70 W.A.I.G. SUs

MATTERS REFERRED TO IN DECISIONS OF INDUSTRIAL APPEAL COURT, INDUSTRIAL COMMISSION AND INDUSTRIAL MAGISTRATES CONTAINED IN VOL. 70 PART 2, SUB PART 6.

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

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ABSENCE WITHOUT LEAVE — Claim re unfair dismissal seeking reinstatement and contractual entitlements — Applicant believed his services were terminated

unfairly for taking sick leave to which he was entitled — Respondent argued that the Applicant had abondoned his employment and in any event had pre-empted dismissal formisconduct — Commission found that Applicant was summarily dismissed which was unfair in the circumstances, reinstatement was not a viable proposition and due to Award coverage Applicant should proceed before Industrial Magistrate for moneys in lieu of notice and annual leave — Ordered Accordingly — Ferguson P.N. v. Southside Autos (1981) Pty Ltd as trustee for Southside Unit Trust trading as "Southside Mitsubishi" — No. 762 of 1990—Martin C. — 3/7/90 — Motor Vehicle (Retail and Service)

Employee summarily dismissed for misconduct seeking reinstatement — Applicant claimed dismissal resulted from refusal to operate company aircraft in breach of safety and legal regulations and sought payment in lieu of notice failing reinstatement — Respondent argued summary dismissal was justified for serious and wilful misconduct — Commission found that the applicant was in fundamental breach of his contract by refusing to work as directed during his notice period and thus summary dismissal was not unfair — Dismissed — Smith BJ. v. Ross Atkins Mining — No. 15 of 1990 — Gregor C. — 10/5/90 — Mining

Claim re contractual entitlement — applicant claimed wages — respondent argued applicant attended a Commission hearing, a training course and was otherwise absent without authorisation during the periods for which wages were claimed — Commission found that applicant had not been denied wages earned in regard to attendance at the hearing and training course but was entitled to payment for the final period when he had performed his duties but failed to report to his supervisor — Granted in Part — K. Luck v. the MBA Group Apprenticeship Scheme — No. 730 of 1990 — Beech C. — 4/10/90 — Construction

Claim re unfair dismissal and contractual entitlement — applicant claimed dismissal resulting from absence from work due to pressing domestic circumstances was unfair — applicant further claimed retrenchment pay as implied term of the contract — respondent argued applicant disregarded requirements of his position — Commission found insufficient regard was given to applicant's good service and domestic pressure imposed upon him and declared dismissal unfair—Commission however found that applicant failed to show that retrenchment pay as an implied term was necessary to give efficacy to the contract — Declaration/Dismissed — C.D. Blogg v. T.R. Services Pty Ltd — No. 671 of 1990 — Salmon C. — 8/6/90, 15/10/90 — Manufacturing

'Appeal against decision of Commission (70 WAIG 2398) re claim for unfair dismissal seeking reinstatement — Extension of time — Full Bench noted Commission at first instance found that there was an abandonment of the contract, howevercontract continued until terminated by mutual agreement — Full Bench found question of constructive dismissal could not be substantiated as appellant had not recanted from postion taken in the period of time between abandonment and date of termination by mutual agreement, thus no relief available under section 29 of IR Act — Dismissed — Beardmand P.D. and NZ Insurance — Appeal No. 1354 of 1990 — Sharkey P.. Coleman C.C., Halliwell S.C. — 12/9/90 — Insurance/Clerical

ACCOMMODATION — Finding of jurisdiction re application for Order that employer will not require any worker to purchase any real property from it as a

mandatory condition of employment — respondent housing arrangements were a pre-employment agreement not an incident of employment — Commission reviewed authorities, Industrial Relations Act and arrangements for having to find contrary to the Respondents assertions, hence the issue was an industrial matter — Decision only — AMWSU and Others v. Hamersley Pty Ltd — No. 185 of 1988 — Kennedy C. — 31/10/89 — Iron Ore

ACT — INTERPRETATION OF — Application for Commission to refrain from determining a claim of unfair dismissal — Commission found power to dismiss under

section27( IXa) of Industrial Relations Act was limited and could only be exercised by the Commission in relation to and prior to finalisation of a matter allocated to it —- Dismissed — RRIA and AWU — No. 2412 of 1989 — Kennedy C. — 4/4/90 — Mining (Iron Ore)

