western australian industrial gazette · sub-part 7 wednesday 26 october, 2011 vol. 91—part 2 the...

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Western Australian

Industrial Gazette PUBLISHED BY AUTHORITY

Sub-Part 7 WEDNESDAY 26 OCTOBER, 2011 Vol. 91—Part 2 THE mode of citation of this volume of the Western Australian Industrial Gazette will be as follows:—

91 W.A.I.G.

CUMULATIVE CONTENTS AND DIGEST APPEAR AT THE END OF THIS PUBLICATION

PRESIDENT—Unions—Matters dealt with under Section 66—

2011 WAIRC 00896 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES STEPHEN PRICE APPLICANT

-and- THE AUSTRALIAN WORKERS' UNION, WEST AUSTRALIAN BRANCH, INDUSTRIAL UNION OF WORKERS

RESPONDENT CORAM THE HONOURABLE J H SMITH, ACTING PRESIDENT DATE TUESDAY, 20 SEPTEMBER 2011 FILE NO/S PRES 1 OF 2011 CITATION NO. 2011 WAIRC 00896

Result Order issued Appearances Applicant Mr S T I Banovich (of counsel) Respondent Mr S T I Banovich (of counsel)

Order This matter having come on for hearing before me on Wednesday, 14 September 2011 and Tuesday, 20 September 2011, and having heard Mr S T I Banovich (of counsel) on behalf of the applicant and the respondent, the Acting President, pursuant to the powers conferred under the Industrial Relations Act 1979 (WA) (the Act), and by consent, hereby orders pursuant to s 66(2)(a)(ii), s 66(2)(a)(v) and s 66(2)(e) of the Act that — 1. The observance of the following rules of the respondent are waived, inter alia, for the purpose of providing consistency

between the composition of the functioning Executive positions of the respondent and the Australian Workers’ Union, West Australian Branch (the Branch), namely by waiving compliance with the references to the President, Vice-Presidents and Secretary of the Mining Division and the Mining Division itself on grounds that the Mining Division has ceased to exist and has no members: (a) Rule 24(1), insofar as the rule refers to 'the President and Secretary of the Mining Division' (b) Rule 25, insofar as the rule refers to 'One of such Divisions shall be the Mining Division which shall be deemed

to have been created by virtue of this Rule' (c) Rule 29(1), insofar as the rule refers to 'the President and Secretary of the Mining Division' (d) Rule 29(6), insofar as the rule refers to 'and the President and Secretary of the Mining Division'

2140 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 91 W.A.I.G.

(e) Rule 34, insofar as the rule refers to 'AND PRESIDENT AND VICE-PRESIDENTS OF THE MINING DIVISION' from the rule sub-heading

(f) Rule 34(2), insofar as the rule refers to 'the Mining' (g) Rule 35, insofar as the rule refers to 'AND SECRETARY OF THE MINING DIVISION' from the rule sub-

heading (h) Rule 35(2), insofar as the rule refers to 'the Mining' (i) Rule 36(6) (j) Rule 49(5), insofar as the rule refers to 'the Mining'.

2. With effect from the date of this order, the compliance with the requirement to fill the following positions in the Executive of the respondent:

Mining Division President Mining Division Secretary

is waived. 3. With effect from the commencement of the current term of the Executive of the respondent to the date of this order, all

applications granted by this Honourable Commission for the respondent, and all decisions made by the respondent for the purpose of conducting its business as a Union are deemed to have been validly made.

4. There be liberty to apply. (Sgd.) J H SMITH,

[L.S.] Acting President.

PUBLIC SERVICE ARBITRATOR—Awards/Agreements—Variation of—

2011 WAIRC 00914 COUNTRY HIGH SCHOOL HOSTELS AUTHORITY RESIDENTIAL COLLEGE SUPERVISORY STAFF AWARD

2005 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES THE CIVIL SERVICE ASSOCIATION OF WESTERN AUSTRALIA INCORPORATED APPLICANT

-v- COUNTRY HIGH SCHOOLS HOSTEL AUTHORITY

RESPONDENT CORAM PUBLIC SERVICE ARBITRATOR ACTING SENIOR COMMISSIONER P E SCOTT DATE FRIDAY, 23 SEPTEMBER 2011 FILE NO P 19 OF 2011 CITATION NO. 2011 WAIRC 00914

Result Award varied

Order HAVING heard Ms A Wyllie and with her Mr M Sims on behalf of The Civil Service Association of Western Australia Incorporated and Ms N Naeser and with her Mr A Harper as agent for the respondents, and by consent, the Public Service Arbitrator, pursuant to the powers conferred under the Industrial Relations Act 1979, hereby orders: THAT the Country High School Hostels Authority Residential College Supervisory Staff Award 2005 be varied in

accordance with the following Schedule and that such variation shall have effect from the beginning of the first pay period commencing on or after the 16th day of September 2011.

(Sgd.) P E SCOTT, Acting Senior Commissioner,

[L.S.] Public Service Arbitrator.

91 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 2141

SCHEDULE 1. Clause 24. – Removal Allowance:

A. Delete subclause (1)(c) of this clause and insert the following in lieu thereof: (c) An allowance of $551.00 for accelerated depreciation and extra wear and tear on furniture, effects and

appliances for each occasion that an employee is required to transport their furniture, effects and appliances provided that the Authority is satisfied that the value of household furniture, effects and appliances moved by the employee is at least $3,305.00.

B. Delete subclause (1)(d) of this clause and insert the following in lieu thereof: (d) Reimbursement of reasonable expenses in kennelling and transporting of domestic pet or pets up to a maximum

amount of $185.00. Pets are defined as dogs, cats, birds or other domestic animals kept by the employee or the employee's dependants for the purpose of household enjoyment. Pets do not include domesticated livestock, native animals or equine animals.

C. Delete subclause (6) of this clause and insert the following in lieu thereof: (6) Where an employee is transferred to government owned or private rental accommodation, where furniture is provided,

and as a consequence the employee is obliged to store furniture, the employee shall be reimbursed the actual cost of such storage up to a maximum allowance of $1,025.00 per annum. Actual cost is deemed to include the premium for adequate insurance coverage for the value of the furniture stored. An allowance under this subclause shall not be paid for a period in excess of four years without the approval of the Authority.

2011 WAIRC 00913 EDUCATION DEPARTMENT MINISTERIAL OFFICERS SALARIES ALLOWANCES AND CONDITIONS AWARD

1983 NO 5 OF 1983 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES THE CIVIL SERVICE ASSOCIATION OF WESTERN AUSTRALIA INCORPORATED APPLICANT

-v- DEPARTMENT OF EDUCATION


Result Award varied

Order HAVING heard Ms A Wyllie and with her Mr M Sims on behalf of The Civil Service Association of Western Australia Incorporated and Ms N Naeser and with her Mr A Harper as agent for the respondents, and by consent, the Public Service Arbitrator, pursuant to the powers conferred under the Industrial Relations Act 1979, hereby orders: THAT the Education Department Ministerial Officers Salaries Allowances and Conditions Award 1983 No 5 of 1983 be

varied in accordance with the following Schedule and that such variation shall have effect from the beginning of the first pay period commencing on or after the 16th day of September 2011.


[L.S.] Public Service Arbitrator. SCHEDULE

1. Clause 40. – Relieving Allowance: Delete subclause (4) of this clause and insert the following in lieu thereof: (4) If an officer whose normal duties do not involve camp accommodation is required to relieve or perform special duty

resulting in a stay at a camp, the officer shall be paid camping allowance for the duration of the period spent in camp, and in addition, shall be paid a lump sum of $185.00 to cover incidental personal expenses: Provided that an officer shall receive no more than one lump sum of $185.00 in any one period of three (3) years.


2. Clause 41. – Removal Allowance: A. Delete subclause (1)(c) of this clause and insert the following in lieu thereof: (c) An allowance of $551.00 for accelerated depreciation and extra wear and tear on furniture, effects and

appliances for each occasion that an employee is required to transport their furniture, effects and appliances provided that the employer is satisfied that the value of household furniture, effects and appliances moved by the employee is at least $3,305.00.




and as a consequence the employee is obliged to store furniture, the employee shall be reimbursed the actual cost of such storage up to a maximum allowance of $1,025.00 per annum. Actual cost is deemed to include the premium for adequate insurance coverage for the value of the furniture stored. An allowance under this subclause shall not be paid for a period in excess of four years without the approval of the employer.

3. Schedule G – Overtime Allowance: Delete PART II of this schedule and insert the following in lieu thereof: PART II – MEALS (Operative from the first pay period commencing on or from 16 September 2011) Breakfast $10.45 per meal Lunch $12.80 per meal Evening Meal $15.40 per meal Supper $10.45 per meal

2011 WAIRC 00912 ELECTORATE OFFICERS AWARD 1986

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES THE CIVIL SERVICE ASSOCIATION OF WESTERN AUSTRALIA INCORPORATED

APPLICANT -v- THE HONOURABLE SPEAKER OF THE LEGISLATIVE ASSEMBLY AND ANOTHER

RESPONDENTS CORAM PUBLIC SERVICE ARBITRATOR ACTING SENIOR COMMISSIONER P E SCOTT DATE FRIDAY, 23 SEPTEMBER 2011 FILE NO P 17 OF 2011 CITATION NO. 2011 WAIRC 00912

Result Award varied

Order HAVING heard Ms A Wyllie and with her Mr M Sims on behalf of The Civil Service Association of Western Australia Incorporated and Ms N Naeser and with her Mr A Harper as agent for the respondents, and by consent, the Public Service Arbitrator, pursuant to the powers conferred under the Industrial Relations Act 1979, hereby orders: THAT the Electorate Officers Award 1986 be varied in accordance with the following Schedule and that such variation

shall have effect from the beginning of the first pay period commencing on or after the 16th day of September 2011. (Sgd.) P E SCOTT,

Acting Senior Commissioner, [L.S.] Public Service Arbitrator.


SCHEDULE 1. Clause 38. – Removal Allowance:

A. Delete subclause (1)(c) of this clause and insert the following in lieu thereof: (c) An allowance of $551.00 for accelerated depreciation and extra wear and tear on furniture, effects and






2011 WAIRC 00905 GOVERNMENT OFFICERS SALARIES, ALLOWANCES AND CONDITIONS AWARD 1989


APPLICANT -v- ANIMAL RESOURCES AUTHORITY AND OTHERS


Result Award varied

Order HAVING heard Ms A Wyllie and with her Mr M Sims on behalf of The Civil Service Association of Western Australia Incorporated and Ms N Naeser and with her Mr A Harper as agent for the respondents, and by consent, the Public Service Arbitrator, pursuant to the powers conferred under the Industrial Relations Act 1979, hereby orders: THAT the Government Officers Salaries, Allowances and Conditions Award 1989 be varied in accordance with the

following Schedule and that such variation shall have effect from the beginning of the first pay period commencing on or after the 16th day of September 2011.



1. Clause 49. – Relieving Allowance: Delete subclause (1)(d) of this clause and insert the following in lieu thereof: (d) If an officer whose normal duties do not involve camp accommodation is required to relieve or perform special

duty resulting in a stay at a camp, the officer shall be paid camping allowance for the duration of the period spent in camp, and in addition, shall be paid a lump sum of $185.00 to cover incidental personal expenses: Provided that an officer shall receive no more than one lump sum of $185.00 in any one period of three (3) years.


2. Clause 50. – Removal Allowance: A: Delete subclause (1)(c) of this clause and insert the following in lieu thereof: (c) An allowance of $551.00 for accelerated depreciation and extra wear and tear on furniture, effects and


B: Delete subclause (1)(d) of this clause and insert the following in lieu thereof: (d) Reimbursement of reasonable expenses in kennelling and transporting of domestic pet or pets up to a maximum


C: Delete subclause (6) of this clause and insert the following in lieu thereof: (6) Where an employee is transferred to government owned or private rental accommodation, where furniture is provided,


3. Schedule I - Clause 22. – Overtime Allowance: Delete Part II – Meals of this schedule and insert the following in lieu thereof:

PART II - MEALS (Operative from the first pay period commencing on or from 16 September 2011. Breakfast $10.45 per meal Lunch $12.80 per meal Evening Meal $15.40 per meal 4. Scheduled O Annual Interstate Allowance Rates: Delete this schedule and insert the following in lieu thereof:

ANNUAL INTERSTATE ALLOWANCE RATES (Operative from the first pay period commencing on or from 16 September 2011 Single With Dependents $ $ Adelaide $2,810 $3,830 Brisbane $3,104 $4,140 Melbourne $3,137 $4,639 Sydney $4,818 $5,756

2011 WAIRC 00911 GOVERNMENT OFFICERS (SOCIAL TRAINERS) AWARD 1988


APPLICANT -v- DISABILITY SERVICES COMMISSION


Result Award varied


Order HAVING heard Ms A Wyllie and with her Mr M Sims on behalf of The Civil Service Association of Western Australia Incorporated and Ms N Naeser and with her Mr A Harper as agent for the respondents, and by consent, the Public Service Arbitrator, pursuant to the powers conferred under the Industrial Relations Act 1979, hereby orders: THAT the Government Officers (Social Trainers) Award 1988 be varied in accordance with the following Schedule and

that such variation shall have effect from the beginning of the first pay period commencing on or after the 16th day of September 2011.



1. Clause 45. – Relieving Allowance: Delete subclause (4) of this clause and insert the following in lieu thereof: (4) If an employee whose normal duties do not involve camp accommodation is required to relieve or perform special duty

resulting in a stay at a camp, the employee shall be paid camping allowance for the duration of the period spent in camp, and in addition, shall be paid a lump sum of $185.00 to cover incidental personal expenses: Provided that an employee shall receive no more than one lump sum of $185.00 in any one period of three (3) years.







3. Schedule E – Overtime Allowance: Delete PART II of this schedule and insert the following in lieu thereof: PART II - MEALS (Operative from first pay period commencing on and from 16th September 2011)

Breakfast $10.45 per meal Lunch $12.80 per meal Evening Meal $15.40 per meal

2011 WAIRC 00908 GOVERNMENT OFFICERS (STATE GOVERNMENT INSURANCE COMMISSION) AWARD, 1987


APPLICANT -v- INSURANCE COMMISSION OF WESTERN AUSTRALIA



Result Award varied

Order HAVING heard Ms A Wyllie and with her Mr M Sims on behalf of The Civil Service Association of Western Australia Incorporated and Ms N Naeser and with her Mr A Harper as agent for the respondents, and by consent, the Public Service Arbitrator, pursuant to the powers conferred under the Industrial Relations Act 1979, hereby orders: THAT the Government Officers (State Government Insurance Commission) Award, 1987 be varied in accordance with

the following Schedule and that such variation shall have effect from the beginning of the first pay period commencing on or after the 16th day of September 2011.



