974 western australian industrial gazette. 66 … · act 1978 — appellant claimed that salary on...

974 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE. 66 W.A.LG.

CUMULATIVE DIGEST

MATTERS REFERRED TO IN DECISIONS OF INDUSTRIAL APPEAL COURT, INDUSTRIAL COMMISSION AND INDUSTRIAL MAGISTRATES CONTAINED IN VOL. 66 PART 1, SUB PART 6.

NOTE: 'Denotes Industrial Appeal Court Decision. 'Denotes Commission in Court Session Decision. 2Denotes Full Bench Decision. "Denotes Decision of President.

Subject Page ABSENT WITHOUT LEAVE —

Employee summarily dismissed for absenteeism — Applicant claimed unfair dismissal and sought compensation — Respondent argued that from information given by Industrial Inspectorate, it could terminate employee's contract of service for misconduct on basis of absenteeism — Commission stated that key to this issue was question whether "employer in exercising his legal right to dismiss for misconduct did it in a harsh or oppressive manner" — Commission stated employer had grounds to terminate however found on evidence that it was unfair to terminate summarily, in that absenteeism cannot be based on a single day basis and must actually strike at the root of the contract of service — Granted (Pumps and power transmission) 78

ACT — INTERPRETATION OF — Architect Level 3 — Jurisdiction of Board is proscribed by definition of "office" in section BOX of Act which precludes any position

where maximum salary payable exceeds the maximum salary payable to the highest office in the General Division under Public Service Act 1978 — Appellant claimed that salary on appointment or minimum should be one considered — Board found that in interpretation the normal and natural meaning is to be applied — As maximum salary for Architect Level 3 exceeds that of G-II-13 appeal is dismissed through lack of jurisdiction — Building

ALLOWANCES — Wage increse sought for veterinary nurses based on changes in the value of work re greater training and theoretical knowledge —

Respondent argued no significant change in the value of work and noted absence of any work value assessment in industry's history to support contention that the existing rate of pay was an appropriate base measure of the effect of changes that had taken place — Fur- ther, as wage principles restricted Commission carrying out an initial assessment to set the base measure, there was no basis upon which to calculate a change — Based on considerable research re comparison of work done in the past and present, Commission found there was a nett addition to the value of work — Other amendments re 38 hour week etc granted as they did not involve additions to cost and were already in general included in other awards — Clainrffor Bereavement Leave remitted to CICS due to possible additions to labour costs — Granted in part — Animal Welfare

Alleged contractual benefit (fuel allowance) sought following its discontinuation without notice — Applicant claimed agreement made with Works Manager for payment of fuel allowance was a contractual entitlement — Respondent claimed Works Manager lacked authority to negotiate such arrangements and therefore respondent not liable for arrangements made by him — Commission stated applicant could confidently expect Works Manager to have that authority and therefore allowance was a contractual benefit — Commis- sion stated termination of payment of benefit should have been preceeded by notice of one contractual period and opportunity given for applicant to discontinue his contract of employment in the absence of the allowance — Commission found applicant entitled to benefit until Works Manager's authority clarified and until applicant properly informed of variation of contract — Granted — Meat (Abattoirs)

New agreement relating to salaries of public servants sought for officers employed under the P.S. Act save those whose salaries are covered by the special division of the Service or have equivalent salaries — Commission noted two main features of agreement were a rationalisation of salaries for base grade officers and a "broadbanding" of the classified range of salaries in the Service — Commission satisfied agreement was not a contrived scheme to increase wages and noted an initial cost saving largely due to removal of allowances with a future minimal increase due to changes to work value of base grade officers — Commission stated that "flow on" implications were limited to public instrumentalities who could also benefit from the agreement — Commission satisfied therefore that the agreement fill within the Wage Fixation Principles — Commission expressed that the benefits for the Service at large, particularly the flex- ibility in job functions, far outweighed the disadvantages and furthermore took the Service, managerially, into the 1980's — Granted — Public Service

Allowance sought by special class signalmen based on extra duties performed on weekends — Applicant claimed extra duties were required of the signalman when the regulator was rostered off — Further, although these duties were required of signalmen in other control centres, it was not ordinarily required of a signalman at Mid-Sig — Respondent argued involvement of additional duties were small and there were few occasions when authority otherwise exercised by regulator was exercised by signalman — Commission noted relevant award already rewarded special class signalmen for being able to carry out a range of tasks — Further, although particular duties were not normally required, it did not prevent respondent from requiring it to be done without additional payment — Commis- sion found on evidence Wage Fixation Principle not satisfied re no net addition to the value of work — Dismissed — Railway

Allowance sought for boilermakers employed at Pannawonica for extra responsibilities taken on in the absence of a foreman boilermaker through annual leave, sick leave or LSL — Respondent opposed claim stating that no extra responsibilities were taken on by tradesman as claimed — Respondent referred to previous decision (57 WAIG 522) where criteria for unsupervised tradesman allowance given as requiring the tradesman to work alone and not be supervised — Respondent stated application tradesmen would be disqualified from the claim based on that criteria — Commission noted review of concept and definition of criteria at that previous decision (57 WAIG 522) would entitle boilermakers to the allowance only when without their foreman boilermaker — Commission, on evidence, stated claim conformed generally with the concept of criteria referred to in that decision (57 WAIG 522) — Granted — Mining (Iron Ore)

'Appeal against Special Board of Reference decision (65 WAIG 2124) on payment of special allowance for long service leave — CICS found appellants complaint on determination of VDT allowance not being a special allowance unfounded as Board only rejected applicants claim that VDT allowance was a special rate — CICS found Boards conclusion based on work value correct and reiterated that special rates are provided for special and not usual circumstances — In this instance employee would have failed to perform duties if she did not use the equipment — CICS found issue of "compounding" irrelevant as it only lent support to claim that VDT allowance was a "special rate" — Dismissed — Printing

Site allowance sought by FEDFU for construction work at Warwick Road Bridge — Union claimed employees exposed to adverse climatic conditions and provisions of relevant award inadequate to compensate for disabilities involved — Union proposed two factors for determining site allowance re consolidation of special rates in award with disabilities existing on site but not covered by award provisions — Respondent argued existing award provisions adequate and as no pattern of site allowance for current types of work existed in the Metropolitan Area, claim should be refused — Commission found construction operations was of such a type and nature that com- pensatory allowance should be awarded — Further, Commission noted, had operation taken place when "building trades package" was negotiated, it would have warranted an allowance — Commission rejected Respondent's argument re dismissal of a claim due lack of precedent — Granted — Construction

66 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE.

CUMULATIVE DIGEST—continued

ALLOWANCES —continued All purpose site disability allowance sought for construction at Cockburn Cement Works — Applicant contended that "pattern" that

should be followed was allowance determined for various silo construction projects — Respondent argued that site allowance for washing plant of Cockburn Cement was appropriate "pattern to follow" — After inspecting site Commission agreed with respondent that project not large or significant, construction straight forward and simple — Also conditions at worst area of site which is only worked on for limited period should not set composite rate for entire site — Granted in part — Construction (Building)

Allowance sought for performance of bagging work at building site — Applicant claimed bagging work being performed by bricklayers at site — Respondent argued employer required only flush joints — Commission found bagging, by definition not being performed after observation of work site — Dismissed — Construction (Building) .•

Question re — whether Qualification Allowance should be an "all purpose" or "flat" allowance — Union argued that acceptance and preference for State enrolled nurses, the value of which respondent has acknowledged should be reflected in the treatment of the allowance as an "all purpose" allowance — Respondent argued that it was a "flat" allowance paid for qualifications held, not necessarily for the work done — Respondent argued applicants claim would result in two wage rates for the same classification — Com- mission found words used in the definition crucial as employees with enrolled nurses qualifications are required to administer nursing treatment and to say otherwise would make nonsense of the permanent payment — Commission found permanent addition to weekly pay as conclusion that allowance should form part of the ordinary wage for all purposes of the award — Granted — Electricity and Gas (Nursing)

Dismissal of employee due to dissatisfaction with his business methods — Applicant sought compensation for unfair dismissal and payment of entitlements arising from contract of employment — Respondent rejected all claims and denied applicant was an employee — Commission stated need to determine jurisdiction by ascertaining employment status of applicant and found relationship of employer/ employee (ALR 385 p. 387 per Bray J.) — Commission on evidence found dismissal had been without notice and with somewhat less than industrial fair play — Furthermore claim of discretionary allowances, spouse allowance and travel allowances sought were not contractual benefits — Commission granted compensation for unfairness of dismissal taking into account rate of remuneration and lack of adequate notice — Granted in part — Engineering

Interpretation of award provisions re allowances and rates of pay sought — Applicant claimed allowance for telephonist should continue after transfer to secretarial duties — Respondent argued allowance only applicable while officer engaged as telephonist — Further nexus with conditions of employment existing in PS should apply in only being payable to telephonists — Board stated evidence indicated equivalent allowance in PS limited to officers classified as telephonists and who pass relevant examination — Board stated award should be interpreted as making provision for allowance only to telephonists who pass approved examination — Board concluded once officer ceases to be engaged as telephonist she/he ceases entitlement to allowance — Dismissed — Railways

Dispute re operative date of consented increases to allowances in Award — Applicant sought retrospectivity re last Indexation General Order (at 66 WAIG 5) or if Commission found no special circumstances pursuant to section 39 of the Act, the date of the first hearing of instant matter — Respondent denied any responsibility for delay in processing of application and refuted special circumstances existed — Commission found both parties and the Commission responsible for delay and employees subject to Award had cause of redress — Commission fixed operative date to last request for date of hearing — Ordered Accordingly — Mining and Processing (Mineral Sands)

ANNUAL LEAVE — Wage increase sought for veterinary nurses based on changes in the value of work re greater training and theoretical knowledge —

Respondent argued no significant change in the value of work and noted absence of any work value assessment in industry's history to support contention that the existing rate of pay was an appropriate base measure of the effect of changes that had taken place — Fur- ther, as wage principles restricted Commission carrying out an initial assessment to set the base measure, there was no basis upon which to calculate a change — Based on considerable research re comparison of work done in the past and present, Commission found there was a nett addition to the value of work — Other amendments re 38 hour week etc granted as they did not involve additions to cost and were already in general included in other awards — Claim for Bereavement Leave remitted to CICS due to possible additions to labour costs — Granted in part — Animal Welfare

Alleged non-payment of contractual benefits re annual leave — Question re whether applicant was an employee or independent contractor — Applicant claimed change to "Family Trust" after the first six months of employment was merely to provide an alternative only to the PAYE tax liability and not the working pattern — Respondent argued that applicant was an independent contractor — Respondent claimed this was achieved by the family trust contracting with him to provide the exclusive service of applicant as a private investigator — Commission found there was evidence to show that applicant acted as if he was carrying on business on his own behalf, and as such was not considered an employee — Commission found having come to this conclusion, question re — annual leave was beyond its jurisdiction — However Commission found payment of pro rata annual leave for first six months had been received — Dismissed — Services (Private Investigations)

Applicant claimed payment for balance of holidays purportedly due on termination — Respondent argued that applicant not an employee and therefore beyond jurisdiction of Commission or if found to be employee contract of employment contained no entitlement to annual leave — Commission two contracts to exist, firstly that of independent contractor and secondly, contract of employment — Com- mission found that employment contract contained no provisions for annual leave payment, however, there was an entitlement to further two weeks' pay in lieu of notice commensurate with monthly contract of service — Granted in part — Transport

'Appeal against decision of Full Bench at 65 WAIG 2041 where appeal against decision of Magistrate was upheld and remitted back for further hearing and determination — Applicant claimed Full Bench erred in law in its interpretation of "through no fault of the employee" — Industrial Appeal Court found that Full Bench had made error of law but declined to overturn decision — Although Magistrate may have been entitled to find as he did on facts there was uncertainty as to whether correct "test" applied, therefore, appropriate that matter be remitted to Industrial Magistrate — Dismissed — Retail

Breach of contract — Applicant resigned and claimed benefits allegedly owed — Respondent argued Commission lacked jurisdiction as applicant was managing agent not employee — Commission preferred applicant's evidence stating relationship was one of employee — Commission granted all benefits claimed except annual leave there being insufficient evidence to sustain claim as part of the contract — However in accordance with the Act if there was an obligation for it under an award application could be made to the Industrial Magistrate — Granted in Part — Services (Pest Control)

Employee summarily dismissed for alleged misconduct — Applicant sought payment in lieu of notice, pro rata annual leave and travel expenses — Applicant claimed terminated due to request for fairer payment for use of vehicle in shifting equipment — Respondent claimed termination due to slowness and damage prior to summary dismissal for refusing to obey instructions — Commission found claim for pro rata annual leave allowable under Award but dismissed claim for travel allowance re well established principle that Com- mission not able to imply term of contract as parties came to agreement — Commission found employer had no right to deduct pay in retrospect re sick pay and no reason for summarily dismissal — Further that contract of employment required one week's notice of termination — Commission ordered payment of wages in lieu of remaining notice — Granted in part — Printing

Annual leave loading claimed as entitlement owing on resignation — Union claimed employee was entitled to HVi per cent loading for leave accrued on resignation and argued that workers should not be prejudiced when a business is transmitted from one owner to another — Respondent refuted claim arguing that new management had paid out all entitlements due as prescribed in award — Fur- thermore there was no legal entitlement to the loading on pro rata annual leave and as employee resigned and rationale for loading does not exist — Commission found as employee was "paid out" he was not disadvantaged and case did not warrant an order by the Com- mission which would override a specific provision of the award — Dismissed — Engineering

WESTERN AUSTRALIAN INDUSTRIAL GAZETTE.


ANNUAL LEAVE — continued Alleged non-payment of contractual benefits re annual leave — Applicant claimed payment made on termination bonus for sales —

Respondent argued moneys paid include annual leave, holiday pay, sick leave and lump sum gratuity — Commission stated evidence of respondent lacked credibility and reasonably open to serious question — Commission found applicant's best evidence re payment details and account of original agreement supported by testimony of witnesses — Commission took into account applicant's submission re burden of proof and weight of evidence according to section 79 (D) of Evidence Act — Commission ordered respondent pay applicant appropriate sum at given rate — Granted in part — Retail

Alleged non-payment of contractual benefits re salary and annual leave entitlements — Applicant on resignation claimed salary foregone during difficult trading period and alleged wrongful action by respondent re paid sick leave — Respondent denied claim that salary repayments were due and claimed annual leave entitlements were availed of by applicant as paid sick leave by arrangement and applicant received in excess of total paid leave entitlements — On evidence Commission concluded applicant successful in salary claim — Commission dismissed claim for payments in lieu of annual leave entitlements as not sustainable and accordingly dismissed claim for interest — Commission ordered repayment for salary foregone at amount agreed by parties as due to applicant — Granted in part — Timber

Alleged non-payment of contractual benefits — Applicant submitted she was still legally employed and claimed compensation for wages for period after two-week standdown when respondent failed to notify her to return to work plus two days pay outstanding — Respon- dent not represented at hearing — Commission found respondent accepted term of contract of employment liability to pay pro rata annual leave entitlements to terminating employees by agreements made before Commission (C327 of 1985) — Commission found termination of contract occurred when applicant did not report for work — Order issued for entitlement in equity to one week's pay in lieu of notice plus two days' pay outstanding and annual leave — Granted in part — Printing

Alleged non-payment of contractual benefits after applicant terminated employment — Applicant claimed balance of payment in part pro rata annual leave agreed upon at previous conference (C327 of 1985) where respondent company acknowledged moneys owing to employees — Application filed when payment not made under terms of memorandum of that agreement — Respondent not represented at hearing — Commission found in favour of applicant and ordered payment to issue — Granted — Printing

APPEAL — 3Appeal against Special Board of Reference decision (65 WAIG 2124) on payment of special allowance for long service leave — CICS found appellants complaint on determination of VDT allowance not being a special allowance unfounded as Board only rejected applicants claim that VDT allowance was a special rate — CICS found Boards conclusion based on work value correct and reiterated that special rates are provided for special and not usual circumstances — In this instance employee would have failed to perform duties if she did not use the equipment — CICS found issue of "compounding" irrelevant as it only lent support to claim that VDT allowance was a "special rate" — Dismissed — Printing 146

:Appeal by union against Commissioners decision to uphold employee's dismissal for misconduct — Appellant alleged error concerning admissibility for evidence, that it was probable misconcfuct would be repeated and that assault was involved — Appellant questioned Commission's finding of destruction of employer/employee relationship by misconduct and claimed Commission failed to take into account consideration of employee's previous good record — Respondent claimed Commission's task required that applicant union show employer's decision to dismiss employee unfair — Commission found dismissal justified by written evidence of employee's misconduct and upheld Commissioner's findings — Union as applicant failed to show employer had acted unfairly — Commission ordered dismissal of appeal — Mining (Iron Ore) 322

AWARD — 'Dispute re increase in wages due to conflict of provisions in award — Applicant claimed National Wage Decision (at PG 0700)

increasing salaries of the clerical and administrative staff in the APS should not flow to the award in question — Applicant argued that the General Order (at 64 WAIG 407) inserted into all awards of the Commission prevented the automatic application of a provision in the award re that rates in it shall move simultaneously and in same measure as rates for clerks in the APS — CICS noted however that neither party suggested the basis on which the rates under the award had been erected was wrong or required any change — CICS satisfied the nexus existed and an equitable base had been established under the Wage Fixation Principles — CICS found the provision should operate according to its tenor, however in its view, the provision should now be deleted and the award included in schedules to orders issued pursuant to section 51 of the Act — Ordered Accordingly — Agriculture

'Union sought amendment to award to allow a teacher who is employed in a Centre in a part-time capacity by the Minister and part-time by a Community based committee in a similar capacity to have the employment by both employers counted as service for the purpose of the award — Commission found as facts supporting claim concerned the services of only one employee and whose arrangements were "atypical" there was no justification for amendment sought — Furthermore Commission noted the incidental issues raised by the dispute and stated these needed to be dealt with for claim to succeed, however insufficient evidence had been tendered at proceedings — Commission found on evidence good reason at least in equity for principle of claim to apply to employee in question — Dismissed — Children's Services

New agreement relating to salaries of public servants sought for officers employed under the P.S. Act save those whose slaries are covered by the special division of the Service or have equivalent salaries — Commission noted two main features of agreement were a rationalisation of salaries for base grade officers and a "broadbanding" of the classified range of salaries inthe Service — Commission satisfied agreement was not a contrived scheme to increase wages and noted an initial cost saving largely due to removal of allowances with a future minimal increase due to changes to work value of base grade officers — Commission stated that "flow on" implications were limited to public instrumentalities who could also benefit from the agreement — Commission satisfied therefore that the agreement fill within the Wage Fixation Principles — Commission expressed that the benefits for the Service at large, particularly the flex- ibility in job functions, far outweighed the disadvantages and furthermore took the Service, managerially, into the 1980's — Granted — Public Service

Variation/extension of award re scope clause and addition of new classification — Applicant sought award coverage of those employed in clerical vocations in the tourist bus and coachline industry — Further, a new classification re "travel officer" with a rate of pay equivalent to relevant Federal Award — Applicant claimed first award principles should apply and suitable guide for pay and conditions available in relevant Federal Award as work done by clerks in such award was similar to work of travel officers who sought coverage under present award — Respondent argued no justification existed for new classification under first award principles as the relevant employees within the industry were already employed under conditions similar to the present award — Commission found to make an award which increased wages beyond that already paid in the industry was outside the spirit and letter of the wage fixation principles — Further, the present award applied to a diverse range of industries and it was not a sensible exercise to make a special case for the industry now in question — Commission found to grant claim re new classification would be a recipe for others to seek special consideration in light of peculiarities attached to their particular tasks — Granted in part — Services (Travel)



AWARDS —continued , Introduction of 38-hour week for wholesale and retail industry — Parties agreed to claim in principle, provided suitable offsets were

secured to compensate for increased costs arising from the reduction — Commission noted, due to diversity in the industry, there were insufficient generally applying work practices capable of providing savings and nearly all offsets sought were to be achieved through award variation — Commission noted union claim well founded to extent that 38-hour week applied to most groups in Australia and the counterpart NSW award re basis for fixing rates of pay in the award of this Commission had a 38-hour week provision for some time — Commission was required to decide whether or not cost offsets agreed to were sufficient to allow an amendment to award — Commission considered all submissions of the parties, nature of the industries, criteria established by principles and experience of this and other tribunals, and found no further offsets necessary — Granted — Retail/Wholesale

Declaration sought to restrain respondent union from representing or enrolling members providing cleaning and incidental services under the Industrial Catering Workers Award — Applicant argued that cleaning duties other than that connected with the catering establish- ment meant that employees belonged to cleaning industry as opposed to the catering industry — Applicant claimed the FLAIEU constitution has no provision for these workers to be members — Respondent argued that the "industry of catering in all its sectors" is understood to include cleaning and accommodation services and is not limited to the provisions of food and drinks — Commission found that where a contract has been awarded to contractor for the sole purpose of cleaning services and the workers are covered by the same scope clause of the award, the constitution of FLAIEU cannot encompass them as they are not a catering contractor — Granted — Catering Industry

Dispute re which union should cover employees at Casino Complex — Burswood Management Ltd applied for award for all employees citing FLAIEU as respondent — WATAEA applied for award for those directly employed on gambling — FCU objected claiming constitutional coverage of some employees not already covered by its awards — Commission rejected notion that any gaming staff eligible to join FCU — Commission found WATAEA has specific constitutional coverage of those employed directly on gambling whilst FLAIEU has direct coverage of those employed on Hotel operations — Ruled that both unions be party to first award — Directed parties to confer pursuant to section 32 (3) (b) Recreation (Casino)

Applicant sought to amend Clerks' Award A14 of 1972 by deleting dental attendants and receptionists from scope — Dental attendant/ receptionists enjoy dual award coverage with rates for adults under subject award higher than A29 of 1982 — As highest rate must be paid applicant argued anomaly thus existed in relativity between dental assistant and attendant/receptionist — Commission found A29 of 1982 specifically caters for classification in question and it was never intended dental attendant/receptionists' receive clerks' rates — Granted — Health (Dental) -

Application to amend respondency of Clerks' (Control Room Operators) Award to include Respondent — Applicant argued definition of control room operators in Clause 6 of subject award applies to Respondent's employees — Commission noted that for application to succeed it must be demonstrated that major duties are those comprehended by award definition and industry of Respondent is same as respondents to subject award — Commission found both duties and industry not the same — Dismissed — Services (Medical)

Reclassification sought — Applicant requested date of lodgement of appeal to be fixed as operative date — Commission found hearing of application would cause reclassification in equivalent band under new 1985 salary Agreement and no payment would be paid under ex- pired Agreement — Commission found application does not fall within the formula for transitional provisions to protect those appointed to a classification prior to the implementation date of the new agreement — Commission noted Board and CSA reached understanding to enable public servants to apply for reclassification effective from 1 November 1985 and until new determination issues all claims involving broadbanding held in abeyance — Commission stated claim would only be treated in respect of broadbanding so exercised power pursuant to the Act to decline to proceed with matter or fix an operative date for reclassification out of matter as of date of lodgement — Dismissed — Public Service

Variation of award re definitions, wages and special rates and provisions — HSOA, ADSTE and CSA granted leave to intervene — Intervenors objected to application re they would be prejudiced and there would be overlapping industrial coverage, contrary to objec- tives of IR Act — HSOA also fearful proposed amendments would afford employers an opportunity for withholding salaried status from employees qualified to be elevated — Further, proposed classification if allowed would introduce entirely new classifications to the hospital industry — ADSTE claimed applicant's intention essentially a "takeover bid" — CSA brought no evidence forward — Applicant claimed amendments were arrived at through properly conducted negotiations — Further, aim of proposed definitions was/is to standardise and provide logical progression in career opportunities within tradesmen classifications rather than transgressing technicians work — Attention of Commission drawn to Industrial Appeal Court decision (at 60 WAIG 1053) however, Commission could not refuse to amend award in terms agreed without it first being shown that the major and substantial employment of persons employed in the agreed classifications would be that of technicians (test re Cary Case at 55 WAIG 585) — Commission was of the opi- nion the HSOA was protected by virtue of the operation of its own award and found no cause for refusing variations sought — Granted

Annual leave loading claimed as entitlement owing on resignation — Union claimed employee was entitled to MVi per cent loading for leave accrued on resignation and argued that workers should not be prejudiced when a business is transmitted from one owner to another — Respondent refuted claim arguing that new management had paid out all entitlements due as prescribed in award — Fur- thermore there was no legal entitlement to the loading on pro rata annual leave and as employee resigned the rationale for loading does not exist — Commission found as employee was' 'paid out'' he was not disadvantaged and case did not warrant an order by the Com- mission which would override a specific provision of the award — Dismissed — Engineering

2Appeal against part of decision of Commission at (66 WAIG 163) re refusal to grant new classification to an award — Appellant argued Commission had erred inlaw in the application of first award principles and in the refusal to grant specific rates to the classification which, it alleged were contrary to section 26 of IR Act 1979 — Appellant claimed Commission should have considered award under which similar work is performed as a guideline in view of evidence given to show similarity — Full Bench found appellants claim an in- version of the first award principles which operates to aid Commission in pressing claims — Full Bench found Commissions affirmation of current rates appropriate in view of diverse range of industries covered by award and the possibility of special rates being claimed for travel officers — Full Bench dismissed appeal and remitted for hearing to Commission matter which parties to appeal were in accord for inclusion in the award — Dismissed — Travel

New award sought by ASEMFW to apply to employees manufacturing modem decoders — ASEMFW contended that manufacturing of moden decoder is work that results in the production of a "business machine" provided for in its constitutional rule — ETU objected on grounds that finished product was an electronic device — Commission on evidence, together with exhibits as to capabilities and in- spection of unit in full use was, persuaded that modem decoders were an electronic device and found inappropriate suggestion that it was a "business machine" within the meaning of the constitutional rule — Commission dismissed application as it lacked the vital ele- ment of union's ability to constitutionally cover employees in the industry — Dismissed — Engineering

Interpretation of meal time clauses sought — Applicant claimed commencement of shift at commencement of ordinary hours irrespective of pre-start overtime and designated meal interval 5 Zi hours thereafter — Further claimed other provision entitled work to half hour meal break before designated meal time — Respondent claimed commencement of overtime constituted commencement of shift for pre-start overtime worked thus meal interval 5/2 hours thereafter — Commission stated basic rule of award interpretation as where plain words used is meaning attributed to clause but if ambiguous then examination of provisions of whole award and conduct of parties necessary to arrive at true meaning — Commission found applicants interpretation of provisions in accord with plain words used and permitted both provisions to operate — Commission stated clause in dispute to be interpreted in accordance with applicants claim — Granted — Mining (Iron Ore)

WESTERN AUSTRALIAN INDUSTRIAL GAZETTE. 66 W.A.I.G.


v'ARDS —continued 'New award sought to cover registered nurses employed in Government subsidised nurseries, child care or day care services (excluding

Ngal-a) — Applicant sought to establish a nexus between Mothercraft Nurses and Child Care Workers on the ground of identical duties etc — Furthermore to equate wages of registered nurses with registered nurses covered by the Nurses (Day Care Centre) Agree- ment — Respondent endorsed issuing of award in terms of the union claim — CIC noted and referenced the problems of relativities re qualified persons in this industry — CICS granted claim as the fairest, pending a review of the industry — However noted it was not an endorsement of the implied results that all the rates of trained personnel employed in the Child Care Industry should be tied to Pre School Teachers' rates — Nor that rates of nurses in this area should be tied to nurses working directly within their profession; or that Child Care Worker rates are a better work value assessment than current Mothercraft Nurses rates — Granted — Childrens Services....