Complaint re Unions refusal to renew membership — Applicant argued that he was eligible to be a member of the Respondent by virtue of being a financial member of the "equivalent" Federal Union — President found it not proper to join the Federal Union to the application — President reviewed Union rules. Industrial Relations Act and found on evidence that the Applicant had only been a member of, applied for and refused membership by the Federal Union and that hence there was no breach of rules on the part of the organisation for the purposes of section 66 of the Act — Dismissed — Bellamy R.T. and WA Municipal Road Boards, and Racecourses Employees' Union of Workers — No. 508 of 1990 — Sharkey P. — 23/3/90 — Unions

Claim for redundancy payments —• Respondent argued Commission did not have jurisdiction to grant claim on the basis of the Pepler Case — Commission adjourned matter pending a decision of the Full Bench and then heard further submissions — Commission found that although the matter was distinguished in fact from theTip Top Case, it was a matter referred from a conference notified

■ to the Commission prior to any termination of employees, and on reviewing authorities, that in any event the jurisdiction of the Commission did not depend on such prior notification — Commission further found such an order would not have the effect of varying the Award and that in the absence of general provisions the consideration of redundancy in a case by case manner was permissible —• Commission found on the basis of fairness that only employees not compensated for loss ofpro rata long service leave entitlements warranted further payments than offered by the Respondent — Granted in Part — United Timber Yards Union and McLeans Consolidated Pty Ltd — No. CR305 of 1989 — Beech C. — 6/4/90 —• Timber

'Appeal against decision of Commission re finding of jurisdiction to deal with the matter of employees being required to purchase housing as a condition of employment — Appellant argued inter alia "Home Ownership Plan" was not part of contract of employment. Commission failed to give full weight to the full terms of the contract of sale, misdirected itself in its reliance of authorities and the definition of industrial matter — Full Bench reviewed evidence, authorities, definitions, and the Industrial Relations Act and found the definition of industrial matter was wider than that considered by authorities relation to the Federal Act — Full Bench found there was a clear "custom" and "usage" within an industry that accommodation was clearly to be provided as part of remuneration and the fact that a house was purchased under separate contract did not detract from the fact that it occurred only because the parties are employer and employee — Dismissed — Hamersley Iron Pty Ltd and AMWSU and Others — No. 2619 of 1989 — Sharkey P., Coleman C.C., Gregor C. — 2/7/90 — Iron Ore Mining and Processing

'Appeal against decision of Board of Reference re company not required to register with Construction Industry Long Service Leave Payments Board — Commission in Court Session reviewed Construction Industry Long Service Leave Portable Paid Act 1985, definitions of, inter alia, employee, construction industry and prescribed Award and classifiation, to find that the Board of Reference had erred in its substantial findings and the Respondent engaged persons as employees in the construction industry within the terms of that Act—Upheld — Construction Industry Long Service Leave Payments Board and Positron Pty Limited — No. 759 of 1990 — Martin C., Kennedy C., Parks C. — 9/8/90 — Construction

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70 W.A.LG. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE

CUMULATIVE DIGEST—continued

ACT — INTERPRETATION OF —continued 2Question of law re validity of Prohibition Notice issued pursuant to OHSW Act — Two parts to question referred, however it was

submitted that only second part could be answered by stating legal preconditions for the valid issuance of prohibition notice — Full Bench found question could not be answered without further findings of fact and remitted matter back to the Commission — Ordered Accordingly — Multiplex Constructions Pty Ltd and OHSW Commission — No. OHSW17 of 1989 — Sharkey P.. George C, Gregor C. — 6/8/90

Application for enforcement of Commission order re removal of picket line — Applicant argued failure to remove picket line was a clear and unequivocal contravention of Commission order and sought imposition of maximum fine — Respondent advised that facts were not in issue, however submitted that its summons to conference and orders were issued pursuant to Federal Act and not State Act — Full Bench found failure to comply with Commission's order proven, however exercised its discretion and accepted respondents undertaking as to future conduct — Ordered Accordingly — Registrar and Australian Federation of Air Pilots—No. 441 of 1990 — Sharkey P., Coleman C.C., Fielding C. — 4/5/90 — Transport/Pilots

Application re breach of union rules — Applicant claimed reasons provided for refusal to grant "Sprinkler Fitters Endorsement" by respondent union was beyond what it was entitled to do — Furthermore respondents oppressive and restrictive behaviour had prevented him from obtaining employment as a sprinkler fitter— Respondent union refuted claim and asserted Commission had no jurisdiction or power to make orders under implied section of Act — President in absence of evidence that a sprinkler fitter is the same as a pipefitter, was not persuaded that state union has the right to deal with persons who are not eligible to be members of the union, thus no jurisdiction, as no breach of rules has been proven — Dismissed — D. Roberts and Plumbers and Gasfitters Employees Union — No. 419 of 1990 — Sharkey P. — 20/6/90 — Plumbing

