while they are undertaking an approved traineeship which includesapproved training as defined in this Appendix.

(iii) The wage rates prescribed by this clause do not apply to complete trade level training which is covered by theApprenticeship system.

(iv) Skill Level A Where the accredited training course and work performed are for the purpose of generatingskills which have been defined for work at Skill Level A.

Highest Year of Schooling CompletedSchool Leaver Year 10 and below Year 11 Year 12

$ $ $134.00 (50%)156.00 (33%)

165.00(33%)187.00(25%)

228.00

plus 1 year out of school 187.00 228.00 266.00plus 2 years 228.00 266.00 309.00plus 3 years 266.00 309.00 353.00plus 4 years 309.00 353.00plus 5 years or more 353.00


(v) Skill Level B Where the accredited training course and work performed are for the purpose of generatingskills which have been defined for work at Skill Level B.


$ $ $134.00 (50%)156.00 (33%)

165.00(33%)187.00(25%)

218.00


(vi) Skill Level C Where the accredited training course and work performed are for the purpose of generatingskills which have been defined for work at Skill Level C.


$ $ $134.00 (50%)156.00 (33%)

165.00(33%)187.00(25%)

206.00


(vii)Year of Schooling

Year 11$

Year 12$

School BasedTraineeship SkillLevels A, B and C

170.00 187.00

* Figures in brackets indicate the average proportion of time spent in approved training to which the associatedwage rate is applicable. Where not specifically indicated the average proportion of time spent in structuredtraining which has been taken into account in setting the rate is 20 percent.

(viii) The rates of pay in this award include arbitrated safety net adjustments available since December 1993, underthe Arbitrated Safety Net Adjustment Principle.These arbitrated safety net adjustments may be offset against any equivalent amount in the rate of pay receivedby employees since 1 November 1991 above the rate prescribed in the Award, except where such absorption iscontrary to the terms of an industrial agreement.Increases in rates of pay otherwise made under the State Wage Case Principles, excepting those resulting fromenterprise agreements, are not to be used to offset arbitrated safety net adjustments.

____________________

2003 WAIRC 08573

LICENSED ESTABLISHMENTS (RETAIL AND WHOLESALE)AWARD 1979 NO. R 23 OF 1977







THAT the Variation Schedule attached to the Order dated 25 July 2001 with respect to the Licensed Establishments(Retail and Wholesale) Award 1979 No. R23 of 1977 in Application 752 of 2001 be amended in the terms of the followingSchedule.


_________

SCHEDULE1. Clause 39B. - Traineeships: Delete subclause (7) of this clause and insert the following in lieu thereof—(7) Wages


(ii) These wage rates will only apply to trainees while they are undertaking an approved traineeship whichincludes approved training as defined in this clause.

(iii) The wage rates prescribed by this clause do not apply to completed trade level training which iscovered by the apprenticeship system.

(iv) Skill Level BWhere the accredited training course and work performed are for the purposes of generating skillswhich have been defined for work at Skill Level B.

HIGHEST YEAR OF SCHOOLING COMPLETEDSchool Leaver Year 10 and below Year 11 Year 12

$ $ $128.00 (50%) 158.00 (33%) 209.00149.00 (33%) 179.00 (25%)

plus 1 year out of school 179.00 209.00 240.00plus 2 years 209.00 240.00 281.00plus 3 years 240.00 281.00 321.00plus 4 years 281.00 321.00plus 5 years 321.00

The rates of pay in this award include arbitrated safety net adjustments available since December 1993, underthe Arbitrated Safety Net Adjustment Principle.These arbitrated safety net adjustments may be offset against any equivalent amount in the rate of pay receivedby employees since 1 November 1991 above the rate prescribed in the Award, except where such absorption iscontrary to the terms of an industrial agreement.Increases in rates of pay otherwise made under the State Wage Case Principles, excepting those resulting fromenterprise agreements, are not to be used to offset arbitrated safety net adjustments.

(b) The Skill level of approved Traineeships in the retail and wholesale industries has been agreed to be Skill LevelB.

(c) For the purposes of this provision “out of school” shall refer only to periods out of school beyond year 10 (orbelow), and shall be deemed to—(i) Include any period of schooling beyond year 10 (or below) which was not part of nor contributed to a

completed year of schooling;(ii) Include any period during which a trainee repeats in whole or part a year of schooling beyond year

10 (or below); and(iii) Not include any period during a calendar year in which a year of schooling is completed.(iv) have effect on an anniversary date being 1 January in each year.

(d) At the conclusion of the Traineeship this clause ceases to apply to the employment of the Trainee and the awardshall apply to the former trainee.

____________________

2003 WAIRC 08577MOTOR VEHICLE (SERVICE STATION, SALES ESTABLISHMENTS, RUST

PREVENTION AND PAINT PROTECTION) INDUSTRY AWARDNo. A 29 of 1980



CORAM CHIEF COMMISSIONER W S COLEMANDATE FRIDAY, 30 MAY 2003FILE NO/S. APPLICATION 752 OF 2001CITATION NO. 2003 WAIRC 08577


_________________________________________________________________________________________________________



THAT the Variation Schedule attached to the Order dated 25 July 2001 with respect to the Motor Vehicle (ServiceStations, Sales Establishments, Rust Prevention and Paint Protection) Industry Award No. 29 of 1980 in Application752 of 2001 be amended in the terms of the following Schedule.


_________

SCHEDULE1. Clause 29 - Traineeships: Delete subclause (7) of this clause and insert the following in lieu thereof—(7) Wages




(iv) Skill Level B—Where the accredited training course and work performed are for the purposes of generating skills which have beendefined for work at Skill Level B.

HIGHEST YEAR OF SCHOOL COMPLETEDHIGHEST YEAR OF SCHOOLING COMPLETED

School Leaver Year 10 and below Year 11 Year 12$ $ $

128.00 (50%) 158.00 (33%) 209.00149.00 (33%) 179.00 (25%)


Figures in brackets indicate the average proportion of time spent in approved training to which the associatedwage rate is applicable. Where not specifically indicated, the average proportion of time spent in structuredtraining which has been taken into account in setting the rate is 20%.The rates of pay in this award include arbitrated safety net adjustments available since December 1993, underthe Arbitrated Safety Net Adjustment Principle.These arbitrated safety net adjustments may be offset against any equivalent amount in the rate of pay receivedby employees since 1 November 1991 above the rate prescribed in the Award, except where such absorption iscontrary to the terms of an industrial agreement.Increases in rates of pay otherwise made under the State Wage Case Principles, excepting those resulting fromenterprise agreements, are not to be used to offset arbitrated safety net adjustments.

(b) The skill level of approved traineeships in the retail and wholesale industries has been agreed to be skill LevelB.

(c) For the purposes of this provision “out of school” shall refer only to periods out of school beyond year 10 orbelow, and shall be deemed to—(i) include any period of schooling beyond year 10 or below which was not part of nor contributed to a

completed year of schooling;(ii) include any period during which a trainee repeats in whole or part a year of schooling beyond year

10 or below; and(iii) not include any period during a calendar year in which a year of schooling is completed.(iv) have effect on an anniversary date being January 1 in each year.