1. Schedule C – Overtime Allowance: Delete PART II of this schedule and insert the following in lieu thereof: PART II - MEALS (Operative from first pay period commencing on and from 16 September 2011) Breakfast $10.45 per meal Lunch $12.80 per meal Evening Meal $15.40 per meal Supper $10.45 per meal

2011 WAIRC 00909 JUVENILE CUSTODIAL OFFICERS' AWARD


APPLICANT -v- COMMISSIONER, DEPARTMENT OF CORRECTIVE SERVICES AND ANOTHER


Result Award varied

Order HAVING heard Ms A Wyllie and with her Mr M Sims on behalf of The Civil Service Association of Western Australia Incorporated and Ms N Naeser and with her Mr A Harper as agent for the respondents, and by consent, the Public Service Arbitrator, pursuant to the powers conferred under the Industrial Relations Act 1979, hereby orders: THAT the Juvenile Custodial Officers’ Award be varied in accordance with the following Schedule and that such

variation shall have effect from the beginning of the first pay period commencing on or after the 16th day of September 2011.



1. Clause 5.7. – Relieving Allowance: Delete subclause 5.7.4 of this clause and insert the following in lieu thereof: 5.7.4 If an employee whose normal duties do not involve camp accommodation is required to relieve or perform special duty

resulting in a stay at a camp, the employee shall be paid camping allowance for the duration of the period spent in camp, and in addition, shall be paid a lump sum of $185.00 to cover incidental personal expenses: Provided that an employee shall receive no more than one lump sum of $185.00 in any one period of three years.


2. Clause 5.8. – Removal Allowance: A. Delete subclause 5.8.1(3) of this clause and insert the following in lieu thereof: (3) An allowance of $551.00 for accelerated depreciation and extra wear and tear on furniture, effects and

appliances for each occasion that an employee is required to transport their furniture, effects and appliances provided that the employer is satisfied that the value of household furniture, effects and appliances moved by the employee is at least $3,305.

B. Delete subclause 5.8.1(4) of this clause and insert the following in lieu thereof: (4) Reimbursement of reasonable expenses in kennelling and transporting of domestic pet or pets up to a maximum

amount of $185.00. Pets are defined as dogs, cats, birds or other domestic animals kept by the employee or the employee's

dependants for the purpose of household enjoyment. Pets do not include domesticated livestock, native animals or equine animals. C. Delete subclause 5.8.6 of this clause and insert the following in lieu thereof:

5.8.6 Where an employee is transferred to government owned or private rental accommodation, where furniture is provided, and as a consequence the employee is obliged to store furniture, the employee shall be reimbursed the actual cost of such storage up to a maximum allowance of $1,025.00 per annum. Actual cost is deemed to include the premium for adequate insurance coverage for the value of the furniture stored. An allowance under this subclause shall not be paid for a period in excess of four years without the approval of the employer.

2011 WAIRC 00910 PARLIAMENTARY EMPLOYEES AWARD 1989


APPLICANT -v- THE GOVERNOR OF WESTERN AUSTRALIA IN COUNCIL AND OTHERS


Result Award varied

Order HAVING heard Ms A Wyllie and with her Mr M Sims on behalf of The Civil Service Association of Western Australia Incorporated and Ms N Naeser and with her Mr A Harper as agent for the respondents, and by consent, the Public Service Arbitrator, pursuant to the powers conferred under the Industrial Relations Act 1979, hereby orders: THAT the Parliamentary Employees Award 1989 be varied in accordance with the following Schedule and that such

variation shall have effect from the beginning of the first pay period commencing on or after the 16th day of September 2011.



1. Clause 9. – Meal Allowance: Delete subclause (1) of this clause and insert the following in lieu thereof: (1) An employee who is required to work overtime under Clause 7 of this Award and where such overtime extends beyond

5.00 p.m., a meal allowance shall be paid in accordance with the provisions of the Public Service Overtime Award No. 10 of 1978 Clause 8 as amended. Provided that where such overtime extends beyond 6.00 a.m. the following day, an allowance of $15.40 or the amount charged by the House, whichever is the higher, for such a three course meal shall be paid.


2011 WAIRC 00906 PUBLIC SERVICE AWARD 1992


APPLICANT -v- CURRICULUM COUNCIL OF WESTERN AUSTRALIA AND OTHERS


Result Award varied

Order HAVING heard Ms A Wyllie and with her Mr M Sims on behalf of The Civil Service Association of Western Australia Incorporated and Ms N Naeser and with her Mr A Harper as agent for the respondents, and by consent, the Public Service Arbitrator, pursuant to the powers conferred under the Industrial Relations Act 1979, hereby orders: THAT the Public Service Award 1992 be varied in accordance with the following Schedule and that such variation shall

have effect from the beginning of the first pay period commencing on or after the 16th day of September 2011. (Sgd.) P E SCOTT,

Acting Senior Commissioner, [L.S.] Public Service Arbitrator.

SCHEDULE 1. Clause 50. – Relieving Allowance: Delete subclause (4) of this clause and insert the following in lieu thereof: (4) If an officer whose normal duties do not involve camp accommodation is required to relieve or perform special duty

resulting in a stay at a camp, the officer shall be paid camping allowance for the duration of the period spent in camp, and in addition, shall be paid a lump sum of $185.00 to cover incidental personal expenses: Provided that an officer shall receive no more than one lump sum of $185.00 in any one period of three (3) years.








3. Schedule H – Overtime: Delete Part II of this schedule and insert the following in lieu thereof: PART II – MEALS (Operative from the first pay period commencing on or from 16 September 2011)

Breakfast $10.45 per meal Lunch $12.80 per meal Evening Meal $15.40 per meal Supper $10.45 per meal

AWARDS/AGREEMENTS—Variation of—

2011 WAIRC 00947 FAST FOOD OUTLETS AWARD 1990

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES THE SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES' ASSOCIATION OF WESTERN

AUSTRALIA APPLICANT

-v- AUSTRALIAN FAST FOODS PTY LTD AND OTHERS

RESPONDENTS CORAM COMMISSIONER S M MAYMAN DATE MONDAY, 10 OCTOBER 2011 FILE NO/S APPL 48 OF 2011 CITATION NO. 2011 WAIRC 00947

Result Award varied Representation Applicant Mr T Pope Respondent

Order HAVING heard Mr T Pope on behalf of The Shop, Distributive and Allied Employees’ Association of Western Australia and there being no appearance on behalf of the respondents, and by consent, the Commission, pursuant to the powers conferred under the Industrial Relations Act 1979, hereby orders: THAT the Fast Foods Outlets Award 1990 be varied in accordance with the following Schedule and that such variation

shall have effect from the beginning of the first pay period commencing on or after the 10th day of October 2011. (Sgd.) S M MAYMAN,

[L.S.] Commissioner. SCHEDULE

1. Clause 13. – Meal Money: Delete this clause and insert the following in lieu thereof: Any employee who is required to work overtime for more than two hours on any day, without being notified on the previous day or earlier, that he or she will be required to work such overtime, will either be supplied with a meal by the employer or be paid $12.45 meal money. The meal money amount prescribed in this Clause was established by way of nexus with the Shop and Warehouse (Wholesale and Retail Establishments) State Award 1971 in application 1928 of 2002. 2. Clause 20. – Wages: Delete subclause (2) of this clause and insert the following in lieu thereof: (2) Leading Hands -

An employee who is appointed and placed in charge of other employees by the employer shall be paid the following rates in addition to the employee’s normal wage per week - (a) If placed in charge of less than 6 employees $8.85 (b) If placed in charge of 6 to 10 employees $12.05 (c) If placed in charge of 11 to 20 employees $14.20 (d) If placed in charge of more than 20 employees $22.90


3. Clause 22. – Bar Work: Delete this clause and insert the following in lieu thereof: Any employee, other than a Bar Attendant, who in addition to his or her normal duties is required to dispense liquor from a bar, shall be paid a flat rate of $1.15 per day in addition to the rate prescribed for such normal duties. 4. Clause 24. – Uniforms and Laundering: Delete this clause and insert the following in lieu thereof: Where uniforms are required by the employer to be worn they shall be supplied, laundered and/or dry cleaned by the employer and remain the property of the employer, provided that in lieu of the employer laundering and/or dry cleaning same, the employee shall be paid the following laundry allowance per week -

Class of Employee Allowance per Week

Employees employed on a casual basis $1.70 Employees employed on a part time basis $2.10 Employees employed on a full time basis $2.70

Provided that any employee employed as a full time Cook shall be paid $3.25 per week for laundry and/or dry cleaning. Provided further that the provisions of this clause may be altered by written agreement between the union and the employer. 5. Clause 25. – Protective Clothing: Delete subclause (1) of this clause and insert the following in lieu thereof: (1) Employees who are required to wash dishes, clean toilets or otherwise handle detergents, acids, soaps or any injurious

substances shall be supplied, free of charge by the employer, with rubber gloves or be paid an allowance of $1.70 per week in lieu.

2011 WAIRC 00920 FIRE BRIGADE EMPLOYEES (WORKSHOPS) AWARD NO 6 OF 1981

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL,

PLUMBING AND ALLIED WORKERS UNION OF AUSTRALIA, ENGINEERING AND ELECTRICAL DIVISION, WA BRANCH

APPLICANT -v- WESTERN AUSTRALIAN FIRE BRIGADES BOARD AND ANOTHER

RESPONDENTS CORAM COMMISSIONER S M MAYMAN DATE WEDNESDAY, 28 SEPTEMBER 2011 FILE NO/S APPL 8 OF 2011 CITATION NO. 2011 WAIRC 00920

Result Award varied Representation Applicant Ms N Ireland Respondent Ms L Egloff-Barr

Order HAVING HEARD Ms N Ireland on behalf of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Workers Union of Australia, Engineering and Electrical Division WA Branch and Ms L Egloff-Barr on behalf of the Western Australian Fire Brigades Board, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby orders:

THAT the Fire Brigade Employees (Workshops) Award No 6 of 1981 be varied in accordance with the following Schedule and that such variation shall have effect from the beginning of the first pay period commencing on or after 16 May 2011.

(Sgd.) S M MAYMAN, [L.S.] Commissioner.


SCHEDULE 1. Clause 9. – Overtime: A Delete subclause (3) of this clause and insert the following in lieu thereof: (3) An employee required to work continuous overtime for more than one hour shall be supplied with a meal by the employer

or be paid $9.50 for a meal. B Delete subclause (9)(b)(ii) of this clause and insert the following in lieu thereof:

(ii) An employee who is available in accordance with subclause (9)(b)(i) of this clause shall be paid an allowance of $68.50 for each week the employee is required to be available. This allowance shall be paid on a pro-rata basis for each “part week” where the employee is required to be available.

2. Clause 11. – Special Rates and Provisions: Delete subclauses (3) and (4) of this clause and insert the following in lieu thereof:

(3) An Electrician - Special class, an electrical fitter and/or armature winder or an electrical installer who holds, and in the course of his/her employment may be required to use a current "A" Grade or "B" Grade licence issued pursuant to the relevant regulation in force on the 28th day of February, 1978 under the Electricity Act 1945 shall be paid an allowance of $20.40 per week.

(4) A licensed electrical fitter or electrical installer who acts as nominee for the employer shall be paid an allowance of $19.10 per week.

3. Clause 19. – Wages: A Delete subclauses (4) and (5) of this clause and insert the following in lieu thereof: (4) A tradesperson placed in charge of three or more other employees, in addition to the ordinary rate, shall be paid per week

- (a) If placed in charge of not less than three and

not more than 10 other employees $26.00

(b) If placed in charge of more than 10 and not more than 19 other employees

$40.00

(c) If placed in charge of more than 20 other employees

$51.30

(5) (a) The employer shall pay employees an allowance for service of: $8.00 in the second year of service. $16.00 in the third and subsequent years of service.

(b) This allowance shall be paid as “all purpose”. B Delete subclause (6)(a) of this clause and insert the following in lieu thereof: (6) (a) Where the employer does not provide a tradesperson or an apprentice with the tools ordinarily required by that

tradesperson or apprentice in the performance of work as a tradesperson or as an apprentice, the employer shall pay a tool allowance of: (i) $14.40 per week to such tradesperson; or (ii) in the case of an apprentice a percentage of $14.40, being the percentage which appears against the

relevant year of apprenticeship. For the purpose of such tradesperson or apprentice supplying and maintaining tools ordinarily required in the performance of work as a tradesperson or as an apprentice.

2011 WAIRC 00948 FOOD INDUSTRY (FOOD MANUFACTURING OR PROCESSING) AWARD

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES THE FOOD PRESERVER' UNION OF WESTERN AUSTRALIA UNION OF WORKERS

APPLICANT -v- ANCHOR PRODUCTS PTY LTD AND OTHERS




Order HAVING heard Mr T Pope on behalf of The Food Preserver’ Union of Western Australia Union of Workers and there being no appearance on behalf of the respondents, and by consent, the Commission, pursuant to the powers conferred under the Industrial Relations Act 1979, hereby orders: THAT the Food Industry (Food Manufacturing or Processing) Award be varied in accordance with the following

Schedule and that such variation shall have effect from the beginning of the first pay period commencing on or after the 10th day of October 2011.


SCHEDULE 1. Clause 19. – Meal Allowance: Delete this clause and insert the following in lieu thereof: Where an employee required to work overtime for more than two hours, without being notified on the previous day or earlier that he/she will be so required to work, shall be supplied with a meal by the employer or paid $10.55 for a meal. If owing to the amount of overtime a second or subsequent meal is required the employee shall be supplied with each such meal by the employer or be paid $7.15 for each meal so required. If an employee in consequence of receiving such notice has provided himself/herself with a meal or meals and is not required to work overtime or is required to work less overtime than notified, he/she shall be paid the amounts prescribed above in respect of the meals not then required. 2. Clause 31. – Wages: Delete subclause (3) of this clause and insert the following in lieu thereof: (3) Leading Hands

Per Week Extra $

A Leading Hand In-Charge of: (a) Less than three other employees 15.50 (b) Not less than three and not more that ten other employees 30.45 (c) More than ten other employees 44.75

2011 WAIRC 00949 THE SHOP AND WAREHOUSE (WHOLESALE AND RETAIL ESTABLISHMENTS) STATE AWARD 1977

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES THE SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES' ASSOCIATION OF WESTERN

AUSTRALIA APPLICANT

-v- AUDIOCLINIC NATIONAL HEARING AIDS AND OTHERS




Order HAVING heard Mr T Pope on behalf of The Shop, Distributive and Allied Employees’ Association of Western Australia and there being no appearance on behalf of the respondents, and by consent, the Commission, pursuant to the powers conferred under the Industrial Relations Act 1979, hereby orders: THAT The Shop and Warehouse (Wholesale and Retail Establishments) State Award 1977 be varied in accordance with

the following Schedule and that such variation shall have effect from the beginning of the first pay period commencing on or after the 10th day of October 2011.