Appeal against decision of Industrial Magistrate in (Complaint No. 238 of 1989) re breach of Award — Appellant argued Magistrate had erred in holding that the respondent was employed in classification of "hostess" pursuant to Award and that respondent was underpaid — Full Bench found from evidence respondent had not been employed in the above calling or underpaid — Full Bench in supplementary decision found order sought by appellant for recovery of moneys as ordered by Magistrate could not be dealt with pursuant to section 84(4) of Industrial Relations Act, however could be pursued via common law proceedings — Upheld/Quashed — Southern Pacific Hotel Corporation trading as the Perth Parkroyal Hotel andT.G. Clarke — Appeal No. 376 of 1990 — Sharkey P., Kennedy C., Beech C. — 20/6/90 — Hospitality

'Two Appeals by opposing parties against decision of Full Bench (70 WAIG 1659) to suspend decision of Commission and remit case to Commission for further hearingand determination due to procedural unfairness — Industrial Appeal Court found procedural unfairness was a failure of natural justice and that the balance of authority takes the view that a decision reached contrary to the provisions of natural justice is void —If the decision is void it is a nullity and can't be suspended as there is nothing to suspend — Section 49(5) of the Industrial Relations Act 1979, therefore, only allows quashing of the decision — Further, as the decision of the Commission has been quashed it means a decision has not been made at all and the Commission is noxfunctus officio as far as the matters concerning the original application were purported to be determined — The Commission may, therefore, take up these matters again — Upheld — Robe River Iron Associates and AMWSU and Others v. AMWSU and Others and Robe River Iron Associates — IAC Appeals 3 and 4 of 1990 — Brinsden, Roland and Nicholson JJJ. — 13/6/90 — Iron Ore

Appeal against decision ofCommissionat(70 WAIG 250) re demarcation dispute — Appellant argued, inter alia, Commission's order was beyond power, was contrary to a finding of the Commission concerning the same demarcation, that it was managerial prerogative as to what calling of employee was employed to do what work and that the Commission had used powers that were specifically granted to the Full Bench — Respondent argued section 44of Industrial Relations Act necessarily limited the order to binding only the parties in relation to whom the matter was not settled and raised a question of bias in the Full Bench — Full Bench extensively reviewed authorities. Industrial Relations Act and evidence before the Commission at first instance to find matter before it an industrial matter which the Commission had jurisdiction to deal with at first instance — However, Full Bench found plain words of orderextended its effect to all persons in the industry, which was beyond power under section 44 and a denial of Natural Justice — Full Bench further found existence of a provision similar to section 118 of the Commonwealth Industrial Relations Act, however useful it might be was not a sine qua non to the exercise of jurisdiction in demarcation matters by the Commission — Full Bench found Commission had power to demark work and determine coverage but not alter Union Rules — Full Bench found insufficient evidence to find that the dispute occurred in the Building Construction Industry, hence the scope of the Building Trades (Construction) Award, Commission gave too much weight to the effects of differences in pay between the callings and failed to account for the uncontroverted evidence of unilateral action of the Respondent to impose a practice and its Industrial Record — Full Bench stated it was the right of a party to submit bias to a Tribunal, it was aware of its duty to disqualify itself in a case of actual or apparent bias, but that it was not assisted by gratituitous remarks which might have the effect of colouring the record of proceeding before it — Upheld and Remitted — UFTU and CMEU and Others — Appeal No. 2723 of 1989 — Sharkey P., Negus C., George C. — 15/6/90 — Building Construction

Preliminary submissions and applications, for organisation to show cause why its registration should not be cancelled or suspended — Party submitted that as person who initiated the summons. Registrar should be joined as a parly to proceedings because there was no one else to prosecute the summons — Furthermore it would be a breach of natural justice if Full Bench took on the role of prosecutor—Full Bench found Registrar should not be joined as he had no interest in the matter "litigated" or "to be determined" and noted that Registrar's appearance in person or through Counsel is to assist Commission in manner of amieus curiae — Full Bench further found mere absence of a party does not make it (Full Bench) the prosecutor and it was clear the nature of these proceedings lie squarely on the organisation summonsed to show cause — Full Bench on matter of adjournment found valid submission re orders subject to appeal and adjourned matter pending hearing and determination of appeal — Proceedings resumed — Party submitted Industrial Relations Act 1979 did not empower Commission to cancel or suspend its registration — Full Bench on reading of Industrial Relations Act found that it had jurisdiction to deal with application — Ordered Accordingly — State School Teachers Union — No. 24 of 1989 — 22/11/89 and 25/5/90 — Sharkey P., Halliwel! S.C., Martin C. — Unions