(d) At the conclusion of the traineeship this clause ceases to apply to the employment of the trainee and the awardshall apply to the former trainee.

____________________


2003 WAIRC 08653NICKEL MINING AND PROCESSING

AWARD 1975 NO. 18 OF 1975WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES THE AUSTRALIAN WORKERS’ UNION, WEST AUSTRALIAN BRANCH, INDUSTRIALUNION OF WORKERS, APPLICANTv.WESTERN MINING CORPORATION LIMITED, RESPONDENT

CORAM COMMISSIONER S J KENNERDATE THURSDAY, 3 JULY 2003FILE NO/S. APPLICATION 1154 OF 2002CITATION NO. 2003 WAIRC 08653_________________________________________________________________________________________________________

Result Correcting order issuedRepresentationApplicant Mr M LlewellynRespondent Mr T Caccamo as agent_________________________________________________________________________________________________________

Correcting OrderHaving heard Mr M Llewellyn on behalf of the applicant and Mr T Caccamo as agent on behalf of the respondent the Commission,pursuant to the powers conferred on it under the Industrial Relations Act, 1979, and by consent hereby orders—

THAT the Nickel Mining and Processing Award 1975 No. 18 of 1975 be varied in accordance with the following scheduleand such variation shall have effect from the beginning of the first pay period commencing on or after the date of this order.


SCHEDULE1. Clause 3 - Contract of Employment: Delete this title and insert in lieu thereof the following title—

5. – Contract of Employment

____________________

2003 WAIRC 08525OUTSTATION PILOT CREWS—HARBOUR AND LIGHT DEPARTMENT

AWARD 1981No. A 4 of 1981


TRADES AND LABOR COUNCIL OF WESTERN AUSTRALIA, AUSTRALIAN MINES &METALS ASSOCIATION INC., CHAMBER OF COMMERCE & INDUSTRY OF WESTERNAUSTRALIA AND THE MINISTER FOR LABOUR RELATIONS

CORAM COMMISSION IN COURT SESSIONCHIEF COMMISSIONER W S COLEMANSENIOR COMMISSIONER G L FIELDINGCOMMISSIONER J F GREGOR

DATE FRIDAY, 30 MAY 2003FILE NO/S. APPLICATION 752 OF 2001CITATION NO. 2003 WAIRC 08525_________________________________________________________________________________________________________



THAT the Variation Schedule attached to the Order dated 25 July 2001 with respect to the Outstation Pilot Crews –Harbour and Light Department Award 1981 No. A4 of 1981 in Application 752 of 2001 be amended in the terms of thefollowing Schedule.

(Sgd.) W. S. COLEMAN,[L.S.] Commission in Court Session.

_________


SCHEDULE1. Clause 5. – Rates of Pay: Delete subclause (1) of this clause and insert the following in lieu thereof—(1) The following shall be the minimum weekly rates of pay for employees covered by this Award—

$ ASNA TOTALLaunch Master 462.10 52.00 514.10Deckhand 421.55 52.00 473.55

____________________

2003 WAIRC 08526OUTSTATION PILOT CREWS—HARBOUR AND LIGHT DEPARTMENT AWARD 1981

No. A4 of 1981WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES ON THE COMMISSION’S OWN MOTIONTRADES AND LABOR COUNCIL OF WESTERN AUSTRALIA, AUSTRALIAN MINES &METALS ASSOCIATION INC., CHAMBER OF COMMERCE & INDUSTRY OF WESTERNAUSTRALIA AND THE MINISTER FOR CONSUMER AND EMPLOYMENT PROTECTION

CORAM COMMISSION IN COURT SESSIONCHIEF COMMISSIONER W S COLEMANSENIOR COMMISSIONER G L FIELDINGCOMMISSIONER J F GREGOR

DATE MONDAY, 2 JUNE 2003FILE NO/S. APPLICATION 797 OF 2002CITATION NO. 2003 WAIRC 08526_________________________________________________________________________________________________________


OrderWHEREAS an error occurred in the General Order dated 22 July 2002 issued in application 797 of 2002, the Commission, in orderto correct this error and pursuant to the powers conferred on it under the Industrial Relations Act, 1979 hereby orders—

THAT the Variation Schedule attached to the Order dated 22 July 2002 with respect to the Outstation Pilot Crews—Harbour and Light Department Award 1981 No. A4 of 1981 in Application 797 of 2002 be amended in the terms of thefollowing Schedule.

(Sgd.) W. S. COLEMAN,[L.S.] Commission in Court Session.

_________

SCHEDULE1. Clause 5. – Rates of Pay: Delete subclause (1) of this clause and insert the following in lieu thereof—(1) The following shall be the minimum weekly rates of pay for employees covered by this Award—

$ ASNA TOTALLaunch Master 462.10 70.00 532.10Deckhand 421.55 70.00 491.55

____________________

2003 WAIRC 08574PRINTING AWARD NO. 9 OF 1969







THAT the Variation Schedule attached to the Order dated 25 July 2001 with respect to the Printing Award No. 9 of1969 in Application 752 of 2001 be amended in the terms of the following Schedule.


_________

SCHEDULE1. Clause 36B - Traineeships: Delete subclause (2) of this clause and insert the following in lieu thereof—(2) Wages

The weekly wages payable to trainees shall be the same as provided in the aforementioned National Training WageInterim Award 1994 for work defined at industry/skill level B as set out in the following table—

HIGHEST YEAR OF SCHOOLING COMPLETEDSchool Leaver Year 10 and below Year 11 Year 12

$ $ $128.00 (50%) 158.00 (33%) 209.00149.00 (33%) 179.00 (25%)



____________________

2003 WAIRC 08549RANGERS (NATIONAL PARKS) CONSOLIDATED AWARD, 2000

No. A17 OF 1981WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION,WESTERN AUSTRALIAN BRANCH, APPLICANTv.DEPARTMENT OF CONSERVATION AND LAND MANAGEMENT, RESPONDENT

CORAM COMMISSIONER P E SCOTTDATE OF ORDER WEDNESDAY, 25 JUNE 2003FILE NO. APPLICATION 1849 OF 2002CITATION NO. 2003 WAIRC 08549_________________________________________________________________________________________________________

Result Correcting Order Issued_________________________________________________________________________________________________________

Correcting OrderWHEREAS on the 11th day of February an order in this matter was deposited in the office of the Registrar; andWHEREAS the schedule attached to the said order contained errors;NOW THEREFORE pursuant to the powers vested in it by the Industrial Relations Act, 1979, the Commission herby orders—

THAT the schedule to the said order be corrected in so far as the instruction and clause in Item 4. and be replaced with thefollowing—