SCHEDULE 1. Clause 7A. – Nightfill Duty: Delete subclause (9) of this clause and insert the following in lieu thereof: (9) (a) A full-time, part-time or casual worker employed in a "General Retail Shop" or "Special Retail Shop" pursuant

to this clause shall be paid an additional loading as prescribed hereunder: (i) Monday to Saturday prior to 7.00 am

(aa) Full-time and Part-time Workers - a loading of $3.31 per hour in addition to the ordinary hourly rate of a full-time

or part-time worker. (bb) Casual Workers

- a loading of $3.31 per hour in addition to the ordinary casual rate as laid down in paragraph (a) of subclause (4) of Clause 7. - Casual Workers.

(ii) Saturday between 5.00 pm and Midnight (aa) Full-time and Part-time Workers

- a loading of $4.70 per hour in addition to the ordinary hourly rate of a full-time worker as prescribed in column (i) of subclause (1) of Part I of Clause 28. - Wages.

(bb) Part-time Workers - a loading of $10.25 per hour in addition to the ordinary hourly rate of a full-time

shop assistant as prescribed in column (i) of subclause (1) of Part I of Clause 28. - Wages.

(cc) Casual Workers - a loading of $12.26 per hour in addition to the ordinary casual rate as laid down

in paragraph (a) of subclause (4) of Clause 7. - Casual Workers. (b) Junior workers shall be paid the appropriate percentage as laid down in Part II of Clause 28. - Wages. (c) The loadings referred to in (i) and (ii) above shall be paid for the purpose of superannuation calculations.

2. Clause 12. – Meal Money: A. Delete subclause (1) of this clause and insert the following in lieu thereof:

(1) When a worker is required to continue working after the usual finishing time for more than one hour he/she shall be paid $12.45 for the purchase of any meal required. B. Delete subclause (2) of this clause and insert the following in lieu thereof:

(2) Late Night Trading Meal Allowance: A worker who commences work at or prior to 1.00pm on the day of late night trading and is required to work beyond 7.00pm on that day shall be paid a meal allowance of $12.45.

3. Clause 28. – Wages: Delete Part III of this clause and insert the following in lieu thereof: Part III – In addition to the rates prescribed elsewhere in this clause the following allowances and rates shall be paid to a worker where applicable: (1) (a) A worker required to operate a ride-on power operated tow motor, a ride-on power operated pallet truck or a

walk beside power operated high lift stacker in the performance of his duties shall be paid an additional 0.71 cents per hour whilst so engaged.

(b) A worker required to operate a ride-on power operated fork lift, high lift stacker or high lift stock picker or a power operated overhead traversing hoist in the performance of his duties shall be paid an additional 0.78 cents per hour whilst so engaged.

(c) The allowances prescribed by this subclause shall not be payable to an employee engaged, and paid, as a "Storeman Operator Grade 1" or a "Storeman Operator Grade 2".

(2) Any workers, whether a junior or adult, employed as a canvasser and/or collector shall be paid the adult male wage.


(3) Where a canvasser provides his own bicycle he shall be paid an allowance of $1.53 per week. (4) (a) A worker shall receive an additional payment for every hour of which he spends 20 minutes or more in a cold

chamber in accordance with the following: In a cold chamber in which the temperature is:

(i) Below 0º Celsius to -20° Celsius - $0.87 per hour

(ii) Below -20° Celsius to -25° Celsius - $1.02 per hour

(iii) Below -25° Celsius - $1.14 per hour.

(b) Workers required to work in temperatures less than -18.9° Celsius shall be medically examined at the employer's expense.

(5) (a) A worker (full time, part time or casual) who is required to work any of his or her ordinary hours between 6.00p.m. and 11.30p.m. Monday to Friday inclusive in a "small retail shop" as defined or a "special retail shop" (pharmacy) as defined shall be paid at a loading of 20% for each hour worked after 6.00p.m.

For casual workers such loading shall be paid in addition to the rates prescribed in Clause 7(4) of this award.

(b) A worker (part time or casual) who is required to work any of his or her ordinary hours between 6.00p.m. and 11.30p.m. on Saturday in a "small retail shop" as defined or a "special retail shop" (pharmacy) as defined shall be paid at a loading of 20% for each hour worked after 6.00p.m.

(i) A casual worker employed under paragraph (b) of this subclause shall be paid the 20% loading as calculated on the rates as determined by subclause (5) of Clause 7. - Casual Workers.

(ii) A part time worker employed under paragraph (b) of this subclause shall be paid the 20% loading as calculated on the rates as determined by paragraph (b) of subclause (7) of Clause 8. - Part Time Workers.

(6) (a) An employee in a "Section 42 shop" as defined who is required to work any of his or her ordinary hours between 6.00pm and midnight Monday to Friday inclusive shall be paid a loading of 20% for each hour so worked.

Provided that for casual workers such loading shall be paid in addition to the rates prescribed in Clause 7. - Casual Workers subclause (4) of this award.

(b) An employee in a "Section 42 shop" as defined who is required to work any of his or her ordinary hours between 6.00pm and midnight on Saturday shall be paid a loading of 20% for each hour worked after 6.00pm.

(i) A casual employee employed under paragraph (b) of this subclause shall be paid the 20% loading as calculated on the rates as determined by subclause (5) of Clause 7. - Casual Workers.

(ii) A full or part-time employee employed under paragraph (b) of this subclause shall be paid the 20% loading as calculated on the rates as determined by paragraph (b) of subclause (7) of Clause 8. - Part-Time Workers.

(c) An employee in a "Section 42 shop" as defined who is required to work any of his or her ordinary hours before 7.00am on any day Monday to Saturday inclusive shall be paid a loading of 30% for each hour so worked.

Provided that for casual workers such loading shall be paid in addition to the rates prescribed in Clause 7. - Casual Workers subclause (4) of this award.

(7) An automotive spare parts or accessories salesman qualified (i.e. one who has passed the appropriate course of technical training) shall be paid the sum of $26.00 per week in addition to the rates prescribed herein.

4. Clause 28A. – Structural Efficiency Agreement – Cold Storage Industry: Delete this clause and insert the following in lieu thereof:

P. & O. Cold Stores and Clelands Cold Stores shall pay $26.00 per week in addition to the rates prescribed by Clause 28. - Wages of this award from the beginning of the first pay period commencing on or after 1 November 1989 and $4.35 in addition to the rates prescribed by Clause 28. - Wages of this award from the beginning of the first pay period commencing on or after 1 December 1989 on account of agreement reached for a structural efficiency package which the parties anticipate will result in the creation of a Cold Storage Award being negotiated in accordance with the objectives and content of the Structural Efficiency Principle.

5. Clause 46. – First Aid Allowance: Delete this clause and insert the following in lieu thereof:

A worker holding either a Red Cross or St. John Senior First Aid Certificate of at least 'A' level who is appointed by the employer to perform first aid duties shall be paid $10.30 per week in addition to the worker's ordinary rate.

6. Clause 48. – Additional Loading for Late Night Trading Establishments:

A. Delete subclause (1) of this clause and insert the following in lieu thereof:

(1) A full-time or part-time worker employed in a "General Retail Shop" or "Special Retail Shop" who works ordinary hours between 6.00 p.m. and 9.00 p.m. on the day of late night trading shall be paid a loading of $4.15 per hour in addition to the ordinary hourly rate of a full-time or part-time worker.


B. Delete subclause (2) of this clause and insert the following in lieu thereof:

(2) A casual worker employed in a "General Retail Shop" or "Special Retail Shop" who works ordinary hours between 6.00 p.m. and 9.00 p.m. on the day of late night trading shall be paid the amount of $4.15 per hour in addition to the ordinary casual rate as laid down in paragraph (a) of subclause (4) of Clause 7. - Casual Workers.

AGREEMENTS—Industrial—Retirement from—

2011 WAIRC 00965 NOTICE

GOLDFIELDS-ESPERANCE DEVELOPMENT COMMISSION AGENCY SPECIFIC AGREEMENT 2007, NO PSAAG 14 OF 2007

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION No. APPL 52 of 2011

IN THE MATTER of the Industrial Relations Act 1979 and

IN THE MATTER of the filing in the Office of the Registrar of a Notice of Retirement from Industrial Agreement in accordance with section 41(7) of the said Act

The Goldsfields-Esperance Development Commission will cease to be a party to the Goldfields-Esperance Development Commission Agency Specific Agreement 2007, No PSAAG 14 of 2007 on and from the 17th day of October 2011. DATED THIS 4th DAY OF OCTOBER 2011. (Sgd.) S BASTIAN, [L.S.] Registrar.

2011 WAIRC 00964 NOTICE

SHIRE OF PINGELLY (OUTSIDE WORKERS) REGISTERED ENTERPRISE BARGAINING AGREEMENT 2007, NO. AG 70 OF 2007

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION No. APPL 5 of 2011

IN THE MATTER of the Industrial Relations Act 1979 and

IN THE MATTER of the filing in the Office of the Registrar of a Notice of Retirement from Industrial Agreement in accordance with section 41(7) of the said Act

The Shire of Pingelly ceased to be a party to the Shire of Pingelly (Outside Workers) Registered Enterprise Bargaining Agreement 2007, No AG 70 of 2007, on and from the 7th day of March 2011. DATED at Perth this 12th day of October 2011. (Sgd.) S BASTIAN, [L.S.] Registrar.


NOTICES—Award/Agreement matters—


Application No. AG 25 of 2011 APPLICATION FOR A NEW AGREEMENT TITLED

“PUBLIC TRANSPORT AUTHORITY RAILWAY EMPLOYEES (NETWORK AND INFRASTRUCUTRE) INDUSTRIAL AGREEMENT 2011"

NOTICE is given that an application has been made to the Commission by the Public Transport Authority of Western Australia and The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch under the Industrial Relations Act 1979 for the registration of the above Agreement. As far as relevant, those parts of the proposed Agreement which relate to area of operation and scope are published hereunder. 1.3. Area and Scope 1.3.1. This Agreement applies to and binds approximately 43 employees who are engaged by the Employer in the

classifications listed at Schedule B – Wages Table of this Agreement and who are members of or are eligible to be members of the Union.

1.3.2. This Agreement also applies to and binds the Employer and the Union. 1.3.3. This Agreement is made in substitution for the Public Transport Authority Railway Employees Industrial

Agreement 2009 in so far as that agreement applies 1.3.4. This Agreement is a standalone agreement. The provisions of the Award will not apply while this Agreement

remains in force. 1.3.5. This Agreement shall operate throughout the State of Western Australia. 1.6. Definitions 1.6.2. "Award" means the Railways Employees Award No 18 of1969. … 1.6.6. "Classification Definitions" means the classification definitions set out in Schedule A - Classification

Definitions, Qualifications and Relativities Incorporated from Railway Employee Award I8 of 1969 of the Agreement.

… 1.6.11. "Employer" means the Public Transport Authority of Western Australia. … 1.6.24. "Union" means the Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch. SCHEDULE B – WAGES TABLE Classifications Level 1 (trainee catenary maintainer) Level 2 Level 3 Level 3A Level 4 (Nominated catenary maintainer) Level 4 Base Rate with Experience Allowance after 12 months’ service Level 4 Base Rate with Experience Allowance after 24 months’ service Level 5 (senior Signal, catenary and reserve maintainer) Level 5 Base Rate with Experience Allowance after 12 months’ service Level 5 Base Rate with Experience Allowance after 24 months’ service Level 6 (Advanced maintainer) Level 6 Base Rate with Experience Allowance after 12 months’ service Level 6 Base Rate with Experience Allowance after 24 months’ service Level 7 (perway patroller) Level 7 Base Rate with Experience Allowance after 12 months’ service Level 7 Base Rate with Experience Allowance after 12 months’ service


A copy of the proposed Agreement may be inspected at my office at 111 St. Georges Terrace, Perth. (Sgd.) S BASTIAN, [L.S.] Registrar. 29 September 2011


Application No. AG 24 of 2011 APPLICATION FOR A NEW AGREEMENT TITLED

“PUBLIC TRANSPORT AUTHORITY RAILWAY EMPLOYEES (TRANSPERTH TRAIN OPERATIONS) INDUSTRIAL AGREEMENT 2011"

NOTICE is given that an application has been made to the Commission by the Public Transport Authority of Western Australia and The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch under the Industrial Relations Act 1979 for the registration of the above Agreement. As far as relevant, those parts of the proposed Agreement which relate to area of operation and scope are published hereunder. 1.3. Area and Scope 1.3.1. This Agreement applies to and binds approximately 210 employees who are engaged

by the Employer in the classifications listed at Schedule A of this Agreement and who are members of or are eligible to be members of the Union.

1.3.2. This Agreement also applies to and binds the Employer and the Union. 1.3.3. This Agreement is made in substitution for the Public Transport Authority Railway

Employees Industrial Agreement 2009 in so far as that agreement applies to and binds the employees nominated in subclause 1.3.1.

1.3.4. This Agreement is a standalone agreement. The provisions of the Award will not apply while this Agreement remains in force.

1.3.5. This Agreement shall operate throughout the State of Westem Australia. 1.5. Definitions 1.5.4. "Award" means the Railways Employees Award No 18 of1969. … 1.5.7. "Classification Definitions" means the classification definitions at subclause 4.11.1(a) of the Award. … 1.5.12. "Employer" means the Public Transport Authority of Western Australia. … 1.5.23. "Union" means the Australian Rail, Tram and Bus Industry Union of Employees,

West Australian Branch. SCHEDULE A - WAGES TABLES Classifications Level 1 Level 2 Level 3 – Carpark Attendants (38 Hour Week) Level 3 Depot Surveillance Attendant, Suburban Rail (Station) Attendant Level 4 (Passenger Ticketing Assistant) Level 5 (Customer Service Assistant) Level 6 (CMR Operator) Level 3 – Car park Attendants (38 Hour Week) Level 3 – Depot Surveillance Attendant Level 5 (Customer Service Assistant) Level 5 (CMR Operator)


A copy of the proposed Agreement may be inspected at my office at 111 St. Georges Terrace, Perth. (Sgd.) S BASTIAN, [L.S.] Registrar. 29 September 2011

UNFAIR DISMISSAL/CONTRACTUAL ENTITLEMENTS—


PARTIES TREVOR ANDERSON APPLICANT

-v- MI & E HOLDINGS PTY LTD

RESPONDENT CORAM COMMISSIONER S M MAYMAN DATE MONDAY, 26 SEPTEMBER 2011 FILE NO/S B 80 OF 2011 CITATION NO. 2011 WAIRC 00918

Result Application discontinued Representation Applicant No appearance Respondent No appearance

Order WHEREAS this is an application pursuant to section 29(1)(b)(ii) of the Industrial Relations Act 1979; AND WHEREAS on 30 August 2011 the applicant filed a Notice of Discontinuance in respect of the application; NOW THEREFORE, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby orders: THAT this application be, and is hereby discontinued.