BONUS — Alleged non-payment of contractual benefits re annual leave — Applicant claimed payment made on termination bonus for sales —

Respondent argued moneys paid include annual leave, holiday pay, sick leave and lump sum gratuity — Commission stated evidence of respondent lacked credibility and reasonably open to serious question — Commission found applicant's best evidence re payment details and account of original agreement supported by testimony of witnesses — Commission took into account applicant's submission re burden of proof and weight of evidence according to section 79 (D) of Evidence Act — Commission ordered respondent pay applicant appropriate sum at given rate — Granted in part — Retail 919

BREACH OF AWARD — 'Appeal against decision of Full Bench at 65 WAIG 2041 where appeal against decision of Magistrate was upheld and remitted back for

further hearing and determination — Applicant claimed Full Bench erred in law in its interpretation of "through no fault of the employee" — Industrial Appeal Court found that Full Bench had made error of law but declined to overturn decision — Although Magistrate may have been entitled to find as he did on facts there was uncertainty as to whether correct "test" applied, therefore, appropriate that matter be remitted to Industrial Magistrate — Dismissed — Retail

Payment sought for time lost during strike action over safety issue — Union claimed company wrongly applied no work no pay rule and had issued totally unreasonable commands to drive unsafe vehicle — Respondent argued reason for strike action not safety but abusive language between union convenor and foreman and that unions claim had no substance — Commission noted respondents evidence of practice whereby operators are permitted to stand down plant considered dangerous without loss of pay — Commission state obligations of union to follow agreed procedure specified in award — Further, payment for lost time would require that the company expect each employee to perform work that raised reasonable apprehension of personal danger — Commission found evidence did not allow that conclusion and state that to grant claim would meet demand for strike pay while approving breach of award — Dismissed — Mining

Alleged breach of Award re utilisation of contractors — Upion claimed company had failed to refer a disagreement on the utilisation of contractors to the WA1R Commission as described in Clause 29 (3) (a) of award — Defendant argued that there was no case to answer, as there was no evidence to prove that employee was a Union Convenor and as such there was no evidence of a disagreement having taken place between the Union Convenor and Company — Magistrate found tendered evidence by union did not accredit employee as a Convenor of the Union as prescribed in Clause 3 (c), and indicated that the definition of convenor had not been complied with during period which was relevant to this complaint — Magistrate found in favour of NO CASE TO ANSWER submission as complaint had failed — Dismissed — Mining (Iron Ore)

Alleged breach of Award re underpayment of wages — Complainant claimed correct wage was that of upholsterer — Defendant argued the semi-skilled operative upholstery rate was appropriate — Magistrate on evidence and an examination of the Wages clause found complainant had been underpaid and was entitled to upholsterer's rate — Parties given liberty to apply if no agreement could be reached on the amount of underpayment — Proven — Manufacturing (furniture)

CAPACITY TO PAY 'State Review of National Wage Case — CICS referred to previous decision (at 66 WAIG 4) where proceedings had been adjourned sine

die partly at request of Tin Mining Industry — Industry argued that its employees not receive the National Wage Increase granted to all other employees under State awards re downturn in prices and demand for the industry's products — CICS stated company had capacity to pay the increase although it may lead to further loss of employment in the industry — CICS referred to primary principle of centralised wage fixing system re real value of wages be maintained except in exceptional circumstances — CICS found nothing exceptional about circumstances surrounding the Tin Industry — Application rejected — Tin Mining Industry granted 3.8 per cent National Wage Increase — Mining (Tin) 135

CASUAL WORK Interpretation of part-time and casual workers clauses — Applicant sought declaration re employees to be classified part-time rather than

casual — Applicant noted existing employees required to work within a roster, week to week with hours set out in advance — Applicant referred to dictionary definition re casual employment was intermittent and non permanent — Further, applicant argued respondent referred to part-time employees as' 'casual" to avoid limitations imposed by ratio provisions of award — Respondent argued, although there may be intermittency in casual employment, that did not mean it could not be continuous or regular — Further, in existing circumstance, continuation of employment was at the whim of the employer/employee and was in accordance with award definition of casual worker — Respondent suggested declaration sought did not provide means for deciding dispute as it relied upon criteria re regularity of employment — Commission concluded, on examination of award, part-time employee be deemed to be engaged for less than 30 hours per week and requiring less than one week's notice of termination — And, casual worker deemed to be engaged by the hour for less than 30 hours per week and may be dismissed or leave the employer's service without notice — Declaration issued accordingly — Retail 245

Introduction of 38-hour week sought for clerks in the retail and wholesale industry — Applicant claimed penalty rates for casuals working on Saturday 12 noon — 1.00 p.m. should continue to be calculated on the loaded rate — Furthermore sought a nominal introduction date for shorter hours, with monetary payment for retrospectivity, and another prospective date from which hours are reduced according to rosters — Respondent argued penalty rate should be calculated on ordinary rate of wage with no casual "loading" — Further- more operative date should not be in a period of less than a month from issuance of order — Commission found the removal of casual loading only for hour in question "irrational" and that to make this change in instant proceedings, given the issue was offsets, would be inappropriate — Commission agreed with the respondent re operative date and ordered accordingly — Commission in the interest of everybody, allowed no exemption provision — Granted — Retail and Wholesale (Clerks) 876

66 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE. 979


CLAIMS — Alleged non-payment of contractual benefits re commission on real estate listings and sales — Applicant claimed payment of 50 per cent

commission and contested base amount for calculation of commission — Respondent contended 30 per cent commission due where sale only made and 50 per cent where sale and listing made by one person — Respondent contended that by agreement with applicant, interest due on late settlement by purchaser be deducted from commission to complete sale — Commission found contract of employment to exist between parties, applicants entitlement to commission to be 30 per cent, and found evidence of witness re arrangement to be in favour of respondent — Dismissed — Real Estate

CLASSIFICATION — Variation/extension of award re scope clause and addition of new classification — Applicant sought award coverage of those employed

in clerical vocations in the tourist bus and coachline industry — Further, a new classification re "travel officer" with a rate of pay equivalent to relevant Federal Award — Applicant claimed first award principles should apply and suitable guide for pay and conditions available in relevant Federal Award as work done by clerks in such award was similar to work of travel officers who sought coverage under present award — Respondent argued no justification existed for new classification under first award principles as the relevant employees within the industry were already employed under conditions similar to the present award — Commission found to make an award which increased wages beyond that already paid in the industry was outside the spirit and letter of the wage fixation principles — Further, the present award applied to a diverse range of industries and it was not a sensible exercise to make a special case for the industry now in question — Commission found to grant claim re new classification would be a recipe for others to seek special consideration in light of peculiarities attached to their particular tasks — Granted in part — Services (Travel)

Applicant sought to amend Clerks' Award A14 of 1972 by deleting dental attendants and receptionists from scope — Dental attendant/ receptionists enjoy dual award coverage with rates for adults under subject award higher than A29 of 1982 — As highest rate must be paid applicant argued anomaly thus existed in relativity between dental assistant and attendant/receptionist — Commission found A29 of 1982 specifically caters for classification in question and it was never intended dental attendant/receptionists' receive clerks' rates — Granted — Health (Dental)

Reclassification sought — Applicant requested date of lodgement of appeal to be fixed as operative date — Commission found hearing of application would cause reclassification in equivalent band under new 1985 salary Agreement and no payment would be paid under ex- pired Agreement — Commission found application does not fall within the formula for transitional provisions to protect those appointed to a classification prior to the implementation date of the new agreement — Commission noted Board and CSA reached understanding to enable public servants to apply for reclassification effective from 1 November 1985 and until new determination issues all claims involving broadbanding held in abeyance — Commission stated claim would only be treated in respect of broadbanding so exercised power pursuant to the Act to decline to proceed with matter or fix an operative date for reclassification out of matter as of date of lodgement — Dismissed — Public Service

Variation of award re definitions, wages and special rates and provisions — HSOA, ADSTE and CSA granted leave to intervene — Intervenors objected to application re they would be prejudiced and there would be overlapping industrial coverage, contrary to objec- tives of IR Act — HSOA also fearful proposed amendments would afford employers an opportunity for withholding salaried status from employees qualified to be elevated — Further, proposed classification if allowed would introduce entirely new classifications to the hospital industry — ADSTE claimed applicant's intention essentially a "takeover bid" — CSA brought no evidence forward — Applicant claimed amendments were arrived at through properly conducted negotiations — Further, aim of proposed definitions was/is to standardise and provide logical progression in career opportunities within tradesmen classifications rather than transgressing technicians work — Attention of Commission drawn to Industrial Appeal Court decision (at 60 WAIG 1053) however, Commission could not refuse to amend award in terms agreed without it first being shown that the major and substantial employment of persons employed in the agreed classifications would be that of technicians (test reCary Case at 55 WAIG 585) — Commission was of the opi- nion the HSOA was protected by virtue of the operation of its own award and found no cause for refusing variations sought — Granted

2Appeal against part of decision of Commission (at 66 WAIG 163) re refusal to grant new classification to an award — Appellant argued Commission had erred in law in the application of first award principles and in the refusal to grant specific rates to the classification which, it alleged were contrary to section 26 of IR Act 1979 — Appellant claimed Commission should have considered award under which similar work is performed as a guideline in view of evidence given to show similarity — Full Bench found appellants claim an in- version of the first award principles which operates to aid Commission in pressing claims — Full Bench found Commissions affirmation of current rates appropriate in view of diverse range of industries covered by award and the possibility of special rates being claimed for travel officers — Full Bench dismissed appeal and remitted for hearing to Commission matter which parties to appeal were in accord for inclusion in the award — Dismissed — Travel

CLOTHING — Wage increase sought for veterinary nurses based on changes in the value of work re greater training and theoretical knowledge —

Respondent argued no signficant change in the value of work and noted absence of any work value assessment in industry's history to support contention that the existing rate of pay was an appropriate base measure of the effect of changes that had taken place — Fur- ther, as wage principles restricted Commission carrying out an initial assessment to set the base measure, there was no basis upon which to calculate a change — Based on considerable research re comparison of work done in the past and present, Commission found there was a nett addition to the value of work — Other amendments re 38 hour week etc granted as they did not involve additions to cost and were already in general included in other awards — Claim for Bereavement Leave remitted to CICS due to possible additions to labour costs — Granted in part — Animal Welfare

Dispute re provision sought requiring employer to supply a specified number of shirts — Applicant stated provision existed in a Victorian award with which it claimed a nexus and in similar awards in other States — Further claimed cost negligible and no flow on to other industries — Respondent submitted practice was that employees provide their own shirts and claim for four shirts per annum was unnecessarily rigid — Commission found that as employees were required to wear shirts of a special colour it constituted "a uniform", which should be provided by employer — Commission found insufficient evidence to determine number of shirts needed and therefore it would not follow the Victorian or other States awards for its own sake but reword existing provision — Granted in Part — Services (Funeral) \

COMPARATIVE WAGE JUSTICE — 'Dispute re increase in wages due to conflict of provisions in award — Applicant claimed National Wage Decision (at PG 0700) increasing

salaries of the clerical and administrative staff in the APS should not flow to the award in question — Applicant argued that the General Order (at 64 WAIG 407) inserted into all awards of the Commission prevented the automatic application of a provision in the award re that rates in it shall move simultaneously and in same measure as rates for clerks in the APS — CICS noted however that neither party suggested the basis on which the rates under the award had been erected was wrong or required any change — CICS satisfied the nexus existed and an equitable base had been established under the Wage Fixation Principles — CICS found the provision should operate according to its tenor, however in its view, the provision should now be deleted and the award included in schedules to orders issued pursuant to section 51 of the Act — Ordered Accordingly — Agriculutre

980 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE. 66 W.A.I.G.

CUMULATIVE DibEST—continued Page

COMPARA TIVE WAGE JUSTICE -continued JState Review of National Wage Decision November 1985 — Confederation of WA Industry sought to persuade CICS that the

Commission could discharge its obligation to give effect to the Australian Commission's decision (at PG 0700) to increase wages by 3.8 per cent by deferring part of that increase to some future date — CICS found proposal unacceptable on ground that "to comply with request would of necessity amount to a different decision than that given by the National Wage Decision" — CICS made note of conditions under which National Wage Decision would apply to State awards; "that each union make a global commitment to make no extra claims relating to awards for six months" — CICS partly in consideration of employers in the Mining Industry's wish to argue for exemption of that industry from the increase and partly to facilitate a resumption of discussions of new or varied wage fixing principles, adjourned proceedings sine die — Interim General Order made giving effect to National Wage Decision in State awards 4

Wage increase sought for catchment wardens — Applicant claimed that wage rates accepted in 1979 and 1981 undervalued duties and responsibilities of position; and that classification of Rangers for National Parks and Water Authority are appropriately comparable — Respondent contended that wage alignment with classification of service layer grade one was and is appropriate — Commission concluded that whilst there were differences the duties of catchment wardens were more akin to rangers especially inasmuch that both are "eyes and ears" of their respective authorities — Also there are patrol and enforcement functions common to both — Parties directed to confer — Granted —• Water, Sewerage and Drainage 384

Variation to wage clause sought to amend award for Unit Attendants due to increased duties and responsibilities — Applicant sought to create nexus with Assistant Unit Controller and to maintain existing relativity for other classifications — Respondent offered to insert new subclause in Clause 28 re multi plant allowance and conceded as appropriate nexus for future wage rates UAI/AUC — Union accepted nexus as appropriate but disagreed with proposed alignment — Commission found increased duties and responsibilities genuine after inspections and parties' agreement on wage nexus realistically assessed on work value nature as adjustment to base rate rather than all-purpose allowance — Commission determined level of nexus between UAI first year rate and AUC commencement rate — Commission directed parties to confer to reach agreement on rates for remaining classifications — Commission stated inter classification relativities should be maintained — Interim order to vary wages Clause 29 — Granted — Energy 538

COMPENSATION — Employee dismissed for alleged unsatisfactory attendance — Claimed unfair dismissal and sought declaration of such and compensation

— Respondent argued applicant had received a "fair deal" within meaning established in Loty's Case (at 59 WAIG 974) and had been warned re unsatisfactory behaviour — Commission found on evidence "the employer had truly discharged all the onuses on him" — Dismissed — Furniture

Employee made redundant after 31 years' service — Union claimed compensation for redundancy based on formula stated in Vickers Hadwa Case (at 63 WAIG 2270) — Applicant stated employee had been denied real value of second period of long service leave and had suffered loss of job satisfaction through redundancy — Respondent opposed claim claiming unforeseen circumstances had forced action of making employee redundant and utmost had beendone to arrange alternative employment — Commission stated respondent's case, based on local precedents, powerful, however, settled claim by way of adoption of the standard of the Australian Commission in the Termination, Change and Redundancy Case (Prints F6230 and F7262) granting highest amount prescribed — Ordered accordingly — Manufacturing (Car)

Employee terminated due to redundancy — Union sought compensation equal to provision in parent federal award on the basis of an established nexus — Furthermore argued for equal treatment of WA employees of an employer with their counterparts in other States — Respondent argued company had made a reasonable offer which was rejected by union — Commission granted compensation in- light of other relevant cases and respondent's interstate operations — Granted in part — Manufacturing (Agricultural Machinery)

Employment terminated due to unsatisfactory work performance — Applicant claimed unfair dismissal and sought compensation — Respondent stated applicant's work had been satisfactory but later deteriorated warranting dismissal — Commission found on evidence termination was not unfair and in fact respondent had given applicant every assistance by way of councelling to improve his performance — Dismissed — Hydraulic Services

"■Stay of order (at 66 WAIG 99) sought pending hearing of appeal — Applicant alleged Commission erred in its approch re assessment of severance payment in that it was not consistent with Ingle's Case (at 59 WAIG 400) — President stated that applicant had to satisfy principles that "there is a serious question to be determined" and "the balance of convenience favoured to stay or the order" — Presi- dent found first issue satisfied because he considered payment more generous than demanded by any previous decisions of Commission — However re "convenience", President applied principles used in other Courts of record and noted that generally a Court will not "make a practice of depriving a successful litigant of the fruits of his litigation, and locking up funds to which prima facie he is entitled" — President found employee entitled to the use of payment awarded — Dismissed — Manufacturing (Agricultural Machinery)

Employee summarily dismissed for absenteeism — Applicant claimed unfair dismissal and sought compensation — Respondent argued that from information given by Industrial Inspectorate, it could terminate employee's contract of service for misconduct on basis of absenteeism — Commission stated that key to this issue was question whether "employer in exercising his legal right to dismiss for misconduct did it in a harsh or oppressive manner" — Commission stated employer had grounds to terminate however found on evidence that it was unfair to terminate summarily, in that absenteeism cannot be based on a single day basis and must actually strike at the root of the contract of service — Granted (Pumps and power tansmission)

Additional redundancy payment sought by union — Union claimed redundancy payment should be calculated with regard to decision of the Australian Commission related to "Termination, Change and Redundancy" (P F6230, P F7262 and P F7390) — Union argued that tribunals in other States have endorsed the Federal decision and the pattern of redundancy payments in this State would suggest substantial additional payment — Respondent argued that payment sought was not warranted as employees received construction rates of pay, which relieved them of obligation to special payments when employees were terminated as rates contained component which recognises the intinerant nature of work — Respondent further referred to superannuation scheme which provided substantive payment on termination and denied any agreement between itself and unions in other States which might support above claim — Commis- sion satisfied with respondent's argument and found no need for further compensating employees — Dismissed — Manufacturing (Fabrication)

Pro rata long service leave sought — Applicant claimed employer was liable to payment of pro rata long service leave, as a result of his termination — Respondent claimed agent representing applicant had informed them of applicant's intention to forego any long service leave entitlement when they took over the company — Board found respondents had not produced any substantive evidence to support claim — Granted — Wholesale (Motor Vehicle)

Supplementary reasons for decision — Commission noted decision of other Tribunal re variation to severance pay possible when employer obtained acceptable alternative employment for an employee — However, Commission considered finding of alternative employment by employer in this instance, did not negate need to pay the maximum prescribed amount to an employee — On evidence, Commission found applicant was an "excellent employee" and would likely have been on the list of employees to be given new employment — Commission noted that compensation initially offered for loss of employment was later withdrawn when applicant approach- ed union re fairness of amount offered — Commission found reaction of respondent to union involvement had been unfair and afford- ed it considerable weight in the decision — Manufacturing (Car)



COMPENSATION —continued Employee summarily dismissed for misconduct and sought compensation — Applicant claimed she was induced to take leave without pay

to "consider her position and change her attitude" however at no time was it suggested her work was unsatisfactory — Question raised in other Tribunal and provided test in present case re whether legal right of employer to terminate contract of service had been exercised in a harsh or oppressive manner to amount to an abuse of that right — Commission noted, in summary dismissal, onus of proof lies upon respondent — Commission found although termination was legal, it was not convinced the issue in this instance warranted summary termination — Compensation granted — Services (Beauty Therapy)

Employee summarily dismissed for alleged misconduct — Applicant claimed unfair dismissal and sought compensation — Applicant stated a belief that no breach of company rule had occurred — Respondent argued applicant had knowingly breached company rule thereby putting the company in a position liable to some embarrassment — Commission found, on evidence, applicant believed that at the time management approval had been given and had acted in good faith — Commission also stated that the Company may have acted within its rights — Commission referred to previous decision for principles to be followed (36 SAIR at p. 235) — Commission found dismissal to be harsh and unfair in that applicant was not confronted prior to termination — Commission noted pay in lieu of notice was due — Granted — Sales (Motor Vehicle)

Employee summarily dismissed for alleged misconduct — Applicant claimed unfair dismissal and sought "fair" compensation — Applicant denied charge of misconduct also indicating an awareness of the usual consequences of misconduct — Respondent claimed applicant had failed to comply with company policy and had been over-issuing bonus stock — Commission stated in such cases employer has a right to terminate a contract of service providing it is not exercised harshly or unjustly — Commission found, on evidence, applicant had contravened employer's policy and termination and compensation had been fair — Dismissed — Wholesale/Retail Sales (Pharmaceutical)

Employees dismissed for alleged misconduct — Employees claimed unfair dismissal and applicant union sought reinstatement without loss of entitlements for employees — Applicant union claimed employees inadequately advised of possibility of dismissal — Respon- dent contended employees were dismissed according to their contracts of employment having been classified as "unsuitable" on basis of work records and supervisors' reports — Respondent claimed adequate warnings were given — Commission not satisfied employees warned in true sense but were cautioned — Commission stated employees' conduct dangerous to other employees but did not cease despite advice of the danger — Commission found, on evidence, termination not unfair — Dismissed — Manufacturing (Electrical)....