4. Clause 17 - Wages: Delete this clause and insert the following in lieu thereof—(1) The minimum weekly rate of wage payable to employees covered by this Award shall be as follows in accordance with

the employee’s classification—$ PER WEEK ARBITRATED

SAFETY NETADJUSTMENTS $

PER WEEK

TOTAL $ PERWEEK

ClassificationsRanger’s Assistant

Year 1 376.90 106.00 482.90Year 2 389.70 106.00 495.70Year 3 402.20 106.00 508.20Year 4 414.70 106.00 520.70Year 5 427.10 108.00 535.10


$ PER WEEK ARBITRATEDSAFETY NET

ADJUSTMENTS $PER WEEK

TOTAL $ PERWEEK

Ranger Grade 1Year 1 439.60 108.00 547.60Year 2 452.00 108.00 560.00Year 3 466.40 106.00 572.40Year 4 476.30 106.00 582.30Year 5 491.00 106.00 597.00

Ranger Grade 2Year 1 508.60 106.00 614.60Year 2 522.10 106.00 628.10Year 3 536.40 106.00 642.40Year 4 551.20 106.00 657.20Year 5 567.00 106.00 673.40

Senior Ranger Grade 3Year 1 588.50 108.00 694.50Year 2 605.20 108.00 711.20Year 3 623.10 108.00 729.10

Senior Ranger Grade 4Year 1 640.30 108.00 746.30Year 2 662.60 108.00 770.60

(2) Employees with No Fixed HoursThe rate of pay referred to in this clause shall increase by 25% for any employee whose ordinary rostered hours of workare worked over five days of the week subject to subclause (3) of clause 7. - Hours of this award.

(3) Casual employees shall be paid 20% in addition to the rates otherwise payable under this award.(4) The rates of pay in this award include arbitrated safety net adjustments available since December 1993, under the

Arbitrated Safety Net Adjustment Principle.These arbitrated safety net adjustments may be offset against any equivalent amount in the rate of pay received byemployees since 1 November 1991 above the rate prescribed in the Award, except where such absorption is contrary tothe terms of an industrial agreement.Increases in rates of pay otherwise made under the State Wage Case Principles, excepting those resulting from enterpriseagreements, are not to be used to offset arbitrated safety net adjustments.


____________________

2003 WAIRC 08575SHOP AND WAREHOUSE (WHOLESALE AND RETAIL

ESTABLISHMENTS) STATE AWARD 1977No. R 32 of 1976






THAT the Variation Schedule attached to the Order dated 25 July 2001 with respect to the Shop and Warehouse(Wholesale and Retail Establishments) State Award, 1977 No. R32 of 1976 in Application 752 of 2001 be amended in theterms of the following Schedule.


_________


SCHEDULE1. Clause 47. - Traineeships: Delete subclause (7) of this clause and insert the following in lieu thereof—(7) Wages




(iv) Skill Level B—Where the accredited training course and work performed are for the purposes of generating skillswhich have been defined for work at Skill Level B.

HIGHEST YEAR OF SCHOOLING COMPLETEDSchool Leaver Year 10 and below

$Year 11

$Year 12

$152.00 183.00 213.00

Plus 1 year out of school 183.00 213.00 245.00Plus 2 years 213.00 245.00 287.00Plus 3 years 245.00 287.00 327.00Plus 4 years 287.00 327.00Plus 5 years 327.00


(b) The skill level of approved Traineeships in the retail and wholesale industries has been agreed to be skill LevelB.

(c) For the purposes of this provision “out of school” shall refer only to periods out of school beyond year 10, “(orbelow)” and shall be deemed to—(i) include any period of schooling beyond year 10 “(or below)” which was not part of nor contributed to

a completed year of schooling;(ii) include any period during which a trainee repeats in whole or part a year of schooling beyond year 10;

“(or below)” and(iii) not include any period during a calendar year in which a year of schooling is completed.(iv) have effect on an anniversary date being January 1 in each year.

(d) At the conclusion of the traineeship this clause ceases to apply to the employment of the trainee and the awardshall apply to the former trainee.

____________________2003 WAIRC 08576

SOFT FURNISHINGS AWARD NO. A 23 OF 1982WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION





THAT the Variation Schedule attached to the Order dated 25 July 2001 with respect to the Soft Furnishings Award No.A23 of 1982 in Application 752 of 2001 be amended in the terms of the following Schedule.


_________


SCHEDULE1. Clause 45. - Traineeships: Delete subclause (6) of this clause and insert the following in lieu thereof—(6) Wages of Trainees

(a) (i) The weekly wages payable to a Trainee are as provided for in paragraph (iv) of this subclause.(ii) These wage rates will only apply to Trainees while they are undertaking the Traineeship, which

includes approved training, as defined.(iii) The wage rates prescribed by this subclause do not apply to the complete trade level training which is

covered by the Apprenticeship system.(iv) Industry/Skill Level B: Where the accredited training course and work performed are for the purpose

of generating skills which have been defined for work at industry/skill level B.Highest Year of Schooling Completed


125.00 (50%)* 155.00 (33%) 205.00146.00 (33%) 175.00 (25%)


*Figures in brackets indicate the average proportion of time spent on approved training to which theassociated wage rate is applicable. Where not specifically indicated, the average proportion of timespent in structured training which has been taken into account in setting the rate is 20%.


(b) Subclause (8) sets out the industry/skill level of an approved Traineeship. The industry skills contained insubclause (8) are prima facie the appropriate levels but are not determinative of the actual skill levels that maybe contained in a Traineeship Scheme. The determination of the appropriate skill level shall be made byNETTFORCE based on the following criteria—(i) Any agreement of the parties;(ii) The nature of the industry;(iii) The total training plan;(iv) Recognition that training can be undertaken in stages;(v) The exit skill level in the relevant award contemplated by the Traineeship. In the event that the parties

disagree with such determination it shall be open to any party to the Award to seek to have the mattersin dispute determined by the Commission.

(c) For the purposes of this subclause, “out of school” shall refer only to periods out of school beyond Year 10, andshall be deemed to—(i) include any period of schooling beyond Year 10 which was not part of nor contributed to a completed

year of schooling;(ii) include any period during which a Trainee repeats in whole or part a year of schooling beyond Year

10; and(iii) not include any period during a calendar year in which a year of schooling is completed.

(d) At the conclusion of the traineeship, this clause ceases to apply to the employment of the Trainee and the Awardshall apply to the former trainee.

PROCEDURAL DIRECTIONS AND ORDERS—2003 WAIRC 08314

INDEPENDENT SCHOOLS’ TEACHERS’ AWARD 1976WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES THE INDEPENDENT SCHOOLS SALARIED OFFICERS’ ASSOCIATION OF WESTERNAUSTRALIA, INDUSTRIAL UNION OF WORKERS, APPLICANTv.THE ANGLICAN SCHOOLS COMMISSION (INC.) AND OTHERS, RESPONDENT

CORAM COMMISSIONER J L HARRISONDATE TUESDAY, 13 MAY 2003FILE NO/S. APPL 1047A OF 2002CITATION NO. 2003 WAIRC 08314


_________________________________________________________________________________________________________

Result Recommendation issued_________________________________________________________________________________________________________

RecommendationWHEREAS this is an application to vary the Independent Schools’ Teachers’ Award 1976; andWHEREAS on 12 May 2003 the Commission convened a conference for the purpose of conciliating between the parties; andWHEREAS at the conference the parties could not reach an agreement in respect to the variation sought; andWHEREAS the applicant reserved its position in relation to the variation to Clause 11. – Salaries, subclause (5)(a)(i) of the Award;andWHEREAS having considered the issues involved the Commission made a recommendation;NOW THEREFORE, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979, herebyrecommends that—

1) The parties agree to vary Clause 11. – Salaries, subclause (5)(a)(i) of the Award to be Step 6 andsubclause (5)(a)(ii) to be Step 8 with an operative date of 1 January 2004.