PARTIES WASHINGTON BEPETE APPLICANT

-v- BOARD OF GOLDFIELDS BAPTIST COLLEGE INCORPORATED

RESPONDENT CORAM COMMISSIONER S M MAYMAN DATE THURSDAY, 22 SEPTEMBER 2011 FILE NO/S U 24 OF 2011 CITATION NO. 2011 WAIRC 00901

Result Application discontinued Representation Applicant Ms K House (of counsel) Respondent Mr N Irvine (as agent)


Order

WHEREAS this is an application pursuant to section 29(1)(b)(i) of the Industrial Relations Act 1979;

AND WHEREAS the Commission sought written submissions from the parties on the issue of jurisdiction raised by the respondent;

AND WHEREAS after receiving the parties’ written submissions the applicant requested a conciliation conference;

AND WHEREAS on 22 June 2011 the Commission convened a conference for the purpose of conciliating between the parties;

AND WHEREAS at the conclusion of the conference no agreement was reached between the parties;

AND WHEREAS on 1 September 2011 the applicant filed a Notice of Discontinuance in respect of the application;

NOW THEREFORE, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby orders:

THAT this application be, and is hereby discontinued. (Sgd.) S M MAYMAN,

[L.S.] Commissioner.


PARTIES FIONA MCKENZIE BROOKS APPLICANT

-v- DWS ADVANCED BUSINESS SOLUTIONS

RESPONDENT CORAM COMMISSIONER S M MAYMAN DATE THURSDAY,22 SEPTEMBER 2011 FILE NO/S B 121 OF 2011 CITATION NO. 2011 WAIRC 00902

Result Application discontinued Representation Applicant Ms F M Brooks Respondent Mr L Armstrong and Mr A Kuras

Order WHEREAS this is an application pursuant to section 29(1)(b)(ii) of the Industrial Relations Act 1979; AND WHEREAS on 26 August 2011 the Commission convened a conference for the purpose of conciliating between the parties; AND WHEREAS at the conclusion of the conference agreement was reached between the parties; AND WHEREAS on 30 August 2011 the applicant filed a Notice of Discontinuance in respect of the application; NOW THEREFORE, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby orders: THAT this application be, and is hereby discontinued.




CITATION : 2011 WAIRC 00925 CORAM : COMMISSIONER S M MAYMAN HEARD : TUESDAY, 21 DECEMBER 2010, THURSDAY, 16 JUNE 2011 DELIVERED : FRIDAY, 30 SEPTEMBER 2011 FILE NO. : B 191 OF 2010 BETWEEN : SYDNEY BUCKLE

Applicant AND ST MARY'S ANGLICAN GIRLS' SCHOOL Respondent

CatchWords : Contractual benefits claim - contract of employment - application dismissed - Industrial Relations Act 1979 (WA) s 29(1)(b)(ii)

Legislation : Industrial Relations Act 1979 (WA), Fair Work Act 2009 (Cth) Result : Application dismissed Representation: Counsel: Applicant : Mr S Buckle Respondent : Mr M Jensen (of counsel)

Reasons for Decision 1 This is an application by Mr Sydney Buckle (the applicant) filed on 6 December 2010 pursuant to s 29(1)(b)(ii) of the

Industrial Relations Act 1979 (WA). The applicant seeks benefits he considers have been denied by St Marys Anglican Girls' School (the respondent). The applicant claimed that he had been denied some $7,110.26 by the respondent. It was the opinion of the respondent that the calculation of the applicant's termination payment was agreed with the applicant at the time and correct in actual calculation.

2 A conciliation conference was held on 21 December 2010. No agreement was able to be reached between the parties. The matter was referred to hearing and with the consent of the parties it was determined that submissions be provided in writing and, if applicable, written statements of evidence be provided and any documents on which such statements rely. The Western Australian Industrial Relations Commission (the Commission) advised the parties that the matter would be decided on the basis of the submissions and evidence received.

3 A further conference was convened on 16 June 2011 for the purpose of discussing the parties' written submissions. The parties agreed that it would be appropriate for the applicant to seek further advice and for the parties to provide further submissions

4 It was agreed that the Commission would then consider the submissions of the applicant and the respondent before making a decision.

Applicant 5 The applicant submitted he was employed by the respondent for 8 1/2 years on a 43 hour week between Monday and Friday.

On Monday to Friday he worked 7.6 hours and on Saturdays he worked 5 hours. For the purposes of the applicant's contract, hours worked on Saturdays were accumulated for school holidays.

6 The applicant was first employed on 22 July 2002 by the respondent. A written contract was agreed between the parties. Relevant sections of the contract included the clauses relating to annual leave and hours:

Annual Leave. Your salary will be based on working term time, based on a six day week Monday to Saturday plus five days before the start of each school year, three days before the start of each term other than first term and two days after the end of each school term including the final school term. Your salary is based on a working week of 7.6 hours Monday to Friday and 5 hours Saturday. It also includes any additional time that is required to complete all of the requirements of your position, for functions etc, as detailed in your job description.


The Claim 7 The applicant claimed the following outstanding contractual entitlements had been denied by the respondent:

payment for 1 and 2 November 2010 15.2 hours $539.22 payment for 4 Saturdays worked in term 4 of 2010 30.4 hours $1,078.44 payment for 4 weeks notice to the end of term 4 20 hours $709.50 payment for long service leave 54.2 hours $1,922.74 payment for term 2 of 2011 9 x 5 hours 45 hours $1,596.37 sub-total 164.8 hours $5,846.27 plus superannuation less payment received from the respondent 25.34 hours $898.94 Total 139.46 hours $4,947.34

8 In essence the disputed claim by the applicant was directed at what constituted the ordinary hours of work per week. The applicant submitted that the weekly hours required to be worked as specified in the written contract of employment totalled 43 hours. Further, at the time of termination, payment made by the respondent had been based on a 38 hour week and had clearly excluded the additional 5 hours worked each week.

9 The applicant included in his submissions a copy of his final termination payment details, in addition to the final written submissions on 29 June 2011, a reply to the respondent's submission claimed the following:

the applicant's denied contractual benefit claim was based on the contract signed between the respondent in July 2002 and subsequently the agreement reached at the time of termination in November 2010;

if employment had continued based on a monthly payment of $5,841.66, such payment would continue to the conclusion of term 2, 2011; and

such assertions were based on the agreement of 2 November 2010 which included: (i) 4 weeks notice from 2 November 2010; (ii) term 2, 2011; and (iii) annual leave and long service leave. Respondent 10 The respondent submitted the applicant had initially been employed by the respondent as a full-time employee in the role of

manager food services pursuant to a written contract of employment. At the time the applicant was terminated he was rostered to work 43 hours per week during term time.

11 The respondent denotes ‘term time’ to be that period when the school has students attending. For the 2010 school year this was a total of 39 weeks, split between 4 terms. During the period that the applicant was employed, ‘term time’ varied between 38 and 39 weeks per year, split between 4 terms.

12 The respondent submitted there existed an agreement between the parties that the additional 5 hours worked on a Saturday was compensated for by the fact that the applicant only worked ‘term time’. For the remaining 13 weeks (which covered the 3 term breaks and the Christmas holidays) the applicant was not required to work or attend the workplace. Included in the 13 week period was the applicant's annual leave as accrued during the year.

13 The applicant received a salary of $70,100 per annum to be paid in 12 equal monthly instalments. The applicant was paid in this manner so as to receive a regular income throughout the year, including the periods when he was not required to attend the workplace.

14 In November 2010 the applicant's employment was terminated. It was agreed between the respondent and the applicant that the termination payment would comprise:

the applicant's normal hours for November 2010; the applicant's annual leave entitlements of December 2010 in addition to 17 1/2% annual leave loading; severance payment of 10 weeks at 38 hours per week; and long service leave accrual of 10.84 weeks at 38 hours per week.

15 Following the payment of the applicant’s termination payment an error was identified by the respondent in that an incorrect factor of 152 had been used to determine the monthly rate of pay. Traditionally the respondent used a factor of 164.67 hours for a month’s pay. The respondent submitted an adjustment payment was made and the applicant was notified by correspondence dated 25 January 2010.

16 The respondent submitted, given the applicant's employment was not covered by an industrial award that the National Employment Standards (NES) set the minimum standards that apply to the employment of employees having regard to s 61 of the Fair Work Act 2009 (Cth) (the FWA). The ordinary hours of work for a full-time employee under the FWA refer to a 38 hour week.


17 In relying on the provisions of the FWA the respondent submitted that: the additional hours worked by the applicant were reasonable; such hours were necessary to meet the needs of the respondent's workplace; the applicant is fully compensated for working the additional hours in that he was paid as a full-time employee during his employment whilst working approximately 300 hours less than a full-time employee working 38 hours per week; and the applicant's entitlements (annual leave, long service leave and sick leave) were calculated over 52 weeks as if he was a full-time employee and not the 39 weeks that he actually worked.

18 The respondent sought an order from the Commission dismissing the application. Conclusions 19 The Commission has considered the written submissions and documentary evidence of the applicant and the respondent. The

Commission accepts that the applicant was employed as the Manager Food Services by the respondent. The Commission also accepts that the applicant was employed under a contract of employment.

20 It is the Commission’s view the applicant has failed to make out his claim that he has been denied a benefit due under his contract of employment with the respondent. In making my decision the Commission has had regard for the NES which set the minimum standards that are applied to the employment of employees with respect to hours of work. In particular, s 20 of the FWA provides for the ordinary hours of work for a full-time employee to be 38 hours.

21 The Commission finds that the respondent required the applicant to work 38 hours per week plus reasonable additional hours in accordance with s 62(3) of the FWA.

Determining whether additional hours are reasonable (3) In determining whether additional hours are reasonable or unreasonable for the purposes of subsections (1) and

(2), the following must be taken into account: (a) any risk to employee health and safety from working the additional hours; (b) the employee’s personal circumstances, including family responsibilities; (c) the needs of the workplace or enterprise in which the employee is employed; (d) whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or

a level of remuneration that reflects an expectation of, working additional hours; (e) any notice given by the employer of any request or requirement to work the additional hours; (f) any notice given by the employee of his or her intention to refuse to work the additional hours; (g) the usual patterns of work in the industry, or the part of an industry, in which the employee works; (h) the nature of the employee’s role, and the employee’s level of responsibility; (i) whether the additional hours are in accordance with averaging terms included under section 63 in a

modern award or enterprise agreement that applies to the employee, or with an averaging arrangement agreed to by the employer and employee under section 64;

(j) any other relevant matter. 22 The Commission finds that the additional hours worked by the applicant were reasonable and necessary having regard to the

needs of the workplace. The Commission also finds that the applicant was compensated for working the additional hours in that he was paid as a full-time employee yet worked many hours less per annum than a full-time employee working 38 hours per week. In particular the Commission has had regard for the manner in which the applicant’s income was evenly divided between 12 months and the 13 week break he received each year.

23 Furthermore, the Commission finds the applicant's entitlements (annual leave, long service leave and sick leave) are calculated over 52 weeks as if he were a full-time employee and not the 39 weeks that he actually worked.

24 The onus in matters such as these, is on the applicant to prove that the claims are benefits to which he is entitled under his contract of employment. It is for the Commission to ascertain whether the claim constitutes a benefit denied under such a contract, having regard to the obligation of the Commission to act according to equity, good conscience and the substantial merits of the case. For this purpose the principles as per Belo Fisheries v Froggett (1983) 63 WAIG 2394 and Perth Finishing College Pty Ltd v Watts (1989) 69 WAIG 2307 are applied. It is the Commission’s view that the applicant has failed to make out his claim that he has been denied benefits due to him under his contract of employment with the respondent for additional payments at the time of termination based on hours worked over and above 38 hours per week.

25 The lack of specificity associated with the applicant’s claim for denied contractual benefits has been an issue. The Commission has attempted to overcome the difficulties associated with this issue by providing the applicant with a further opportunity to submit details in writing. The Commission thanks the respondent’s counsel for their cooperation. Unfortunately, the detail necessary has not been forthcoming.

26 The Commission finds that the applicant has failed to make his claim and accordingly an order will issue dismissing the application.



PARTIES SYDNEY BUCKLE APPLICANT

-v- ST MARY ANGLICAN GIRLS SCHOOL

RESPONDENT CORAM COMMISSIONER S M MAYMAN DATE THURSDAY, 6 OCTOBER 2011 FILE NO/S B 191 OF 2010 CITATION NO. 2011 WAIRC 00930

Result Application dismissed Representation Applicant Mr S Buckle Respondent Mr M Jensen (of counsel)

Order HAVING HEARD Mr S Buckle, by way of written submissions, on his own behalf as the applicant and Mr M Jensen (of counsel), by way of written submissions, on behalf of the respondent, the Commission, pursuant to the powers conferred under the Industrial Relations Act 1979, hereby orders: THAT this application be, and is hereby dismissed.



PARTIES HAYLEY JADE COOMBS APPLICANT

-v- TONIQUE HEALTH AND BEAUTY SALON

RESPONDENT CORAM COMMISSIONER S M MAYMAN DATE THURSDAY, 6 OCTOBER 2011 FILE NO/S U 112 OF 2011 CITATION NO. 2011 WAIRC 00932

Result Application discontinued Representation Applicant Mr G J Coombs Respondent Ms E Walker

Order WHEREAS this is an application pursuant to section 29(1)(b)(i) of the Industrial Relations Act 1979; AND WHEREAS on 1 September 2011 the Commission convened a conference for the purpose of conciliating between the parties; AND WHEREAS at the conclusion of the conference agreement was reached between the parties; AND WHEREAS on 26 September 2011 the applicant filed a Notice of Discontinuance in respect of the application; NOW THEREFORE, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby orders: THAT this application be, and is hereby discontinued.




PARTIES TRINA DEAKIN APPLICANT

-v- THE DIRECTOR GENERAL OF HEALTH IN HIS INCORPORATED CAPACITY FOR THE MINISTER FOR HEALTH IN HIS INCORPORATED CAPACITY UNDER S.7 OF THE HOSPITALS AND HEALTH SERVICES ACT 1927 (WA)

RESPONDENT CORAM ACTING SENIOR COMMISSIONER P E SCOTT DATE FRIDAY, 23 SEPTEMBER 2011 FILE NO/S U 172 OF 2009 CITATION NO. 2011 WAIRC 00915

Result Application dismissed

Order WHEREAS this is an application pursuant to Section 29(1)(b)(i) of the Industrial Relations Act 1979; and WHEREAS on the 23rd day of November 2009 and 26th day of March 2010 the Commission convened conferences for the purpose of conciliating between the parties; and WHEREAS at the conclusion of each conference the parties agreed to engage in further settlement negotiations; and WHEREAS on the 20th day of September 2011 the applicant filed a Notice of Discontinuance in respect of the application; NOW THEREFORE, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby orders:

THAT this application be, and is hereby dismissed. (Sgd.) P E SCOTT,

[L.S.] Acting Senior Commissioner.