Employee's weekly payments diminished — Applicant claimed contractual benefits not being entitlements arising out of an award following reduced payments and workload as a result of incapacity caused by a compensatable accident — Respondent claimed no work was available although employee not terminated. Respondent entitlement to reduce payments had been properly exercised and compensation paid — Commission found on evidence, no entitlement to the applicant had been refused by the respondent which could give rise to an order pursuant to section 29(b)(ii) of the Act — Commission instead directed respondent, pursuant to section 32 of the Act, to provide a rehabilitation programme for the applicant while his contract of service existed — Dismissed — Education

Employee dismissed for alleged unsatisfactory performance in duties — Applicant claimed contract was unfair in monetary terms and sought compensation — Respondent denied claims — Commission stated its task was limited to discovering the terms of contract and whether any benefits had been denied — Commission found contract was freely entered into by both parties and terms were fully honoured — Dismissed — Community Services

2Appeal against decision of Commission at 66 WAIG p. 99 to award nine weeks' redundancy pay — Appellant alleged Commission erred in heeding some previos WAIG decisions and not others and by concluding nine weeks' pay was appropriate compensation — Full Bench found Commission's decision was open to it on material presented and discretionary judgment had been properly exercised — Dismissed — Manufacturing

Employee dismissed for unsuitability to work requirements — Applicant alleged damage to work record due to unfair dismissal and claimed compensation for loss of earnings — Respondent submitted that applicant's operation of word processing system not in accordance with practises and directions and thus terminated contract of employment with pay in lieu of notice — Commission found termination not unfair as respondent entitled to decision particularly in probationary period and method of termination a proper reflec- tion of incidence of pay period — Commission found nothing damaging to future employment prospects of applicant — Dismissed — Law

Applicant sought moneys from respondent for alleged non-payment of wages and relocation subsidy due from contract of employment and compensation for costs incurred in relocating household — Commission found that applicant had misunderstood respondent's offer and no wages were outstanding, however, the agreed relocation subsidy had not been paid — Commission found no entitlement to relocation compensation as this formed no part of employment contract — Granted in part — Manufacturing (Stock Feed)

Alleged unfair termination of employment — Applicant sought compensation for loss of earnings — Respondent denied claim — Commission assessed weight of respective evidence from demeanour of witnesses and balance of probabilities — Commission found applicant incompatible with area managers requirements and lawful termination of contract of employment by respondent in best interests of all concerned and not unfair — Dismissed — Building

Employee dismissed due to unsatisfactory service — Applicant claimed unfair dismissal and sought compensation for loss of earnings — Respondent agreed to compensate applicant, however disputed claim of applicant re date of termination — Commission stated it was fundamental to a contract of service that the employee be willing and able to carry out duties which are the basis upon which contract has been erected — Commission found respondents offer of compensation fair and reasonable as there was no dispute to applicants in- ability to perform duties and the fact that the applicant had not worked since the date of termination — Hospitality (Hotel) — Granted in Part

Employee dismissed for failure to fulfill obligations under contract of service and employer's dissatisfaction with his management practices — Applicant denied allegations and sought compensation for unfair dismissal — Respondent denied liability and argued termination effected as it sought an employee "with better experience in food lines" — Commission on evidence concluded applicant was not given a fair go — Further, applicant had not conducted himself in a manner inconsistent with his obligations — Commission found the payment for immediate dismissal did not override compensation for unfair dismissal — Compensation granted — Retail

Employee dismissed due to unavailability of further alternative light work after work-related injury — Applicant claimed unfair dismissal and sought compensation — Respondent argued alternative light duties work exhausted — Further, to put applicant into regular position would expose him to further injury and respondent unprepared to take that risk — Question re whether exercise of lawful termination of service was unfair so to require intervention by Commission — Commission found, on evidence and principles (65 WAIG 1985) employer had not acted unfairly to warrant intervention — Dismissed — Concrete Sales

Employee summarily dismissed for alleged unsatisfactory work performance — Applicant claimed he was unfairly dismissed without adequate notice and sought unpaid contractual benefits and compensation — Respondent argued employee had resigned, however if employee was dismissed it was in accordance with terms of his contract on the grounds of incompetence and hence he was not entitled to compensation — Further claimed applicant had accepted a payment in satisfaction for any outstanding entitlements — Commission found respondents accusation of incompetence baseless and that the applicant was dismissed — Furthermore Commission found moneys paid by respondent was in no sense a negotiated settlement but part of its unilateral act to terminate applicant — Commission stated that its concern was with the fairness of any dismissal, not whether it was lawfully effected and granted a global award in recognition of all consequences including denial of contractual benefits — Granted — Retail

Employee dismissed for alleged misconduct — Applicant claimed employee was unfairly dismissed and sought reinstatement with no loss of income or accrued rights — Respondent refuted claim and argued while misconduct was committed away from work and outside working hours, circumstances connected it with work, enabling the company to dismiss employee for breach of lawful and reasonable command — Furthermore respondent claimed that once misconduct was shown, dismissal cannot be held unfair — Commission on evidence found no connection between employees conduct and his employment — Furthermore Commission state that respondent did not incur the liability of employees action — Commission found that an employment relationship had ended yet no complaint was raised about employees performance or demeanour at work and no weight was accorded to employees good record — Commission found dismissal unfair and granted claims and compensation — Mining



COMPENSATION Dismissal of employee due to dissatisfaction with his business methods — Applicant sought compensation for unfair dismissal and

payment of entitlements arising from contract of employment — Respondent rejected all claims and denied applicant was an employee — Commission stated need to determine jurisdiction by ascertaining employment status of applicant and found relationship of employer/employee (ALR 385 p. 387 per Bray J.) — Commission on evidence found dismissal had been without notice and with somewhat less than industrial fair play — Furthermore claim of discretionary allowances, spouse allowance and travel allowances sought were not contractual benefits — Commission granted compensation for unfairness of dismissal taking into account rate of remuneration and lack of adequate notice — Granted in part — Engineering

Employee summarily dismissed for alleged failure to carry out instruction — Applicant claimed unfair dismissal seeking compensation and benefits under contract of service — Respondent argued applicant an independent contractor therefore Commission lacked jurisdiction, however it found otherwise dismissal justified and applicants conditions governed by an Award — Commission found relationship that of employer/employee largely on the principle of "power of control" (16SASR237), therefore all payments claimed except for compensation must be dismissed by Commission as constituted — Commission found dismissal affected in circumstances which did not amount to a "fair go" and granted compensation — Granted in Part — Advertising

2Appeal against Commission's decision (66 WAIG 102) re redundancy payment ordered — Appellant alleged Commission had erred in giving undue recognition to standard of the Australian Commission and the circumstances entitling respondent to the highest amount prescribed, without accounting for company's efforts in arranging alternative employment — Full Bench found recognition given to Federal Decision fitting as it dealt with matters of industrial fact and may be taken into consideration by the Commission in dealing with cases of redundancy — Full Bench acknowledged Commission's failure to pay due regard to appellant's efforts, however found Commission's judgment fair when considering the difference between the amount awarded and appellant's offer of a fair compensation and dismissed the appeal — Dismissed — Manufacturing — (Car)

Employee dismissed for alleged "lack of performance" — Applicant claimed unfair dismissal and sought compensation — Respondent claimed employee did little work during critical period of operation of company and applicant had received compensation in lieu of notice, pro rata annual leave, contribution toward superannuation, storage and delivery of goods and chattels, expenses and alternative accommodation costs — Commission found dismissal effectively on notice and stated applicant's need to show unfair dismissal on balance — Evidence of witnesses corroborated respondents testimony — Commission found respondent had met expenses to which applicant had no contractual entitlement — Commission not satisfied of unfair dismissal on balance of probabilities and found applicant had been adequately compensated — Dismissed — Oil

Employee terminated for alleged redundancy — Applicant claimed unfair dismissal and sought compensation relative to term of 10 year employment negotiated and reimbursement of costs incurred re application — Applicant alleged dismissal was result of union and political pressure — Respondent claimed applicant became "surplus to requirements" and that his employment was for indefinite period terminable on reasonable notice — Further respondent submitted negotiations re 10 years of employment were made after contract completed — Commission found employee was not redundant and was unfairly dismissed without reason — Commission found respondent's statement to be contractual re 10 year life of mine — Commission considered payments made on termination and assessed compensation on basis that applicants health would have prevented employment to continue longer than one year — Commission refused order for costs as not usual practice — Granted in part — Mining (Phosphate)

Employee dismissed for alleged errors and lack of performance — Applicant sought declaration of unfair dismissal and entitlement to contractual benefits — Applicant claimed overtime was worked without reimbursement of time in lieu — Respondent claimed errors were costly and denied making accusations re hours worked — Commission accepted evidence of applicant and stated responsibility of respondent to supervise employee — Commission found dismissal unfair, considered reinstatement untenable and awarded compensation for loss of employment — Granted in part — Manufacturing (Fabrication)

Employee dismissed for charge of stealing — Applicant claimed unfair dismissal and sought reinstatement and compensation for loss of earnings — At previous hearing respondent raised question of jurisdiction and submitted no dismissal occurred as applicant submitted resignation prior to being charged and Commission reserved decision sine die — Commission found occurrence of effective termination under doctrine of constructive dismissal — Respondent raised second jurisdictional objection submitting that Commission bound by section 23 (3) (d) IR Act to desist from hearing matter due to provision 33E of Police Act 1892-1982 Part IIA, section 33A-33J re function of Police Appeal Board — Commission stated employment of applicant governed by section 38A of Police Act — Applicant submitted that matters of section 38A of Police Act should be seen as separate and distinct from section 23 (d) (d) IR Act re contractual rights of employers and employees and section 38A (3) removed Aboriginal aides from general conditions of service of Police Force — Further to amend claim to compensation only — Commission viewed strength of argument lay with respondent and no jurisdiction to proceed — Dismissed for want of jurisdiction — Police

Alleged non-payment of contractual benefits — Applicant submitted she was still legally employed and claimed compensation for wages for period after two-week standdown when respondent failed to notify her to return to work plus two days' pay outstanding — Respondent not represented at hearing — Commission found respondent accepted term of contract of employment liability to pay pro rata annual leave entitlements to terminating employees by agreement made before Commission (C327 of 1985) — Commission found termination of contract occurred when applicant did not report for work — Order issued for entitlement in equity to one week's pay in lieu of notice plus two days' pay outstanding and annual leave — Granted in part — Printing

2Appeal against Commission's decision not to order payment for claim to partial wages while receiving compensation (at 66 WAIG 423) — Appellant argued Commissioner should have found that appellant was denied benefit due from respondent, entitlement to partial payment of both wages and compensation or entitlement to usual wage in place of workers' compensation — Respondent argued entitlement to wages inconsistent with not being able to earn wages while receiving compensation — Commission accepted respondents proposition and stated principle applies to partially incapacitated as well as totally incapacitated employees — Commission found applicant had no remedy against Respondent of entitlement to wages — Dismissed — Education

CONFERENCE — Alleged non-payment of contractual benefits — Applicant submitted she was still legally employed and claimed compensation for wages

for period after two-week standdown when respondent failed to notify her to return to work plus two days' pay outstanding — Respondent not represented at hearing — Commission found respondent accepted term of contract of employment liability to pay pro rata annual leave entitlements to terminating employees by agreements made before Commission (C327 of 1985) — Commission found termination of contract occurred when applicant did not report for work — Order issued for entitlement in equity to one week's pay in lieu of notice plus two days' pay outstanding and annual leave — Granted in part — Printing 933

Alleged non-payment of contractual benefits after applicant terminated employment — Applicant claimed balance of payment in part pro rata annual leave agreed upon at previous conference (C327 of 1985) where respondent company acknowledged moneys owing to employees — Application filed when payment not made under terms of memorandum of that agreement — Respondent not represented at hearing — Commission found in favour of applicant and ordered payment to issue — Granted — Printing 933


CUMULATIVE XilGESJ—continued

CONSUMER PRICE INDEX — 3State Review of National Wage Decision November 1985 — Confederation of WA Industry sought to persuade CICS that the Commission could discharge its obligations to give effect to the Australian Commission's decision (at PG 0700) to increase wages by 3.8 per cent by deferring part of that increase to some future date — CICS found proposal unacceptable on ground that "to comply with request would of necessity amount to a different decision than that given by the National Wage Decision" — CICS made note of conditions under which National Wage Decision would apply to State awards: "that each union make a global commitment to make no extra claims relating to awards for six months" — CICS partly in consideration of employers in the Mining Industry's wish to argue for exemption of that industry from the increase and partly to facilitate a resumption of discussions of new or varied wage fixing principles, adjourned proceedings sine die — Interim General Order made giving effect to National Wage Decision in State awards 4

'State Review of National Wage Case — CICS referred to previous decision (at 66 WAIG 4) where proceedings had been adjourned sine die partly at request of Tin Mining Industry — Industry argued that its employees not receive the National Wage Increase granted to all other employees under State awards re downturn in prices and demand for the industry's products — CICS stated company had capacity to pay the increase although it may lead to further loss of employment in the industry — CICS referred to primary principle of centralised wage fixing system re real value of wages be maintained except in exceptional circumstances — CICS found nothing exceptional circumstances — CICS found nothing exceptional about circumstances surrounding the Tin Industry — Application rejected — Tin Mining Industry granted 3.8 percent National Wage Increase — Mining (Tin) 135

CONTRACT OF SERVICE — Alleged contractual benefit (fuel allowance) sought following its discontinuation without notice — Applicant claimed agreement

made with Works Manager for payment of fuel allowance was a contratual entitlement — Respondent claimed Works Manager lacked authority to negotiate such arrangements and therefore respondent not liable for arrangements made by him — Commission stated applicant could confidently expect Works Manager to have that authority and therefore allowance was a contractual benefit — Commis- sion stated termination of payment of benefit should have been preceeded by notice of one contractual period and opportunity given for applicant to discontinue his contract of employment in the absence of the allowance — Commission found applicant entitled to benefit until Works Manager's authority clarified and until applicant properly informed of variation of contract — Granted — Meat (Abattoirs)

Alleged unfair dismissal due to unsatisfactory service — Union claimed termination effected because employee called for union support in securing award entitlements — Respondent argued employee failed to provide satisfactory service and further, verbal warning that his work would be checked ignored — Commission preferred respondents evidence where conflict occurred — Commission noted employee had lost sight of his contractual obligations, and failed to demonstrate his abilities despite verbal warnings — Commission found no reason to believe dismissal had resulted from factors other than failure of employee to carry out his work satisfactorily — Dismissed — Retail

Alleged non-payment of contractual benefits re annual leave — Question re whether applicant was an employee or independent contractor — Applicant claimed change to "Family Trust" after the first six months of employment was merely to provide an alternative only to the PAYE tax liability and not the working pattern — Respondent argued that applicant was an independent contractor — Respon- dent claimed this was achieved by the family trust contracting with him to provide the exclusive service of applicant as a private investigator — Commission found there was evidence to show that applicant acted as if he was carrying on business on his own behalf, and as such was not considered an employee — Commission found having come to this conclusion, question re — annual leave was beyond its jurisdiction — However Commission found payment of pro rata annual leave for first six months had been received — Dismissed — Services (Private Investigations)

Employee summarily dismissed for misconduct and sought compensation — Applicant claimed she was induced to take leave without pay to "consider her position and change her attitude" however at no time was it suggested her work was unsatisfactory — Question raised in other Tribunal and provided test in present case re whether legal right of employer to terminate contract of service had been exercised in a harsh or oppressive manner to amount to an abuse of that right — Commission noted, in summary dismissal, onus of proof lies upon respondent — Commission found although termination was legal, it was not convinced the issue in this instance warranted summary termination — Compensation granted — Services (Beauty Therapy)

Alleged non-payment of contractual benefits re election to office as organiser of union — Applicant claimed entitlement to payment for period between election to office and commencement of contract pursuant to rules of union — Commission stated issue as whether rules of union provide that contract of employment commences simultaneously with declaration of election to office — Question of jurisdiction of Commission raised by respondent re Federal Union — Commission established jurisdiction re Act — Commission stated precedent in Federal case where distinction between employment as organiser and membership of management committee — Commission stated applicant offered contract in accordance with union rules therefore has no claim for payment prior to nominated date for commencement of contract — Dismissed — Meat


Alleged non-payment of contractual benefits — Applicant terminated contract of service by giving a week's notice and claimed that contract provided for weekly retainer and eight per cent commission on sales — Applicant sought outstanding commission on sales prior to date of termination — Respondent argued had not completed her term of contract and therefore not eligible for commission — Commission found, document provided proved there was an agreement to pay commission in full when contract of service ended — Granted — Retail

Alleged non-payment of contractual benefits re weekly advances — Applicant sought declaration of unfair dismissal and payment — Respondent denied dismissing applicant and claims payment claimed was ex gratia made to help meet working expenses — Commis- sion found contract severed by employee by option to withdraw service — Commission stated no obligation on employer for payment — Dismissed — Real Estate

Alleged non-payment of contractual benefits re commission on real estate listings and sales — Applicant claimed payment of 50 per cent commission and contested base amount for calculation of commission — Respondent contended 30 per cent commission due where sale only made and 50 per cent where sale and listing made by one person — Respondent contended that by agreement with applicant, interest due on late settlement by purchaser be deducted from commission to complete sale — Commission found contract of employment to exist between parties, applicants entitlement to commission to be 30 per cent, and found evidence of witness re agreement to be in favour of respondent — Dismissed — Real Estate


Applicant sought moneys from respondent for alleged non-payment of wages and relocation subsidy due from contract of employment and compensation for costs incurred in relocating household — Commission found that applicant had misunderstood respondent's offer and no wages were outstanding, however, the agreed relocation subsidy had not been paid — Commission found no entitlement to relocation compensation as this formed no part of employment contract — Granted in part — Manufacturing (Stock Feed)



CONTRACT OK SERVICE - continued Applicant claimed payment for balance of holidays purportedly uue on termination — Respondent argued that applicant not an employee

and therefore beyond jurisdiction of Commission or if found to be employee contract of employment contained no entitlement to annual leave — Commission found two contracts to exist, firstly that of independent contractor and secondly, contract of employment — Commission found that employment contract contained no provisions for annual leave payment, however, there was an entitlement to further two weeks' pay in lieu of notice commensurate with monthly contract of service — Granted in part — Transport



Alleged non payment of moneys due under contract of service — Question is whether applicant was an employee or independent contractor — Respondents failed to appear — Commission noted no simple formula to categorise the status of the parties — Commission found, when viewed as a whole, arrangement between applicant and respondents was a contract of service — Further, provisions which initially appeared inconsistent with an employee/employer relationship did not prejudice applicant's opportunity for recovery of entitlements — Granted — Fishing

Employee summarily dismissed for alleged misconduct — Applicant sought payment in lieu of notice, pro rata annual leave and travel expenses — Applicant claimed termination due to request for fairer payment for use of vehicle in shifting equipment — Respondent claimed termination due to slowness and damage prior to summary dismissal for refusing to obey instructions — Commission found claim for pro rata annual leave allowable under Award but dismissed claim for travel allowance re well established principle that Com- mission not able to imply term of contract as parties came to agreement — Commission found employer had no right to deduct pay in retrospect resick pay and no reason for summarily dismissal — Further that contract of employment required one week's notice of termination — Commission ordered payment of wages in lieu of remaining notice — Granted in part — Printing


Alleged non-payment of contractual benefits re annual leave — Applicant claimed payment made on termination bonus for sales — Respondent argued moneys paid include annual leave, holiday pay, sick leave and lump sum gratuity — Commission stated evidence of respondent lacked credibility and reasonably open to serious question — Commission found applicant's best evidence re payment details and account of original agreement supported by testimony of witnesses — Commission took into account applicant's submission re burden of proof and weight of evidence according to section 79 (D) of Evidence Act — Commission ordered respondent pay applicant appropriate sum at given rate — Granted in part — Retail

Alleged non-payment of contractual benefits — Applicant claimed contract of service existed with respondents — Respondents denied contract as individuals or companies — Commission found no evidence to support proposition that contract of service existed for purposes of IR Act 1979 — Dismissed for want of jurisdiction — Manufacturing

Alleged non-payment of contractual benefits re salary and annual leave entitlements — Applicant on resignation claimed salary foregone during difficult trading period and alleged wrongful action by respondent re paid sick leave — Respondent denied claim that salary repayments were due and claimed annual leave entitlements were availed of by applicant as paid sick leave by arrangement and applicant received in excess of total paid leave entitlements — On evidence Commission concluded applicant successful in salary claim — Commission dismissed claim for payments in lieu of annual leave entitlements as not sustainable and accordingly dismissed claim for interest — Commission ordered repayment for salary foregone at amount agreed by parties as due to applicant — Granted in part — Timber

Alleged non-payment of contractual benefits re shared profits — Applicant claimed agreement with respondent determined net profit from construction division to be shared on percentage basis — Further argued status of "employee" under terms of renegotiated arrangement with respondent — Respondent contended termination of agreement by mutual arrangement and that as relationship was principal and subcontractor matter could not be pursued before Commission — Respondent cited taxation deductions as evidence of applicant's status — Commission found existence of common law relationship of employer/employee and taxation deduction rate did not determine matter — Commission persuaded by evidence of applicant re provision for profit sharing arrangement — Commission requested parties to submit audited statements of accounts to identify total net profit to be shared on percentage basis — Order issued on receipt of information — Granted — Building (Construction)

Alleged non-payment of contractual benefits after applicant terminated employment — Applicant claimed balance of payment in part pro rata annual leave agreed upon at previous conference (C327 of 1985) where respondent company acknowledged moneys owing to employees — Application filed when payment not made under terms of memorandum of that agreement — Respondent not represented at hearing — Commission found in favour of applicant and ordered payment to issue — Granted —■ Printing

CONTRACT OUT OF AWARD — Alleged contractual benefit (fuel allowance) sought following its discontinuation without notice — Applicant claimed agreement

made with Works Manager for payment of fuel allowance was a contratual entitlement — Respondent claimed Works Manager lacked authority to negotiate such arrangements and therefore respondent not liable for arrangements made by him — Commission stated applicant could confidently expect Works Manager to have that authority and therefore allowance was a contractual benefit — Commis- sion stated termination of payment of benefit should have been preceeded by notice of one contractual period and opportunity given for applicant to discontinue his contract of employment in the absence of the allowance — Commission found applicant entitled to benefit until Works Manager's authority clarified and until applicant properly informed of variation of contract — Granted — Meat (Abattoirs) 80

Breach of contract — Applicant resigned and claimed benefits allegedly owed — Respondent argued Commission lacked jurisdiction as applicant was managing agent not employee — Commission preferred applicant's evidence stating relationship was one of employee — Commission granted all benefits claimed except annual leave there being insufficient evidence to sustain claim as part of the contract — However in accordance with the Act if there was an obligation for it under an award application could be made to the Industrial Magistrate — Granted in Part — Services (Pest Control) 749


CUMULATIVE mGEST—continued

CUSTOM AND PRACTICE — Dispute re overtime — Union claimed employees entitled to infer from the circumstances surrounding the work they are engaged on that

they are required for overtime and having presented at work place for this purpose they are entitled to be paid — Furthermore the above had been custom and practice — Respondent denied claim — Commission stated success of union's claim depended on being able to establish the fact of "custom and practice" (61 WAIG 1795) — On evidence Commission found no claim could be made against the Company and that the claim was inconsistent with the award — Dismissed — Mining (Iron Ore)

Payment for time lost during "lock out" of plant operators sought — Union claimed non-requirement to operate loader and rubber tyred doze due to failure by company to initiate certain modifications — Further, consistent with custom, as loader was stood down by operator, dozer should logically be stood down also and no other person could operate such equipment — Respondent argued no custom existed and evidence insufficient to establish that it did — Further, argued unwillingness of union to seek a solution through alternative course re procedural prescriptions in Industrial Relations Agreement — Commission found evidence had not supported claim re customary standdown of plant and noted similar decision at 64 WAIG 1075 — Further, standdown of loader did not allow for general application to other equipment — Commission noted established criteria for custom and accepted Respondent's evidence re alternative courses available to union to seek redress — Dismissed — Mining

Employer sought to increase tally as a result of increased efficiency of machinery — Union objected claiming inefficiency of machinery and requested decrease in tally — Union claimed production limit related to length of bleed rail — Commission found no assessment of efficiency possible under bleed rail dispute resolved and decided not to review issues concerning mechanical aids in another decision forwarded by Union — Commission found applicant company closing down operations and all employees' contracts of service terminated — Commission ordered hearing discontinued — Dismissed — Meat

Payment sought for time lost during strike action over safety issue — Union claimed company wrongly applied no work no pay rule and had issued totally unreasonable commands to drive unsafe vehicle — Respondent argued reason for strike action not safety but abusive language between union convenor and foreman and that unions claim had no substance — Commission noted respondents evidence of practice whereby operators are permitted to stand down plant considered dangerous without loss of pay — Commission state obligation of union to follow agreed procedure specified in award — Further, payment for lost time would require that the company expect each employee to perform work that raised reasonable apprehension of personal danger — Commission found evidence did not allow that conclusion and state that to grant claim would meet demand for strike pay while approving breach of award — Dismissed — Mining

DANGEROUS WORK — Employer sought to increase tally as a result of increased efficiency of machinery — Union objected claiming inefficiency of machinery

and requested decrease in tally — Union claimed production limit related to length of bleed rail — Commission found no assessment of efficiency possible under bleed rail dispute resolved and decided not to review issues concerning mechanical aids in another decision forwarded by Union — Commission found applicant company closing down operations and all employees' contracts of service terminated — Commission ordered hearing discontinued — Dismissed — Meat 636

DATE OF OPERATION — Reclassification sought — Applicant requested date of lodgement of appeal to be fixed as operative date — Commission found hearing of

application would cause reclassification in equivalent band under new 1985 salary Agreement and no payment would be paid under ex- pired Agreement — Commission found application does not fall within the formula for transitional provisions to protect those appointed to a classification prior to the implementation date of the new agreement — Commission noted Board and CSA reached understanding to enable public servants to apply for reclassification effective from 1 November 1985 and until new determination issues all claims involving broadbanding held in abeyance — Commission stated claim would only be treated in respect of broadbanding so exercised power pursuant to the Act to decline to proceed with matter or fix an operative date for reclassification out of matter as of date of lodgement — Dismissed — Public Service

Question re date from which 38-hour week provisions should operate — Applicant claimed retrospectivity on grounds that the date should be the same in the instant award as they are to awards covering other hospital workers whom they work "alongside'' — Further, employees were already paying increased rates for meals and parking because trade offs were agreed/encouraged to be applied — Respondent disputed claim and argued no special circumstances to justify retrospectivity provision of section 39IR Act — Commission found circumstances could not be described as special and further, Commission noted marked differences between instant case and previous Commission decisions re with major hospital organisations — Commission satisfied application within Principle 5 of Wage Fixation Guidelines and in light of administrative difficulties, accepted respondent's suggested operative date as both logical and reasonable — Ordered accordingly — Hospital

Dispute re operative date of consented increases to allowances in Award — Applicant sought retrospectivity re last Indexation General Order (at 66 WAIG 5) or if Commission found no special circumstances pursuant to section 39 of the Act, the date of the First hearing of instant matter — Respondent denied any responsibility for delay in processing of application and refuted special circumstances existed — Commission found both parties and the Commission responsible for delay and employees subject to Award had cause of redress — Commission fixed operative date to last request for date of hearing — Ordered Accordingly — Mining and Processing (Mineral Sands)

DEMARCATION — Dispute between FEDFU and AWU re coverage of persons employed as Motor Vehicle Drivers appointed by Hamersley Iron as driver

operators of Hiabs — FEDFU claimed exclusive rights on ground that a Hiab is a crane impliciter by definition contained in the Machinery Safety Act 1974-82 therefore the operators are wrongly designated as Motor Vehicle Drivers and not eligible for AWU coverage — Commission referred to similar matter canvassed before Commission in 1979 (60 WAIG 148) and noted importance of a subsequent inclusion of a classification in Hamersley award re employees in question — Question re whether "distribution of driving and hoist work is now so heavily biased towards hoist work, in a substantial sense, as to demand a conclusion that work in question is crane driving" — Commission found on evidence FEDFU had not demonstrated work in question is in fact crane driving — Dismissed — Mining (Iron Ore) '

sDispute as to which union should have exclusive industrial coverage of employees engaged in "transport" classifications at Hamersley Iron, Tom Price — TWU claimed situation had changed since CICS decision in 1975 granting coverage to AWU (see 53 WAIG 332), in that the majority of employees now preferred to join it — AWU denied claim arguing that interference would have negative repercussions throughout industry — Company contended claim would infringe on its rights due to constitutional limitations of TWU and attitude of unions to each other — CICS found strength of applicant's case not sufficient to change effect of 1975 decision and issued new Order in favour of AWU — Dismissed — Mining (Iron Ore)