2) Each party advises the Commission no later than 28 May 2003 of its response to the recommendation.(Sgd.) J. L. HARRISON,


____________________


PARTIES LEEANNE ROUGH, APPLICANTv.SWAN VALLEY CHILDCARE CENTRE, RESPONDENT

CORAM COMMISSIONER J L HARRISONDATE OF ORDER FRIDAY, 4 JULY 2003FILE NO/S. APPLICATION 1819 OF 2002CITATION NO. 2003 WAIRC 08627_________________________________________________________________________________________________________

Result Order issued_________________________________________________________________________________________________________

OrderWHEREAS this is an application pursuant to s29(1)(b)(i) of the Industrial Relations Act 1979; andWHEREAS on 15 February 2003 the Commission convened a conference for the purpose of conciliation; andWHEREAS at the conclusion of the conference the matter was unresolved and the applicant requested that the matter be referredfor hearing and determination; andWHEREAS at the conference on 15 February 2003 the respondent was advised that a Notice of Answer and Counter Proposal wasto be filed; andWHEREAS at the conference on 15 February 2003 parties were directed to exchange lists of witnesses and provide discovery ofdocuments within four weeks of the date of the conference; andWHEREAS by letter received from the applicant on 15 May 2003 the Commission was advised that the respondent had not serveda Notice of Answer and Counter Proposal nor provided documents in relation to discovery; andWHEREAS the Commission formed the view that an order should issue to ensure the expeditious hearing of the application;NOW THEREFORE, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979, herebyorders—

1) THAT the respondent file and serve a Notice of Answer and Counter Proposal within 7 days of the date of thisorder.

2) THAT the respondent provide a list of discoverable documents to the applicant no later than 14 days from thedate of this order.

3) THAT the respondent provide to the applicant’s representative, within 14 days of the date of this order,information relating to the incidents involving the applicant relied upon by the respondent to effect theapplicant’s termination, as requested in the letter of 18 February 2003 from the applicant’s representative to therespondent.

4) THAT the parties have liberty to apply in respect to the discovery of documents.(Sgd.) J. L. HARRISON,


____________________



PARTIES TROY ERNEST PICKARD, APPLICANTv.METSO MINERALS (AUSTRALIA) LTD, RESPONDENT


Result Settled_________________________________________________________________________________________________________

OrderWHEREAS on 18th December 2002, Troy Ernest Pickard (the Applicant) applied to the Commission for an order pursuant to theIndustrial Relations Act, 1979; andWHEREAS on 12th May 2003 the Commission conducted conciliation proceedings between the parties and settlement beingunavailing the matter was listed for hearing and determination on 25th June 2003; andWHEREAS on 25th June 2003 the parties requested further conciliation proceedings and Metso Minerals (Australia) Limited (theRespondent) agreed to pay the Applicant $8,621.00 gross less any amount payable to the Commissioner of Taxation pursuant to theIncome Tax Assessment Act 1936 in full and final settlement of all claims by 30th June 2003 without admission of liability; andWHEREAS the Applicant agreed that this payment together with all previous payments made is the full settlement of all claimsagainst the Respondent arising from his employment with the Respondent or its termination that he has now or may have in thefuture, whether for salary, wages, pay in lieu of notice, leave entitlements, redundancy pay, superannuation or anything elseconnected with the cessation of his employment; andWHEREAS the Applicant releases the Respondent absolutely and discharges the Respondent from all claims, actions, suits, causesof action, demands, liability, damages and costs (whether at common law, in equity or, to the extend permitted, under any statute)arising directly or indirectly in any way concerning or in the course of his employment with the Respondent or its termination thathe has now or may have had in the future; andWHEREAS the Applicant acknowledges that he remains under an ongoing duty not to use or disclose any confidential informationbelonging to the Respondent which has come to his knowledge in any way; andWHEREAS that the terms of the settlement are confidential to the parties.NOW THEREFORE pursuant to the powers vested in it by the Industrial Relations Act, 1979, the Commission, hereby orders byconsent—

(1) THAT the Respondent agrees to pay the Applicant $8,621.00 gross less any amount payable to theCommissioner of Taxation pursuant to the Income Tax Assessment Act 1936 in full and final settlement of allclaims by 30th June 2003 without admission of liability.

(2) THAT the Applicant agrees that this payment together with all previous payments made is the full settlement ofall claims against the Respondent arising from his employment with the Respondent or its termination that hehas now or may have in the future, whether for salary, wages, pay in lieu of notice, leave entitlements,redundancy pay, superannuation or anything else connected with the cessation of his employment.

(3) THAT the Applicant releases the Respondent absolutely and discharges the Respondent from all claims, actions,suits, causes of action, demands, liability, damages and costs (whether at common law, in equity or, to theextend permitted, under any statute) arising directly or indirectly in any way concerning or in the course of hisemployment with the Respondent or its termination that he has now or may have had in the future

(4) THAT the Applicant acknowledges that he remains under an ongoing duty not to use or disclose anyconfidential information belonging to the Respondent which has come to his knowledge in any way

(5) THAT the terms of the settlement are confidential to the parties.(Sgd.) J. F. GREGOR,


____________________


PARTIES ALLAN CLIFFORD SWIFT, APPLICANTv.WINTHROP BAPTIST COLLEGE INC (ACN 101 054 559), RESPONDENT

CORAM COMMISSIONER J L HARRISONDATE OF ORDER MONDAY, 30 JUNE 2003FILE NO/S. APPLICATION 6 OF 2003CITATION NO. 2003 WAIRC 08582_________________________________________________________________________________________________________



OrderWHEREAS this is an application pursuant to s29(1)(b)(i) of the Industrial Relations Act 1979; andWHEREAS on 16 May 2003 the applicant lodged an application for discovery and further and better particulars; andWHEREAS on 5 June 2003 the applicant requested that the application for discovery and further and better particulars be listed;andWHEREAS the Commission set down a conference for the purpose of dealing with this application on 26 June 2003; andWHEREAS on 24 June 2003 the parties advised the Commission that they had reached an agreement in relation to a consent orderissuing in the terms as set out in the application with the exception of the time allowed to comply; andWHEREAS the Commission agreed to the parties request;NOW THEREFORE, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979, and byconsent, hereby orders that—1. The Respondent provide further and better particulars to the Applicant of the Notice of Answer and Counter Proposal

within 14 days of the date of this order, and specifically—a) As to paragraph 4 of the answer—