PARTIES BRAD JAMES GARTH APPLICANT

-v- J.C MIDOLO & R.E MIDOLO T/AS MIDOLO BUILDING SERVICES

RESPONDENT CORAM COMMISSIONER S M MAYMAN DATE MONDAY, 10 OCTOBER 2011 FILE NO/S U 138 OF 2011 CITATION NO. 2011 WAIRC 00938


Order WHEREAS this is an application pursuant to section 29(1)(b)(i) of the Industrial Relations Act 1979; AND WHEREAS the applicant advised the matter had been settled; AND WHEREAS on 28 September 2011 the applicant filed a Notice of Withdrawal or Discontinuance in respect of the application;


NOW THEREFORE, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby orders: THAT this application be, and is hereby discontinued.



PARTIES OWEN GRIFFITHS APPLICANT

-v- WILLIAM TEMPLE TRADING AS BRIDGES PERSONAL INVESTMENT SERVICES - KING STREET

RESPONDENT CORAM COMMISSIONER S J KENNER DATE TUESDAY, 23 AUGUST 2011 FILE NO. B 30 OF 2011 CITATION NO. 2011 WAIRC 00847

Result Direction issued Representation Applicant In person Respondent In person

Direction WHEREAS the applicant filed a statutory declaration of service on 1 August 2011, declaring that on 29 July 2011 he served the respondent with an amended notice of application by post; AND WHEREAS the respondent says he did not receive the amended notice of application; NOW THEREFORE the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979 hereby directs –

(1) THAT the Registrar serve on the respondent by fax a copy of the amended notice of application. (2) THAT the respondent file and serve on the applicant a notice of answer and counter proposal by no later than 6

September 2011. (Sgd.) S J KENNER,



PARTIES OWEN GRIFFITHS APPLICANT

-v- WILLIAM TEMPLE TRADING AS BRIDGES PERSONAL INVESTMENT SERVICES - KING STREET

RESPONDENT CORAM COMMISSIONER S J KENNER DATE FRIDAY, 30 SEPTEMBER 2011 FILE NO/S B 30 OF 2011 CITATION NO. 2011 WAIRC 00928


Result Application dismissed Representation Applicant Mr O Griffiths Respondent Mr M Lindsey-Temple of counsel

Order WHEREAS on 28 February 2011 and 25 August 2011 the applicant commenced and amended proceedings against the respondent alleging that he had been denied certain contractual entitlements on the termination of his employment; AND WHEREAS the respondent by notice of answer and counter proposal filed on 6 September 2011 contests the applicants claims and says that he has no entitlement to the benefits claimed by reason of the applicant’s summary dismissal for misconduct on 1 September 2010; AND WHEREAS at a conciliation conference held under s 32 of the Act on 30 September 2011 the applicant informed the Commission that he accepted the matters raised in the respondent’s notice of answer and counter proposal and that in the circumstances he had no basis to claim the entitlements sought under his former contract of employment with the respondent; NOW THEREFORE the Commission, pursuant to the powers conferred on it under the Industrial Relations Act, 1979 hereby orders – THAT the application be and is hereby dismissed.

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


PARTIES VIVIANA JANCSO APPLICANT

-v- ALLAMBEE COUNSELLING INC

RESPONDENT CORAM ACTING SENIOR COMMISSIONER P E SCOTT DATE WEDNESDAY, 12 OCTOBER 2011 FILE NO/S U 139 OF 2011 CITATION NO. 2011 WAIRC 00956


Order WHEREAS this is an application pursuant to Section 29(1)(b)(i) of the Industrial Relations Act 1979; and WHEREAS by a Notice of Hearing dated the 16th day of September 2011, the Commission advised the applicant that a hearing would be convened on the 10th day of October 2011 at 10.30 am for the applicant to show cause why the application should not be dismissed; and WHEREAS at the hearing on the 10th day of October 2011 there was no appearance for or by the applicant; and WHEREAS the Commission took account of the history of the filing of the application and other matters and decided to dismiss the application; NOW THEREFORE, the Commission, pursuant to the powers conferred under the Industrial Relations Act 1979, hereby orders:





PARTIES SHARON LESLEY KIMBER APPLICANT

-v- YARLOOP COMMUNITY LEARNING AND DROP IN CENTRE INC (YARLOOP COMMUNITY RESOURCE CENTRE INC)

RESPONDENT CORAM COMMISSIONER S M MAYMAN DATE MONDAY, 26 SEPTEMBER 2011 FILE NO/S B 110 OF 2011 CITATION NO. 2011 WAIRC 00919

Result Application discontinued Representation Applicant Ms S L Kimber Respondent Mr K Trainer (as agent)

Order WHEREAS this is an application pursuant to section 29(1)(b)(ii) of the Industrial Relations Act 1979; AND WHEREAS on 26 July 2011 the Commission convened a conference for the purpose of conciliating between the parties; AND WHEREAS at the conclusion of the conference agreement was reached between the parties; AND WHEREAS on 30 August 2011 the applicant filed a Notice of Discontinuance in respect of the application; NOW THEREFORE, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby orders: THAT this application be, and is hereby discontinued.



PARTIES LIESL MANS APPLICANT

-v- THE BELL ACCOUNTING TRUST, TRADING AS 'BELL CHARTERED ACCOUNTANTS'

RESPONDENT CORAM COMMISSIONER S J KENNER DATE THURSDAY, 13 OCTOBER 2011 FILE NO/S U 140 OF 2011 CITATION NO. 2011 WAIRC 00961

Result Consent order issued Representation Applicant Ms L Mans Respondent Mr S Bell

Consent Order HAVING heard Ms L Mans on her own behalf and Mr S Bell on behalf of the respondent the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979 and by consent hereby orders –


(1) THAT the respondent pay to the applicant the sum of $1,461.00 within 14 days. (2) THAT upon receipt by the applicant of the settlement sum the application be and is hereby discontinued.



PARTIES DIANNE ELIZABETH PASSAMANI APPLICANT

-v- THE DIRECTOR GENERAL OF HEALTH AS THE DELEGATE FOR THE MINISTER FOR HEALTH IN HIS INCORPORATED CAPACITY UNDER S.7 OF THE HOSPITALS AND HEALTH SERVICES ACT 1927 (WA) OFFICE OF DIRECTOR GENERAL DEPARTMENT OF HEALTH

RESPONDENT CORAM ACTING SENIOR COMMISSIONER P E SCOTT DATE FRIDAY, 23 SEPTEMBER 2011 FILE NO/S U 173 OF 2009 CITATION NO. 2011 WAIRC 00916


Order WHEREAS this is an application pursuant to Section 29(1)(b)(i) of the Industrial Relations Act 1979; and WHEREAS on the 23rd day of November 2009 and 26th day of March 2010 the Commission convened conferences for the purpose of conciliating between the parties; and WHEREAS at the conclusion of each conference the parties agreed to engage in further settlement negotiations; and WHEREAS on the 20th day of September 2011 the applicant filed a Notice of Discontinuance in respect of the application; NOW THEREFORE, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby orders:




PARTIES DARRYL W RODRIGUES APPLICANT

-v- 3D JOINERY

RESPONDENT CORAM COMMISSIONER S M MAYMAN DATE FRIDAY, 30 SEPTEMBER 2011 FILE NO/S U 113 OF 2011 CITATION NO. 2011 WAIRC 00926



Order WHEREAS this is an application pursuant to section 29(1)(b)(i) of the Industrial Relations Act 1979; AND WHEREAS on 12 September 2011 the Commission listed a conference for the purpose of conciliating between the parties; AND WHEREAS there was no appearance by either party at that conference; AND WHEREAS on 12 September 2011 the applicant filed a Notice of Discontinuance in respect of the application; NOW THEREFORE, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby orders: THAT this application be, and is hereby discontinued.



PARTIES GLEN TUCKER APPLICANT

-v- GOVERNMENT HOUSE

RESPONDENT CORAM COMMISSIONER S J KENNER DATE WEDNESDAY, 12 OCTOBER 2011 FILE NO/S U 89 OF 2011 CITATION NO. 2011 WAIRC 00957

Result Application discontinued by leave Representation Applicant Mr K Trainer as agent Respondent Mr S Heathcote of counsel

Order WHEREAS the applicant sought and was granted leave to discontinue the application, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act, 1979 hereby orders – THAT the application be and is hereby discontinued by leave.



PARTIES ROBYN HELEN WADE APPLICANT

-v- PETER CARNLEY - ANGLICAN COMMUNITY SCHOOL



Result Application discontinued Representation Applicant Respondent Mr M Jensen (of counsel)

Order WHEREAS this is an application pursuant to section 29(1)(b)(i) of the Industrial Relations Act 1979; AND WHEREAS on 11 April 2011 the Commission listed a to show cause hearing; AND WHEREAS on 19 May 2011 the Commission held a conference; AND WHEREAS at the conclusion of the conference agreement was reached between the parties; AND WHEREAS on 10 August 2011 the Commission listed a to show cause hearing; AND WHEREAS on 8 August 2011 the applicant advised the Commission that she did not wish to have the show cause hearing; AND WHEREAS on 30 September 2011 the applicant filed a Notice of Discontinuance in respect of the application; NOW THEREFORE, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby orders: THAT this application be, and is hereby discontinued.



PARTIES LAURIE WALSH APPLICANT

-v- MR DAVID LONSDALE, LONSDALE PARTY HIRE


Result Application discontinued Representation Applicant Mr L Walsh Respondent Mr D Lonsdale

Order WHEREAS this is an application pursuant to section 29(1)(b)(i) of the Industrial Relations Act 1979; AND WHEREAS on 29 August 2011 the Commission convened a conference for the purpose of conciliating between the parties; AND WHEREAS at the conclusion of the conference agreement was reached between the parties; AND WHEREAS on 27 September 2011 the applicant filed a Notice of Discontinuance in respect of the application; NOW THEREFORE, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby orders: THAT this application be, and is hereby discontinued.



CONFERENCES—Matters arising out of—

2011 WAIRC 00917 REQUEST FOR ORDER TO HAVE DOCUMENTS REMOVED FROM UNION MEMBER’S PERSONAL FILE

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES RAIL TRAM AND BUS UNION (WESTERN AUSTRALIA BRANCH)

APPLICANT -v- PUBLIC TRANSPORT AUTHORITY OF WESTERN AUSTRALIA

RESPONDENT CORAM COMMISSIONER S J KENNER DATE MONDAY, 26 SEPTEMBER 2011 FILE NO/S C 50 OF 2011 CITATION NO. 2011 WAIRC 00917

Result Application Discontinued Representation Applicant Mr C Fogliani Respondent Mr R Farrell



2011 WAIRC 00941 DISPUTE RE RENEWAL OF FIXED TERM CONTRACT

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES THE AUSTRALIAN MEDICAL ASSOCIATION (WA) INCOPORATED

APPLICANT -v- THE REGISTRY OFFICER, DEPARTMENT OF HEALTH, HEALTH INDUSTRIAL RELATIONS SERVICE

RESPONDENT CORAM COMMISSIONER S J KENNER DATE MONDAY, 10 OCTOBER 2011 FILE NO/S PSAC 8 OF 2011 CITATION NO. 2011 WAIRC 00941

Result Discontinued by leave Representation Applicant Ms C Francis Respondent Mr M Aulfrey, Mr S Gregory


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


2011 WAIRC 00894 DISPUTE RE EMPLOYERS FAILURE TO PROVIDE ANSWERS TO UNION MEMBER


APPLICANT -v- DR R SHEAN, DIRECTOR GENERAL DEPARTMENT OF TRAINING AND WORKPLACE DEVELOPMENT

RESPONDENT CORAM PUBLIC SERVICE ARBITRATOR ACTING SENIOR COMMISSIONER P E SCOTT DATE FRIDAY, 16 SEPTEMBER 2011 FILE NO PSAC 13 OF 2011 CITATION NO. 2011 WAIRC 00894

Result Order issued

Order

WHEREAS this is an application pursuant to Section 44 of the Industrial Relations Act 1979; and

WHEREAS on the 15th day of September 2011 the Public Service Arbitrator (the Arbitrator) convened a conference for the purpose of conciliation; and

WHEREAS at the conference the Arbitrator heard from the parties as to the circumstances under which changed arrangements were to be implemented on Friday the 16th day of September 2011 to the home garaging of vehicles used by Apprenticeship Consultants for work purposes and that whilst there had been consultation with the staff generally, including delegates of the Applicant, the Applicant itself had not formally been notified of the changes and only recently became aware of them from information provided by members. There had been a meeting between the Applicant and management on the 8th day of September 2011 when the Applicant had raised questions about the operational arrangements and their effect on the work of Apprenticeship Consultants; and

WHEREAS at the conference certain information was provided to the Applicant and further information is to be provided on Friday the 16th day of September 2011; and

WHEREAS the Applicant sought an order that the status quo continue to apply until there had been a proper opportunity for consultation between the parties, and the Respondent opposed such an order on the basis that there had been consultation with the employees and arrangements were already in place for the return and reallocation of vehicles by Friday the 16th day of September 2011; and

WHEREAS the Arbitrator formed the opinion that the issuing of an order for the status quo to remain for a period of two weeks would prevent the deterioration of industrial relations between the parties and enable consultation and conciliation to resolve the issues;

NOW THEREFORE, the Public Service Arbitrator, pursuant to the powers conferred under the Industrial Relations Act 1979, hereby orders:

1. THAT the status quo in respect of home garaging of vehicles by Apprenticeship Consultants shall remain until 4.00 pm on Friday the 30th day of September 2011.

2. THAT the parties exchange information regarding the operational arrangements and the consultation process involving employees to date, and are to meet and have discussions for the purpose of resolving outstanding issues, no later than Thursday the 29th day of September 2011.

3. THAT there be a conference at 3.30 pm on Thursday the 29th day of September 2011 for the purpose of reporting back and conciliation.

4. THAT the parties have liberty to apply to amend this order. (Sgd.) P E SCOTT,

Acting Senior Commissioner. [L.S.] Public Service Arbitrator.