Claim re unfair dismissal seeking reinstatement — respondent sought to have question of jurisdiction termed as preliminary point — respondent claimed provisions of the Federal Award of which the parties were bound provided superior legislation to that under which the Commission operates and thus in accordance with section 109 of the Australian Constitution the Commission had no jurisdiction to hear the matter—Commission found on authorities cited that Commission was without jurisdiction — Dismissed — S.E. Needham v. Western Atlas International — No. 540 of 1990 — Gregor C. — 19/5/90 — Surveying

Application for extension of time to lodge objection — Extension opposed and it was submitted that same result would have been achieved by way of intervention — Full Bench found no real prejudice against respondent — Martin C., Dissented — Granted — MBA and Australian Federation of Construction Contractors (WA) — Appeal No. 262 of 1989 — Sharkey P., Martin C. Beech C. — 13/3/89 — Building Construction/Organisation

Application for enforcement of Act — Applicant union alleged that Respondent Union had breached an order of the Commission re demarcation an eligibility to enrol members — Respondent argued Full Bench reviewed authorities. Industrial Relations Act and found the "Order" to be an "Order" as its meaning read in section 66(2) ofthe Industrial Relations Act and that such an Order may be "a declaration of Interpretation" — Full Bench found that there was a "defence of mistake" on honest and reasonable belief, mensreQs but that the Respondent had not discharged the evidential burden and that there was various liability on the Respondent for the acts of its servants or agents — In Supplementary Reasons Full Bench found that no mitigating circumstances, a serious failure to comply and also given a lack of undertakings as to future conduct that the maximum penalty, short of deregistration proceedings should apply — Further that costs ought be awarded — Full Bench also found Industrial Appeal Court regulations deliberately used the words judgment ororder because it would create an intolerable situation ifevery time there was a finding the whole proceedings had to be stayed pending the Appeal to the Industrial Appeal Court — Full Bench found right to submit bias was waived, noted that the submission was made after the breach was established, that the Full Bench was contrained in its constitution by the legislation and was aware of its duty to disqualify itself — Full Bench found it had a duty to continue to hear the matter and did not grant adjournment sought by Respondents — Proven — UFTU and CMEWU — No. 2633 of 1989 — Sharkey P.. Coleman C.C.. Salmon C. — 5/4/90 — Building Construction/Furniture Manufacture

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CUMULATIVE DIGEST—continued

ACT — INTERPRETATION OE—continued Appeal against determination re misrepresentation in job applications of employment of a Public Servant — Appellant sought order

for re-employment with a penalty — Appellant argued she had not resigned and there were lesser and more appropriate penalties for the misconduct committed — PSAB reviewed Public Service Act and found that although the Appellant was in breach of that Act for not resigning when required to, the Respondent had not authority to deem a resignation, nor effect a retrospective date of termination — the Act was of dismissal with payments in lieu of notice — majority PSAB then considered whether the Respondents' discretion was fettered in practice and if so was it unfair — Majority of PSAB found on evidence Respondents application of a penalty and its corollary was fundamentally flawed and should be adjusted — Upheld — Robertson D.M. and Public Service Commissioner — No. PSAB 1 of 1990 — Kennedy C, Carrington, McDonald — 1/8/90 — Public Service 4Application for stay of execution against decision of Industrial Magistrate — application was opposed on grounds that appeal of a decision from Industrial Magistrate could not be instituted under section 49 of Industrial Relations Act — applicant submitted regulation 29 and section 113 of IR Act empowered President to hear the application for stay — President from submissions as to, powers and the merit of application found serious issue to be tried and balance of convenience favours applicant — however, so as to not deprive employee of the fruits of the Magistrate's order. President found that payment of moneys should be made into an account administered jointly by the parties — Ordered Accordingly — Como Investments Pty Ltd and McCorry G. — OIR — No. 1134 of 1990 - Sharkey P. — 37/8/90