(i) The names of the students whose works contained obscene language and pornographic songs.(ii) In relation to each of those student works—

(aa) the words which the respondent alleges comprise the obscene language contained in theworks;

(bb) the songs which the respondent alleges comprise the pornographic songs contained in theworks;

(cc) the particular part/s of the songs that the respondent alleges are pornographic;(dd) in relation to each of those student works, the date/s on which the respondent became aware

that the works contained obscene language and/or pornographic songs; and(ee) in relation to each of those dates—

(1) what steps (if any) the respondent took, upon becoming aware that the workscontained obscene language and/or pornographic songs, to bring to the attention ofthe applicant the allegation that the works contained obscene language and/orpornographic songs;

(2) when those steps were taken.(iii) Full particulars of the moral and ethical values the applicant did not uphold and full particulars as to

why/how the respondent alleges the applicant failed to uphold those moral and ethical values.b) Particulars of paragraph 4(ii) of the answer as follows—

(i) The names of the computer programs that had been banned by the College and—(aa) In respect of each of those programs when the program was banned by the College;(bb) how and when the applicant was notified of the ban.

(ii) The names of the students the applicant allowed to work with computer programs which had beenbanned by the College as named above.

(iii) Which of the banned computer programs named in (i) above the applicant allowed the students namedin (ii) above to use.

(iv) In relation to each student which it is alleged the applicant allowed to use banned computerprograms—(aa) when it is alleged that the applicant allowed the students to work with banned computer

programs;(bb) where it is alleged that the applicant allowed the students to work with banned computer

programs;(cc) in each case whether it is alleged that the applicant allowed the students to work with the

banned computer programs, without his knowledge, inadvertently, negligently or with fullknowledge that they were doing so.

(ee) In relation to each student which it is alleged the applicant allowed to use a bannedcomputer program and in relation to each time it is alleged the student used the bannedprogram—(1) when it is alleged the respondent became aware that the applicant allowed the

students to use the banned computer program;(2) what steps (if any) the respondent took to bring to the attention of the applicant the

allegation that the applicant had allowed the student to work with a banned computerprogram;

(3) when those steps were taken.c) In relation to paragraph 5(i) of the answer, full particulars as to why the explanation given by the applicant was

unsatisfactory to the respondent.2. The Respondent provide discovery on affidavit within 14 days of the date of this order, including but not limited to the

following—(a) copies of minutes of computer department meetings;(b) the hard drive containing the applicant’s directory and relevant materials on the hard drive;(c) copies of emails sent by the Applicant to Don Hart, Justin Hearn and Peter Burton regarding computer

maintenance and security;(d) copies of minutes of a general staff meeting where it was agreed a technology committee be set up.


(e) All documents relating to the respondent’s computer system including but not limited to, network structure,security structure, directory structure, computer policies, computer access records, computer network log on logoff records, computer log on and log off scripts, Net Nanny configuration, ISP access records, firewall set-up,configuration records in relation to programs installed on student computers and teacher computers.

3. Inspection of the above documents is to be made available no later than 7 days following the provision of discovery.(Sgd.) J. L. HARRISON,

[L.S.] Commissioner.____________________


PARTIES JOHN ANDREW SMITH, APPLICANTv.ALOCOA OF AUSTRALIA, RESPONDENT

CORAM COMMISSIONER J F GREGORDATE FRIDAY, 27 JUNE 2003FILE NO. APPLICATION 168 OF 2003CITATION NO. 2003 WAIRC 08579_________________________________________________________________________________________________________

Result Order for Discovery granted_________________________________________________________________________________________________________

OrderWHEREAS the Respondent in this matter has applied for discovery and inspection of documents in relation to the claim; andWHEREAS on 27 June 2003 at a conference convened between the parties, the Commission heard from the parties on the matter;andWHEREAS the Commission has decided that an Order for discovery and inspection of documents will now issueNOW THEREFORE pursuant to the powers vested in it by the Industrial Relations Act, 1979, the Commission, hereby orders—

THAT1. Each party shall provide discovery and inspection of documents to the other party by 5:00pm on Friday 4 July

2003.2. The Commission will reconvene a teleconference between the parties at 10.30am on Monday 7th July 2003 to

deal with any further procedural matters.(Sgd.) J. F. GREGOR,

[L.S.] Commissioner.____________________


PARTIES WENDY BROCKBANK, APPLICANTv.ZONESPORT LIMITED, RESPONDENT

CORAM COMMISSIONER J F GREGORDATE FRIDAY, 4 JULY 2003FILE NO. APPLICATION 366 OF 2003CITATION NO. 2003 WAIRC 08648_________________________________________________________________________________________________________

Result Discovery granted_________________________________________________________________________________________________________

OrderWHEREAS the Applicant and Respondent in this matter has applied for discovery of documents in relation to the claim; andWHEREAS on 4 July 2003 at a conference convened between the parties, the Commission heard from the parties on the matter;andWHEREAS the Commission has decided that an Order for discovery of documents will now issue.NOW THEREFORE pursuant to the powers vested in it by the Industrial Relations Act, 1979, the Commission, hereby orders:

1. THAT the Respondent provide the following discovery on affidavit to the Applicant within 7 days—(a) Minutes of all Board or shareholder meetings for 2003 to the extent to which they pertain to the

employment of Mrs Brockbank; and(b) Copy of Mrs Brockbank’s personnel file with Zonesport Pty Ltd; and(c) All documentation pertaining to Mrs Brockbank’s employment with Zonesport within seven (7) days.

2. THAT the Applicant provide discovery to the Respondent on affidavit all documentation in her custody, possessionor control pertaining to her employment by the Respondent within (7) days.

3. THAT the application may be re-listed on the application of either party on the giving of seven (7) days notice.(Sgd.) J F GREGOR,

[L.S.] Commissioner.____________________



PARTIES THE SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES’ ASSOCIATION OF WESTERNAUSTRALIA, APPLICANTv.WESTCO JEANS PTY LTD (ACN 090 582 639), RESPONDENT

CORAM COMMISSIONER J L HARRISONDATE OF ORDER THURSDAY, 12 JUNE 2003FILE NO/S. CR 221 OF 2002CITATION NO. 2003 WAIRC 08475_________________________________________________________________________________________________________


OrderWHEREAS this is an application alleging that Kenneth Quinney was unfairly dismissed by the respondent; andWHEREAS the matter is set down for hearing on 20 June 2003; andWHEREAS on 26 May 2003 the Commission convened a conference at the applicant’s request for the purpose of dealing with anapplication for discovery of documents; andWHEREAS at the conference on 26 May 2003 the respondent agreed to provide a copy of all relevant documents to the applicantand to reply to the Notice to Admit served on them on 14 May 2003, by no later than 29 May 2003; andWHEREAS by facsimile received from the applicant on 11 June 2003 the Commission was advised that the respondent had notreplied to the Notice to Admit nor provided documents in relation to sales figures; andWHEREAS the Commission formed the view that an order should issue to ensure the expeditious hearing of the application;NOW THEREFORE, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979, herebyorders—

1) THAT the respondent reply to the Notice to Admit served on them on 14 May 2003 no later than the close ofbusiness 17 June 2003.