2011 WAIRC 00939 DISPUTE RE TRANSFER DECISIONS

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES WESTERN AUSTRALIAN PRISON OFFICERS' UNION OF WORKERS

APPLICANT -v- THE MINISTER FOR CORRECTIVE SERVICES

RESPONDENT CORAM COMMISSIONER S J KENNER DATE MONDAY, 10 OCTOBER 2011 FILE NO/S C 49 OF 2011 CITATION NO. 2011 WAIRC 00939

Result Discontinued by leave Representation Applicant Mr J Walker Respondent Ms I Rizmanoska



CONFERENCES—Matters referred—

2011 WAIRC 00940 DISPUTE RE STATUS OF DISCIPLINARY ACTION TAKEN AGAINST UNION MEMBER

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES AUSTRALIAN MEDICAL ASSOCIATION (WA) INCORPORATED

APPELLANT -v- THE REGISTRY OFFICER, DEPARTMENT OF HEALTH, HEALTH INDUSTRIAL RELATIONS SERVICE

RESPONDENT CORAM PUBLIC SERVICE ARBITRATOR COMMISSIONER S J KENNER DATE MONDAY, 10 OCTOBER 2011 FILE NO PSACR 3 OF 2011 CITATION NO. 2011 WAIRC 00940

Result Discontinued by leave Representation Applicant Ms C Francis Respondent Mr M Aulfrey, Mr S Gregory




2011 WAIRC 00891 DISPUTE RE ALLEGED BREACH OF CODE OF CONDUCT OF UNION MEMBER


APPLICANT -v- THE GOVERNING COUNCIL OF POLYTECHNIC WEST

RESPONDENT CORAM PUBLIC SERVICE ARBITRATOR ACTING SENIOR COMMISSIONER P E SCOTT DATE FRIDAY, 16 SEPTEMBER 2011 FILE NO PSACR 9 OF 2011 CITATION NO. 2011 WAIRC 00891


Order WHEREAS this is an application pursuant to Section 44 of the Industrial Relations Act 1979; and WHEREAS on the 4th day of August 2011 the Public Service Arbitrator (the Arbitrator) convened a conference for the purposes of conciliating between the parties; and WHEREAS at that conference the Arbitrator issued an interim order pending the hearing and determination of the dispute between the parties and such order was reduced to writing on the 5th day of August 2011 (2011 WAIRC 00791); and WHEREAS on the 12th day of August 2011 the Arbitrator referred the matter for hearing and determination; and WHEREAS on the 7th day of September 2011 the applicant filed a Notice of Discontinuance in respect of the matter; NOW THEREFORE, the Public Service Arbitrator, pursuant to the powers conferred under the Industrial Relations Act 1979, hereby orders:

1. THAT the order issued on 5 August 2011 (2011 WAIRC 00791) be, and is hereby rescinded. 2. THAT the matter otherwise be, and is hereby dismissed.

(Sgd.) P E SCOTT, Acting Senior Commissioner.


2011 WAIRC 00903 DISPUTE RE FAIR COMPENSATION OF UNION MEMBER

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES THE STATE SCHOOL TEACHERS' UNION OF W.A. (INCORPORATED)

APPLICANT -v- THE DIRECTOR GENERAL, DEPARTMENT OF EDUCATION

RESPONDENT CORAM COMMISSIONER S J KENNER DATE THURSDAY, 22 SEPTEMBER 2011 FILE NO/S CR 23 OF 2011 CITATION NO. 2011 WAIRC 00903

Result Application adjourned Representation Applicant Mr M Amati Respondent Ms M Rinaldi

Order HAVING heard Mr M Amati on behalf of the applicant and Ms M Rinaldi on behalf of the respondent and by consent the Commission, pursuant to the powers conferred on it under the Industrial Relations Act, 1979 hereby orders –


THAT the application be and is hereby adjourned sine die. (Sgd.) S J KENNER,


CORRECTIONS—

2011 WAIRC 00508 ELECTORATE AND RESEARCH EMPLOYEES GENERAL AGREEMENT 2011

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES THE PRESIDENT OF THE LEGISLATIVE COUNCIL, THE SPEAKER OF THE LEGISLATIVE

ASSEMBLY, THE CIVIL SERVICE ASSOCIATION OF WESTERN AUSTRALIA INCORPORATED

APPLICANTS -v- (NOT APPLICABLE)

RESPONDENT CORAM PUBLIC SERVICE ARBITRATOR COMMISSIONER S J KENNER DATE MONDAY, 11 JULY 2011 FILE NO PSAAG 10 OF 2011 CITATION NO. 2011 WAIRC 00508

Result Order issued Representation Civil Service Association of Western Australia Ms J O’Keefe and with her Ms J Gaines The President of the Legislative Council, The Speaker of the Legislative Assembly Ms H Dooley

Correcting Order HAVING heard Ms J O’Keefe on behalf of The Civil Service Association of Western Australia Incorporated and Ms H Dooley on behalf of The President of the Legislative Council and The Speaker of the Legislative Assembly and by consent the Commission, pursuant to the powers conferred on it under the Industrial Relations Act, 1979 hereby orders –

THAT the order of the Commission of 28 June 2011 deposited in the Office of the Registrar on 28 June 2011 be and is hereby corrected to operate on and from 27 June 2011.


2011 WAIRC 00505 PUBLIC SERVICE AND GOVERNMENT OFFICERS GENERAL AGREEMENT 2011

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES THE CIVIL SERVICE ASSOCIATION OF WESTERN AUSTRALIA INCORPORATED,

CURRICULUM COUNCIL OF WESTERN AUSTRALIA APPLICANTS

-v- (NOT APPLICABLE)



Result Order issued Representation Civil Service Association of Western Australia Ms J O’Keefe and with her Ms J Gaines Employer Parties Mr M Hammond as agent and with him Ms M Gillam

as agent

Correcting Order HAVING heard Ms J O’Keefe on behalf of The Civil Service Association of Western Australia Incorporated and Mr M Hammond as agent of the employer parties and by consent the Commission, pursuant to the powers conferred on it under the Industrial Relations Act, 1979 hereby orders –



2011 WAIRC 00507 SCHOOL SUPPORT OFFICERS (GOVERNMENT) GENERAL AGREEMENT 2011

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES THE CIVIL SERVICE ASSOCIATION OF WESTERN AUSTRALIA INCORPORATED,

DEPARTMENT OF EDUCATION APPLICANTS



Result Order issued Representation Civil Service Association of Western Australia Ms J O’Keefe and with her Ms J Gaines Department of EducationMs E McAdam

Correcting Order HAVING heard Ms J O’Keefe on behalf of The Civil Service Association of Western Australia Incorporated and Ms E McAdam on behalf of the Department of Education and by consent the Commission, pursuant to the powers conferred on it under the Industrial Relations Act, 1979 hereby orders –




2011 WAIRC 00510 SOCIAL TRAINERS GENERAL AGREEMENT 2011

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES THE CIVIL SERVICE ASSOCIATION OF WESTERN AUSTRALIA INCORPORATED, THE

DISABILITY SERVICES COMMISSION APPLICANTS



Result Order issued Representation Civil Service Association of Western Australia Ms J O’Keefe and with her Ms J Gaines The Disability Services Commission Ms M Gillam as agent

Correcting Order HAVING heard Ms J O’Keefe and Ms J Gaines on behalf of the Civil Service Association of Western Australia Incorporated and Ms M Gillam as agent on behalf of The Disability Services Commission and by consent the Commission, pursuant to the powers conferred on it under the Industrial Relations Act, 1979 hereby orders –



2011 WAIRC 00509 THE DEPARTMENT FOR CHILD PROTECTION AGENCY SPECIFIC AGREEMENT 2011

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES CIVIL SERVICE ASSOCIATION OF WESTERN AUSTRALIA INCORPORATED, THE

DEPARTMENT FOR CHILD PROTECTION APPLICANTS



Result Order issued Representation Civil Service Association of Western Australia Ms J O’Keefe and with her Ms J Gaines The Department for Child Protection Mr P Hunt as agent and Ms N Ross


Correcting Order HAVING heard Ms J O’Keefe on behalf of Civil Service Association of Western Australia Incorporated and Mr P Hunt as agent on behalf of The Department For Child Protection and by consent the Commission, pursuant to the powers conferred on it under the Industrial Relations Act, 1979 hereby orders –



PROCEDURAL DIRECTIONS AND ORDERS—


PARTIES ANDRE PETER DAVIDOVIC APPLICANT

-v- MAPI (AUSTRALIA) PTY LTD ACN 118 992 555; MEMBERS ALLIANCE INCORPORATED

RESPONDENTS CORAM COMMISSIONER S J KENNER DATE WEDNESDAY, 7 APRIL 2010 FILE NO/S B 24 OF 2010, B 10 OF 2010 CITATION NO. 2010 WAIRC 00178

Result Order and directions issued Representation Applicant Mr D Schapper, of counsel Respondent Mr P Crawford, of counsel

Order and Directions HAVING heard Mr D Schapper of counsel on behalf of the applicant and Mr P Crawford of counsel on behalf of the respondents the Commission, pursuant to the powers conferred on it under the Industrial Relations Act, 1979 hereby –

(1) ORDERS that the time for filing a notice of answer and counter proposal for application B 24 of 2010 be extended to Thursday 11 March 2010.

(2) DIRECTS that applications B 10 and B 24 of 2010 be heard together. (3) DIRECTS that evidence in chief for all witnesses shall be adduced by way of witness statement with any

documents attached. No evidence in chief shall be adduced other than by witness statement without leave of the Commission.

(4) DIRECTS that the applicant shall file and serve his witness statements by Friday 9 April 2010. (5) DIRECTS that the respondents shall file and serve their witness statements by Friday 23 April 2010. (6) DIRECTS that the parties shall exchange informal lists of discoverable documents by Friday 9 April 2010. (7) DIRECTS that inspection of documents shall be completed by Friday 16 April 2010. (8) DIRECTS that the matter shall be listed for hearing for one day on a date to be determined. (9) DIRECTS that there be liberty to apply on 48 hours notice.



2011 WAIRC 00921 WA HEALTH – HEALTH SERVICES UNION – PACTS – INDUSTRIAL AGREEMENT 2011

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES THE MINISTER FOR HEALTH IN HIS INCORPORATED CAPACITY UNDER S.7 OF THE

HOSPITALS AND HEALTH SERVICES ACT 1927 (WA) AS THE HOSPITALS FORMERLY COMPRISED IN THE METROPOLITAN HEALTH SERVICE BOARD, THE PEEL HEALTH SERVICES BOARD, AND WA COUNTRY HEALTH SERVICE. THE DIRECTOR GENERAL OF HEALTH IS THE DELEGATE OF THE MINISTER FOR HEALTH IN HIS INCORPORATED CAPACITY UNDER SECTION 7 OF THE HOSPITALS AND SERVICES ACT 1927 (WA). IN THIS CAPACITY THE DIRECTOR GENERAL ACTS AS THE “EMPLOYER” FOR THE PURPOSES OF THE AGREEMENT

APPLICANT -v- HEALTH SERVICES UNION OF WESTERN AUSTRALIA (UNION OF WORKERS)

RESPONDENT CORAM PUBLIC SERVICE ARBITRATOR ACTING SENIOR COMMISSIONER P E SCOTT DATE WEDNESDAY, 28 SEPTEMBER 2011 FILE NO PSAAG 18 OF 2011 CITATION NO. 2011 WAIRC 00921

Result Name of applicant amended

Order WHEREAS this is an application pursuant to Section 41A of the Industrial Relations Act 1979; and WHEREAS at the hearing on the 27th day of September 2011 the applicant sought to amend its name to “The Minister for Health in his incorporated capacity under s 7 of the Hospitals and Health Services Act 1927 (WA) as the hospitals formerly comprised in the Metropolitan Health Service Board, the Peel Health Services Board, and the WA Country Health Service and the Director General of Health as the delegate of the Minister for Health in his incorporated capacity under section 7 of the Hospitals and Health Services Act 1927 (WA)”; NOW THEREFORE, the Public Service Arbitrator, pursuant to the powers conferred under the Industrial Relations Act 1979, and by consent, hereby orders:

THAT the name of the applicant in the application be amended to “The Minister for Health in his incorporated capacity under s 7 of the Hospitals and Health Services Act 1927 (WA) as the hospitals formerly comprised in the Metropolitan Health Service Board, the Peel Health Services Board, and the WA Country Health Service and the Director General of Health as the delegate of the Minister for Health in his incorporated capacity under section 7 of the Hospitals and Health Services Act 1927 (WA)”.

(Sgd.) P E SCOTT, Acting Senior Commissioner.


INDUSTRIAL AGREEMENTS—Notation of— Agreement

Name/Number Date of

Registration Parties Commissioner Result

Dental Technicians Industrial Agreement 2011 PSAAG 19/2011

(Not applicable)

The Civil Service Association of Western Australia Incorporated

The Minister for Health in his incorporated capacity under s.7 of the Hospitals and Health Services Act 1927 (WA) as the Hospitals formerly comprised in the Metropolitan Health Service Board, the Peel

Commissioner J L Harrison

Registered


Agreement Name/Number

Date of Registration

Parties Commissioner Result

Department for Child Protection Agency Specific Agreement 2011 - The PSAAG 11/2011

28/06/2011 Civil Service Association of Western Australia Incorporated, The Department For Child Protection

(Not applicable) Commissioner S J Kenner

Order issued

School Support Officers (Government) General Agreement 2011 PSAAG 9/2011

28/06/2011 The Civil Service Association of Western Australia Incorporated, Department of Education


Order issued

Social Trainers General Agreement 2011 PSAAG 12/2011

28/06/2011 The Civil Service Association of Western Australia Incorporated, The Disability Services Commission


Order issued

WA Health - Health Services Union - PACTS - Industrial Agreement 2011 PSAAG 18/2011

28/09/2011 The Minister for Health in his incorporated capacity under s.7 of the Hospitals and Health Services Act 1927 (WA) as the Hospitals formerly comprised in the Metropolitan Health Service Board, the Peel

Health Services Union of Western Australia (Union of Workers)

Acting Senior Commissioner P E Scott

Agreement registered

PUBLIC SERVICE APPEAL BOARD—

2011 WAIRC 00942 APPEAL AGAINST THE DECISION MADE ON 11 JANUARY 2010 RELATING TO DECISION TO TERMINATE

CONTRACT WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES MS YOCK MUI FONG APPELLANT

-v- DIRECTOR GENERAL OF HEALTH AS A DELEGATE OF THE MINISTER OF HEALTH IN HIS INCORPORATED CAPACITY UNDER SECTION 7 OF THE HOSPITALS HEALTH SERVICES ACT 1972 FOR THE METROPOLITAN HEALTH SERVICES BOARD

RESPONDENT CORAM PUBLIC SERVICE APPEAL BOARD ACTING SENIOR COMMISSIONER P E SCOTT - CHAIRMAN MS A SPAZIANI - BOARD MEMBER MR NICHOLAS HASTINGS-JAMES - BOARD MEMBER DATE MONDAY, 10 OCTOBER 2011 FILE NO PSAB 5 OF 2010 CITATION NO. 2011 WAIRC 00942


Result Appeal dismissed

Order WHEREAS this is an appeal to the Public Service Appeal Board pursuant to Section 80I of the Industrial Relations Act 1979; and WHEREAS on the 23rd day of September 2011 the appellant filed a Notice of Discontinuance in respect of the appeal; NOW THEREFORE, the Public Service Appeal Board, pursuant to the powers conferred under the Industrial Relations Act 1979, hereby orders:

THAT this appeal be, and is hereby dismissed. (Sgd.) P E SCOTT,

Acting Senior Commissioner. [L.S.] On behalf of the Public Service Appeal Board.