'Appeal against decision of Full Bench (70 WAIG 8) not to allow appeal against decision of Commission to register Industrial Agreement — Appellant argued that section 41 and 29A of Industrial Relations Act 1979 when taken together require an Agreement which has been amended during proceedings to be advertised in the WAIG which had not occurred in this instance — Further Commission had exceeded its power by allowing Agreement to be amended other than provided by section 41(3) — Industrial Appeal Court found section 27(l)(l)gave Commission discretionay power to amend proceedings and that the changes to original Agreement did not require re-advertisement — Appellant also argued that one clause of the Agreement did not relate to an "industrial matter" and therefore registration of the Agreement was beyond the jurisdiction of the Commission — IAC found clause in question was an industrial matter and in any event the fact that the clauses of the Agreement were looked at as a whole were an industrial matter was sufficient — Appellant furtherclaimed it had been denied natural justice and not being afforded the opportunity of putting the submissions about the amendments to the Agreement and also in not having the opportunity to "speak to the minutes" — IAC found Appellant had not applied to Commission to make submissions on the amendments so there could have been no denial of natural justice and that an intervener is not a "party" to proceedings and thus has no right under section 35 to speak to the minutes — Dismissed — Australian Bank Employees Union and Federated Clerks Union and Others — Appeal No. 14 of 1989 — Brinsden J., (President), Kennedy J., Rowland J. — 28/3/90 — Banking 2 Appeal against decision ofCommision at (70 WAIG 238)rc unfair dismissal — Appellant sought leave to amend grounds of appeal in that reinstatement was no longer sought should appeal be successful and provide "fresh evidence" on an incorrect fact, that. Commission in first instance placed weight on in making its decision — Question re matters being introduced contrary to section 49(4) of Industrial Relations Act — Parties made submission and cited cases re whether hearing of an appeal should be restricted to "evidence and matters raised before the Commission" — Full Bench found from submissions cases cited that the discretion to admit fresh evidence on appeal is not specifically excluded — Granted — FCU and George Moss Limited — Appeal No. 2834 of 1990 — Sharkey P., Martin C, Beech C. — 3/8/90 — Clerical

Complaint re breach of Award — Defendant questioned jurisdiction of Industrial Magistrate appointed under WA Act to hear complaints pursuant to Commonwealth Act — Distinction drawn between Conciliation and Arbitration Act and new Commonwealth Act — Industiral Magistrate having examined the various Acts and cases cited found that he had no jurisdiction to hear complaints brought pursuant to section 178 of IR Act 1988 (Commonwealth Act) — Dismissed — Australian Theatrical and Amusement Employees Association and Delarene Pty Ltd trading as Hoyts Theatres Ltd — Complaint Nos. 45-46 of 1990 — Brown S.M. — 17/8/90 — Entertainment

Application for stay of proceedings in respect of Order No. CR84 of 1990 pending outcome of appeal — Applicant submitted serious issues of law to be tried re applicability of the principle of res judicata and the correct interpretation of section 40 of IR Act — Furthermore it was submitted that application only sought to stay proceedings pending outcome of an appeal on a preliminary point — President found applicant had not established that the balance of convenience lies with it — Dismissed — AMWSU and SECWA — No. 1236 of 1990 - Sharkey P. — 17/8/90 - Power/Energy

Application for registration of new organisation — Applicants sought pursuant to IR Act amalgamation of the two unions — Question re number of matters being satisfied under section 72 of IR Act — Full Bench found section of IR Act had not been complied with, as resonable steps had not been taken to adequately inform members of proposed rules and stated that it could not effect amendments to the rules, except in accordance with section 58(3) of IR Act by virtue of Industrial Appeal Court decision cited — Dismissed — ASEMFW and ETU — No. 790 of 1990 — Sharkey P., Coleman C.C., George C. — 17/9/90 — Unions

Appeal against decision of Commission (70 WAIG 322) re registration of Industrial Agreement — Appellant argued Commission had erred in finding award did not apply to businesses of respondent, in registering an agreement when its terms were in conflict with an award that applied by common rule, in failing to remove inconsistency between agreement and award in exercise of discretion by excluding from operation of agreement some employees who did identical work, and in registering agreement which had the effect of retrospectively affecting the right of employers and employees — Full Bench from evidence and submissions found Commission in registering agreement had not exercised its power as it was mandatorily required to under sectin 41(2) of IR Act and that there was no provision pursuant to section 41 of IR Act for retrospectivity — Furthermore Full Bench noted pursuant to section 114ofIR Act insofar as agreement was in conflict with award then agreement is null and void and could not be registered — Full Bench found agreement was contrary to Act and Wage Fixing Principles — Upheld — Hon. Minister for Labour v. Como Investments and Others — Appeal No. 120 of 1990 — Sharkey P., Negus C. Kennedy C. — 27/8/90 — Fast Food/Catering