2) THAT the respondent provide to the applicant copies of all documents relevant to Mr Quinney’s employmentand termination, including sales figures, no later than the close of business 17 June 2003.

(Sgd.) J. L. HARRISON,[L.S.] Commissioner.

____________________


PARTIES CIVIL SERVICE ASSOCIATION OF WESTERN AUSTRALIA INCORPORATED, APPLICANTv.DIRECTOR GENERAL, DEPARTMENT OF JUSTICE (FORMERLY KNOWN AS MINISTRYOF JUSTICE), RESPONDENT

CORAM COMMISSIONER J L HARRISONPUBLIC SERVICE ARBITRATOR

DATE FRIDAY, 4 JULY 2003FILE NO/S. PSAC 51 OF 2002CITATION NO. 2003 WAIRC 08649_________________________________________________________________________________________________________

Result Directions issued_________________________________________________________________________________________________________

DirectionsWHEREAS this is an application pursuant to Section 44 of the Industrial Relations Act 1979; andWHEREAS on 4 July 2003 a hearing was to take place to deal with an application by Mr Neville Jones for leave to intervene inmatter number PSAC 51 of 2002 and for the joinder of application 102 of 2003 to PSAC 51 of 2002; andWHEREAS on 4 July 2003 the Public Service Arbitrator received a request for an adjournment of the hearing from Mr Jones’representative due to his representative being indisposed; andWHEREAS the other parties to both matters consented to the hearing being adjourned: andWHEREAS the Public Service Arbitrator agreed to the hearing being adjourned and decided that the matter of intervention and thejoinder of application 102 of 2003 to PSAC 51 of 2002 would now be dealt with by way of written submissions;NOW THEREFORE, the Public Service Arbitrator, pursuant to the powers conferred on it under the Industrial Relations Act 1979,hereby directs—

1) THAT Mr Neville Jones file and serve submissions in relation to the issue of intervention in matter numberPSAC 51 of 2002 and joinder of application 102 of 2003 to PSAC 51 of 2002 within 7 days of the date of thesedirections.


2) THAT the other parties to these applications file and serve submissions in reply within 14 days of the date ofthese directions.

(Sgd.) J. L. HARRISON,[L.S.] Commissioner,

Public Service Arbitrator.

____________________


PARTIES CIVIL SERVICE ASSOCIATION OF WESTERN AUSTRALIA INCORPORATED, APPLICANTv.THE GOVERNING COUNCIL, CENTRAL METROPOLITAN COLLEGE OF TAFE,RESPONDENT

CORAM COMMISSIONER J L HARRISONPUBLIC SERVICE ARBITRATOR

DATE FRIDAY, 13 JUNE 2003FILE NO/S. PSAC 23 OF 2003CITATION NO. 2003 WAIRC 08479_________________________________________________________________________________________________________

Result Recommendation issued_________________________________________________________________________________________________________

RecommendationWHEREAS this is an application pursuant to Section 44 of the Industrial Relations Act 1979; andWHEREAS on 12 June 2003 the Public Service Arbitrator (“the Arbitrator”) convened a conference for the purpose of conciliation;andWHEREAS at the conclusion of the conference the matter was unresolved; andWHEREAS having considered the issues involved the Arbitrator made recommendations;NOW THEREFORE, the Arbitrator, pursuant to the powers conferred on it under the Industrial Relations Act 1979, herebyrecommends—

1) THAT the respondent investigate the status of Mr Wybenga’s Workers’ Compensation claim as to when it maybe resolved.

2) THAT the respondent investigate redeployment options for Mr Wybenga.3) THAT the respondent investigate whether or not Mr Nichols acted in the Technician, Level 3 position for

12 months or more.4) THAT the respondent review Mr Nichols’ current position as a redeployee and determine what if any resources

and retraining can be made available to him.5) THAT in the interim the respondent look at providing more meaningful work for Mr Nichols whilst this matter

is in the process of being resolved and that on a without prejudice basis to their position the respondent giveconsideration to Mr Nichols working in Mr Wybenga’s job to assist Mr Wybenga in fulfilling the duties of theLevel 3 position.

6) THAT the conference be reconvened within four weeks.(Sgd.) J. L. HARRISON,


____________________

2003 WAIRC 08537INSTRUCTIONS TO UNION MEMBER IS HARSH AND UNFAIR

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSIONPARTIES THE CIVIL SERVICE ASSOCIATION OF WESTERN AUSTRALIA INCORPORATED,

APPLICANTv.ATTORNEY GENERAL, DEPARTMENT OF JUSTICE, RESPONDENT


DATE OF ORDER WEDNESDAY, 25 JUNE 2003FILE NO. PSACR 55 OF 2002CITATION NO. 2003 WAIRC 08537_________________________________________________________________________________________________________

Result Application Dismissed_________________________________________________________________________________________________________


OrderWHEREAS this is a matter referred for hearing and determination pursuant to Section 44 of the Industrial Relations Act 1979; andWHEREAS following a series of conferences for the purposes of conciliation and dealing with interlocutory matters, at aconference on Wednesday, the 4th day of June 2003 the Applicant advised of its intention to withdraw the matter; andWHEREAS on Monday, the 23rd day of June 2003 the Applicant filed a Notice of Discontinuance in respect of the application;NOW THEREFORE, the Arbitrator, pursuant to the powers conferred under the Industrial Relations Act, 1979, hereby orders—

THAT this application be, and is hereby dismissed.(Sgd.) P. E. SCOTT,


NOTICES—Appointments—Industrial Relations Act 1979

I, the undersigned, the HONOURABLE MICHAEL JOHN MURRAY, Acting Chief Justice of Western Australia, in exercise of thepowers conferred on me by section 85(6) of the Industrial Relations Act 1979 (WA), DO HEREBY NOMINATE THEHONOURABLE ERIC MICHAEL HEENAN, a Judge of the Supreme Court of Western Australia, to be an Acting OrdinaryMember of the Western Australian Industrial Appeal Court on 1 July 2003 or until the completion of the hearing and determinationof any proceedings his Honour may be participating in at the expiration of that period.As witness my hand this 26th day of June 2003.

Acting Chief Justice of Western Australia.

Industrial Relations Act 1979I, the undersigned, the HONOURABLE MICHAEL JOHN MURRAY, Acting Chief Justice of Western Australia, in exercise of thepowers conferred on me by section 85(6) of the Industrial Relations Act 1979 (WA), DO HEREBY NOMINATE THEHONOURABLE JOHN RODERICK McKECHNIE, a Judge of the Supreme Court of Western Australia, to be an Acting OrdinaryMember of the Western Australian Industrial Appeal Court on 1 July 2003 or until the completion of the hearing and determinationof any proceedings his Honour may be participating in at the expiration of that period.As witness my hand this 26th of June 2003.