2011 WAIRC 00927 APPEAL AGAINST THE DECISION OF EMPLOYER TO SUSPENSION UNION MEMBER WITHOUT PAY

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES MR SANJAY KUMAR

APPELLANT -v- THE DIRECTOR-GENERAL, DEPARTMENT OF ENVIRONMENT AND CONSERVATION

RESPONDENT CORAM PUBLIC SERVICE APPEAL BOARD COMMISSIONER S J KENNER - CHAIRMAN MR G RICHARDS - BOARD MEMBER MR M TAYLOR - BOARD MEMBER DATE FRIDAY, 30 SEPTEMBER 2011 FILE NO. PSAB 13 OF 2011 CITATION NO. 2011 WAIRC 00927

Result Directions issued Representation Appellant Mr S Farrell Respondent Ms M Marsh

Direction HAVING HEARD Mr S Farrell on behalf of the appellant and Ms M Marsh on behalf of the respondent, the Public Service Appeal Board pursuant to the powers conferred on it under the Industrial Relations Act, 1979 hereby directs –

(1) THAT the appellant file and serve its statement of facts by 5 October 2011. (2) THAT the respondent file and serve an outline of contentions of fact and law by 12 October 2011. (3) THAT the appellant file and serve any witness statements upon which he intends to rely by 14 October 2011. (4) THAT the respondent file and serve any witness statements upon which it intends to rely by 21 October 2011. (5) THAT the parties have liberty to apply on short notice.



2011 WAIRC 00951 APPEAL AGAINST THE DECISION OF EMPLOYER TO SUSPENSION UNION MEMBER WITHOUT PAY

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES MR SANJAY KUMAR

APPELLANT -v- THE DIRECTOR-GENERAL, DEPARTMENT OF ENVIRONMENT AND CONSERVATION

RESPONDENT CORAM PUBLIC SERVICE APPEAL BOARD COMMISSIONER S J KENNER - CHAIRMAN MR G RICHARDS - BOARD MEMBER MR M TAYLOR - BOARD MEMBER DATE TUESDAY, 11 OCTOBER 2011 FILE NO PSAB 13 OF 2011 CITATION NO. 2011 WAIRC 00951

Result Discontinued by leave Representation Appellant Mr S Farrell Respondent Ms M Marsh


(Sgd.) S J KENNER, Commissioner.

[L.S.] On behalf of the Public Service Appeal Board.

2011 WAIRC 00946 APPEAL AGAINST THE DECISION MADE ON 10 SEPTEMBER 2009 RELATING TO UNFAIR DISMISSAL

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES JACQUELINE ANNE LOMAS

APPELLANT -v- METROPOLITAN HEALTH SERVICE

RESPONDENT CORAM PUBLIC SERVICE APPEAL BOARD ACTING SENIOR COMMISSIONER P E SCOTT - CHAIRMAN MS A SPAZIANI - BOARD MEMBER MR N HASTINGS-JAMES - BOARD MEMBER DATE MONDAY, 10 OCTOBER 2011 FILE NO PSAB 15 OF 2009 CITATION NO. 2011 WAIRC 00946



Order WHEREAS this is an appeal to the Public Service Appeal Board pursuant to Section 80I of the Industrial Relations Act 1979 lodged out of time; and WHEREAS by a letter dated the 9th day of September 2011 the Public Service Appeal Board (the Board) directed the appellant to advise the Board of her intentions regarding the appeal no later than 4.00 pm on the 23rd day of September 2011 and that if she had not contacted the Board by that time it would be assumed that she did not wish to proceed with the appeal and an order of dismissal would issue; and WHEREAS by 4.00 pm on the 23rd day of September 2011 the appellant had not contacted the Board; NOW THEREFORE, the Public Service Appeal Board, pursuant to the powers conferred under the Industrial Relations Act 1979, hereby orders:



2011 WAIRC 00944 APPEAL AGAINST THE DECISION MADE ON 29 JUNE 2009 RELATING TO TERMINATION OF EMPLOYMENT

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES JUNE ROSE MOORE

APPELLANT -v- DR. PETER FLETT

RESPONDENT CORAM PUBLIC SERVICE APPEAL BOARD ACTING SENIOR COMMISSIONER P E SCOTT - CHAIRMAN MS A SPAZIANI - BOARD MEMBER MR N HASTINGS-JAMES - BOARD MEMBER DATE FRIDAY, 10 OCTOBER 2011 FILE NO PSAB 18 OF 2009 CITATION NO. 2011 WAIRC 00944


Order WHEREAS this is an appeal to the Public Service Appeal Board pursuant to Section 80I of the Industrial Relations Act 1979 lodged out of time; and WHEREAS by a letter dated the 9th day of September 2011 the Public Service Appeal Board (the Board) directed the appellant to advise the Board of her intentions regarding the appeal no later than 4.00 pm on the 23rd day of September 2011 and that if she had not contacted the Board by that time it would be assumed that she did not wish to proceed with the appeal and an order of dismissal would issue; and WHEREAS by 4.00 pm on the 23rd day of September 2011 the appellant had not contacted the Board; NOW THEREFORE, the Public Service Appeal Board, pursuant to the powers conferred under the Industrial Relations Act 1979, hereby orders:




2011 WAIRC 00945 APPEAL AGAINST THE DECISION MADE ON 6 SEPTEMBER 2009 RELATING TO FINDINGS OF MISCONDUCT

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES JOHN MORRIS

APPELLANT -v- GOVERNMENT OF WESTERN AUSTRALIA - DEPARTMENT OF HEALTH - HEALTH CORPORATE NETWORK



Order WHEREAS this is an appeal to the Public Service Appeal Board pursuant to Section 80I of the Industrial Relations Act 1979 lodged out of time; and WHEREAS the appellant did not seek to have the matter listed for hearing; and WHEREAS by a letter dated the 9th day of September 2011 the Public Service Appeal Board (the Board) directed the appellant to advise the Board of his intentions regarding the appeal no later than 4.00 pm on the 23rd day of September 2011 and that if he had not contacted the Board by that time it would be assumed that he did not wish to proceed with the appeal and an order of dismissal would issue; and WHEREAS by 4.00 pm on the 23rd day of September 2011 the appellant had not contacted the Board; NOW THEREFORE, the Public Service Appeal Board, pursuant to the powers conferred under the Industrial Relations Act 1979, hereby orders:



2011 WAIRC 00943 APPEAL AGAINST THE DECISION MADE ON 3 SEPTEMBER 2009 RELATING TO TERMINATION OF

EMPLOYMENT WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES KATE MUELLER APPELLANT

-v- WA DEPARTMENT OF HEALTH




Order WHEREAS this is an appeal to the Public Service Appeal Board pursuant to Section 80I of the Industrial Relations Act 1979; and WHEREAS on the 23rd day of September 2011 the appellant filed a Notice of Discontinuance in respect of the appeal; NOW THEREFORE, the Public Service Appeal Board, pursuant to the powers conferred under the Industrial Relations Act 1979, hereby orders:



RECLASSIFICATION APPEALS—


PARTIES MARY CATHERINE CONNOLLY APPLICANT

-v- MINISTER FOR HEALTH IN THE RIGHT OF THE WESTERN AUSTRALIAN COUNTRY HEALTH SERVICE

RESPONDENT CORAM PUBLIC SERVICE ARBITRATOR ACTING SENIOR COMMISSIONER P E SCOTT DATE WEDNESDAY, 21 SEPTEMBER 2011 FILE NO PSA 23 OF 2005 CITATION NO. 2011 WAIRC 00898


Order WHEREAS this is a reclassification appeal made pursuant to the Industrial Relations Act 1979; and WHEREAS on the 4th day of December 2006 the Public Service Arbitrator (the Arbitrator) convened a conference for the purpose of conciliating between the parties; and WHEREAS at the conclusion of that conference the respondent agreed to investigate the matter further; and WHEREAS on the 7th day of March 2007 the applicant informed the Arbitrator that this appeal should fall within the Health Professionals Review (P 18 of 2003); and WHEREAS on the 18th day of August 2011 the applicant filed a Notice of Discontinuance in respect of the appeal; NOW THEREFORE, the Public Service Arbitrator, pursuant to the powers conferred under the Industrial Relations Act 1979, hereby orders:





PARTIES ANTHONY STEPHEN HIGGINSON APPLICANT

-v- MINISTER FOR HEALTH IN THE RIGHT OF THE WESTERN AUSTRALIAN COUNTRY HEALTH SERVICE

RESPONDENT CORAM PUBLIC SERVICE ARBITRATOR ACTING SENIOR COMMISSIONER P E SCOTT DATE WEDNESDAY, 21 SEPTEMBER 2011 FILE NO PSA 24 OF 2005 CITATION NO. 2011 WAIRC 00900


Order WHEREAS this is a reclassification appeal made pursuant to the Industrial Relations Act 1979; and WHEREAS on the 4th day of December 2006 the Public Service Arbitrator (the Arbitrator) convened a conference for the purpose of conciliating between the parties; and WHEREAS at the conclusion of that conference the respondent agreed to investigate the matter further; and WHEREAS on the 7th day of March 2007 the applicant informed the Arbitrator that this appeal should fall within the Health Professionals Review (P 18 of 2003); and WHEREAS on the 18th day of August 2011 the applicant filed a Notice of Discontinuance in respect of the appeal; NOW THEREFORE, the Public Service Arbitrator, pursuant to the powers conferred under the Industrial Relations Act 1979, hereby orders:



RECLASSIFICATION APPEALS—Notation of— File Number Appellant Respondent Commissioner Decision Finalisation

Date PSA 102/2007 Sue Rowell Director General of

Health as delegate of the Minister for Health in his incorporated capacity under s7 of the Hospital and Health Services Act 1927 as the Metropolitan Health Service

Scott A/SC Upheld 9/06/2011


ROAD FREIGHT TRANSPORT INDUSTRY TRIBUNAL—Matters Dealt With—

2011 WAIRC 00936 REFERRAL OF DISPUTE RE PAYMENT OF OWNER-DRIVER

IN THE WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION SITTING AS

THE ROAD FREIGHT TRANSPORT INDUSTRY TRIBUNAL CITATION : 2011 WAIRC 00936 CORAM : COMMISSIONER J L HARRISON HEARD : THURSDAY, 8 SEPTEMBER 2011 DELIVERED : FRIDAY, 7 OCTOBER 2011 FILE NO. : RFT 6 OF 2011 BETWEEN : ANTONIO PAPARONI (PEPS TRANSPORT)

Applicant AND VIKING GROUP HOLDINGS PTY LTD Respondent

Catchwords : Owner-driver contract - Referral of dispute regarding payment of claim - Claim for interest on outstanding sum - Failure of respondent to appear - Application upheld - Order issued

Legislation : Owner-Drivers (Contracts and Disputes) Act 2007 , s 4, s 4(2), s 5, s 38 and s 44 Industrial Relations Act 1979 s 27(1)(d), s 27(1)(m) and s 27(1)(j) Penalty Interest Rates Act 1983 (Vic) s 2

Result : Upheld and order issued Representation: Applicant : Mr A Paparoni Respondent : No appearance

Reasons for Decision (Given extemporaneously at the conclusion of the proceedings, as edited by the Commission)

1 This application is a claim pursuant to s 38 of the Owner-Drivers (Contracts and Disputes) Act 2007 (the OD Act). Mr Paparoni claims that the respondent owes him the sum of $15,857.05 arising out of an owner-driver contract entered into between Pap’s Transport Pty Ltd (the applicant) and Perth Freightlines Pty Ltd (the respondent) which commenced on 15 February 2010. Background

2 Conciliation proceedings in relation to this application pursuant to s 44 of the OD Act did not take place as the respondent failed to attend the conciliation conference set down to deal with this application notwithstanding being notified of the conference. This matter was therefore referred to the Tribunal for hearing and determination.

3 The matter was listed for hearing on 8 September 2011 and on 22 July 2011 a Notice of Hearing was sent to the parties at the addresses set out in the application. An additional facsimile number for the respondent was identified by the Tribunal for the Viking Group and on 22 July 2011 correspondence in relation to the hearing, including a copy of the Notice of Hearing, was successfully sent by facsimile to Viking Fleet Express however attempts to fax the documents to the respondent’s facsimile number were unsuccessful. I am satisfied that the Notice of Hearing, which was mailed to the respondent on 22 July 2011, has not been returned to the Tribunal and was successfully faxed to Viking Fleet Express. On that basis and pursuant to s 27(1)(d) of the Industrial Relations Act 1979 (the IR Act) the Tribunal determined at the hearing that this matter should be heard in the absence of the respondent.

4 The name of the respondent in this matter is Viking Group Holdings Pty Ltd and the name of the entity that the applicant has a contract with is Perth Freightlines Pty Ltd. In the circumstances the Tribunal formed the view that Perth Freightlines Pty Ltd should be joined as an additional respondent to this application on the basis that it is the entity with which the applicant had the owner-driver contract. An order will therefore issue that Perth Freightlines Pty Ltd be joined as a party to this application as an additional respondent pursuant to the Tribunal’s powers under s 27(1)(j) of the IR Act, which allows the Tribunal to direct parties to be struck out or persons to be joined. During the hearing it also became apparent from Mr Paparoni’s evidence that the proper name of the applicant is Pap’s Transport Pty Ltd. Given this and the Tribunal’s powers under s 27(1)(m) of the Act,


which allows the Tribunal to correct, amend or waive any error, defect or irregularity whether in substance or in form, I will amend the name of the respondent in the Notice of Application to reflect the proper identity of the applicant and I propose to issue an order that Antonio Paparoni (PEPS Transport) be deleted as the named applicant in this application and be substituted with Pap’s Transport Pty Ltd (see Rai v Dogrin Pty Ltd [2000] 80 WAIG 1375 and Bridge Shipping Pty Limited v Grand Shipping SA and Anor [1991] 173 CLR 231). Applicant’s evidence

5 Evidence was given in these proceedings by the proprietor of Pap’s Transport Pty Ltd, Mr Antonio Paparoni. Mr Paparoni testified that he operates the entity known as Pap’s Transport Pty Ltd and he confirmed that he is a director of this company. Mr Paparoni gave evidence that the applicant entered into a contract with Perth Freightlines Pty Ltd to transport freight around Perth and Mandurah using a six tonne truck. Mr Paparoni confirmed that an owner-driver’s contract was signed by the applicant on 8 February 2010 and by Perth Freightlines Pty Ltd on 20 January 2010, which is a part of the Viking Group. Mr Paparoni commenced working as an owner-driver on behalf of the applicant for the respondent on 15 February 2010. Under Clause 8 of the schedule attached to the owner-driver contract between the applicant and the respondent, the applicant was paid $48.70 per hour plus applicable fuel levy for services rendered and Mr Paparoni gave evidence that the applicant was paid for the hours he worked for the respondent for a period of 14 months without incident (see Exhibit A3).