Appeals against decision of Industrial Magistrate (70 WAIG 890) re breach of an award — Appellant argued Industrial Magistrate had erred in finding that the appellant was bound by the Transport (General) Award as there was insufficient evidence to support the findings of fact made — Full Bench reviewed authorities extensively, particularly that relating to the common object test, registration found inter alia that it may be arguable that the identity concerned can be determined only as they are at present rather than as the date of the award — Furthermore that was open on the evidence to the Industrial Magistrate to find as he did — Dismissed — Freshwest Corporation Pty Ltd v. TWU — Appeal Nos. 407-413 of 1990 —- Sharkey P., Beech C, Parks C. — 24/10/90 — Transport

Appeal against decision of Full Bench (70 WAIG 2563) re preliminary that it had jurisdiction to hear application re cancellation or suspension of appellant pursuant to section 73 of IR Act —- Appellant argued amongst other things that it was not an "organisation" as meant by section 73, it had not registration to which section 73 can apply and the Full Bench did not have power to cancel its registration while section 73A(2) remained in force — Industrial Appeal Court found Full Bench was correct in its interpretation that section 73A(2) "deemed" appellant to be an organisation under the Act — Consequently the appellant is treated as if it had been registered under the Industrial Arbitration Act and it then became, within the meaning of the IR Act. an organisation which was at all times liable to have its registration cancelled pursuant to section 73 — Dismissed — SSTUWA — IAC Appeal No. 8 of 1990 — Kennedy J. (P), Seaman and Nicholson JJ. — 24/9/90 — Education

Appeal against a "finding" of the Full Bench (70 WAIG 3044) that an application to it for enforcement for proceedings under section 84A have improved — Question to be answered was whether that finding amounted to a "decision" capable of being appealed to the Industrial Appeal Court under section 90 of the IR Act — IAC found section 34( 1) makes it mandatory that the decisions of Commission shall be in form of award, order or declaration and shall be signed and delivered by Commission — Section 36 requires decisions of the Commission to be sealed, deposited in the office of the Registrar and made open for inspection — As a finding in this case is not processed in the manner provided by sections 34 and 36 IAC found that it was not a decision subject to appeal under section 90 and this appeal was therefore incompetent — Dismissed — CMEWU and IFTIU — IAC Appeal No. 5 of 1990 — Roland J. (DP), Nicholson and Walsh J.J. — 22/8/90 — Unions

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CUMULATIVE DIGEST—continued

ACT — INTERPRETATION OF —continued Applications to object to application to registera new organisation by the amalgamation of two registered organistions Objecting

unions sought to be heard and that the question before the Full Bench was a matter of discretion Full Bench reviewed Hansard, IR Act and Interpretations Act and found power to grant application was discretionary but where the eligibility rules of the new union had no greater scope than the separate unions, unless an objection lies under section 72(1) of the IR Act and only by member "applicant" unions, no objection should be permitted — Furthermore there was not sufficient interest One Commissioner expressed opinion that matters raised by objecting unions were of practical concern to the community as a whole, but did not dissent from the decision — Ordered Accordingly — Forrest Products, Furnishings and Allied Industries Union No. 820 of 1990 — Sharkey P., Coleman C.C., Beech C. — 18/10/90 — Unions 3974

Appeals against decision of Industrial Magistrate as a test case (70 WAIG 2391) re breach of award — Appellants argued award did not apply to the industry in which they operated upon a proper construction of its scope and area and did not apply to the operation of those bound by an Industrial Agreement — Respondent argued the agreement should not have been registered — Full Bench found that the award covered employers and employees referred to in the agreement and was not persuaded that any wrong principle was applied in the Jubilee Jackpot case — Full Bench reviewed IR Act and Industrial Arbitration Act and found what existed was an award and an agreement deemed to be a consent award almost identical save for rates of pay — Full Bench reviewed authorities and found that where the award purported to cover the field, it should prevail over a consent award of limited scope, that the Industrial Magistrate has sufficient evidence to support the finding of the breach and could not have erred in any manner involving section 26 of the IR Act — Dissenting Commissioner reviewed the history of the award, agreement and legistation and found the employees in question save those of one appellant were governed by the agreement — Dismissed Hungry Jacks Pty Ltd and Others v.G.R. Wilkins, OIR and Others — Appeal No. 791 of 1990 and 793 of 1990 — Sharkey P., Fielding C.. Beech C. — 2/11/90 — Fast Food - 3952