Dispute re which union should cover employees at Casino Complex — Burswood Management Ltd applied for award for all employees citing FLAIEU as respondent — WATAEA applied for award for those directly employed on gambling — FCU objected claiming constitutional coverage of some employees not already covered by its awards — Commission rejected notion that any gaming staff eligible to join FCU — Commission found WATAEA has specific constitutional coverage of those employed directly on gambling whilst FLAIEU has direct coverage of those employed on Hotel operations — Ruled that both unions be party to first award — Directed parties to confer pursuant to section 32 (3) (b) Recreation (Casino)



DISABILITIES — Site allowance sought be FEDFU for construction work at Warwick Road Bridge — Union claimed employees exposed to adverse climatic

conditions and provisions of relevant award inadequate to compensate for disabilities involved — Union proposed two factors for determining site allowance re consolidation of special rates in award with disabilities existing on site but not covered by award provisions — Respondent argued existing award provisions adequate and as no pattern of site allowance for current types of work existed in the Metropolitan Area, claim should be refused — Commission found construction operations was of such a type and nature that com- pensatory allowance should be awarded — Further, Commission noted, had operation taken place when "building trades package" was negotiated, it would have warranted an allowance — Commission rejected Respondent's argument re dismissal of a claim due lack of precedent — Granted — Construction 275

Employee's weekly payments diminished — Applicant claimed contractual benefits not being entitlements arising out of an award following reduced payments and workload as a result of incapacity caused by a compensatable accident — Respondent claimed no work was available although employee not terminated. Respondent entitlement to reduce payments had been properly exercised and compensation paid — Commission found on evidence, no entitlement to the applicant had been refused by the respondent which could give rise to an order pursuant to section 29(b)(ii) of the Act — Commission instead directed respondent, pursuant to section 32 of the Act, to provide a rehabilitation programme for the applicant while his contract of service existed — Dismissed — Education 423

DISCRIMINATION — Appellant alleged error by Director General in ruling promotion application ineligible by gender interpretation of position title and

classification "deputy principal (female)" — Appellant alleged superior efficiency to recommended applicant — Respondent submitted words in title have specific unambiguous meaning re gender — Tribunal found position classification in accordance with purpose of staffing regulations re gender to which effect appellant ineligible — Tribunal decided not to pursue alleged changes in duties arising from reclassification of position — Tribunal dismissal second ground of appeal as first rendered appeal incompetent — Appellant applied for reimbursement for travelling expenses to hearing — Tribunal disallowed claim due to lack of substance of appeal — Dismiss- ed — Education

"Order sought against union for not abiding by its rules in that it failed to represent members fairly — Applicant alleged that union had not acted on his complaint of unfair dismissal and compensation — Respondent denied accusation — President found evidence provided by respondent proved there was no substance to applicant's claim and that proper measures had been taken — Dismissed

EMPLOYEE — Alleged non-payment of contractual benefits re annual leave — Question re whether applicant was an employee or independent contrac-

tor — Applicant claimed change to "Family Trust" after the first six months of employment was merely to provide an alternative only to the PAYE tax liability and not the working pattern — Respondent argued that applicant was an independent contractor — Respon- dent claimed this was achieved by the family trust contracting with him to provide the exclusive service of applicant as a private investigator — Commission found there was evidence to show that applicant acted as if he was carrying on business on his own behalf, and as such was not considered an employee — Commission found having come to this conclusion, question re — annual leave was beyond its jurisdiction — However Commission found payment of pro rata annual leave for first six months had been received — Dismissed — Services (Private Investigations)

Alleged non-payment of contractual benefits re commission on real estate listings and sales — Applicant claimed payment of 50 per cent commission and contested base amount for calculation of commission — Respondent contended 30 per cent commission due where sale only made and 50 per cent where sale and listing made by one person — Respondent contended that by agreement with applicant, interest due on late settlement by purchaser be deducted from commission to complete sale — Commission found contract of employment to exist between parties, applicants entitlement to commission to be 30 per cent and found evidence of witness re agreement to be in favour of respondent — Dismissed — Real Estate

Applicant claimed payment for balance of holidays purportedly due on termination — Respondent argued that applicant not an employee and therefore beyond jurisdiction of Commission or if found to be employee contract of employment contained no entitlement to annual leave — Commission found two contracts to exist, firstly that of independent contractor and secondly, contract of employment — Commission found that employment contract contained no provisions for annual leave payment, however, there was an entitlement to further two weeks' pay in lieu of notice commensurate with monthly contract of service — Granted in part — Transport



Dismissal of employee due to dissatisfaction with his business methods — Applicant sought compensation for unfair dismissal and payment of entitlements arising from contract of employment — Respondent rejected all claims and denied applicant was an employee — Commission stated need to determine jurisdiction by ascertaining employment status of applicant and found relationship of employer/employee (ALR 385 p. 387 per Bray J.) — Commission on evidence found dismissal had been without notice and with somewhat less than industrial fair play — Furthermore claim of discretionary allowances, spouse allowance and travel allowances sought were not contractual benefits — Commission granted compensation for unfairness of dismissal taking into account rate of remuneration and lack of adequate notice — Granted in part — Engineering

Employee on probation summarily dismissed due to unsatisfactory work performance — Applicant claimed dismissal unfair — Respondent argued applicant an independent contractor therefore Commission lacked jurisdiction — However if found otherwise termination justified — Commission found relationship that of employee/employer largely on the principle of "power of control" (16 SASR 237) — Commission on evidence found applicant's performance so much below standard expected that it amounted to misconduct — Dismissed — Advertising

Employee summarily dismissed for alleged failure to carry out instruction — Applicant claimed unfair dismissal seeking compensation and benefits under contract of service — Respondent argued applicant an independent contractor therefore Commission lacked jurisdiction, however it found otherwise dismissal justified and applicants conditions governed by an Award — Commission found relationship that of employer/employee largely on the principle of "power of control" (16 SASR 237), therefore all payments claimed except for compensation must be dismissed by Commission as constituted — Commission found dismissal affected in circumstances which did not amount to a "far go" and granted compensation — Granted in Part — Advertising




EMPLOYEE —comimwc/ Alleged non-payment of contractual benefits re shared profits — Applicant claimed agreement with respondent determined net profit

from construction division to be shared on percentage basis — Further argued status of "employee" under terms of renegotiated arrangement with respondent — Respondent contended termination of agreement by mutual arrangement and that as relationship was principal and subcontractor matter could not be pursued before Commission — Respondent cited taxation deductions as evidence of applicant's status — Commission found existence of common law relationship of employer/employee and taxation deduction rate did not determine matter — Commission persuaded by evidence of applicant re provision for profit sharing arrangement — Commission requested parties to submit audited statements of accounts to identify total net profit to be shared on percentage basis — Order issued on receipt of information — Granted — Building (Construction) 931

Alleged non-payment of contractual benefits — Applicant submitted she was still legally employed and claimed compensation for wages for period after two-week standdown when respondent failed to notify her to return to work plus two days' pay outstanding — Respondent not represented at hearing — Commission found respondent accepted term of contract of employment liability to pay pro rata annual leave entitlements to terminating employees by agreements made before Commission (C327 of 1985) — Commission found termination of contract occurred when applicant did not report for work — Order issued for entitlement in equity to one week's pay in lieu of notice plus two days' pay outstanding and annual leave — Granted in part — Printing 933

ENFORCEMENT OF AWARDS/ORDERS — Enforcement of order sought — Acting Registrar claimed that employees failed to comply with an order by refusing to work upon

employer's plant when so required by employer — Defendant argued there was no case to answer — Magistrate dismissed defendant's argument except in so far as it applied to particular employees who were not normally required to operate machinery in question — Magistrate on his own motion raised further questions re jurisdiction — In answer complainant claimed that by virtue of a certificate given by the Chief Commissioner pursuant to another section of the Act, the Chief Commissioner had been consulted before direction in question was made — Magistrate disagreed and allowed complainant to re-open case if he so desired — Defendant argued that as relevant jurisdictional foundation of complaints had been removed — Magistrate found argument for defendant must fail — Granted in part — Printing (Newspaper) 72

HOURS OF WORK — Introduction of 38-hour week for wholesale and retail industry — Parties agreed to claim in principle, provided suitable offsets were

secured to compensate for increased costs arising from the reduction — Commission noted, due to diversity in the industry, there were insufficient generally applying work practices capable of providing savings and nearly all offsets sought were to be achieved through award variation — Commission noted union claim well founded to extent that 38-hour week applied to most groups in Australia and the counterpart NSW award re basis for fixing rates of pay in the award of this Commission had a 38-hour week provision for some time — Commission was required to decide whether or not cost offsets agreed to were sufficient to allow an amendment to award — Commission considered all submissions of the parties, nature of the industries, criteria established by principles and experience of this and other tribunals, and found no further offsets necessary — Granted — Retail/Wholesale

True interpretation of word "Regression" in Definitions clause of award — Union argued that instances of regression are not limited to items specifically referred to in award, instead it can range as far as the definition in the Oxford Dictionary allows and as such claimed that change of roster and change of duties are seen as a regression — Respondent denied claim and argued that redundant lino-type operators have maintained their wage rates — Whilst agreeing with Applicant's definition Commission found key to this dispute in decision of (CR354 of 1982 Vol 62 WAIG p. 2628) where the four options in the roster outlined were equal and no regression is involved — Furthermore Commission found altered roster was entirely within Clause 14.—Hours of Work of award and as such there was no reason for Commission to interfere — Dismissed — Printing

'Implementation of 38-hour week — CICS was satisfied that agreement reached between parties fell within the wage principles — CICS found that equitable date for the operation of the amendments to be 4 October 1985 as negotiations for both awards were not completed before that date — granted — Children's Services

Question re date from which 38-hour week provisions should operate — Applicant claimed retrospectivity on grounds that the date should be the same in the instant award as they are to awards covering other hospital workers whom they work "alongside" — Further, employees were already paying increased rates for meals and parking because trade offs were agreed/encouraged to be applied — Respondent disputed claim and argued no special circumstance to justify retrospectivity provision of section 39IR Act — Commission found circumstances could not be described as special and further, Commission noted marked differences between instant case and previous Commission decisions re with major hospital organisations — Commission satisfied application within Principle 5 of Wage Fixation Guidelines and in light of administrative difficulties, accepted respondent's suggested operative date as both logical and reasonable — Ordered accordingly — Hospital

Introduction of 38-hour week sought for clerks in the retail and wholesale industry — Applicant claimed penalty rates for casuals working on Saturday 12 noon — 1.00 p.m. should continue to be calculated on the loaded rate — Furthermore sought a nominal introduction date for shorter hours, with monetary payment for retrospectivity, and another prospective date from which hours are reduced according to rosters — Respondent argued penalty rate should be calculated on ordinary rate of wage with no casual "loading" — Further- more operative date should not be in a period of less than a month from issuance of order — Commission found the removal of casual loading only for hour in question "irrational" and that to make this change in instant proceedings, given the issue was offsets, would be inappropriate — Commission agreed with the respondent re operative date and ordered accordingly — Commission in the interest of everybody, allowed no exemption provision — Granted — Retail and Wholesale (Clerks)

INDUSTRIAL ACTION — Managerial decision to invoke the "no work/no pay rule" to two employees connected with work on conveyor rollers in preference to

providing them with alternate work — Union claimed action inappropriate/unjust and sought order re payment to these persons for time lost — Commission noted that principle of "no work/no pay" was based "on fundamental point of law re employees to obey all lawful/reasonable commands — And, although in good Industrial Relations employees could expect some say in decisions which affected their security and trade interest, it could not be to the extent that they were ble to be countermand Company's orders — Com- mission stated rights of both parties had to be balanced if fairness to prevail — As such Commission raised conciliatory steps which would settle existing longstanding dispute — Dismissed — Mining (Iron Ore) 100

Enforcement of order sought — Acting Registrar claimed that employees failed to comply with an order by refusing to work upon employer's plant when so required by employer — Defendant argued there was no case to answer — Magistrate dismissed defendant's argument except in so far as it applied to particular employees who were not normally required to operate machinery in question — Magistrate on his own motion raised further questions re jurisdiction — In answer complainant claimed that by virtue of a certificate given by the Chief Commissioner pursuant to another section of the Act, the Chief Commissioner had been consulted before direction in question was made — Magistrate disagreed and allowed complainant to re-open case if he so desired — Defendant argued that as relevant jurisdictional foundation of complaints had been removed — Magistrate found argument for defendant must fail — Granted in part — Printing (Newspaper) 72



INDUSTRIAL ACTION - continued Payment for time lost during "lock out" of plant operators sought — Union claimed non-requirement to operate loader and rubber

tyred doze due to failure by company to initiate certain modifications — Further, consistent with custom, as loader was stood down by operator, dozer should logically be stood down also and no other person could operate such equipment — Respondent argued no custom existed and evidence insufficient to establish that it did — Further, argued unwillingness of union to seek a solution through alternative course re procedural prescriptions in Industrial Relations Agreement — Commission found evidence had not supported claim re customary standdown of plant and noted similar decision at 64 WAIG 1075 -- Further, standdown of loader did not allow for general application to other equipment — Commission noted established criteria for custom and accepted Respondent's evidence re alternative courses available to union to seek redress — Dismissed — Mining

industrial Action — Payment for stop-work meetings coinciding with WWF meeting sought — Employees of Fremantle Port Authority, State Shipping Service and Dept of Marine and Harbours, regulated by FPA/WWF relativity requested payment for two paid stop- work meetings up to four hours duration at same time and date as WWF stop-work meetings — Union agreed and assured no flow from decision to subsequent claims — Commission stated maintenance of good industrial relations essential — Ordered accordingly — Maritime

Payment sought for time lost during strike action over safety issue — Union claimed company wrongly applied no work no pay rule and had issued totally unreasonable commands to drive unsafe vehicle — Respondent argued reason for strike action not safety but abusive language between union convenor and foreman and that unions claim had no substance — Commission noted respondents evidence of practice whereby operators are permitted to stand down plant considered dangerous without loss of pay — Commission state obligation of union to follow agreed procedure specified in award — Further, payment for lost time would require that the company expect each employee to perform work that raised reasonable apprehension of personal danger — Commission found evidence did not allow that conclusion and state that to grant claim would meet demand for strike pay while approving breach of award — Dismissed — Mining

INTERPRETATION — WORDS AND PHRASES — Interpretation of part-time and casual workers clauses — Applicant sought declaration re employees to be classified part-time rather than

casual — Applicant noted existing employees required to work within a roster, week to week with hours set out in advance — Applicant referred to dictionary definition re casual employment was intermittent and non permanent — Further, applicant argued respondent referred to part-time employees as "casual" to avoid limitations imposed by ratio provisions of award — Respondent argued, although there may be intermittency in casual employment, that did not mean it could not be continuous or regular — Further, in existing circumstance, continuationof employment was at the whim of the employer/employee and was in accordance with award definition of casual worker — Respondent suggested declaration sought did not provide means for deciding dispute as it relied upon criteria re regularity of employment — Commission concluded, on examination of award, part-time employee be deemed to be engaged for less than 30 hours per week and requiring less than one week's notice of termination — And, casual worker deemed to be engaged by the hour for less than 30 hours per week and may be dismissed or leave the employer's service without notice — Declaration issued accordingly — Retail

True interpretation of word "Regression" in Definitions clause of award — Union argued that instances of regression are not limited to items specifically referred to in award, instead it can range as far as the definition in the Oxford Dictionary allows and as such claimed that change of roster and change of duties are seen as a regression — Respondent denied claim and argued that redundant lino-type operators have maintained their wage rates — Whilst agreeing with Applicant's definition Commission found key to this dispute in decision of (CR354 of 1982 Vol 62 WAIG p. 2628) where the four options in the roster outlined were equal and no regression is involved — Furthermore Commission found altered roster was entirely within Clause 14.—Hours of Work of award and as such there was no reason for Commission to interfere — Dismissed — Printing

Allowance sought for performance of bagging work at building site — Applicant claimed bagging work being performed by bricklayers at site — Respondent argued employer required only flush joints — Commission found bagging, by definition not being performed after observation of work site — Dismissed — Construction (Building)

Architect Level 3 — Jurisdiction of Board is proscribed by definition of "office" in section SOX of Act which precludes any position where maximum salary payable exceeds the maximum salary payable to the highest office in the General Division under Public Service Act 1978 — Appellant claimed that salary on appointment or minimum should be one considered —- Board found that in interpretation the normal and natural meaning is to be applied — As maximum salary for Architect Level 3 exceeds that of G-if-13 appeal is dismissed through lack of jurisdiction — Building

Appellant alleged error by Director General in ruling promotion application ineligible by gender interpretation of position title and classification "deputy principal (female)" — Appellant alleged superior efficiency to recommended applicant — Respondent submitted words in title have specific unambiguous meaning re gender —-Tribunal found position classification in accordance with purpose of staffing regulations re gender to which effect appellant ineligible — Tribunal decided not to pursue alleged changes in duties arising from reclassification of position — Tribunal dismissed second ground of appeal as first rendered appeal incompetent — Appellant applied for reimbursement for travelling expenses to hearing — Tribunal disallowed claim due to lack of substance of appeal — Dismiss- ed — Education

Question re — whether Qualification Allowance should be an "all purpose" or "flat" allowance — Union argued that acceptance and preference for State enrolled nurses, the value of which respondent has acknowledged should be reflected in the treatment of the allowance as an "all purpose" allowance — Respondent argued that it was a "flat" allowance paid for qualifications held, not necessarily for the work done — Respondent argued applicants claim would result in two wage rates for the same classification — Com- mission found words used in the definition crucial as employees with enrolled nurses qualifications are required to administer nursing treatment and to say otherwise would make nonesense of the permanent payment — Commission found permanent addition to weekly pay as conclusion that allowance should form part of the ordinary wage for all purposes of the award — Granted — Electricity and Gas (Nursing)

Question re do circumstances referred in the Overtime Clause (call out periods) refer to a requirement to perform work in the generality or to a requirement to perform specific work — Applicant (employer) noted previous Commission and CICS decisions (at 57 WAIG 100 and 57 WAIG 365) in which terms such as "unforeseen" and "reasonably foreseeable" were determined as relating to fact situations and situations of probability — Respondent (Unions) based arguments against additional work on circumstances which could/and could not have reasonably been foreseen and on difficulty in imagining an individual being required to perform additional work which other tradesmen are capable of doing — Commission analysis was in part consistent with that of respondent but noted further that any event would be determined according to probabilities and so long as an (urgent) unforeseen event occurred, an employee may be required to perform extra work under the original recall — Commission declared circumstance mentioned in overtime clause referred to a requirement to perform specific work —- Iron Ore

Interpretation of meal time clauses sought — Applicant claimed commencement of shift at commencement of ordinary hours irrespective of pre-start overtime and designated meal interval 5 Vi hours thereafter — Further claimed other provision entitled work to half hour meal break before designated meal time — Respondent claimed commencement of overtime constituted commencement of shift for pre-start overtime worked thus meal interval 5 Vi hours thereafter — Commission stated basic rule of award interpretation as where plain words used is meaning attributed to clause but if ambiguous then examination of provisions of whole award and conduct of parties necessary to arrive at true meaning — Commission found applicants interpretation of provisions in accord with plain words used and permitted both provisions to operate — Commission stated clause in dispute to be interpreted in accordance with applicants claim — Granted — Mining (Iron Ore)


• CUMULATIVE DIGEST—continued Page

INTERPRETATION WORDS AND PHRASES —continued Interpretation of award provisions re allowances and rates of pay sought — Applicant claimed allowance for telephonist should continue

after transfer to secretarial duties — Respondent argued allowance only applicable while officer engaged as telephonist — Further nexus with conditions of employment existing in PS should apply in only being payable to telephonists — Board stated evidence indicated equivalent allowance in PS limited to officers classified as telephonists and who pass relevant examination — Board stated award should be interpreted as making provision for allowance only to telephonists who pass approved examination — Board concluded once officer ceases to be engaged as telephonist she/he ceases entitlement to allowance — Dismissed — Railways 903

JURISDICTION — Alleged non payment of contractual benefits re annual leave — Question re whether applicant was an employee or independent contractor

— Applicant claimed change to "Family Trust" after the first six months of employment was merely to provide an alternative only to the PAYE tax liability and not the working pattern — Respondent argued that applicant was an independent contractor — Respondent claimed this was achieved by the family trust contracting with him to provide the exclusive service of applicant as a private investigator — Commission found there was evidence to show that applicant acted as if he was carrying on business on his own behalf, and as such was not considered an employee — Commission found having come to this conclusion, question re — annual leave was beyond its jurisdiction — However Commission found payment of pro rata annual leave for first six months had been received — Dismissed — Services (Private Investigations)

Architect Level 3 — Jurisdiction of Board is proscribed by definition of "office" in section SOX of Act which precludes any position where maximum salary payable exceeds the maximum salary payable to the highest office in the General Division under Public Service Act 1978 — Appellant claimed that salary on appointment or minimum should be one considered — Board found that in interpretation the normal and natural meaning is to be applied — As maximum salary for Architect Level 3 exceeds that of G-II-13 appeal is dismissed through lack of jurisdiction — Building

"Applicant sought order to stay operation of previous order of Commission for applicant to produce certain documents to Commission within seven days — Application made on grounds that order is beyond power of Commissioner and puts officer or member of committee in contravention of Casino Control Act 1984 section 13 — Respondent union initially opposed order on grounds that invalidity of decision must be established by Full Bench and no "special circumstances" applied — Respondent then indicated no opposition to stay of order on basis that other proceedings taken have met position sought — Commission stated determining principles derived from authoritative tests adopted in other jurisdictions — see 65 WAIG 2052 and 66 WAIG 14 — Commission noted seriousness of issue to be tried by future appeal and uniqueness of situation — Recreation (Casino)



Employee on probation summarily dismissed due to unsatisfactory work performance — Applicant claimed dismissal unfair — Respondent argued applicant an independent contractor therefore Commission lacked jurisdiction — However if found otherwise termination justified — Commission found relationship that of employee/employer largely on the principle of "power of control" (16 SASR 237) — Commission on evidence found applicant's performance so much below standard expected that it amounted to misconduct — Dismissed — Advertising

Employee summarily dismissed for alleged failure to carry out instruction — Applicant claimed unfair dismissal seeking compensation and benefits under contract of service — Respondent argued applicant an independent contractor therefore Commission lacked jurisdiction, however it found otherwise dismissal justified and applicants conditions governed by an Award — Commission found relationship that of employer/employee largely on the principle of "power of control" (16 SASR 237), therefore all payments claimed except for compensation must be dismissed by Commission as constituted — Commission found dismissal affected in circumstances which did not amount to a "fair go" and granted compensation — Granted in Part — Advertising


Employee dismissed for charge of stealing — Applicant claimed unfair dismissal and sought reinstatement and compensation for loss of earnings — At previous hearing respondent raised question of jurisdiction and submitted no dismissal occurred as applicant submitted resignation prior to being charged and Commission reserved decision sine die — Commission found occurrence of effective termination under doctrine of constructive dismissal — Respondent raised second jurisdictional objection submitting that Commission bound by section 23 (3) (d) IR Act to desist from hearing matter due to provision 33E of Police Act 1892-1982 Part IIA, section 33A-33J re function of Police Appeal Board — Commission stated employment of applicant governed by section 38A of Police Act — Applicant submitted that matters of section 33E of Police Act should be seen as separate and distinct from section 23 (3) (d) IR Act re contractual rights of employers and employees and section 38A (3) removed Aboriginal aides from general conditions of service of Police Force — Further to amend claim to compensation only — Commission viewed strength of argument lay with respondent and no jurisdiction to proceed — Dismissed for want of jurisdiction — Police

Alleged non-payment of contractual benefits re shared profits — Applicant claimed agreement with respondent determined net profit from construction division to be shared on percentage basis — Further argued status of "employee" under terms of renegotiated arrangement with respondent — Respondent contended termination of agreement by mutual arrangement and that as relationship was principal and subcontractor matter could not be pursued before Commission — Respondent cited taxation deductions as evidence of applicant's status — Commission found existence of common law relationship of employer/employee and taxation deduction rate did not determine matter — Commission persuaded by evidence of applicant re provision for profit sharing arrangement — Commission requested parties to submit audited statements of accounts to identify total net profit to be shared on percentage basis — Order issued on receipt of information — Granted — Building (Construction)

Photo Technician — PSB took action to rescind recommendation as positions were incorrectly advertised re educational requirements — PSB submitted that appeal had lapsed by reason of rescindment — Appellant suggested PSB conduct amounted to "manipulation" of the PAB's function which rendered injustice consistent with section 26 (1) IR Act — Board stated no longer valid recommendation for promotion extant as PSB has power to withdraw recommendation under section 14 PS Act 1979 and section 34 Interpretation Act 1918 re impossibility to determine subsection (1) of section 80Z (a) and subsection (4) and procedure depends upon existence of continuing and valid recommendation — Act merely gives right of appeal, not to insist on appointment of vacant office (8 IR 375 NSW 1979) — Board declared appeal lapsed — Dismissed for want of jurisdiction — Surveying