6 Mr Paparoni gave evidence that on or about 25 March 2011 he received the following letter from Viking Group Holdings Pty Ltd stating that payments to subcontractors were going to be delayed including payments to Pap’s Transport Pty Ltd. This letter is as follows (formal parts omitted):

SUBCONTRACTOR PAYMENTS As you are aware, there have been some delays with subcontractor payments over the past several weeks. This is a result of the seven day payment terms currently offered by the Viking Group and Perth Freight Lines to its subcontractors, nationally. Due to the current economic climate, which originated from the Global Financial Crisis and which most companies still have not recovered from, there is an ongoing impact on our freight business and payment terms from our customers. While this situation is likely to improve over the coming period, it is still as pronounced today as at any time over the past 18 months or so. As a result we have extended our trading terms to our customers from our standard 30 day terms to 60 and in some cases 90 days, to ensure the future viability of those businesses, which in turn will continue to support our Group, and ultimately yourselves. Therefore, effective from Monday 28 March all sub-Contractor payment terms for all Viking Group entities including PFL throughout Australia, will be on a “30 days from invoice date” basis. Thankyou (sic) for your cooperation and understanding and we look forward to your continuing support.

(Exhibit A1) 7 Mr Paparoni stated that after receiving this letter payments from the respondent to the applicant for completed work ceased.

Mr Paparoni gave evidence that between 7 March 2011 and 13 April 2011 he completed work for the respondent which has not been paid for and Mr Paparoni stated that the quantum owed to the applicant in return for undertaking this work is $15,857.05 and includes GST and the fuel levy (see invoices 56 through to 61 Exhibit A2). Mr Paparoni stated that he is also claiming interest on these outstanding payments.

8 Mr Paparoni gave evidence that the applicant is also seeking an order that $3,000 be paid to the applicant for new curtains for his truck because the curtains the respondent returned to him after putting its signage on them were not his curtains and they were second hand ones which were in a poor state. Mr Paparoni stated that $3,000 is the amount required to replace or to fix the old curtains returned to him, so that he has curtains of a reasonable standard to assist him with his current work. Mr Paparoni stated that there is nothing in the applicant’s contract with the respondent stating that he is entitled to this payment however he is seeking this payment given the respondent required him to have its logo put onto his curtains and they returned the wrong curtains.

9 Mr Paparoni claimed that the respondent has breached a number of other clauses of the applicant’s contract with the respondent. Mr Paparoni claimed that the contract was for a period of three years and he is seeking payment for the remaining 14 month period of the contract and Mr Paparoni maintained that the respondent had breached Clause 8.1 - Minimum Payment whereby the applicant is to be paid for a minimum of 55 hours each 10 working days and Clause 8.5 - Method and Timing of Payment whereby payment was to be made by the respondent within seven days of the presentation of a completed invoice. Mr Paparoni also claimed that the respondent had breached Clause 18 – Uniforms which provides that uniforms were to be supplied by the respondent to the applicant, Clause 25 – Interest on Late Payments whereby the respondent was to pay interest on late payments, Clause 27 – Termination for Fundamental Breach of Contract in particular subclauses (g) and (h) and Clause 34 whereby the applicant is required to change the contract. Apart from these assertions Mr Paparoni did not provide any details about the specifics of these breaches or the quantum being sought by the applicant with respect to these alleged breaches. Findings and conclusions Credibility

10 In the absence of any response from the respondent I must accept the applicant’s evidence, unless I find it not appropriate to do so. I found Mr Paparoni’s evidence to be credible and honest and his evidence was also corroborated by documentation tendered during these proceedings. I therefore accept his evidence.


11 I am satisfied on the evidence for the purposes of s 4 of the OD Act Mr Paparoni is an owner-driver who works under a body corporate structure which carries on the business of transporting goods in a heavy vehicle, that being a vehicle with a gross vehicle mass of more than 4.5 tonnes. I am satisfied on the evidence that the heavy vehicle used by the applicant is supplied by it and operated by Mr Paparoni, who is a director of the applicant, and whose principal occupation is the operation of the heavy vehicle. I am therefore satisfied that the applicant is an owner-driver for the purposes of s 4(2) of the OD Act and on the evidence I also find that an owner-driver contract, for the purposes of s 5 of the OD Act was entered into by the applicant and Perth Freightlines Pty Ltd.

12 I am satisfied that under the contract entered into between the applicant and the respondent, the applicant was to be recompensed for delivering goods in and around Perth and Mandurah for the respondent, work which I find Mr Paparoni completed during the period 15 February 2010 and 13 April 2011. I am also satisfied and I find that under the applicant’s owner-driver contract the applicant was to be paid an hourly rate plus GST and a fuel levy in return for undertaking this work.

13 The applicant is claiming $15,857.05 in unpaid invoices for work completed by the applicant for the respondent pursuant to Clause 8 of the schedule attached to the owner-driver contract. However after checking the invoices the applicant says are outstanding I am satisfied on the evidence that the claim adds up to $14,575.44. I am satisfied that this claim, consisting of the hours worked by the applicant for the respondent between the period 7 March 2011 through to 13 April 2011 inclusive of GST plus the fuel levy in the amount of $14,575.44, is owed to the applicant as I accept Mr Paparoni’s evidence that on behalf of the applicant he worked these hours for the respondent and the monies due to him in return for providing this service have not been paid. I therefore find that the applicant has established on the balance of probabilities that the respondent is indebted to it in the sum of $14,575.44.

14 The applicant is claiming interest on the amount owed to it. Clause 25 – Interest on Late Payments of the applicant’s contract with the respondent provides as follows:

27. INTEREST ON LATE PAYMENTS

If any amount of money that is properly due and owed by one party to the other party under this contract has not been paid after five business days after the date on which that amount was due have passed, then the following applies:

a) The party who is owed the amount may send a written notice to the other party stating that the amount is due and that that party is claiming penalty interest under this contract.

b) The party who owes the amount will be liable to pay penalty interest on that amount from the date the notice is given until payment is made/calculated on a daily basis at the interest rate fixed under section 2 of the Penalty interest (sic) Rates Act 1983 (Vic).

15 Section 2 of the Penalty Interest Rates Act 1983 (Vic) provides: 2 Penalty interest rate

(1) The penalty interest rate is the interest rate expressed as a percentage fixed by the Attorney-General from time to time by notice published in the Government Gazette.

16 The penalty interest rate fixed by the Victorian Attorney-General under the Penalty Interest Rates Act 1983 is currently 10.5% per annum with effect on and from 1 February 2010 (see Victorian, Government Gazette No G2 [14 January 2010] 51).

17 In the circumstances I am satisfied that the applicant is entitled to be paid interest on the outstanding sum claimed at 10.5% per annum. As the money owing to the applicant was due to be paid by the respondent in accordance with the contract within seven days from the presentation of a properly completed invoice I find that under the owner-driver contract the applicant is entitled to be paid interest for each invoice from one week after the date of each invoice to the date payment is made, which I will make the date of this decision, in the sum of $779.06 which has been calculated in the following manner:

Invoice number Date

Total of invoice Interest period Interest due

56 11/03/2011

$2,147.07 19/03/11 – 7/10/11 203 days

$125.38

57 18/03/11

$2,542.39 26/03/11 – 7/10/11 196 days

$143.35

58 25/03/11

$2,708.59 2/04/11 – 7/10/11 189 days

$147.27

59 2/04/11

$2,755.82 10/04/11 – 7/10/11 181 days

$143.49

60 8/04/11

$2,672.26 16/04/11 – 7/10/11 175 days

$134.53

61 14/04/11

$1,749.31 22/04/11 – 7/10/11 169 days

$85.04

18 At the hearing I was unable to deal with the applicant’s other claims of breaches of its contract with the respondent and details about reimbursement for the cost of curtains in the absence of evidence and particulars about these claims and Mr Paparoni was given 14 days to make any further submissions or bring evidence about these matters.


19 After the hearing on behalf of the applicant Mr Paparoni sent a letter to the Tribunal dated 19 September 2011. This letter is verbatim as follows (formal parts omitted):

From Pap’s Transport PTY LTD As from court hearing on the 8th day of September 2011 Claiming for Breach of Contract,page 16,clause 27 from VIKING GROUP (PERTH FRIEGHTLINES) for 14 months broken contract, Normal was 3years @ $47.33x 38 hour week = $100,718.24. Claiming min 55 hours a fortnight which states on page 25 on contract. Which would = $72,880.20. Sum of which I hope to claim. I leave the decision to the Commissioner.

20 From this correspondence the Tribunal understands that the applicant is claiming $72,880.20 from the respondent for a breach of Clause 27 of the applicant’s contract with the respondent. Clause 27 reads as follows:

27. TERMINATION FOR FUNDAMENTAL BREACH OF CONTRACT

Either party may terminate this contract without notice or penalty where the other party commits a fundamental breach of the contract. Examples of a fundamental breach include, but are not limited to:

a) Serious and wilful misconduct, including repeated failure to perform the services as directed in accordance with the contract;

b) Falsification of documents; c) Disclosure of confidential Information; d) Dishonesty or negligence: e) Conviction of or charge with any criminal offence involving a serious allegation of violence or dishonesty; f) Being unfit for performance of the contract due to the use or presence of intoxicating drugs or alcohol in

connection with the services; g) Failure by the Hirer to provide guaranteed hours of work or level of income; h) Unauthorized withholding or late or non-payment of monies payable under this contract; and i) Committing any act of insolvency or bankruptcy or being declared bankrupt or insolvent.

(Extract Exhibit A3) 21 Clause 28 of the contract reads as follows:

28. FIXED TERM CONTRACTS

28.1 Where clause 2 (period of contract) of the Schedule provides that this contract is to expire on a fixed date (that is, it is a fixed term contract), the contract will conclude on that date and may not be terminated during the period of the contract except In (sic) accordance with clause 27 or 30 of this contract.

28.2 Where the period of the contract is for six months or more, then the Hirer will give the Contractor notice of its Intention (sic) to seek to renew or extend the contract (or not to do so) of a period not less than the applicable period of notice set out in clause 29 of this Contract below.

(Extract Exhibit A3) 22 Clause 2 of the Schedule to the contract reads as follows:

2. PERIOD OF CONTRACT (See clause 3 [Period of contract] of the contract) This contract will commence on the _15th _______ day of _ February, 2010 ______ and expires at 5:00pm on the _ 14th ______ day of _ February, 2013 __________ This agreement will be revised annually.

(Extract Exhibit A3) 23 Clause 8.1 of the Schedule to the contract reads as follows:

8.1 MINIMUM PAYMENT

(See clause 21 [minimum payment] of the contract) The minimum payment or minimum number of hours of work for the purpose of clause 21 of the contract is:

A minimum of 55 hours of work per 10 working day fortnight (Extract Exhibit A3)


24 Clause 21 of the contract reads as follows:

21. MINIMUM PAYMENT

The Hirer will provide to the Contractor the minimum payment, or payment relevant to the minimum number of hours of work, as specified in clause 8.1 (minimum payment) of the Schedule. This minimum payment will be paid to the Contractor regardless of whether any work is allocated to or performed by the Contractor, provided the Contractor is available to perform the services. Note: Section 20[b) (sic) of the Act provides that the contract must specify a minimum number of hours or Income (sic) level that the Contractor will receive. The amount is a matter for the Parties to agree.

(Extract Exhibit A3) 25 Clause 21 provides that the minimum payment due to the applicant pursuant to Clause 8.1 is to be made on the proviso that the

applicant is available to perform the service. Mr Paparoni gave evidence that he sought out alternative work when the respondent stopped making payments to the applicant after working for the respondent without payment for five weeks. I find this understandable in the circumstances however in doing so in my view this invalidates any claim pursuant to Clause 21 of the contract. Clause 27 also provides no relief for the applicant with respect to the claim the applicant is making as it details the basis upon which the owner-driver contract can be terminated. The claim made by the applicant for $72,880.20 is therefore rejected.

26 No evidence was provided by Mr Paparoni as to any contractual arrangement between the applicant and the respondent about the reimbursement of any loss the applicant has suffered with respect to the curtains and in the absence of any evidence about a contractual term between the parties with respect to replacing or returning curtains I decline to issue any order in relation to the money claimed by the applicant with respect to this item.

27 An order will issue in relation to the claim by the applicant for moneys owed for invoices 56 through to 61, plus interest.

2011 WAIRC 00934 REFERRAL OF DISPUTE RE PAYMENT OF OWNER-DRIVER


THE ROAD FREIGHT TRANSPORT INDUSTRY TRIBUNAL PARTIES PAP'S TRANSPORT PTY LTD

APPLICANT -v- VIKING GROUP HOLDINGS PTY LTD AND PERTH FREIGHTLINES PTY LTD

RESPONDENTS CORAM COMMISSIONER J L HARRISON DATE FRIDAY, 7 OCTOBER 2011 FILE NO/S RFT 6 OF 2011 CITATION NO. 2011 WAIRC 00934

Result Upheld and order issued Representation Applicant Mr A Paparoni Respondent No appearance

Order HAVING HEARD Mr A Paparoni on behalf of the applicant and there being no appearance on behalf of Viking Group Holdings Pty Ltd and Perth Freightlines Pty Ltd, the Tribunal, pursuant to the powers conferred on it under the Owner-Drivers (Contracts and Disputes) Act 2007, hereby:

1. ORDERS THAT the name of the applicant be amended by deleting Antonio Paparoni (Peps Transport) and inserting in lieu thereof the name Pap’s Transport Pty Ltd.

2. ORDERS THAT Perth Freightlines Pty Ltd be joined as a respondent to this application. 3. DECLARES THAT Perth Freightlines Pty Ltd is indebted to the applicant in the amount of $14,575.44.


4. ORDERS Perth Freightlines Pty Ltd to pay to the applicant the total sum of $15,354.50 inclusive of interest within 14 days of the date of this order.

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

2011 WAIRC 00897 REFERRAL OF DISPUTE RE PAYMENT OF AN INVOICE


THE ROAD FREIGHT TRANSPORT INDUSTRY TRIBUNAL PARTIES MKZ TRANSPORT PTY LTD

APPLICANT -v- PERTH FREIGHTLINES PTY LTD

RESPONDENT CORAM COMMISSIONER S J KENNER DATE WEDNESDAY, 21 SEPTEMBER 2011 FILE NO/S RFT 38 OF 2010 CITATION NO. 2011 WAIRC 00897

Result Application discontinued by leave Representation Applicant Mr A Dzieciol of counsel Respondent Mr D Heldsinger of counsel

Order WHEREAS the applicant sought and was granted leave to discontinue the application, the Tribunal, pursuant to the powers conferred on it under the Owner-Drivers (Contracts and Disputes) Act 2007, hereby orders – THAT the application be and is hereby discontinued by leave.


western australian industrial gazette · sub-part 7 wednesday 26 october, 2011 vol. 91—part 2 the...

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