ALLOWANCES — Application for award variation pursuant to Structural Efficiency Principle — Amendments sought include increases in wage and the

insertion of new clauses specifying terms of commitments — Parties were in agreement except on increase sought in allowance — Commission found application conformed with requirements of Structural Efficiency Principle, however with regard to dispute in quantum for allowances, granted three percent increase pursuant to Allowances Principle — Granted in Part — WA Clothing and Allied Trades Industrial Union and Sno Kleen Dry Cleaners and Others — No. 2181 of 1989(R) — Kennedy C. — 27/4/90 — Cleaning/Laundry

Application to vary Award re Second Structural Efficiency Wage Adjustment — Public Service Arbitrator reviewed parties efforts in Structural Efficiency, including previous Award changes and broadbanding, changes to the ordinary hours of work, shift work and overtime and was satisfied that the parties had done sufficient under the Wage Adjustments Principle PSA in granting $ 15.00 or three per cent increase to all classifications, distinguished the Award from private sector Awards and referred to nexus with Public Service Salaries Agreement — Allowances also varied — Granted — FCU and WA Coastal Shipping Commission and Others — No. P10 of 1990(R2) — Fielding C. — 4/7/90 — Public Administration

Application for Award variation pursuant to Structural Efficiency Principle — Parties were in agreement to variation sought — Commission found parties have detailed new arrangements which increased the opportunity for employees to acquire and maintain relevant skills with consequent progress — Furthermore Commission noted the development of the operator/ maintainer role and its ramifications in terms of the Structural Efficiency Principle — Granted — AWU and Hamersley Iron Pty Ltd and Others — No. 555 of 1990 — Kennedy C. — 11/4/90 — Iron Ore

Conference referred re dispute over payment of site allowance for a period during a work stoppage by another Union — Respondent Union sought payment on the bans that work was available to be performed by member labourers during bricklayer's stoppage — Applicant employers argued that there was insufficient work available and thus were relieved of the liability to pay pursuant to the Standowns clause of the Building Trades (Construction) Award — Commission determined that if work was available and could have been performed economically then the payments due were the payments which would have been received had it been carried out — Further Commission found that there was work to be performed and accounting for when labourers were available or not ordered appropriate payments for site allowance — Ordered Accordingly — Jennings Industries and Colgan Industries v. ABLF — No. CR222(1) of 1990 — Gregor C. — 9/4/90 — Building Construction

Application for variation to Award re increase in "Additional Allowances" — Parties were in agreement to variations sought of which increases varied in accordance to last CPI amendment and were for provisions such as uniform, clothing, boot allowance and conditions of work in relation to gaining information from informants — Commission from evidence found in favour of application — Granted — WA Police Union and Hon Minister for Police — No. 749 of 1989 — Fielding C. — 30/4/90 — Police Service

Application for variation to Award pursuant to Structural Efficiency Principle, second stage — Parties have addressed more than that which was committed to be undertaken at the first stage, most notably the system of merit based promotion and radical changes to hours ofduty—Question of under which "Principle" should shift penalties be granted — Commission having answered question of "Principle" found in favour of amendments proposed by parties — Granted — WA Police Union and Hon Minister for Police — Nos P25, P26 and P27 of 1990 — Fielding C. — 17/5/90 — Police Services

Claim for special travel allowance payments — Applicant Unions argued allowances prescribed in Award are inadequate and sought a reassessment of travelling allowance pursuant to new allowances principle — Respondent opposed claim, arguing, provision in Award is based on proper principles, noting that unions sought to reconstruct arrangement by making, the site the centre of radial bands rather than GPO — Commission having regard to the various decisions cited found that there were no inadequacies or injustices as prescribed by Award and that Applicant Unions had not discharged the onus that lies upon them — Dismissed — AMWSU and Others v. Barclay Mowlem Constructions Ltd — No. CR335(1) of 1990 — Salmon C. — 31/5/90 — Building/ Construction