Acting Chief Justice of Western Australia.

NOTICES—Cancellation of Awards/Agreements/Respondents—Under Section 47—

ENGINEERING (GOVERNMENT PRINTING OFFICE) AWARD 1986No A 12 of 1984

NOTICEWESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

TAKE NOTICE that the Commission acting pursuant to Section 47 of the Industrial Relations Act, 1979, intends, by order, tocancel out the following award, namely the

ENGINEERING (GOVERNMENT PRINTING OFFICE) AWARD 1986 No A 12 of 1984,on the grounds that there is no longer any person employed under the provisions of that award.Any person who has sufficient interest in the matter may, within 30 days of the publication of this notice, object to the Commissionmaking such order.Please quote File No. Admin. 77/2002 volume 1 on all correspondence.Dated 23 July 2003.

(Sgd.) J. SPURLING,[L.S.] Registrar.


HOSPITAL LAUNDRY AND LINEN SERVICES (GOVERNMENT)AWARD 1982 No A36 of 1981



HOSPITAL LAUNDRY AND LINEN SERVICES (GOVERNMENT) AWARD 1982 No A36 of 1981,on the grounds that there is no longer any person employed under the provisions of that award.Any person who has sufficient interest in the matter may, within 30 days of the publication of this notice, object to the Commissionmaking such order.Please quote File No. Admin. 19/2003 on all correspondence.Dated 23 July 2003.


MENTAL HEALTH REHABILITATION ASSISTANTSAWARD 1965 No 36 of 1965



MENTAL HEALTH REHABILITATION ASSISTANTS AWARD 1965 No 36 of 1965on the grounds that there is no longer any person employed under the provisions of that award.Any person who has sufficient interest in the matter may, within 30 days of the publication of this notice, object to the Commissionmaking such order.Please quote File No. Admin. 21/2003 on all correspondence.Dated 23 July 2003.


PUBLIC SERVICE APPEAL BOARD—2003 WAIRC 08495

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSIONPARTIES VICTOR WALKER, APPELLANT

v.DIRECTOR GENERAL, DEPARTMENT OF JUSTICE, RESPONDENT

CORAM PUBLIC SERVICE APPEAL BOARDSENIOR COMMISSIONER A R BEECHMS M MARTIN – BOARD MEMBERMR B HEWSON – BOARD MEMBER

DATE WEDNESDAY, 18 JUNE 2003FILE NO. PSAB 2 OF 2003CITATION NO. 2003 WAIRC 08495_________________________________________________________________________________________________________

Result Appeal dismissed.RepresentationAppellant Mr J. Dasey (as agent)Respondent Mr N. Cinquina_________________________________________________________________________________________________________

Reasons for Decision1 This is the unanimous decision of the Board. The appellant in this matter was notified on 5 February 2003 by his employer that

he was suspected of breaches of discipline regarding the inappropriate use of his work computer. On that day, he left work dueto illness and has not returned to work. On 7 February 2003 Mr Walker was certified by a medical practitioner as unfit forwork by reason of stress, depression, agoraphobia and anxiety.

2 On 25 February 2003 Mr Walker wrote to the respondent setting out his reply to the allegations of a suspected breach ofdiscipline. On 28 February 2003 he was advised by the respondent of the respondent’s intention to suspend him without payunder s.82 of the Public Sector Management Act 1994. On 5 March 2003 Mr Walker advised the respondent that he should notbe suspended without pay because he was utilising his sick leave entitlements, that he was unfit to return to work in theforeseeable future and that he would advise the respondent prior to any intention to return to work.


3 On 16 March 2003 Mr Walker was suspended without pay. He brings this appeal to the Public Service Appeal Boardsubmitting that his suspension without pay was unduly unfair, harsh and oppressive as its sole effect is to bring unwarrantedfinancial hardship upon Mr Walker and his family by preventing his access to his accrued sick leave entitlements. He seeks anorder quashing the decision to suspend him without pay and requiring the respondent to restore to him his outstanding accruedsick leave entitlements whilst he remains unfit for work as from 16 March 2003. The Board was provided with the medicalcertificates from Mr Walker’s medical practitioner which covered the period from 7 February 2003 onwards. One of thosemedical certificates is dated 20 March 2003 and certifies that Mr Walker was unfit for work from 7 February 2003 for “anunknown period” due to depression and anxiety. There was also a letter from Mr Walker’s medical practitioner of 13 March2003 going into details of his present condition.

4 Mr Walker’s union submitted on his behalf that the issue was one of fairness to Mr Walker. Mr Walker has been unfit to attendwork since 7 February 2003. As he has been unfit for work, and has not attended the workplace since that date, the respondenthad no need to suspend Mr Walker without pay in order to secure his removal from the workplace pending the investigationinto the allegations. Rather, the only effect of suspending Mr Walker without pay has been stopping his income. It is notsuggested that the respondent would have condoned any misconduct on the part of Mr Walker if it had not suspended himwithout pay.

5 It was submitted that suspending an employee without pay will have a severe effect on the employee. In this case, the Boardwas asked to consider that the effect was greater due to the length of the investigation process. The investigation has takenmore than three months and it was submitted that this is far too long a period for an employee to be suspended without pay. Itwas also submitted that by suspending Mr Walker without pay any incentive on the part of the respondent to bring theinvestigation process quickly to an end was removed.

6 The Board was also referred to the Public Service Commission Discipline Manual as it relates to the disciplinary process andsuspension (exhibit CSA 1, Attachment 9, paragraph 8.11). It provides in 8.11.3 as follows—

“An employee may be suspended if—i the offence is considered to be of such a serious nature that dismissal is a possible outcome; and/orii his/her continued presence in the work area is inappropriate due to—

a. the effective operation of the public sector body;b. the interests of the public;c. the interests of the employee; ord. the interests of his or her fellow employees.”

7 It was submitted that best practice relies on the respondent taking the specific issues set out in 8.11.3 above into account.8 Mr Walker called evidence from his wife. Mrs Walker’s evidence is that she has found the withdrawal of Mr Walker’s salary

to be extremely stressful and that it has placed the family under great financial stress. They have a 13 year old daughter livingat home. Their income had comprised his salary plus a parenting allowance. Now, their sole income is Centrelink benefitswhich incorporate the parenting allowance. A written statement was submitted showing the level of the family’s incomecompared to its outgoings. Mrs Walker’s evidence is that they have no money for entertainment or clothing and they aremaking minimum part payments on outstanding accounts, which means they are eventually falling behind. Any previoussavings had been exhausted because of a previous occasion when Mr Walker had been disciplined.

9 The respondent, however, strongly opposes the appeal. The respondent submitted that Mr Walker has not denied theallegations made against him and described his response on 25 February 2003 (exhibit DOJ 2) to the allegations as“inadequate”.