Co-ordinator — Recommending authority objected on jurisdictional grounds as appellant without right of appeal in statutory sense — Board upheld jurisdiction on ground that applicant satisfied requirements of the Act that; in order to appeal an unsuccessful applicant must have been "an applicant for promotion" and an "eligible employee" — Board found no merit in appeal re "proven record of achievement and extensive experience in industrial or commercial training" — Dismissed — Employment and Training


CUMULATIVE DIGEST—continued Page

LONG SERVICE LEAVE — Pro rata long service leave sought — Applicant claimed employer was liable to payment of pro rata long service leave, as a result of his

termination — Respondent claimed agent representing applicant had informed themofappMcant's intention to forego any long service leave entitlement when they took over the company — Board found respondents had not produced any substantive evidence to support claim — Granted — Wholesale (Motor Vehicle)

^Appeal against Special Board of Reference decision (65 WAIG 2124) on payment of special allowance for long service leave — CICS found appellants complaint on determination of VDT allowance not being a special allowance unfounded as Board only rejected applicants claim that VDT allowance was a special rate — CICS found Boards conclusion based on work value correct and reiterated that special rates are provided for special and not usual circumstances — In this instance employee would have failed to perform duties if she did not use the equipment — CICS found issue of "compounding" irrelevant as it only lent support to claim that VDT allowance was a "special rate" — Dismissed — Printing

Question re whether applicant's service was continuous for purposes of long service leave entitlement — Applicant claimed there had been no break in the continuity of her service — Respondent argued, on written record, a break in applicant's service due to her resignation and subsequent re-employment — Further, the onus of proof to the contrary must lie with the applicant — Board accepted "uncon- troverted evidence" re applicant had not resigned — Further, noted the onus was on the employer to keep proper records which in the instant case had not been kept — On balance, Board was not persuaded that respondent's record was preferred to the uncontradicted sworn evidence of the applicant — Board found service to be deemed continuous — Retail 744

76

146

MANAGERIAL PREROGATIVE — Managerial decision to invoke the "no work/no pay rule" to two employees connected with work on conveyor rollers in preference to

providing them with alternate work — Union claimed action inappropriate/unjust and sought order re payment to these persons for time lost — Commission noted that principle of "no work/no pay" was based on fundamental point of law re employees to obey all lawful/reasonable commands — And, although in good Industrial Relations employees could expect some say in decisions which affected their security and trade interest, it could not be to the extent that they were ble to be countermand Company's orders Com- mission stated rights of both parties had to be balanced if fairness to prevail — As such Commission raised conciliatory steps which would settle existing longstanding dispute — Dismissed — Mining (Iron Ore) 100

Administrative Nurse — Both parties have excellent record and could fill position — Act requires appellant to establish "better claim" — Not role of Board to usurp managerial prerogative — Board found appellant had not established "better claim" — Dismissed — Health (Nursing) 448

Employee's weekly payments diminished — Applicant claimed contractual benefits not being entitlements arising out of an award following reduced payments and workload as a result of incapacity caused by a compensatable accident — Respondent claimed no work was available although employee not terminated. Respondent entitlement to reduce payments had been properly exercised and compensation paid — Commission found on evidence, no entitlement to the applicant had been refused by the respondent which could give rise to an order pursuant to section 29(b)(ii) of the Act — Commission instead directed respondent, pursuant to section 32 of the Act, to provide a rehabilitation programme for the applicant while his contract of service existed — Dismissed — Education 423

Transfer of Guidance Officer — Claimant sought deferment — Claimed respondent had not exercised discretion as in other cases and its actions were inequitable — Tribunal observed that due to the "specific, explicit and fundamental contract of employment" existing between Education Department and permanent teachers there would need to be "extraordinary and entirely unforeseen circumstances" before it would intervene in matters of transfer — Tribunal found that claimant's circumstances had been taken into account and he was not less fairly treated than others — Dismissed — Education (Teaching) 637

MANNING — Relief sought to enable employees to take smoko breaks in crib room — Union claimed relief coverage and transport to crib room should

be provided for dumper operators and positioner operators during smoko breaks — Respondent rejected unions claim and stated that all obligations imposed by the relevant provisions in award were met and there was no basis for claim — Respondent asserted claim was a manning dispute and brought to notice offer made to union regarding relief arrangement at previous proceedings — Commission found being a new award burden of proof was on union to justify claim and this was not done — However Commission stated with regard to section 32 (7) of IR Act 1979, it was obliged due to the knowledge of company's previous offer to ask parties to prepare a draft order that is agreeable to both — Ordered Accordingly — Mining (Iron Ore) 280

MEAL BREAK — Interpretation of meal time clauses sought — Applicant claimed commencement of shift at commencement of ordinary hours irrespective

of pre-start overtime and designated meal interval 5 Vi hours thereafter — Further claimed other provision entitled work to half hour meal break before designated meal time — Respondent claimed commencement of overtime constituted commencement of shift for pre-start overtime worked thus meal interval 5Vi hours thereafter — Commission stated basic rule of award interpretation as where plain words used is meaning attributed to clause but if ambiguous then examination of provisions of whole award and conduct of parties necessary to arrive at true meaning — Commission found applicants interpretation of provisions in accord with plain words used and permitted both provisions to operate — Commission stated clause in dispute to be interpreted in accordance with applicants claim — Granted — Mining (Iron Ore) 900

MEAL MONEY — Wage increse sought for veterinary nurses based on changes in the value of work re greater training and theoretical knowledge —

Respondent argued no significant change in the value of work and noted absence of any work value assessment in industry's history to support contention that the existing rate of pay was an appropriate base measure of the effect of changes that had taken place — Fur- ther, as wage principles restricted Commission carrying out an initial assessment to set the base measure, there was no basis upon which to calculate a change — Based on considerable research re comparison of work done in the past and present, Commission found there was a nett addition to the value of work — Other amendments re 38 hour week etc granted as they did not involve additions to cost and were already in general included in other awards — Claim for Bereavement Leave remitted to CICS due to possible additions to labour costs — Granted in part — Animal Welfare 36

66 W.A.LG. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE. 991


MISCONDUCT — 2Appeal against Commission's decision (at 65 WAIG 2159) reinstating employee after having found him guilty of serious misconduct — Appellant claimed Commission erred in requiring reinstatement in such circumstances — Full Bench stated questions to be determined were whether employee had received 'a fair deal' and whether there had been "a fair go all round" (65 WAIG 385) — Full Bench found the material failed to demonstrate that the appellant acted other than fairly towards employee and therefore Commission had erred re reinstatement — Upheld — Mining (Iron Ore)

Employee summarily dismissed for absenteeism — Applicant claimed unfair dismissal and sought compensation — Respondent argued that from information given by Industrial Inspectorate, it could terminate employee's contract of service for misconduct on basis of absenteeism — Commission stated that key to this issue \yas question whether "employer in exercising his legal right to dismiss for misconduct did it in a harsh or oppressive manner" — Commission stated employer had grounds to terminate however found on evidence that it was unfair to terminate summarily, in that absenteeism cannot be based on a single day basis and must actually strike at the root of the contract of service — Granted (Pumps and power transmission)

Employee summarily dismissed for misconduct and sought compensation — Applicant claimed she was induced to take leave without pay to "consider her position and change her attitude" however at not ime was it suggested her work was unsatisfactory — Question raised in other Tribunal and provided test in present case re whether legal right of employer to terminate contract of service had been exercised in a harsh or oppressive manner to amount to an abuse of that right — Commission noted, in summary dismissal, onus of proof lies upon respondent — Commission found although termination was legal, it was not convinced the issue in this instance warranted summary termination — Compensation granted — Services (Beauty Therapy)


Employee summarily dismissed for alleged misconduct — Applicant claimed unfair dismissal and sought "fair" compensation — Appli- cant denied charge of misconduct also indicating an awareness of the usual consequences of misconduct — Respondent claimed applicant had failed to comply with company policy and had been over-issuing bonus stock — Commission stated in such cases employer has a right to terminate a contract of service providing it is not exercised harshly or unjustly — Commission found, on evidence, applicant had contravened employer's policy and termination and compensation had been fair — Dismissed — Wholesale/Retail Sales (Pharmaceuticals)

2Appeal by union against Commissioners decision to uphold employee's dismissal for misconduct — Appellant alleged error concerning admissibility for evidence, that it was probable misconduct would be repeated and that assault was involved — Appellant questioned Commission's finding of destruction of employer/employee relationship by misconduct and claimed Commission failed to take into account consideration of employee's previous good record — Respondent claimed Commission's task required that applicant union show employer's decision to dismiss employee unfair — Commission found dismissal justified by written evidence of employee's misconduct and upheld Commissioner's findings — Union as applicant failed to show employer had acted unfairly — Commission ordered dismissal of appeal — Mining (Iron Ore)


Employees summarily dismissed for alleged misconduct — Applicants denied misconduct charge and claimed reinstatement without loss of benefits — Two applications were made — Commission dealt with both cases individually but at the same hearing due to intermingl- ed circumstances — Commission noted dismissals were made on basis of assumptions — Commission found, on evidence, dismissals unfair since no wilful misconduct had occurred on the part of the applicants and the misconduct did not cause the respondent any loss of business — Commission ordered reinstatement of both applicants without loss of benefits and compensation for loss of wages for first applicant — Granted — Sales and Service (Motor Vehicle)


Employee summarily dismissed for alleged misconduct — Applicant sought payment in lieu of notice, pro rata annual leave and travel expenses — Applicant claimed termination due to request for fairer payment for use of vehicle in shifting equipment — Respondent claimed termination due to slowness and damage prior to summary dismissal for refusing to obey instructions — Commission found claim for pro rata annual leave allowable under Award but dismissed claim for travel allowance re well established principle that Com- mission not able to imply term of contract as parties came to agreement — Commission found employer had no right to deduct pay in retrospect re sick pay and no reason for summarily dismissal — Further that contract of employment required one week's notice of termination — Commission ordered payment of wages in lieu of remaining notice — Granted in part — Printing

Employee on probation summarily dismissed due to unsatisfactory work performance — Applicant claimed dismissal unfair — Respon- dent argued applicant an independent contractor therefore Commission lacked jurisdiction — However if found otherwise termination justified — Commission found relationship that of employee/employer largely on the principle of "power of control" (16 SASR 237) — Commission on evidence found applicant's performance so much below standard expected that it amounted to misconduct — Dismissed — Advertising

Employee summarily dismissed for alleged failure to carry out instruction — Applicant claimed unfair dismissal seeking compensation and benefits under contract of service — Respondent argued applicant an independent contractor therefore Commission lacked jurisdiction, however it found otherwise dismissal justified and applicants conditions governed by an Award — Commission found relationship that of employer/employee largely on the principle of "power of control" (16 SASR 237), therefore all payments claimed except for compensation must be dismissed by Commission as constituted — Commission found dismissal affected in circumstances which did not amount to a "fair go" and granted compensation — Granted in Part — Advertising

2Appeal against Commission's decision of unfair dismissal and order for reinstatement of employees summarily dismissed for misconduct (at 66 WAIG 424) — Appellant alleged Commission's finding was against the weight of evidence in error — Further that Commission erred in ordering reinstatement and should have ordered payment of one week's wages in lieu of notice — Commission stated where discretion the appellate tribunal "must be well satisfied that primary judges decision was no proper exercise of judicial discretion" and nothing led to belief of miscarried discretion — Commission stated section 29 should not be used principally as a means of recovering financial reward in preference to recovering lost employment — Commission stated neither employee displayed any desire to under- mine appellant's business and did not think it inappropriate that they be re-employed as Commission ordered — Dismissed — Transport



NEXUS — 'Dispute re increase in wages due to conflict of provisions in award — Applicant claimed National Wage Decision (at PG 0700) increasing

salaries of the clerical and administrative staff in the APS should not flow to the award in question — Applicant argued that the General Order (at 64 WAIG 407) inserted into all awards of the Commission prevented the automatic application of a provision in the award re that rates in it shall move simultaneously and in same measure as rates for clerks in the APS — CICS noted however that neither party suggested the basis on which the rates under the award had been erected was wrong or required any change — CICS satisfied the nexus existed and an equitable base had been established under the Wage Fixation Principles — CICS found the provision should operate according to its tenor, however in its view, the provision should now be deleted and the award included in schedules to orders issued pursuant to section 51 of the Act — Ordered Accordingly — Agriculutre 47

Variation to wage clause sought to amend award for Unit Attendants due to increased duties and responsibilities — Applicant sought to created nexus with Assistant Unit Controller and to maintain existing relativity for other classifications — Respondent offered to insert new subclause in Clause 28 re multi plant allowance and conceded as appropriate nexus for future wage rates UAI/AUC — Union accepted nexus as appropriate but disagreed with proposed alignment — Commission found increased duties and responsibilities genuine after inspections and parties' agreement on wage nexus realistically assessed on work value nature as adjustment to base rate rather than all-purpose allowance — Commission determined level of nexus between UAI first year rate and AUC commencement rate — Commission directed parties to confer to reach agreement on rates for remaining classifications — Commission stated inter classification relativities should be maintained — Interim order to vary wages Clause 29 — Granted — Energy 538

Interpretation of award provisions re allowances and rates of pay sought — Applicant claimed allowance for telephonist should continue after transfer to secretarial duties — Respondent argued allowance only applicable while officer engaged as telephonist — Further nexus with conditions of employment existing in PS should apply in only being payable to telephonists — Board stated evidence indicated equivalent allowance in PS limited to officers classified as telephonists and who pass relevant examination — Board stated award should be interpreted as making provision for allowance only to telephonists who pass approved examination — Board concluded once officer ceases to be engaged as telephonist she/he ceases entitlement to allowance — Dismissed — Railways 903

'New award sought to cover registered nurses employed in Government subsidised nurseries, child care or day care services (excluding Ngal-a) — Applicant sought to establish a nexus between Mothercraft Nurses and Child Care Workers on the ground of identical duties etc — Furthermore to equate wages of registered nurses with registered nurses covered by the Nurses (Day Care Centres) Agree- ment — Respondent endorsed issuing of award in terms of the union claim — CIC noted and referenced the problems of relativities re qualified persons in this industry — CICS granted claim as the fairest, pending a review of the industry — However noted it was not an endorsement of the implied results that all the rates of trained personnel employed in the Child Care Industry should be tied to Pre School Teachers' rates — Nor that rates of nurses in this area should be tied to nurses working directly within their profession; or that Child Care Worker rates are a better work value assessment than current Mothercraft Nurses rates — Granted — Childrens Services.... 863

OPERATIVE DATE — Introduction of 38-hour week sought for clerks in the retail and wholesale industry — Applicant claimed penalty rates for casuals working

on Saturday 12 noon — 1.00 p.m. should continue to be calculated on the loaded rate — Furthermore sought a nominal introduction date for shorter hours, with monetary payment for retrospectivity, and another prospective date from which hours are reduced according to rosters — Respondent argued penalty rate should be calculated on ordinary rate of wage with no casual "loading" — Further- more operative date should not be in a period of less than a month from issuance of order — Commission found the removal of casual loading only for hour in question "irrational" and that to make this change in instant proceedings, given the issue was offsets, would be inappropriate — Commission agreed with the respondent re operative date and ordered accordingly — Commission in the interest of everybody, allowed no exemption provision — Granted — Retail and Wholesale (Clerks) 876

'Stay of order (at 66 WAIG 99) sought pending hearing of appeal — Applicant alleged Commission erred in its approch re assessment of severance payment in that it was not consistent with Ingle's Case (at 59 WAIG 400) — President stated that applicant had to satisfy principles that "there is a serious question to be determined" and "the balance of convenience favoured to stay or the order" — Presi- dent found first issue satisfied because he considered payment more generous than demanded by any previous decisions of Commission — However re "convenience", President applied principles used in other Courts of record and noted that generally a Court will not "make a practice of depriving a successful litigant of the fruits of his litigation, and locking up funds to which prima facie he is entitled" — President found employee entitled to the use of payment awarded — Dismissed — Manufacturing (Agricultural Machinery)

'Dispute as to which union should have exclusive industrial coverage of employees engaged in "transport" classifications at Hamersly Iron, Tom Price — TWU claimed situation had changed since CICS decision in 1975 granting coverage to AWU (see 53 WAIG 332), in that the majority of employees now preferred to join it — AWU denied claim arguing that interference would have negative repercussions throughout industry — Company contended claim would infringe on its rights due to constitutional limitations of TWU and attitude of unions to each other — CICS found strength of applicant's case not sufficient to change effect of 1975 decision and issued new Order in favour of AWU — Dismissed — Mining (Iron Ore)

'Stay of operation of Commission order sought pending the outcome of appeal — Applicant claimed Commission erred in not finding that claim brought by respondent for an electrical licence allowance was in breach of indexation principles and the Commission erred by disturbing a long standing nexus and wage rate relativities by using a basis of wage comparison not previously adopted — Respon- dent had no objection to the making of an order in terms sought — President found that there is a serious question to be tried and sets out to justify the maintenance of the status quo — President found there being no objection, that the operation of that part of the decision appealed against be wholly stayed pending the hearing and determination of the appeal — Granted — Printing

'Applicant sought order to stay operation of previous order of Commission for applicant to produce certain documents to Commission within seven days — Application made on grounds that order is beyond power of Commissioner and puts officer or member of com- mittees in contravention of Casino Control Act 1984 section 13 Respondent union initially opposed order on grounds that invalidity of decision must be established by Full Bench and no "special circumstances" applied — Respondent then indicated no opposition to stay of order on basis that other proceedings taken have met position sought — Commission stated determining principles derived from authoritative tests adopted in other jurisdictions — see 65 WAIG 2052 and 66 WAIG 14 —• Commission noted seriousness of issue to be tried by future appeal and uniqueness of situation — Recreation (Casino)

'Order sought against union for not abiding by its rules in that it failed to represent members fairly — Applicant alleged that union had not acted on his complaint of unfair dismissal and compensation — Respondent denied accusation — President found evidence provided by respondent proved there was no substance to applicant's claim and that proper measures had been taken — Dismissed

Applicant sought Order from Commission for removal of time clocks at respondent's companys workshop — Commission observed that employers had a right to expect employees to comply with lawful and reasonable commands and found that no reasons had been ad- vanced by the applicants to contradict the above observation — Commission noted that points raised by the unions were relevant, however found that employer had sufficiently answered them — Commission expressed concern regarding the instant issue and found that employers rights should be preserved for a specified time in which parties to this application are urged to negotiate a final position in a responsible way — Dismissed — Mining

"Stay of operation of Commission decision (at 66 WAIG 782) sought pending outcome of appeal — Applicant sought to stay order for reinstatement of employee who was dismissed from employment, with company in circumstances described as assault — Respondent consented to stay on agreed condition of full pay to employee until appeal decision issued — President found serious question to be tried at appeal and balance of convenience would favour granting of stay — Granted — Mining



OVERTIME — Dispute re overtime — Union claimed employees entitled to infer from the circumstances surrounding the work they are engaged on that

they are required for overtime and having presented at work place for this purpose they are entitled to be paid — Furthermore the above had been custom and practice — Respondent denied claim — Commission stated success of union's claim depended on being able to establish the fact of "custom and practice" (61 WAIG 1795) — On evidence Commission found no claim could be made against the Company and that the claim was inconsistent with the award — Dismissed — Mining (Iron Ore)

Question re do circumstances referred in the Overtime Clause (call out periods) refer to a requirement to perform work in the generality or to a requirement to perform specific work — Applicant (employer) noted previous Commission and CICS decisions (at 57 WAIG 100 and 57 WAIG 365) in which terms such as "unforeseen" and "reasonably foreseeable" were determined as relating to fact situations and situations of probability — Respondent (Unions) based arguments against additional work on circumstances which could/and could not have reasonably been foreseen and on difficulty in imagining an individual being required to perform additional work which other tradesmen are capable of doing — Commission analysis was in part consistent with that of respondent but noted further that any event would be determined according to probabilities and so long as an (urgent) unforeseen event occurred, an employee may be required to perform extra work under the original recall — Commission declared circumstance mentioned in overtime clause referred to a requirement to perform specific work — Iron Ore


Interpretation of meal time clauses sought — Applicant claimed commencement of shift at commencement of ordinary hours irrespective of pre-start overtime and designated meal interval 5 Vi hours thereafter — Further claimed other provision entitled work to half hour meal break before designated meal time — Respondent claimed commencement of overtime constituted commencement of shift for pre-start overtime worked thus meal interval 5 Vi hours thereafter — Commission stated basic rule of award interpretation as where plain words used is meaning attributed to clause but if ambiguous then examination of provisions of whole award and conduct of parties necessary to arrive at true meaning — Commission found applicants interpretation of provisions in accord with plain words used and permitted both provisions to operate — Commission stated clause in dispute to be interpreted in accordance with applicants claim — Granted — Mining (Iron Ore)

PART-TIME — 3Union sought amendment to award to allow a teacher who is employed in a Centre in a part-time capacity by the Minister and part-time by a Community based committee in a similar capacity to have the employment by both employers counted as service for the purpose of the award — Commission found as facts supporting claim concerned the services of only one employee and whose arrangements were "atypical" there was no justification for amendment sought — Furthermore Commission noted the incidental issues raised by the dispute and stated these needed to be dealt with for claim to succeed, however insufficient evidence had been tendered at proceedings — Commission found on evidence good reason at least in equity for principle of claim to apply to employee in question — Dismissed — Children's Services 69

Interpretation of part-time and casual workers clauses — Applicant sought declaration re employees to be classified part-time rather than casual — Applicant noted existing employees required to work within a roster, week to week with hours set out in advance — Applicant referred to dictionary definition re casual employment was intermittent and non permanent — Further, applicant argued respondent referred to part-time employees as "casual" to avoid limitations imposed by ratio provisions of award — Respondent argued, although there may be intermittency in casual employment, that did not mean it could not be continuous or regular — Further, in existing circumstance, continuation of employment was at the whim of the employer/employee and was in accordance with award definition of casual worker — Respondent suggested declaration sought did not provide means for deciding dispute as it relied upon criteria re regularity of employment — Commission concluded, on examination of award, part-time employee be deemed to be engaged for less than 30 hours per week and requiring less than one week's notice of termination — And, casual worker deemed to be engaged by the hour for less than 30 hours per week and may be dismissed or leave the employer's service without notice — Declaration issued accordingly — Retail 245

PROMOTION APPEALS — Senior Education Officer, Teacher Development — Tribunal stated Appellants who were senior to recommend applicant need only prove

equal efficiency to have better claim — AppeUants junior to recommend applicant must prove superior efficiency — Following detailed examination of qualification and experience Tribunal found three applicants senior to recommended applicant proved equal efficiency therefore one of them must get job — Tribunal found one possessed efficiency superior to others — Upheld — Education

Administrative Nurse — Both parties have excellent record and could fill position — Act requires appellant to establish "better claim" — Not role of Board to usurp managerial prerogative — Board found appellant had not established "better claim" — Dismissed — Health (Nursing)

Gardener — Decision to prefer recommended applicant was made on grounds that negative opinions had been expressed about appellant by superiors — As these officers did not give evidence Board refused to take it into account saying it would not consider hearsay but only "opinions given on oath and subjected to scrutiny" — The "facts" were that appellant was more experienced so Board decided he had the better claim to position — Appeal upheld — Health

Architect Level 3 — Jurisdiction of Board is proscribed by definition of "office" in section SOX of Act which precludes any position where maximum salary payable exceeds the maximum salary payable to the highest office in the General Division under Public Service Act 1978 — Appellant claimed that salary on appointment or minimum should be one considered — Board found that in interpretation the normal and natural meaning is to be applied — As maximum salary for Architect Level 3 exceeds that of G-II-13 appeal is dismissed through lack of jurisdiction — Building

Appellant alleged error by Director General in ruling promotion application ineligible by gender interpretation of position title and classification ' 'deputy princial (female)" — Appellant alleged superior efficiency to recommended applicant — Respondent submitted words in title have specific unambiguous meaning re gender — Tribunal found position classification in accordance with purpose of staffing requirements re gender to which effect appeUant ineligible — Tribunal decided not to pursue alleged changes in duties arising from reclassification of position — Tribunal dismissed second ground of appeal as first rendered appeal incompetent — Appellant applied for reimbursement for travelling expenses to hearing — Tribunal disallowed claim due to lack of substance of appeal — Dismiss- ed — Education

Counsellor A — Appellant (1) was better qualified but less senior than recommended applicant so must prove superior efficiency — Appellant (2) was senior so must prove equal efficiency — Tribunal found appellant (1) whilst possessing superior qualification was at disadvantage in areas of status and experience and therefore unable to prove superior efficiency — Appellant (2) was less qualified and had less relevant experience thus failing to prove equal efficiency — Dismissed — Education



PROMOTION APPEALS —continued Photo Technician — PSB took action to rescind recommendation as positions were incorrectly advertised re educational requirements —

PSB submitted that appeal had lapsed by reason of rescindment — Appellant suggested PSB conduct amounted to "manipulation" of the PAB's function which rendered injustice consistent with section 26 (1) IR Act — Board stated no longer valid recommendation for promotion extant as PSB has power to withdraw recommendation under section 14 PS Act 1979 and section 34 Interpretation Act 1918 re impossibility to determine subsection (1) of section 80Z (a) and subsection (4) and procedure depends upon existence of continuing and valid recommendation — Act merely gives right of appeal, not to insist on appointment of vacant office (8 TR 375 NSW 1979) — Board declared appeal lapsed — Dismissed for want of jurisdiction — Surveying 955