10 The respondent believed that Mr Walker was guilty of a serious act of misconduct. That misconduct involved 23 instanceswhere it is alleged that Mr Walker inappropriately used a work computer by distributing various e-mail messages andattachments to various other e-mail addresses (as set out in exhibit DOJ 1). The respondent points to its Computer andTelecommunications Facilities Policy (exhibit DOJ 4) to show that the respondent regards the subject matter of the allegationsas “unacceptable use” involving “offensive material”.

11 Further, on an earlier occasion between April and May 2001 Mr Walker had used the respondent’s computer to access anumber of inappropriate internet sites showing pornography. On 31 January 2002 he had been charged with downloading twoprogrammes from a website on the respondent’s computer in circumstances which were regarded as a serious breach ofdiscipline. The respondent accepted that Mr Walker had committed 10 minor breaches of discipline by inappropriately usingthe respondent’s computer to download other material. The charges Mr Walker admitted included downloading two copyrightprotected programmes thus exposing the respondent to action for breach of copyright. The respondent had written toMr Walker advising that “any similar breaches of discipline committed by you in the future may result in the termination ofyour employment” (exhibit DOJ 6).

12 The penalty imposed on Mr Walker on that occasion was the subject of an appeal before the Public Service Appeal Board(Victor Walker v. Department of Justice (2002) 82 WAIG 1354). The Board reduced the penalty which the respondent hadimposed. In doing so the Public Service Appeal Board noted Mr Walker’s long working history with an unblemished recordand also had regard to the length of suspension without pay and the financial effect on him on that occasion.

13 On this occasion the respondent believed that suspending Mr Walker without pay was appropriate because of both the seriousnature of the offences and his history of offences on the previous occasion. The respondent believed that these circumstanceswere of such a serious nature that dismissal was a possible outcome.

14 The Board has had regard to the above circumstances and the other correspondence tendered during the course of theproceedings.

15 The power to suspend Mr Walker without pay is conferred by s.82 of the Public Sector Management Act. The Board notes thatwhether or not an employee is suspended without pay is a discretionary decision for the employer. It is not the case that anemployee is to be suspended without pay as part of every disciplinary process initiated under the Public Sector ManagementAct. Rather, a public sector disciplinary process may occur and be concluded without an employee being suspended withoutpay. Therefore, the decision by an employer whether or not to suspend an employee without pay pursuant to s.82 must takeinto account the circumstances which give rise to the disciplinary process and the surrounding circumstances.

16 It must be acknowledged that it is likely that the suspension without pay of any employee will cause a degree of financial andpersonal distress to that employee. This is recognised in the legislation in s.82(3) which allows an employer on its owninitiative or on the application of the employee to restore pay to the employee during the suspension for such period as theemployer thinks fit. Therefore the evidence of Mrs Walker will not be sole factor to be taken into consideration by the Board.


17 It is therefore appropriate to also consider the purpose to be achieved by the suspension without pay. If the intention ofsuspending Mr Walker without pay was to remove him from the workplace so that he could not re-offend, or to prevent MrWalker from “covering his tracks”, then suspension without pay was not necessary. Mr Walker has been absent from theworkplace since the allegations were first made, has not returned to the workplace and has no intention of returning to theworkplace. Indeed, he was also prepared to give an undertaking that he would advise the respondent of any future intention toreturn to the workplace.

18 The respondent submitted that an employee who is on sick leave may for that reason refuse to co-operate with a disciplinaryenquiry. There is nothing before the Board to allow a conclusion that Mr Walker may have refused to co-operate with thedisciplinary investigation.

19 The respondent submitted that Mr Walker was suspended without pay because the nature of the allegations against him, whichwere not denied as such in his letter of explanation, were sufficiently similar to the misconduct for which he had beenpreviously disciplined and warned that any repeat misconduct would put his employment in jeopardy. In our view, thissubmission is patently correct. The nature of the allegations presently against Mr Walker involve sending e-mails which ontheir face involve subject matter not unrelated to the pornographic subject matter of the websites set out in the 2001 letter toMr Walker (exhibit DOJ 5). Further, some of the 2003 allegations refer to sending games which is a subject not unrelated tothe conduct which came before the Public Service Appeal Board in 2002.

20 It is difficult to conclude other than that the respondent was perfectly entitled to conclude that the allegations made against MrWalker in 2003 were considered to be of such a serious nature that dismissal is a possible outcome. In our opinion that is avalid reason for invoking the power in s.82 of the Public Sector Management Act.

21 That is not to say that Mrs Walker’s evidence of the effect of the suspension without pay upon Mr Walker’s family is notaccepted and understood. If the financial effect upon Mr Walker’s family was the sole consideration then it would be lessdifficult to conclude that his suspension without pay was harsh.

22 However, in circumstances where Mr Walker had been advised that any future similar breach of discipline may result in thetermination of his employment, in circumstances where as late as 15 January 2003 (exhibit DOJ 9) Mr Walker wrote to therespondent requesting internet access and gave assurances that he would not misuse the internet system, for Mr Walker to thenmisuse the respondent’s internal computer system would necessarily result in a loss of trust in him as an employee. In thosecircumstances, the suspension of Mr Walker without pay raises issues of the public interest in allowing an employee to besuspended without pay where the nature of the allegations against the employee are serious enough such that dismissal is apossible outcome. Mr Walker’s previous unblemished record is not available to him on this occasion to balance the issues forconsideration.

23 While the financial effect upon Mr Walker, and indeed his family, is not lightly overlooked, and is deeply felt, the balance ofthe public interest in allowing an employer to stand an employee down whilst an investigation into an allegation of conductserious enough to warrant dismissal is undertaken on this occasion outweighs the personal circumstances of the employeeconcerned. We note the union’s submission that to suspend an employee without pay may remove any incentive on the part ofan employer to bring the investigation process quickly to an end. We consider that the length of time taken by an employer toconduct its investigation is a relevant consideration for the Board. In the circumstances of this case, we are not of the view thatthe length of time taken is a factor which would cause us to reach a different conclusion on the appeal.

24 For all of those reasons the circumstances of Mr Walker do not show that the decision to suspend him without pay should bequashed and his appeal is dismissed.

_________


PARTIES VICTOR WALKER, APPELLANTv.DIRECTOR GENERAL, DEPARTMENT OF JUSTICE, RESPONDENT

CORAM PUBLIC SERVICE APPEAL BOARDSENIOR COMMISSIONER A R BEECHMS M MARTIN – BOARD MEMBERMR B HEWSON – BOARD MEMBER

DATE WEDNESDAY, 18 JUNE 2003FILE NO. PSAB 2 OF 2003CITATION NO. 2003 WAIRC 08496_________________________________________________________________________________________________________

Result Appeal dismissed.RepresentationAppellant Mr J. Dasey (as agent)Respondent Mr N. Cinquina_________________________________________________________________________________________________________

OrderHAVING HEARD Mr J. Dasey (as agent) on behalf of the appellant and Mr N. Cinquina on behalf of the respondent, the PublicService Appeal Board, pursuant to the powers conferred on it under the Industrial Relations Act 1979 hereby orders—

THAT the appeal be hereby dismissed.(Sgd.) A. R. BEECH,

[L.S.] Public Service Appeal Board.