Co-ordinator — Recommending authority objected on jurisdictional grounds as appellant without right of appeal in statutory sense — Board upheld jurisdiction on ground that applicant satisfied requirements of the Act that; in order to appeal an unsuccessful applicant must have been "an applicant for promotion" and an "eligible employee" — Board found no merit in appeal re "proven record of achievement and extensive experience in industrial or commercial training" — Dismissed — Employment and Training 953

PUBLIC HOLIDAYS — Declaration sought re security guards on day shift being re-rostered to work on public holidays — Union argued that entitlement of

employees to public holidays can be established from the wording of Holiday Clause and a reading of that provision within the general context of the Award — Respondent in support of argument, cited previous arrangements where re-rostering of ordinary hours was done without reference to the employees concerned and in the belief that it was within the scope of Award — Furthermore the needs of the company and industry were identified together with the contractual arrangements with clients and the implications of these for the workforce and Union — Commission found improper to make a declaration which would amount to a de facto interpretation of award and in view of implications cited by respondent — Commission accepted applicants claim and found that the security guards had a prima facie entitlement to public holidays, however on the facts of the circumstances the employers needs should have been met by workers concerned — Recommended accordingly — Security

PUBLIC INTEREST — Transfer of Guidance Officer — Claimant sought deferment — Claimed respondent had not exercised discretion as in other cases and its

actions were inequitable — Tribunal observed that due to the "specific, explicit and fundamental contract of employment" existing between Education Department and permanent teachers there would need to be "extraordinary and entirely unforeseen circumstances" before it would intervene in matters of transfer — Tribunal found that claimant's circumstances had been taken into account and he was not less fairly treated than others — Dismissed — Education (Teaching) 637

REDUNDANCY/RETRENCHMENT — Employee made redundant after 31 years' service — Union claimed compensation for redundancy based on formula stated in Vickers

Hadwa Case (at 63 WAIG 2270) — Applicant stated employee had been denied real value of second period of long service leave and had suffered loss of job satisfaction through redundancy — Respondent opposed claim claiming unforeseen circumstances had forced action of making employee redundant and utmost had beendone to arrange alternative employment — Commission stated respondent's case, based on local precedents, powerful, however, settled claim by way of adoption of the standard of the Australian Commission in the Termination, Change and Redundancy Case (Prints F6230 and F7262) granting highest amount prescribed — Ordered accordingly — Manufacturing (Car)

Employee terminated due to redundancy — Union sought compensation equal to provision in parent federal award on the basis of an established nexus — Furthermore argued for equal treatment of WA employees of an employer with their counterparts in other States — Respondent argued company had made a reasonable offer which was rejected by union — Commission granted compensation in- light of other relevant cases and respondent's interstate operations — Granted in part — Manufacturing (Agricultural Machinery)

'Stay of order (at 66 WAIG 99) sought pending hearing of appeal — Applicant alleged Commission erred in its approch re assessment of severance payment in that it was not consistent with Ingle's Case (at 59 WAIG 400) — President stated that applicant had to satisfy principles that "there is a serious question to be determined" and "the balance of convenience favoured to stay or the order" — Presi- dent found first issue satisfied because he considered payment more generous than demanded by any previous decisions of Commission — However re "convenience", President applied principles used in other Courts of record and noted that generally a Court will not "make a practice of depriving a successful litigant of the fruits of his litigation, and locking up funds to which prima facie he is entitled" — President found employee entitled to the use of payment awarded — Dismissed — Manufacturing (Agricultural Machinery)

Additional redundancy payment sought by union — Union claimed redundancy payment should be calculated with regard to decision of the Australian Commission related to "Termination, Change and Redundancy" (P F6230, P F7262 and P F7390) — Union argued that tribunals in other States have endorsed the Federal decision and the pattern of redundancy payments in this State would suggest substantial additional payment — Respondent argued that payment sought was not warranted as employees received construction rates of pay, which relieved them of obligation to special payments when employees were terminated as rates contained component which recognises the intinerant nature of work — Respondent further referred to superannuation scheme which provided substantive payment on termination and denied any agreement between itself and unions in other States which might support above claim — Commis- sion satisfied with respondent's argument and found no need for further compensating employees — Dismissed — Manufacturing (Fabrication)

Supplementary reasons for decision — Commission noted decision of other Tribunal re variation to severance pay possible when employer obtained acceptable alternative employment for an employee — However, Commission considered finding of alternative employment by employer in this instance, did not negate need to pay the maximum prescribed amount to an employee — On evidence, Commission found applicant was an "excellent employee" and would likely have been on the list of employees to be given new employment — Commission noted that compensation initially offered for loss of employment was later withdrawn when applicant approach- ed union re fairness of amount offered — Commission found reaction of respondent to union involvement had been unfair and afford- ed it considerable weight in the decision — Manufacturing (Car)

Redundancy conditions sought by union — Applicant sought order specifying that all employees of respondent should receive, notice of terminiation or payment in lieu thereof, and the amount of severance payment as detailed by them — Respondent objected to claims and argued it was inequitable for them to assume liability of employees total service with previous employer at hospital and proposed that employees with one or more years of service under current management receive 50 per cent pro rata long service leave — Respon- dent further submitted that retrenchment was caused by loss of, rather than the completion of, the contract — Commission found from evidence respondent had given as much advance notice as possible and endeavoured to relocate employees in alternative employment — Commission found respondents proposal appropriate except for employees of "Group A" where Commission prescribed 100 per cent pro rata entitlement for two employees and one week's wages for each year of service for the rest — Granted in part — Hospital



REDUNANCY/RETRENCHMENT —continued Alleged unfair dismissal as a result of an industrial dispute — Applicant claimed termination related to question of a 1.6 limitation on

tallies — Respondent argued retrenchment/termination due to seasonal fluctuations and lack of availability of stock — On evidence, re correspondence with Minister, Commission found retrenchment had not been unfair and was for reasons stated by respondent — Dismissed — Meat

2Appeal against decision of Commission at 66 WAIG p. 99 to award nine weeks' redundancy pay — Appellant alleged Commission erred in heeding some previous WAIC decisions and not others and by concluding nine weeks' pay was appropriate compensation — Full Bench found Commission's decision was open to it on material presented and discretionary judgment had been properly exercised — Dismissed — Manufacturing

^Application to have redundancy provisions included in Metal Trades' (General) Award — Union presentation of claim overcame criticism levelled during previous redundancy test case at 65 WAIG 881 — In majority decision Commission in Court Session ruled that employees in this state should be treated no more nor less favourably than majority of their counterparts elsewhere in Nation — Accor- dingly, award varied to reflect provisions of parent Federal award — Martin and Fielding dissented — Granted in part

2Appeal against Commission's decision (66 WAIG 102) re redundancy payment ordered — Appellant alleged Commission had erred in giving undue recognition to standard of the Australian Commission and the circumstances entitling respondent to the highest amount prescribed, without accounting for company's efforts in arranging alternative employment — Full Bench found recognition given to Federal Decision fitting as it dealt with matters of industrial fact and may be taken into consideration by the Commission in dealing with cases of redundancy — Full Bench acknowledged Commission's failure to pay due regard to appellant's efforts, however found Commission's judgment fair when considering the difference between the amount awarded and appellant's offer of a fair compensation and dismissed the appeal — Dismissed — Manufacturing — (Car)

Employee terminated for alleged redundancy — Applicant claimed unfair dismissal and sought compensation relative to term of 10 year employment negotiated and reimbursement of costs incurred re application — Applicant alleged dismissal was result of union and political pressure — Respondent claimed applicant became "surplus to requirements" and that his employment was for indefinite period terminable on reasonable notice — Further respondent submitted negotiations re 10 years of employment were made after contract completed — Commission found employee was not redundant and was unfairly dismissed without reason — Commission found respondent's statement to be contractual re 10 year life of mine — Commission considered payments made on termination and assessed compensation on basis that applicants health would have prevented employment to continue longer than one year — Commission refused order for costs as not usual practice — Granted in part — Mining

Employee terminated due to redundancy — Union sought to have notice of termination revoked on grounds that termination unfair and argued that no redundancy existed with employee concerned but with supervisor — Further sought negotiations with the Union before a retrenchment is effected — Respondent opposed application and argued restructure of staff necessary through reallocation of duties, abolition of supervisors position and termination of Traffic Officer to maintain economic viability — Commission stated final analysis in determination of staffing involved appraisal of competing claims for positions available — Commission satisfied decision reached on objective evaluation of merits and stated that as management and employees discussed redundancies and retrenchments nothing further would be achieved by negotiation — Dismissed — Transport

REGISTRATION — SEE UNIONS —

REINSTATEMENT — 'Appeal against Commission's decision (at 65 WAIG 2159) reinstating employee after having found him guilty of serious misconduct —

Appellant claimed Commission erred in requiring reinstatement in such circumstances — Full Bench stated questions to be determined were whether employee had received 'a fair deal' and whether there had been "a fair go all round" (65 WAIG 385) — Full Bench found the material failed to demonstrate that the appellant acted other than fairly towards employee and therefore Commission had erred re reinstatement — Upheld — Mining (Iron Ore)

Employee dismissed for dereliction of duty with serious consequences — Applicant claimed unfair dismissal seeking reinstatement or re- employment in same classification — Applicant argued matter an isolated incident that did not constitute irretrievable breakdown of employer/employee relationship — Further claimed uneven-handedness with discipline — Respondent stated that if it be found penalty imposed had been harsh, that it be left to find another position for applicant — Commission found incident had struck at heart of employment contract and dismissed claim — Commission stated disciplinary action not harsh but as respondent had had no alternative course but dismiss applicant it ordered fresh employment in another classification with loss of credit for part services — Dismissed — Services (Nursing)

'Appeal by union against Commissioners decision to uphold employee's dismissal for misconduct — Appellant alleged error concerning admissibility for evidence, that it was probable misconduct would be repeated and that assault was involved — Appellant questioned Commission's finding of destruction of employer/employee relationship by misconduct and claimed Commission failed to take into account consideration of employee's previous good record — Respondent claimed Commission's task required that applicant union show employer's decision to dismiss employee unfair — Commission found dismissal justified by written evidence of employee's misconduct and upheld Commissioner's findings — Union as applicant failed to show employer had acted unfairly — Commission ordered dismissal of appeal — Mining (Iron Ore)


Employees summarily dismissed for alleged misconduct — Applicants denied misconduct charge and claimed reinstatement without loss of benefits — Two applications were made — Commission dealt with both cases individually but at the same hearing due to inter- mingled circumstances — Commission noted dismissals were made on basis of assumptions — Commission found, on evidence, dismissals unfair since no wilful misconduct had occurred on the part of the applicants and the misconduct did not cause the respondent any loss of business — Commission ordered reinstatement of both applicants without loss of benefits and compensation for loss of wages for first applicant — Granted — Sales and Service (Motor Vehicle)




REINSTATEMENT —continued JStay of operation of Commission decision (at 66 WAIG 782) sought pending outcome of appeal — Applicant sought to stay order for

reinstatement of employee who was dismissed from employment with company in circumstances described as assault — Respondent consented to stay on agreed condition of full pay to employee until appeal decision issued — President found serious question to be tried at appeal and balance of convenience would favour granting of stay — Granted — Mining

Dispute re termination — Union alleged unfair dismissal as employee was given notice of termination rather than being transferred — Union claimed, employee had been victimised in that he was an effective Shop Steward and was entitled to be transferred on the basis of his satisfactory work history and the undertakings given by the company — Respondent refuted claim and argued that company and industry practice was such that employment was for duration of project only and in terminating employee it had acted lawfully and in accordance with award obligations — Board found respondent had based actions from an economic, management and convenience viewpoint with little regard to the human relations aspects of its decision — Board found due to nature of industry and circumstances it was inappropriate to substitute employers decision, however first preference should be given to employee in any future vacancy — Dismissed — Building Construction

Employee terminated for alleged use of offensive language and refusal to comply with instructions — Unfair dismissal claimed and re-employment sought — Conflict of evidence — Commission found respondent acted on incorrect or misunderstood information and employee entitled to remedy — Commission ordered re-employment of applicant to previous position at agreed date with renewed ac- crual of annual leave and contract of employment deemed continuous — Further the period between dismissal and re-employment should not count as service — Retail


Employee dismissed for charge of stealing — Applicant claimed unfair dismissal and sought reinstatement and compensation for loss of earnings — At previous hearing respondent raised question of jurisdiction and submitted no dismissal occurred as applicant submitted resignation prior to being charged and Commission reserved decision sine die — Commission found occurrence of effective termination under doctrine of constructive dismissal — Respondent raised second jurisdictional objection submitting that Commission bound by section 23 (3) (d) IR Act to desist from hearing matter due to provision 33E of Police Act 1892-1982 Part IIA, section 33A-33J re function of Police Appeal Board — Commission stated employment of applicant governed by section 38A of Police Act — Applicant submitted that matters of section 33E of Police Act should be seen as separate and distinct from section 23 (3) (d) IR Act re contractual rights of employers and employees and section 38A (3) removed Aboriginal aides from general conditions of service of Police Force — Further to amend claim to compensation only — Commission viewed strength of argument lay with respondent and no jurisdiction to proceed — Dismissed for want of jurisdiction — Police

2Appeal against Commission's decision of unfair dismissal and order for reinstatement of employees summarily dismissed for misconduct (at 66 WAIG 424) — Appellant alleged Commission's finding was against the weight of evidence in error — Further that Commission erred in ordering reinstatement and should have ordered payment of one week's wages in lieu of notice — Commission stated where discretion the appellate tribunal "must be well satisfied that primary judges decision was no proper exercise of judicial discretion" and nothing led to belief of miscarried discretion — Commission stated section 29 should not be used principally as a means of recovering financial reward in preference to recovering lost employment — Commission stated neither employee displayed any desire to under- mine appellant's business and did not think it inappropriate that they be re-employed as Commission ordered — Dismissed — Transport

REST PERIODS — Relief sought to enable employees to take smoko breaks in crib room — Union claimed relief coverage and transport to crib room should

be provided for dumper operators and positioner operators during smoko breaks — Respondent rejected unions claim and stated that all obligations imposed by the relevant provisions in award were met and there was no basis for claim — Respondent asserted claim was a manning dispute and brought to notice offer made to union regarding relief arrangement at previous proceedings — Commission found being a new award burden of proof was on union to justify claim and this was not done — However Commission stated with regard to section 32 (7) of IR Act 1979, it was obliged due to the knowledge of company's previous offer to ask parties to prepare a draft order that is agreeable to both — Ordered Accordingly — Mining (Iron Ore) 280

SAFETY — Employer sought to increase tally as a result of increased efficiency of machinery — Union objected claiming inefficiency of machinery

and requested decrease in tally — Union claimed production limit related to length of bleed rail — Commission found no assessment of efficiency possible under bleed rail dispute resolved and decided not to review issues concerning mechanical aids in another decision forwarded by Union — Commission found applicant company closing down operations and all employees' contracts of service terminated — Commission ordered hearing discontinued — Dismissed — Meat

Payment sought for time lost during strike action over safety issue — Union claimed company wrongly applied no work no pay rule and had issued totally unreasonable commands to drive unsafe vehicle — Respondent argued reason for strike action not safety but abusive language between union convenor and foreman and that unions claim had no substance — Commission noted respondents evidence of practice whereby operators are permitted to stand down plant considered dangerous without loss of pay — Commission state obligations of union to follow agreed procedure specified in award — Further, payment for lost time would require that the company expect each employee to perform work that raised reasonable apprehension of personal danger — Commission found evidence did not allow that conclusion and state that to grant claim would meet demand for strike pay while approving breach of award — Dismissed — Mining

Employees stood down due to refusal to wear safety glasses — Union claimed workers be paid wages as requirement to wear safety glasses was not part of contract of employment and dispute should have been resolved in accordance with agreed grievance procedures — Respondent argued principle of "no work, no pay" should apply and standdown justified as workers had refused to obey a lawful and reasonable order — Further, respondent merely exercising responsibility under common law duty of care — On evidence, Commission noted no record of a collective agreement to make the wearing of safety glasses for the full working day a condition of the contract of service— Further, decision to standdown was "at best ill conceived and at worst calculated to precipitate confrontation" — Commis- sion considered it not the mere fact of disobedience that renders an employee liable for breach of contract or which disentitles workers to a payment of wages, but rather object of the refusal — Further, Commission noted that an employee must not wilfully obstruct the employer as he goes about his business — Commission found existing situation was sufficient to take the matter outside the scope of the application of the principle "no work, no pay" — Granted — Railways

66 W.A.l.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE. 997


SHIFT WORK — Interpretation of meal time clauses sought — Applicant claimed commencement of shift at commencement of ordinary hours irrespective

of pre-start overtime and designated meal interval 5 Vz hours thereafter — Further claimed other provision entitled work to half hour meal break before designated meal time — Respondent claimed commencement of overtime constituted commencement of shift for pre-start overtime worked thus meal interval 5 Vz hours thereafter — Commission stated basic rule of award interpretation as where plain words used is meaning attributed to clause but if ambiguous then examination of provisions of whole award and conduct of parties necessary to arrive at true meaning — Commission found applicants interpretation of provisions in accord with plain words used and permitted both provisions to operate — Commission stated clause in dispute to be interpreted in accordance with applicants claim — Granted — Mining (Iron Ore) 900

SICK LEAVE — Alleged non-payment of contractual benefits re salary and annual leave entitlements — Applicant on resignation claimed salary foregone

during difficult trading period and alleged wrongful action by respondent re paid sick leave — Respondent denied claim that salary repayments were due and claimed annual leave entitlements were availed of by applicant as paid sick leave by arrangement and applicant received in excess of total paid leave entitlements — On evidence Commission concluded applicant successful in salary claim — Commission dismissed claim for payments in lieu of annual leave entitlements as not sustainable and accordingly dismissed claim for interest — Commission ordered repayment for salary foregone at amount agreed by parties as due to applicant — Granted in part — Timber 921

STANDDOWN — Managerial decision to invoke the "no work/no pay rule" to two employees connected with work on conveyor rollers in preference to

providing them with alternate work — Union claimed action inappropriate/unjust and sought order re payment to these persons for time lost — Commission noted that principle of "no work/no pay" was based on fundamental point of law re employees to obey all lawful/reasonable commands — And, although in good Industrial Relations employees could expect some say in decisions which affected their security and trade interest, it could not be to the extent that they were ble to be countermand Company's orders — Com- mission stated rights of both parties had to be balanced if fairness to prevail — As such Commission raised conciliatory steps which would settle existing longstanding dispute — Dismissed — Mining (Iron Ore)

Payment for time lost during "lock out" of plant operators sought — Union claimed non-requirement to operate loader and rubber tyred doze due to failure by company to initiate certain modifications — Further, consistent with custom, as loader was stood down by operator, dozer should logically be stood down also and no other person could operate such equipment — Respondent argued no custom existed and evidence insufficient to establish that it did — Further, argued unwillingness of union to seek a solution through alternative course re procedural prescriptions in Industrial Relations Agreement — Commission found evidence had not supported claim re customary standdown of plant and noted similar decision at 64 WAIG 1075 — Further, standdown of loader did not allow for general application to other equipment — Commission noted established criteria for custom and accepted Respondent's evidence re alternative courses available to union to seek redress — Dismissed — Mining

Alleged non-payment of contractual benefits — Applicant submitted she was still legally employed and claimed compensation for wages for period after two-week standdown when respondent failed to notify her to return to work plus two days pay outstanding — Respon- dent not represented at hearing — Commission found respondent accepted term of contract of employment liability to pay pro rata annual leave entitlements to terminating employees by agreements made before Commission (C327 of 1985) — Commission found termination of contract occurred when applicant did not report for work — Order issued for entitlement in equity to one week's pay in lieu of notice plus two days' pay outstanding and annual leave — Granted in part — Printing

Employees stood down due to refusal to wear safety glasses — Union claimed workers be paid wages as requirement to wear safety glasses was not part of contract of employment and dispute should have been resolved in accordance with agreed grievance procedures — Respondent argued principle of "no work, no pay" should apply and standdown justified as workers had refused to obey a lawful and reasonable order — Further, respondent merely exercising responsibility under common law duty of care — On evidence, Commission noted no record of a collective agreement to make the wearing of safety glasses for the full working day a condition of the contract of service — Further, decision to standdown was "at best ill conceived and at worst calculated to precipitate confrontation" — Commis- sion considered it not the mere fact of disobedience that renders an employee liable for breach of contract or which disentitles workers to a payment of wages, but rather object of the refusal — Further, Commission noted that an employee must not wilfully obstruct the employer as he goes about his business — Commission found existing situation was sufficient to take the matter outside the scope of the application of the principle "no work, no pay" —Granted — Railways

STAY OF PROCEEDINGS — 4Stay of order (at 66 WAIG 99) sought pending hearing of appeal — Applicant alleged Commission erred in its approch re assessment

of severance payment in that it was not consistent with Ingle's Case (at 59 WAIG 400) — President stated that applicant had to satisfy principles that "there is a serious question to be determined" and "the balance of convenience favoured to stay or the order" — Presi- dent found first issue satisfied because he considered payment more generous than demanded by any previous decisions of Commission — However re "convenience", President applied principles used in other Courts of record and noted that generally a Court will not "make a practice of depriving a successful litigant of the fruits of his litigation, and locking up funds to which prima facie he is entitled" — President found employee entitled to the use of payment awarded — Dismissed — Manufacturing (Agricultural Machinery) 4Stay of operation of portion of Commission direction sought, pending outcome of appeal — Applicant claimed Commission erred in giving its direction under section 32 of Industrial Relations Act as the section limited the Commission to only doing things to assist parties reach agreement, the direction resulted from an industrial action and not in relation to an industrial matter and the direction given was beyond the jurisdiction of the Commission and contrary to the relevant award — Further, a stay of proceedings was sought otherwise the decision of the impending Full Bench Appeal would be rendered nugatory since dismissal proceedings (Matter No. 1147 of 1985) would likely be determined before the Appeal — President noted Commission decision restricted foreman who was subject of dismissal proceedings from exercising many of his required duties but was not prepared to assume Commission was not conscious of the repercussions of his direction — Further, Commission issued direction to prevent deterioration of IR and to preserve the rights of those whose interests were affected by the dismissal proceedings — President not persuaded exercise of Commission's discretion should be stayed — Dismissed — Mining (Iron Ore)

4Stay of operation of Commission order sought, pending outcome of appeal — Applicant alleged that Commission had been misdirected in the task before it and grounds in support of this application are expressed to be (a) the decision of the commission is wrong and (b) a stay will allow a cooling off period — President remained unconvinced that the grounds of appeal go any further than being complaints about findings of fact — President found the reluctance of the applicant and the drivers to accept the decision is no reason to stay the operation of the order — Dismissed — Mining (Iron Ore)



STAY OF PROCEEDINGS —continued 'Stay of operation of Commission order sought pending the outcome of appeal — Applicant claimed Commission erred in not finding

that claim brought by respondent for an electrical licence allowance was in breach of indexation principles and the Commission erred by disturbing a long standing nexus and wage rate relativities by using a basis of wage comparison not previously adopted — Respon- dent had no objection to the making of an order in terms sought — President found that there is a serious question to be tried and sets out to justify the maintenance of the status quo — President found there being no objection, that the operation of that part of the decision appealed against be wholly stayed pending the hearing and determination of the appeal — Granted — Printing 326

'Applicant sought order to stay operation of previous order of Commission for applicant to produce certain documents to Commission within seven days — Application made on grounds that order is beyond power of Commissioner and puts officer or member of committee in contravention of Casino Control Act 1984 section 13 — Respondent union initially opposed order on grounds that invalidity of decision must be established by Full Bench and no "special circumstances" applied — Respondent then indicated no opposition to stay of order on basis that other proceedings taken have met position sought — Commission stated determining principles derived from authoritative tests adopted in other jurisdictions — see 65 WAIG 2052 and 66 WAIG 14 — Commission noted seriousness of issue to be tried by future appeal and uniqueness of situation — Recreation (Casino) 488

'Stay of operation of Commission decision (at 66 WAIG 782) sought pending outcome of appeal — Applicant sought to stay order for reinstatement of employee who was dismissed from employment with company in circumstances described as assault — Respondent consented to stay on agreed condition of full pay to employee until appeal decision issued — President found serious question to be tried at appeal and balance of convenience would favour granting of stay — Granted — Mining 695

TALLIES — Employer sought to increase tally as a result of increased efficiency of machinery — Union objected claiming inefficiency of machinery

and requested decrease in tally — Union claimed production limit related to length of bleed rail — Commission found no assessment of efficiency possible under bleed rail dispute resolved and decided not to review issues concerning mechanical aids in another decision forwarded by Union — Commission found applicant company closing down operations and all employees' contracts of service terminated — Commission ordered hearing discontinued — Dismissed — Meat 636

TECHNOLOGICAL CHANGE — True interpretation of word "Regression" in Definitions clause of award — Union argued that instances of regression are not limited to

items specifically referred to in award, instead it can range as far as the definition in the Oxford Dictionary allows and as such claimed that change of roster and change of duties are seen as a'regression — Respondent denied claim and argued that redundant lino-type operators have maintained their wage rates — Whilst agreeing with Applicant's definition Commission found key to this dispute in decisions of (CR354 of 1982 Vol 62 WAIG p. 2628) where the four options in the roster outlined were equal and no regression is involved — Furthermore Commission found altered roster was entirely within Clause 14.—Hours of Work ofaward and as such there was no reason for Commission to interfere — Dismissed — Printing 243

New award sought by ASEMFW to apply to employees manufacturing modem decoders — ASEMFW contended that manufacturing of modem decoder is work that results in the production of a "business machine" provided for in its constitutional rule — ETU objected on grounds that finished product was an electronic device — Commission on evidence, together with exhibits as to capabilities and in- spection of unit in full use was, persuaded that modem decoders were an electronic device and found inappropriate suggestion that it was a "business machine" within the meaning of the constitutional rule — Commission dismissed application as it lacked the vital ele- ment of union's ability to constitutionally cover employees in the industry — Dismissed — Engineering 855

TERMINATION — Employee dismissed for alleged unsatisfactory attendance — Claimed unfair dismissal and sought declaration of such compensation —

Respondent argued applicant had received a "fair deal" within meaning established in Loty's Case (at 59 WAIG 974) and had been warned re unsatisfactory behaviour — Commission found on evidence "the employer had truly discharged all the onuses on him" — Dismissed — Furniture 76

Employee made redundant after 31 years' service — Union claimed compensation for redundancy based on formula stated in Vickers Hadwa Case (at 63 WAIG 2270) — Applicant stated employee had been denied real value of second period of long service leave and had suffered loss of job satisfaction through redundancy — Respondent opposed claim claiming unforeseen circumstances had forced action of making employee redundant and utmost had beendone to arrange alternative employment — Commission stated respondent's case, based on local precedents, powerful, however, settled claim by way of adoption of the standard of the Australian Commission in the Termination, Change and Redundancy Case (Prints F6230 and F7262) granting highest amount prescribed — Ordered accordingly — Manufacturing (Car) 102

Employee terminated due to redundancy — Union sought compensation equal to provision in parent federal award on the basis of an established nexus — Furthermore argued for equal treatment of WA employees of an employer with their counterparts in other States — Respondent argued company had made a reasonable offer which was rejected by union — Commission granted compensation in- light of other relevant cases and respondent's interstate operations — Granted in part — Manufacturing (Agricultural Machinery) 99

Employment terminated due to unsatisfactory work performance — Applicant claimed unfair dismissal and sought compensation — Respondent stated applicant's work had been satisfactory but later deteriorated warranting dismissal — Commission found on evidence termination was not unfair and in fact respondent had given applicant every assistance by way of councelling to improve his performance — Dismissed — Hydraulic Services 81

2Appeal against Commission's decision (at 65 WAIG 2159) reinstating employee after having found him guilty of serious misconduct — Appellant claimed Commission erred in requiring reinstatement in such circumstances — Full Bench stated questions to be determined were whether employee had received 'a fair deal' and whether there had been "a fair go all round" (65 WAIG 385) — Full Bench found the material failed to demonstrate that the appeUant acted other than fairly towards employee and therefore Commission had erred re reinstatement — Upheld — Mining (Iron Ore) 10

Employee summarily dismissed for absenteeism — Applicant claimed unfair dismissal and sought compensation — Respondent argued that from information given by Industrial Inspectorate, it could terminate employee's contract of service for misconduct on basis of absenteeism — Commission stated that key to this issue was question whether "employer in exercising his legal right to dismiss for misconduct did it in a harsh or oppressive manner" — Commission stated employer had grounds to terminate however found on evidence that it was unfair to terminate summarily, in that absenteeism cannot be based on a single day basis and must actually strike at the root of the contract of service — Granted (Pumps and power transmission) 78


CUMULATIVE DIGEST-continued

TERMINATION —continued Additional redundancy payment sought by union — Union claimed redundancy payment should be calculated with regard to decision

of the Australian Commission related to "Termination, Change and Redundancy" (P F6230, P F7262 and P F7390) — Union argued that tribunals in other States have endorsed the Federal decision and the pattern of redundancy payments in this State would suggest substantial additional payment — Respondent argued that payment sought was not warranted as employees received construction rates of pay, which relieved them of obligation to special payments when employees were terminated as rates contained component which recognises the intinerant nature of work — Respondent further referred to superannuation scheme which provided substantive payment on termination and denied any agreement between itself and unions in other States which might support above claim — Commis- sion satisfied with respondent's argument and found no need for further compensating employees — Dismissed — Manufacturing (Fabrication)

Employee dismissed under Prisons Act Regulations for providing incomplete information re application for employment as prison officer — Commission accepted that employment would not have been forthcoming had employee correctly completed questions — Commission dismissed application but stated decision not be interpreted that employee was not a fit and proper person to be a Prison Officer — Dismissed — Services (Prison)

Alleged unfair dismissal due to unsatisfactory service — Union claimed termination effected because employee called for union support in securing award entitlements — Respondent argued employee failed to provide satisfactory service and further, verbal warning that his work would be checked ignored — Commission preferred respondents evidence where conflict occurred — Commission noted employee had lost sight of his contractual obligations, and failed to demonstrate his abilities despite verbal warnings — Commission found no reason to believe dismissal had resulted from factors other than failure of employee to carry out his work satisfactorily — Dismissed — Retail

Redundancy conditions sought by union — Applicant sought order specifying that all employees of respondent should receive, notice of termination or payment in lieu thereof, and the amount of severance payment as detailed by them — Respondent objected to claims and argued it was inequitable for them to assume liability of employees total service with previous employer at hospital and proposed that employees with one or more years of service under current management receive 50 per cent pro rata long service leave — Respon- dent further submitted that retrenchment was caused by loss of, rather than the completion of, the contract — Commission found from evidence respondent had given as much advance notice as possible and endeavoured to relocate employees in alternative employment — Commission found respondents proposal appropriate except for employees of "Group A" where commission prescribed 100 per cent pro rata entitlement for two employees and one week's wages for each year of service for the rest — Granted in part —■ Hospital

Alleged unfair dismissal as a result of an industrial dispute — Applicant claimed termination related to question of a 1.6 limitation on tallies — Respondent argued retrenchment/termination due to seasonal fluctuations and lack of availability of stock — On evidence, re correspondence with Minister, Commission found retrenchment had not been unfair and was for reasons stated by respondent — Dismissed — Meat

Employee summarily dismissed for misconduct and sought compensation — Applicant claimed she was induced to take leave without pay to "consider her position and change her attitude" however at no time was it suggested her work was unsatisfactory — Question raised in other Tribunal and provided test in present case re whether legal right of employer to terminate contract of service had been exercised in a harsh or oppressive manner to amount to an abuse of that right — Commission noted, in summary dismissal, onus of proof lies upon respondent — Commission found although termination was legal, it was not convinced the issue in this instance warranted summary termination — Compensation granted — Services (Beauty Therapy)


Employee dismissed for dereliction of duty with serious consequences — Applicant claimed unfair dismissal seeking reinstatement or re- employment in same classification — Applicant argued matter an isolated incident that did not constitute irretrievable breakdown of employer/employee relationship —■ Further claimed uneven-handedness with discipline — Respondent stated that if it be found penalty imposed had been harsh, that it be left to find another position for applicant — Commission found incident had struck at heart of employment contract and dismissed claim — Commission stated disciplinary action not harsh but as respondent had had no alternative course but dismiss applicant it ordered fresh employment in another classification with loss of credit for part services — Dismissed — Services (Nursing)

Employee summarily dismissed for alleged misconduct — Applicant claimed unfair dismissal and sought "fair" compensation — Appli- cant denied charge of misconduct also indicating an awareness of the usual consequences of misconduct — Respondent claimed applicant had failed to comply with company policy and had been over-issuing bonus stock — Commission stated in such cases employer has a right to terminate a contract of service providing it is not exercised harshly or unjustly — Commission found, on evidence, applicant had contravened employer's policy and termination and compensation had been fair — Dismissed — Wholesale/Retail Sales (Pharmaceuticals) 2Appeal by union against Commissioners decision to uphold employee's dismissal for misconduct — Appellant alleged error concerning admissibility for evidence, that it was probable misconduct would be repeated and that assault was involved — Appellant questioned Commission's finding of destruction of employer/employee relationship by misconduct and claimed Commission failed to take into account consideration of employee's previous good record — Respondent claimed Commission's task required that applicant union show employer's decision to dismiss employee unfair —• Commission found dismissal justified by written evidence of employee's misconduct and upheld Commissioner's findings — Union as applicant failed to show employer had acted unfairly — Commission ordered dismissal of appeal — Mining (Iron Ore)


Employees summarily dismissed for alleged misconduct — Applicants denied misconduct charge and claimed reinstatement without loss of benefits — Two applications were made — Commission dealt with both cases individually but at the same hearing due to intermingl- ed circumstances — Commission noted dismissals were made on basis of assumptions — Commission found, on evidence, dismissals unfair since no wilful misconduct had occurred on the part of the applicants and the misconduct did not cause the respondent any loss of business — Commission ordered reinstatement of both applicants without loss of benefits and compensation for loss of wages for first applicant — Granted — Sales and Service (Motor Vehicle)


Alleged non-payment of contractual benefits — Applicant terminated contract of service by giving a week's notice and claimed that contract provided for weekly retainer and eight per cent commission on sales — Applicant sought outstanding commission on sales prior to date of termination — Respondent argued had not completed her term of contract and therefore not eligible for commission — Commission found, document provided proved there was an agreement to pay commission in full when contract of service ended — Granted — Retail



TERMINATION —continued Alleged non-payment of contractual benefits re weekly advances — Applicant sought declaration of unfair dismissal and payment —

Respondent denied dismissing applicant and claims payment claimed was ex gratia made to help meet working expenses — Commis- sion found contract severed by employee by option to withdraw service — Commission stated no obligation on employer for payment — Dismissed — Real Estate


Alleged unfair termination of employment — Applicant sought compensation for loss of earnings — Respondent denied claim — Commission assessed weight of respective evidence from demeanour of witnesses and balance of probabilities — Commission found applicant incompatible with area managers requirements and lawful termination of contract of employment by respondent in best interests of all concerned and not unfair — Dismissed — Building

'Appeal against decision of Full Bench at 65 WAIG 2041 where appeal against decision of Magistrate was upheld and remitted back for further hearing and determination — Applicant claimed Full Bench erred in law in its interpretation of ''through no fault of the employee" — Industrial Appeal Court found that Full Bench had made error of law but declined to overturn decision — Although Magistrate may have been entitled to find as he did on facts there was uncertainty as to whether correct "test" applied, therefore, appropriate that matter be remitted to Industrial Magistrate — Dismissed — Retail



Employee dismissed due to unavailability of further alternative light work after work-related injury — Applicant claimed unfair dismissal and sought compensation — Respondent argued alternative light duties work exhausted — Further, to put applicant into regular position would expose him to further injury and respondent unprepared to take that risk — Question re whether exercise of lawful termination of service was unfair so to require intervention by Commission — Commission found, on evidence and principles (65 WAIG 1985) employer had not acted unfairly to warrant intervention — Dismissed — Concrete Sales

Employee summarily dismissed for alleged unsatisfactory-work performance — Applicant claimed he was unfairly dismissed without adequate notice and sought unpaid contractual benefits and compensation — Respondent argued employee had resigned, however if employee was dismissed it was in accordance with terms of his contract on the grounds of incompetence and hence he was not entitled to compensation — Further claimed applicant had accepted a payment in satisfaction for any outstanding entitlements — Commission found respondents accusation of incompetence baseless and that the applicant was dismissed — Furthermore Commission found moneys paid by respondent was in no sense a negotiated settlement but part of its unilateral act to terminate applicant — Commission stated that its concern was with the fairness of any dismissal, not whether it was lawfully effected and granted a global award in recognition of all consequences including denial of contractual benefits — Granted — Retail


'Stay of operation of Commission decision (at 66 WAIG 782) sought pending outcome of appeal — Applicant sought to stay order for reinstatement of employee who was dismissed from employment with company in circumstances described as assault — Respondent consented to stay on agreed condition of full pay to employee until appeal decision issued — President found serious question to be tried at appeal and balance of convenience would favour granting of stay — Granted — Mining

Employee summarily dismissed for alleged misconduct — Applicant sought payment in lieu of notice, pro rata annual leave and travel expenses — Applicant claimed termination due to request for fairer payment for use of vehicle in shifting equipment — Respondent claimed termination due to slowness and damage prior to summary dismissal for refusing to obey instructions — Commission found claim for pro rata annual leave allowable under Award but dismissed claim for travel allowance re well established principle that Com- mission was not able to imply term of contract as parties came to agreement — Commission found employer had no right to deduct pay in retrospect re sick pay and no reason for summarily dismissal — Further that contract of employment required one week's notice of termination — Commission ordered payment of wages in lieu of remaining notice — Granted in part — Printing

Dismissal of employee due to dissatisfaction with his business methods —- Applicant sought compensation for unfair dismissal and payment of entitlements arising from contract of employment — Respondent rejected all claims and denied applicant was an employee — Commission stated need to determine jurisdiction by ascertaining employment status of applicant and found relationship of employer/ employee (ALR 385 at p. 387 per Bray J.) — Commission on evidence found dismissal had been without notice and with somewhat less than industrial fair play — Furthermore claim of discretionary allowances, spouse allowance and travel allowances sought were not contractual benefits — Commission granted compensation for unfairness of dismissal taking into account rate of remuneration and lack of adequate notice — Granted in part — Engineering

Dispute re termination — Union alleged unfair dismissal as employee was given notice of termination rather than being transferred — Union claimed, employee had been vicitimised in that he was an effective Shop Steward and was entitled to be transferred on the basis of his satisfactory work history and the undertakings given by the company — Respondent refuted claim and argued that company and industry practice was such that employment was for duration of project only and in terminating employee it had acted lawfully and in accordance with award obligations — Board found respondent had based actions from an economic, management and convenience viewpoint with little regard to the human relations aspects of its decision — Board found due to nature of industry and circumstances it was inappropriate to substitute employers decision, however first preference should be given to employee in any future vacancy — Dismissed — Building Construction

Employee on probation summarily dismissed due to unsatisfactory work performance — Applicant claimed dismissal unfair — Respon- dent argued applicant an independent contractor therefore Commission lacked jurisdiction — However if found otherwise termination justified — Commission found relationship that of employee/employer largely on the principle of "power of control" (16 SASR 237) — Commission on evidence found applicant's performance so much below standard expected that it amounted to misconduct — Dismissed — Advertising

66 W.A.I.G 1001


TERMINATION —continued Employee summarily dismissed for alleged failure to carry out instruction — Applicant claimed unfair dismissal seeking compensation

and benefits under contract of service — Respondent argued applicant an independent contractor therefore Commission lacked jurisdiction, however it found otherwise dismissal justified and applicants conditions governed by an Award — Commission found relationship that of employer/employee largely on the principle of "power of control" (16 SASR 237), therefore all payments claimed except for compensation must be dismissed by Commission as constituted — Commission found dismissal affected in circumstances which did not amount to a4 'fair go'' and granted compensation — Granted in Part — Advertising

Employee terminated for alleged use of offensive language and refusal to comply with instructions — Unfair dismissal claimed and re-employment sought — Conflict of evidence — Commission found respondent acted on incorrect or misunderstood information and employee entitled to remedy — Commission ordered re-employment of applicant to previous position at agreed date with renewed ac- crual of annual leave and contract of employment deemed continuous — Further the period between dismissal and re-employment should not count as service — Retail

Order confirming termination of employees services sought — Applicant as a result of an argument between employee and foreman laid charges against employee for assault, refusal to obey lawful order and violence — Respondent maintained no threat was made to foreman and physical contact was accidental — Commission noted an inquiry had been carried out by two formal investigations and a committee of review which left employee's fate unresolved — Commission found inconsistency in accounts of events — On balance of probabilities Commission concluded that physical contact was accidental — Dismissed — Mining (Iron Ore)

Employee dismissed for alleged "lack of performance" — Applicant claimed unfair dismissal and sought compensation — Respondent claimed employee did little work during critical period of operation of company and applicant had received compensation in lieu of notice, pro rata annual leave, contribution toward superannuation, storage and delivery of goods and chattels, expenses and alternative accommodation costs — Commission found dismissal effectively on notice and stated applicant's need to show unfair dismissal on balance — Evidence of witnesses corroborated respondents testimony — Commission found respondent had met expenses to which applicant had no contractual entitlement — Commission not satisfied of unfair dismissal on balance of probabilities and found applicant had been adequately compensated — Dismissed — Oil

Employee terminated for alleged redundancy — Applicant claimed unfair dismissal and sought compensation relative to term of 10 year employment negotiated and reimbursement of costs incurred re application — Applicant alleged dismissal was result of union and political pressure — Respondent claimed applicant became "surplus to requirements" and that his employment was for indefinite period terminable on reasonable notice — Further respondent submitted negotiations re 10 years of employment were made after contract completed — Commission found employee was not redundant and was unfairly dismissed without reason — Commission found respondent's statement to be contractual re 10 year life of mine — Commission considered payments made on termination and assessed compensation on basis that applicants health would have prevented employment to continue longer than one year — Commission refused order for costs as not usual practice — Granted in part — Mining (Phosphate)


Employee dismissed for charge of stealing — Applicant claimed unfair dismissal and sought reinstatement and compensation for loss of earnings — At previous hearing respondent raised question of jurisdiction and submitted no dismissal occurred as applicant submitted resignation prior to being charged and Commission reserved decision sine die — Commission found occurrence of effective termination under doctrine of constructive dismissal — Respondent raised second j urisdictional objection submitting that Commission bound by section 23 (3) (d) IR Act to desist from hearing matter due to provision 33E of Police Act 1892-1982 Part IIA, section 33A-33J re function of Police Appeal Board — Commission stated employment of applicant governed by section 38A of Police Act — Applicant submitted that matters of section 33E of Police Act should be seen as separate and distinct from section 23 (3) (d) IR Act re contractual rights of employers and employees and section 38A (3) removed Aboriginal aides from general conditions of service of Police Force — Further to amend claim to compensation only — Commission viewed strength of argument lay with respondent and no jurisdiction to proceed — Dismissed for want of jurisdiction — Police

Alleged non-payment of contractual benefits — Applicant submitted she was still legally employed and claimed compensation for wages for period after two week standdown when respondent failed to notify her to return to work plus two days' pay outstanding — Respon- dent not represented at hearing — Commission found respondent accepted term of contract of employment liability to pay pro rata annual leave entitlements to terminating employees by agreements made before Commission (C327 of 1985) — Commission found termination of contract occurred when applicant did not report for work — Order issued for entitlement in equity to one week's pay in lieu of notice plus two days' pay outstanding and annual leave — Granted in part — Printing

Alleged non-payment of contractual benefits after applicant terminated employment — Applicant claimed balance of payment in part pro rata annual leave agreed upon at previous conference (C327 of 1985) where respondent company acknowledged moneys owing to employees — Application filed when payment not made under terms of memorandum of that agreement — Respondent not represented at hearing — Commission found in favour of applicant and ordered payment to issue — Granted — Printing

Employee terminated due to redundancy — Union sought to have notice of termination revoked on grounds that termination unfair and argued that no redundancy existed with employee concerned but with supervisor — Further sought negotiations with the Union before a retrenchment is effected — Respondent opposed application and argued restructure of staff necessary through reallocation of duties, abolition of supervisors position and termination of Traffic Officer to maintain economic viability — Commission stated final analysis in determination of staffing involved appraisal of competing claims for positions available — Commission satisfied decision reached on objective evaluation of merits and stated that as management and employees discussed redundancies and retrenchments nothing further would be achieved by negotiation — Dismissed — Transport

2Appeai against Commission's decision of unfair dismissal and order for reinstatement of employees summarily dismissed for misconduct (at 66 WAIG 424) — Appellant alleged Commission's finding was against the weight of evidence in error Further that Commission erred in ordering reinstatement and should have ordered payment of one week's wages in lieu of notice — Commission stated where discretion the appellate tribunal "must be well satisfied that primary judges decision was no proper exercise of judicial discretion" and nothing led to belief of miscarried discretion — Commission stated section 29 should not be used principally as a means of recovering financial reward in preference to recovering lost employment — Commission stated neither employee displayed any desire to under- mine appellant's business and did not think it inappropriate that they be re-employed as Commission ordered — Dismissed — Transport 2Appea! against Commission's decision not to order payment for claim to partial wages while receiving compensation (at 66 WAIG 423) — Appellant argued Commissioner should have found that appellant was denied benefit due from respondent, entitlement to partial payment of both wages and compensation or entitlement to usual wage in place of workers' compensation — Respondent argued entitlement to wages inconsistent with not being able to earn wages while receiving compensation — Commission accepted respondents proposition and stated principle applies to partially incapacitated as well as totall incapacitated employees — Commission found applicant had no remedy against Respondent of entitlement to wages — Dismissed — Education

TRANSFER — Transfer of Guidance Officer — Claimant sought deferment — Claimed respondent had not exercised discretion as in other cases and its

actions were inequitable — Tribunal observed that due to the ''specific, explicit and fundamental contract of employment" existing between Education Department and permanent teachers there would need to be "extraordinary and entirely unforeseen circumstances" before it would intervene in matters of transfer — Tribunal found that claimant's circumstances had been taken into account and he was not less fairly treated than others — Dismissed — Education (Teaching)



TRAVELLING — Alleged contractual benefit (fuel allowance) sought following its discontinuation without notice — Applicant claimed agreement

made with Works Manager for payment of fuel allowance was a contratual entitlement — Respondent claimed Works Manager lacked authority to negotiate such arrangements and therefore respondent not liable for arrangements made by him — Commission stated applicant could confidently expect Works Manager to have that authority and therefore allowance was a contractual benefit — Commis- sion stated termination of payment of benefit should have been preceeded by notice of one contractual period and opportunity given for applicant to discontinue his contract of employment in the absence of the allowance — Commission found applicant entitled to benefit until Works Manager's authority clarified and until applicant properly informed of variation of contract — Granted — Meat (Abattoirs)

Appellant alleged error by Director General in ruling promotion application ineligible by gender interpretation of position title and classification "deputy principle (female)" — Appellant alleged superior efficiency to recommended applicant — Respondent submitted words in title have specific unambiguous meaning re gender — Tribunal found position classification in accordance with purpose of staffing regulations re gender to which effect appellant ineligible — Tribunal decided not to pursue alleged changes in duties arising from reclassification of position — Tribunal dismissed second ground of appeal as first rendered appeal incompetent — Appellant applied for reimbursement for travelling expenses to hearing — Tribunal disallowed claim due to lack of substance of appeal — Dismiss- ed — Education

UNFAIR DISCREPANCY — industrial Action — Payment for stop-work meetings coinciding with WWF meeting sought — Employees of Fremantle Port Authority,

State Shipping Service and Dept of Marine and Harbours, regulated by FPA/WWF relativity requested payment for two paid stop- work meetings up to four hours duration at same time and date as WWF stop-work meetings — Union agreed and assured no flow from decision to subsequent claims — Commission stated maintenance of good industrial relations essential — Ordered accordingly — Maritime 437

UNIONS — Dispute between FEDFU and AWU re coverage of persons employed as Motor Vehicle Drivers appointed by Hamersley Iron as driver

operators of Hiabs — FEDFU claimed exclusive rights on ground that a Hiab is a crane impliciter by definition contained in the Machinery Safety Act 1974-82 therefore the operators are wrongly designated as Motor Vehicle Drivers and not eligible for AWU coverage — Commission referred to similar matter canvassed before Commission in 1979 (60 WAIG 148) and noted importance of a subsequent inclusion of a classification in Hamersley award re employees in question — Question re whether "distribution of driving and hoist work is now so heavily biased towards hoist work, in a substantial sense, as to demand a conclusion that work in question is crane driving" — Commission found on evidence FEDFU had not demonstrated work in question is in fact crane driving — Dismissed — Mining (Iron Ore) 7

'CJU sought to substitute new set of rules including alteration to membership eligibility — Specifically to cover members of now defunct OSU plus rooftilers — BLF and others objected citing that Full Bench shall refuse application if it makes eligible persons already eligible for membership of another organisation unless "good reason" — Full Bench divided proposed new rule into three "limbs" to be considered separately — First "limb" retained despite BLF objections that labourers now perform much of this work — Labourers do not become tradesmen simply by doing a substantial amount of the work within the competence of those tradesmen — Full Bench heeded BLF objections to second "limb" to extent that eligibility limited to monumental masonry industry for non-tradesmen masonry workers — Full Bench heeded PGEU and FBTPU objections to third "limb" — Deleted third "limb" as no "good reason" — Granted in part — Unions

'Dispute as to which union should have exclusive industrial coverage of employees engaged in "transport" classifications at Hamersley Iron, Tom Price — TWU claimed situation had changed since CICS decision in 1975 granting coverage to AWU (see 53 WAIG 332), in that the majority of employees now preferred to join it — AWU denied claim arguing that interference would have negative repercussions throughout industry — Company contended claim would infringe on its rights due to constitutional limitations of TWU and attitude of unions to each other — CICS found strength of applicant's case not sufficient to change effect of 1975 decision and issued new Order in favour of AWU — Dismissed — Mining (Iron Ore)

'Application for registration as an organisation of employees by Union of Australian College Academics — Objections by Civil Service Association to membership rules — Ammendments to confine eligibility to persons paid on academic salary scales, senior Librarians as financial members at 8 October 1985 and counsellors, provided position existed at 8 October 1985 — Exclusion of persons employed less than half-time, directors and their deputies — Full Bench authorised registration of union with amended membership rules — Granted — Education (Tertiary)

Alleged non-payment of contractual benefits re election to office as organiser of union — Applicant claimed entitlement to payment for period between election to office and commencement of contract pursuant to rules of union — Commission stated issue as whether rules of union provide that contract of employment commences simultaneously with declaration of election to office — Question of jurisdiction of Commission raised by respondent re Federal union — Commission established jurisdiction re Act — Commission stated precedent in Federal case where distinction between employment as organiser and membership of management committee — Commis- sion stated applicant offered contract in accordance with union rules therefore has no claim for payment prior to nominated date for commencement of contract — Dismissed — Meat

'Application for registration of union — Objections were received as constitution rule of the applicant would permit it to enrol persons eligible for membership with the objectors — Authorised agent of the applicant requested Full Bench to amend rules to confine eligibility of membership to persons within the calling — Full Bench authorised registration of union with amended membership rules — Granted — Education (Tertiary)

Declaration sought to restrain respondent union from representing or enrolling members providing cleaning and incidental services under the Industrial Catering Workers Award — Applicant argued that cleaning duties other than that connected with the catering establish- ment meant that employees belonged to cleaning industry as opposed to the catering industry — Applicant claimed the FLAIEU constitution has no provision for these workers to be members — Respondent argued that the "industry of catering in all its sectors" is understood to include cleaning and accommodation services and is not limited to the provisions of food and drinks — Commission found that where a contract has been awarded to contractor for the sole purpose of cleaning services and the workers are covered by the same scope clause of the award, the constitution of FLAIEU cannot encompass them as they are not a catering contractor — Granted — Catering Industry

Dispute re which union should cover employees at Casino Complex — Burswood Management Ltd applied for award for all employees citing FLAIEU as respondent — WATAEA applied for award for those directly employed on gambling — FCU objected claiming constitutional coverage of some employees not already covered by its awards — Commission rejected notion that any gaming staff eligible to join FCU — Commission found WATAEA has specific constitutional coverage of those employed directly on gambling whilst FLAIEU has direct coverage of those employed on Hotel operations — Ruled that both unions be party to first award — Directed parties to confer pursuant to section 32 (3) (b) — Recreation (Casino)

'AWU sought to alter membership rule to include workers in fibre cement industry and manufacturing — 13 unions objected — Applicant withdrew application to amend preamble and modified amendment further by excluding "glass fibre" — Full Bench found this met and accommodated objections and requirements of Act — Granted

66 W.A.l.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE.


UNIONS —continued 4Application for order pursuant to section 66 — Applicant claimed irregularities in way ballot re TLC affiliation conducted made result

invalid — Applicant further claimed affiliation with TLC contrary to RANF rules — President found allegation of irregularities largely unfounded, however, result of ballot ordered null and void to avoid inequity — TLC affiliation found not contrary to RANF rules — Granted in part 4Order sought against union for not abiding by its rules in that it failed to represent members fairly — Applicant alleged that union had not acted on his complaint of unfair dismissal and compensation — Respondent denied accusation — President found evidence provided by respondent proved there was no substance to applicant's claim and that proper measures had been taken — Dismissed

Variation of award re definitions, wages and special rates and provisions — HSOA, ADSTE and CSA granted leave to intervene — Intervenors objected to application re they would be prejudiced and there would be overlapping industrial coverage, contrary to objec- tives of IR Act — HSOA also fearful proposed amendments would afford employers an opportunity for withholding salaried status from employees qualified to be elevated — Further, proposed classification if allowed would introduce entirely new classification to the hospital industry — ADSTE claimed applicant's intention essentially a "takeover bid" — CSA brought no evidence forward — Applicant claimed amendments were arrived at through properly conducted negotiations — Further, aim of proposed definitions was/is to standardise and provide logical progression in career opportunities within tradesmen classifications rather than transgressing technicians work — Attention of Commission drawn to Industrial Appeal Court decision (at 60 WAIG 1053) however, Commission could not refuse to amend award in terms agreed without it first being shown that the major and substantial employment of persons employed in the agreed classifications would be that of technicians (test re Cary Case at 55 WAIG 585) — Commission was of the opi- nion the HSOA was protected by virtue of the operation of its own award and found no cause for refusing variations sought — Granted

New award sought by ASEMFW to apply to employees manufacturing modem decoders — ASEMFW contended that manufacturing of modem decoder is work that results in the production of a "business machine" provided for in its constitutional rule — ETU objected on grounds that finished product was an electronic device — Commission on evidence, together with exhibits as to capabilities and in- spection of unit in full use was, persuaded that modem decoders were an electronic device and found inappropriate suggestion that it was a "business machine" within the meaning of the constitutional rule — Commission dismissed application as it lacked the vital ele- ment of union's ability to constituionally cover employees in the industry — Dismissed — Engineering

Registration by University of Western Australian Academic Staff Association sought — RANF objected re overlapping of membership in classifications of "main line academics", Senior Student Counsellors, Student Counsellors and the Director, Student Health Ser- vices — Full Bench found RANF classifications to be in a different industry to applicant's and overruled objection — Granted — Education

UTILISATION OF CONTRACTORS — Alleged breach of Award re utilisation of contractors — Union claimed company had failed to refer a disagreement on the utilisation of

contractors to the WAIR Commission as described in Clause 29 (3) (a) of award — Defendant argued that there was no case to answer, as there was no evidence to prove that employee was a Union Convenor and as such there was no evidence of a disagreement having taken place between the Union Convenor and Company — Magistrate found tendered evidence by union did not accredit employee as a Convenor of the Union as prescribed in Clause 3 (c), and indicated that the definition of convenor had not been complied with during period which was relevant to this complaint — Magistrate found in favour of NO CASE TO ANSWER submission as complaint had failed — Dismissed — Mining (Iron Ore) 909

VICTIMISATION — Alleged unfair dismissal due to unsatisfactory service — Union claimed termination effected because employee called for union support

in securing award entitlements — Respondent argued employee failed to provide satisfactory service and further, verbal warning that his work would be checked ignored — Commission preferred respondents evidence where conflict occurred — Commission noted employee had lost sight of his contractual obligations, and failed to demonstrate his abilities despite verbal warnings — Commission found no reason to believe dismissal had resulted from factors other than failure of employee to carry out his work satisfactorily — Dismissed — Retail 286

Transfer of Guidance Officer — Claimant sought deferment — Claimed respondent had not exercised discretion as in other cases and its actions were inequitable — Tribunal observed that due to the "specific, explicit and fundamental contract of employment" existing between Education Department and permanent teachers there would need to be "extraordinary and entirely unforeseen circumstances" before it would intervene in matters of transfer — Tribunal found that claimant's circumstances had been taken into account that he was not less fairly treated than others — Dismissed — Education (Teaching) 637

Dispute re termination — Union alleged unfair dismissal as employee was given notice of termination rather than being transferred — Union claimed, employee had been victimised in that he was an effective Shop Steward and was entitled to be transferred on the basis of his satisfactory work history and the undertakings given by the company — Respondent refuted claim and argued that company and industry practice was such that employihent was for duration of project only and in terminating employee it had acted lawfully and in accordance with award obligations — Board found respondent had based actions from a economic, management and convenience viewpoint with little regard to the human relations aspects of its decision — Board found due to nature of industry and circumstances it was inappropriate to substitute employers decision, however first preference should be given to employee in any future vacancy — Dismissed — Building Construction 741

WAGES — 'Dispute re increase in wages due to conflict of provisions in award — Applicant claimed National Wage Decision (at PG 0700) increasing

salaries of the clerical and administrative staff in the APS should not flow to the award in question — Applicant argued that the General Order (at 64 WAIG 407) inserted into all awards of the Commission prevented the automatic application of a provision in the award re that rates in it shall move simultaneously and in same measure as rates for clerks in the APS — CICS noted however that neither party suggested the basis on which the rates under the award had been erected was wrong or required any change — CICS satisfied the nexus existed and an equitable base had been established under the Wage Fixation Principles — CICS found the provision should operate according to its tenor, however in its view, the provision should now be deleted and the award included in schedules to orders issued pursuant to section 51 of the Act — Ordered Accordingly — Agriculutre

'State Review of National Wage Decision November 1985 — Confederation of WA Industry sought to persuade CICS that the Commission could discharge its obligation to give effect to the Australian Commission's decision (at PG 0700) to increase wages by 3.8 per cent by deferring part of that increase to some future date — CICS found proposal unacceptable on ground that "to comply with request would of necessity amount to a different decision than that given by the National Wage Decision" — CICS made note of conditions under which National Wage Decision would apply to State awards; "that each union make a global commitment to make no extra claims relating to awards for six months" — CICS partly in consideration of employers in the Mining Industry's wish to argue for exemption of that industry from the increase and partly to facilitate a resumption of discussions of new or varied wage fixing principles, adjourned proceedings sine die — Interim General Order made giving effect to National Wage Decision in State awards

47611—6



WAGES —continued Wage increase sought for veterinary nurses based on changes in the value of work re greater training and theoretical knowledge —

Respondent argued no significant change in the value of work and noted absence of any work value assessment in industry's history to support contention that the existing rate of pay was an appropriate base measure of the effect of changes that had taken place — Fur- ther, as wage principles restricted Commission carrying out an initial assessment to set the base measure, there was no basis upon which to calculate a change — Based on considerable research re comparison of work done in the past and present,^Commission found there was a nett addition to the value of work — Other amendments re 38 hour week etc granted as they did not involve additions to cost and were already in general included in other awards — Claim for Bereavement Leave remitted to CICS due to possible additions to labour costs — Granted in part — Animal Welfare ;

New agreement relating to salaries of public servants sought for officers employed under the P.S. Act save those whose salaries are covered by the special division of the Service or have equivalent salaries — Commission noted two main features of agreement were a rationalisation of salaries for base grade officers and a "broadbanding" of the classified range of salaries in the Service — Commission satisfied agreement was not a contrived scheme to increase wages and noted an initial cost saving largely due to removal of allowances with a future minimal increase due to changes to work value of base grade officers — Commission stated that "flow on" implications were limited to public instrumentalities who could also benefit from the agreement — Commission satisfied therefore that the agreement fill within the Wage Fixation Principles — Commission expressed that the benefits for the Service at large, particularly the flex- ibility in job functions, far outweighed the disadvantages and furthermore took the Service, managerially, into the 1980's — Granted — Public Service 3State Review of National Wage Case — CICS referred to previous decision (at 66 WAIG 4) where proceedings had been adjourned sine die partly at request of Tin Mining Industry — Industry argued that its employees not receive the National Wage Increase granted to all other employees under State awards re downturn in prices and demand for the industry's products — CICS stated company had capacity to pay the increase although it may lead to further loss of employment in the industry — CICS referred to primary principle of centralised wage fixing system re real value of wages be maintained except in exceptional circumstances — CICS found nothing exceptional about circumstances surrounding the Tin Industry — Application rejected — Tin Mining Industry granted 3.8 per cent National Wage Increase — Mining (Tin)

Variation/extension of award re scope clause and addition of new classification — Applicant sought award coverage of those employed in clerical vocations in the tourist bus and coachline industry — Further, a new classification re "travel officer" with a rate of pay equivalent to relevant Federal Award — Applicant claimed first award principles should apply and suitable guide for pay and conditions available in relevant Federal Award as work done by clerks in such award was similar to work of travel officers who sought coverage under present award — Respondent argued no justification existed for new classification under first award principles as the relevant employees within the industry were already employed under conditions similar to the present award — Commission found to make an award which increased wages beyond that already paid in the industry was outside the spirit and letter of the wage fixation principles — Further, the present award applied to a diverse range of industries and it was not a sensible exercise to make a special case for the industry now in question — Commission found to grant claim re new classification would be a recipe for others to seek special consideration in light of pecularities attached to their particular tasks — Granted in part — Services (Travel)

Allowance sought for boilermakers employed at Pannawonica for extra responsibilities taken on in the absence of a foreman boilermaker through annual leave, sick leave or LSL — Respondent opposed claim stating that no extra responsibilities were taken on by tradesman as claimed — Respondent referred to previous decision (57 WAIG 522) where criteria for unsupervised tradesman allowance given as requiring the tradesman to work alone and not be supervised — Respondent stated applicant tradesman would be disqualified from the claim based on that criteria — Commission noted review of concept and definition of criteria at that previous decision (57 WAIG 522) would entitle boilermakers to the allowance only when without their foreman boilermaker — Commission, on evidence, stated claim conformed generally with the concept of criteria referred to in that decision (57 WAIG 522) — Granted — Mining (Iron Ore)

Alleged non-payment of contractual benefits re election to office as organiser of union — Applicant claimed entitlement to payment for period between election to office and commencement of contract pursuant to rules of union — Commission stated issue as whether rules of union provide that contract of employment commences simulataneously with declaration of election to office — Question of jurisdiction of Comission raised by respondent re Federal Union — Commission established jurisdiction re Act — Commission stated precedent in Federal case where distinction between employment as organiser and membership of management committee — Commis- sion stated applicant offered contract in accordance with union rules therefore has no claim for payment prior to nominated date for commencement of contract — Dismissed — Meat

Wage increase sought for catchment wardens — Applicant claimed that wage rates accepted in 1979 and 1981 undervalued duties and responsibilities of position; and that classification of Rangers for National Parks and Water Authority are appropriately comparable — Respondent contended that wage alignment with classification of service layer grade one was and is appropriate — Commission concluded that whilst there were differences the duties of catchment wardens were more akin to rangers especially inasmuch that both are "eyes and ears" of their respective authorities — Also there are patrol and enforcement functions common to both — Parties directed to confer — Granted — Water, Sewerage and Drainage

Employee's weekly payments diminished — Applicant claimed contractual benefits not being entitlements arising out of an award following reduced payments and workload as a result of incapacity caused by a compensatable accident — Respondent claimed no work was available although employee not terminated. Respondent entitlement to reduce payments had been properly exercised and compensation paid — Commission found on evidence, no entitlement to the applicant had been refused by the respondent which could give rise to an order pursuant to section 29(b)(ii) of the Act — Commission instead directed respondent, pursuant to section 32 of the Act, to provide a rehabilitation programme for the applicant while his contract of service existed — Dismissed — Education

Applicant sought to amend Clerks' Award A14 of 1972 by deleting dental attendants and receptionists from scope — Dental attendant/ receptionists enjoy dual award coverage with rates for adults under subject award higher than A29 of 1982 — As highest rate must be paid applicant argued anomaly thus existed in relativity between dental assistant and attendant/receptionist — Commission found A29 of 1982 specifically caters for classification in question and it was never intended dental attendant/receptionists' receive clerks' rates — Granted — Health (Dental)

Variation to wage clause sought to amend award for Unit Attendants due to increased duties and responsibilities — Applicant sought to create nexus with Assistant Unit Controller and to maintain existing relativity for other classifications — Respondent offered to insert new subclause in Clause 28 re multi plant allowance and conceded as appropriate nexus for future wage rates UAI/AUC — Union accepted nexus as appropriate but disagreed with proposed alignment — Commission found increased duties and responsibilities genuine after inspections and parties' agreement on wage nexus realistically assessed on work value nature as adjustment to base rate rather than all-purpose allowance — Commission determined level of nexus between UAI first year rate and AUC commencement rate — Commission directed parties to confer to reach agreement on rates for remaining classifications — Commission stated inter classification relativities should be maintained — Interim order to vary wages Clause 29 — Granted — Energy

Question re — whether Qualification Allowance should be an "all purpose" or "flat" allowance — Union argued that acceptance and preference for State enrolled nurses, the value of which respondent has acknowledged should be reflected in the treatment of the allowance as an "all purpose" allowance — Respondent argued that it was a "flat" allowance paid for qualifications held, not necessarily for the work done — Respondent argued applicants claim would result in two wage rates for the same classification — Com- mission found words used in the definition crucial as employees with enrolled nurses qualifications are required to administer nursing treatment and to say otherwise would make nonsense of the permanent payment — Commission found permanent addition to weekly pay as conclusion that allowance should form part of the ordinary wage for all purposes of the award — Granted — Electricity and Gas (Nursing)

4Stay of operation of Commission decision (at 66 WAIG 782) sought pending outcome of appeal — Applicant sought to stay order for reinstatement of employee who was dismissed from employment with company in circumstances described as assault — Respondent consented to stay on agreed condition of full pay to employee until appeal decision issued — President found serious question to be tried at appeal and balance of convenience would favour granting of stay — Granted — Mining



WAGES —continued Employee summarily dismissed for alleged misconduct — Applicant sought payment in lieu of notice, pro rata annual leave and travel

expenses — Applicant claimed termination due to request for fairer payment for use of vehicle in shifting equipment — Respondent claimed termination due to slowness and damage prior to summary dismissal for refusing to obey instructions — Commission found claim for pro rata annual leave allowable under Award but dismissed claim for travel allowance re well established principle that Com- mission not able to imply term of contract as parties came to agreement — Commission found employer had no right to deduct pay in retrospect re sick pay and no reason for summarily dismissal — Further that contract of employment required one week's notice of termination — Commission ordered payment of wages in lieu of remaining notice — Granted in part — Printing

Payment sought for time lost during str;'.e action over safety issue — Union claimed company wrongly applied no work no pay rule and had issued totally unreasonable commands to drive unsafe vehicle — Respondent argued reason for strike action not safety but abusive language between union convenor and foreman and,that unions claim had no substance — Commission noted respondents evidence of practice whereby operators are permitted to stand down plant considered dangerous without loss of pay — Commission state obligation of union to follow agreed procedure specified in award — Further, payment for lost time would require that the company expect each employee to perform work that raised reasonable apprehension of personal danger — Commission found evidence did not allow that conclusion and state that to grant claim would meet demand for strike pay while approving breach of award — Dismissed — Mining

Wage increase sought for primary crusher operators in recognition of additional skills and responsibilities — Respondent argued application of strict wage fixation principle re there must be a significant net addition to work requirements to warrant creation of a new classification — Commission satisfied additional skills and responsibilities were in accordance to Principles and granted increase for the change in classification of operators — However, on evidence, with respect to supersucker, Commission not satisfied machine adds . in any way to skills or responsibilities of crusher operators — Granted in part — Iron Ore

2Appeal against part of decision of Commission (at 66 WAIG 163) re refusal to grant new classification to an award — Appellant argued Commission had erred in law in the application of first award princiies and in the refusal to grant specific rates to the classification which, it alleged were contrary to section 26 of IR Act 1979 — Appellant claimed Commission should have considered award under which similar work is performed as a guideline in view of evidence given to show similarity — Full Bench found appellants claim an in- version of the first award principles which operates to aid Commission in pressing claims — Full Bench found Commission affirmation of current rates appropriate in view of diverse range of industries covered by award and the possibility of special rates being claimed for travel officers — Full Bench dismissed appeal and remitted for hearing to Commission matter which parties to appeal were in accord for inclusion in the award — Dismissed — Travel

Alleged non-payment of contractual benefits — Applicant submitted she was still legally employed and claimed compensation for wages for period after two-week standdown when respondent failed to notify her to return to work plus two days' pay outstanding — Respondent not represented at hearing — Commission found respondent accepted terms of contract of employment liability to pay pro rata annual leave entitlements to terminating employees by agreements made before Commission (C327 of 1985) — Commission found termination of contract occurred when applicant did not report for work — Order issued for entitlement in equity to one week's pay in lieu of notice plus two days' pay outstanding and annual leave — Granted in part — Printing

2Appeal against Commission's decision not to order payment for claim to partial wages while receiving compensation (at 66 WAIG 423) — Appellant argued Commissioner should have found that appellant was denied benefit due from respondent, entitlement to partial payment of both wages and compensation or entitlement to usual wage in place of workers' compensation — Respondent argued entitlement to wages inconsistent with not being able to earn wages while receiving compensation — Commission accepted respondents proposition and stated principle applies to partially incapacitated as well as totally incapacitated employees — Commission found applicant had no remedy against Respondent of entitlement to wages — Dismissed — Education

Alleged breach of Award re underpayment of wages — Complainant claimed correct wage was that of upholsterer — Defendant argued the semi-skilled operative upholstery rate was appropriate — Magistrate on evidence and on examination of the Wages clause found complainant had been underpaid and was entitled to upholsterer's rate — Parties given liberty to apply if no agreement could be reached on the amount of underpayment — Proven — Manufacturing (Furniture) 3New award sought to cover registered nurses employed in Government subsidised nurseries, child care or day care services (excluding Ngal-a) — Applicant sought to establish a nexus between Mothercraft Nurses and Child Care Workers on the ground of identical duties etc — Furthermore to equate wages of registered nurses with registered nurses covered by the Nurses (Day Care Centre) Agree- ment — Respondent endorsed issuing of award in terms of the union claim — CIC noted and referenced the problems of relativities re qualified persons in this industry — CICS granted claim as the fairest, pending a review of the industry — However noted it was not an endorsement of the implied results that all the rates of trained personnel employed in the Child Care Industry should be tied to Pre School Teachers' rates — Nor that rates of nurses in this area should be tied to nurses working directly within their profession; or that Child Care Worker rates are a better work value assessment than current Mothercraft Nurses rates — Granted — Childrens Services....

WORK VALUE - Wage increse sought for veterinary nurses based on changes in the value of work re greater training and theoretical knowledge —

Respondent argued no significant change in the value of work and noted absence of any work value assessment in industry's history to support contention that the existing rate of pay was an appropriate base measure of the effect of changes that had taken place — Fur- ther, as wage principles restricted Commission carrying out an initial assessment to set the base measure, there was no basis upon which to calculate a change — Based on considerable research re comparison of work done in the past and present, Commission found there was a nett addition to the value of work — Other amendments re 38 hour week etc granted as they did not involve additions to cost and were already in general included in other awards — Claim for Bereavement Leave remitted to CICS due to possible additions to labour costs — Granted in part — Animal Welfare

New agreement relating to salaries of public servants sought for officers employed under the P.S. Act save those whose salaries are covered by the special division of the Service or have equivalent salaries — Commission noted two main features of agreement were a rationalisation of salaries for base grade officers and a' 'broadbanding'' of the classified range of salaries in the Service — Commission satisfied agreement was not a contrived scheme to increase wages and noted an initial cost saving largely due to removal of allowances with a future minimal increase due to changes to work value of base grade officers — Commission stated that "flow on" implications were limited to public instrumentalities who could also benefit from the agreement — Commission satisfied therefore that the agreement fill within the Wage Fixation Principles — Commission expressed that the benefits for the Service at large, particularly the flex- ibility in job functions, far outweighed the disadvantages and furthermore took the Service, managerially, into the 1980's — Granted — Public Service

Allowance sought by special class signalmen based on extra duties performed on weekends — Applicant claimed extra duties were required of the signalman when the regulator was rostered off — Further, although these duties were required of signalmen in other control centres, it was not ordinarily required of a signalman at Mid Sig — Respondent argued involvement of additional duties were small and there were few occasions when authority otherwise exercised by regulator was exercised by signalman — Commission noted relevant award already rewarded special class signalmen for being able to carry out a range of tasks — Further, although particular duties were not normally required, it did not prevent respondent from requiring it to be done without additional payment — Commis- sion found on evidence Wage Fixation Principles not satisfied re no net addition to the value of work — Dismissed — Railway



WORK VALUE —continued Allowance sought for boilermakers employed at Pannawonica for extra responsibilities taken on in the absence of a foreman boilermaker

through annual leave, sick leave or LSL — Respondent opposed claim stating that no extra responsibilities were taken on by tradesman as claimed — Respondent referred to previous decision (57 WAIG 522) where criteria for unsupervised tradesman allowance given as requiring the tradesman to work alone and not be supervised — Respondent stated applicant tradesmen would be disqualified from the claim based on that criteria — Commission noted review of concept and definition of criteria at that previous decision (57 WAIG 522) would entitle boilermakers to the allowance only when without their foreman boilermaker — Commission, on evidence, stated claim conformed generally with the concept of criteria referred to in that decision (57 WAIG 522) — Granted — Mining 3Appeal against Special Board of Reference decision (65 WAIG 2124) on payment of special allowance for long service leave — CICS found appellants complaint on determination of VDT allowance not being a special allowance unfounded as Board only rejected applicants claim that VDT allowance was a special rate — CICS found Boards conclusion based on work value correct and reiterated that special rates are provided for special and not usual circumstances — In this instance employee would have failed to perform duties if she did not use the equipment — CICS found issue of "compounding" irrelevant as it only lent support to claim that VDT allowance was a "special rate" — Dismissed — Printing

Variation to wage clause sought to amend award for Unit Attendants due to increased duties and responsibilities — Applicant sought to create nexus with Assistant Unit Controller and to maintain existing relativity for other classifications — Respondent offered to insert new subclause in Clause 28 re multi plant allowance and conceded as appropriate nexus for future wage rates UAI/AUC — Union accepted nexus as appropriate but disagreed "with proposed alignment — Commission found increased duties and responsibilities genuine after inspections and parties' agreement on wage nexus realistically assessed on work value nature as adjustment to base rate rather than all-purpose allowance — Commission determined level of nexus between UAI first year rate and AUC commencement rate — Commission directed parties to confer to reach agreement on rates for remaining classifications — Commission stated inter classification relativities should be maintained — Interim order to vary wages Clause 29 — Granted — Energy

Wage increase sought for primary crusher operators in recognition of additional skills and responsibilities — Respondent argued application of strict wage fixation principle re there must be a significant net addition to work requirements to warrant creation of a new classification — Commission satisfied additional skills and responsibilities were in accordance to Principles and granted increase for the change in classification of operators — However, on evidence, with respect to supersucker, Commission not satisfied machine adds in any way to skills or responsibilities of crusher operators — Granted in part — Iron Ore

Western Australian Industrial Gazette

Orders for Extracts of Awards and Agreements from

the Western Australian Industrial Gazette must be in

the hands of the Government Printer within twenty-

eight (28) days of the date of publication.

Orders received after this date will not be supplied at

the concessional rate.

WILLIAM C. BROWN,

Government Printer.

47611/5/86—610 By Authority: WlLLIAM C. BROWN, Government Printer

974 western australian industrial gazette. 66 … · act 1978 — appellant claimed that salary on...

Documents