Application for first Structural Efficiency Wage increase — Parties had set about inter alia rationalising, salary scales for classifications and compacting long service leave — Commission noted Award applied to a small organisation with perhaps not the scope for radical changes and with tortuous path of Second Tier adjustments, it is not surprising that the parties had not been able to do more to date — Granted — HSOA and Paraplegic-Quadriplegic Association of WA — Fielding C. — No. 2107 of 1990(R) — Health Services

Application to vary Award re Meal Allowance — Dispute restricted to quantum of increase — Applicant Union argued allowance was a reimbursable expense and sought an amount to account for the cost increase of purchase of a meal since last review in line with CPI for the appropriate category — Respondent argued automatic payment ofallowance when overtime was worked meant it was not a reimbursable expense and therefore adjustment should reflect National Wage Increases — Commission reviewed authorities and found, how the Australian Tax Office viewed the allowance was irrelevant and in favour of Respondent — Award Varied — AMIEU and Australian Casing Company — No. 131 of 1989 — Parks C. — 13/8/90 — Meat

Application to vary Award re Travelling Allowance — Applicant Union sought increased Allowance to maintain real value against a new tax ruling and provision of a bus service to shift employees in lieu of the allowance — Respondent argued there was no anomaly or inequity and against the bus service on economic grounds—The Minister and CWAI intervened in opposition to the claim — CICS found tax import was not a consideration the Commission could entertain under the Anomalies and Inequities Principle — Moreover CICS found Applicant had not demonstrated the extent of the inequity or identified the relevant factors in determining the appropriate allowance which would then form the basis upon which the allowance would be adjusted to ensure the inequity did not re-emerge — Dismissed — CMEU and SECWA—No. CR243 of 1990 — Coleman C.C., Salmon.C., George C. — 2/8/90 — Electricity Supply

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WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 70 W.A.LG.

CUMULATIVE DIGEST—continued

ALLOWANCES —continued Application to vary Award re wages — Applicant Union sought additional loading on wage rate as it had been in existence in the

preceeding Award — Respondent argued application should be joined to another application as it would be inappropriate to prescribe a loading when the Applicant was seeking to replace the concept in the near future or that the loading should be 44 per cent not 60 per cent of the hourly base rate of pay — Commission was not prepared to adjourn and join the application properly before it as there was no good reason to do so and due to a deficiency in the Award under review—Commission reviewed history of loading and State Wage Principles which lead the Commission to consider the establishment of any new loading by reference to the value of any similar loadings that have already been assessed within the Award — Commission found as a matter of valued judgment, taking into account that the employees concerned did not receive, inter alia, annual leave, a loading of 46 per cent to be appropriate — Granted in Part — ECU and WA Turf Club and Others — No. 868 of 1989 — Parks C. — 20/8/90 — Racing and Gaming

2Appeal against decision of Commission at (70 WAIG 1597) re site allowance — Appellant argued that there had been no new conditions to warrant a new allowance under the Allowances Principle, the Commission erred in its consideration of evidence and not finding that the Award did not adequately provide for such conditions — Full Bench reviewed evidence and on majority found Commission had not erred in its discretion in, inter alia, admitting predated evidence — Majority of Full Bench found Commission had erred in making an order operating after the work had ceased and in the limits given to allow for the duration of particular conditions — Dissenting opinion was in part non-acceptance that the nuisance caused by flies was outside the contemplation of the Award — Upheld and remitted — SEC and ETU and Others — Appeal No. 292 of 1990 — Sharkey P., Fielding C, Kennedy C. — 15/6/90 — Electricity Supply

2Appea! against decision of Commission at (70 WAIG 87) re Award variation of meal allowance — Appellant sought quashing of Orderor matter being remitted back, arguing Commission had erred in fact and lawby applying particular sub-part of Principles, in finding taxation laws were irrelevant and that allowance does not consistitute a reimbursable expense — Furthermore Commission had failed to attach sufficient weight to the fact that meal allowance was clearly distinguished from other allowances the natural meaning of the term, comparisons between movements in CPI and percentage wage increases, changes in meal allowance in other Awards and changes in employers attitude — Full Bench found Commission had calculated allowance on evidence before it and within the principles of case cited, would not interefere with the discretion as exercised at first instance — Dismissed — FCU and Myer WA Stores Ltd and Others — Appeal No. 2833 of 1989 — Sharkey P., Salmon C., Kennedy C. — 13/7/90 —Clerical/Retail

application for Award variation based on nexus via Special Case Mechanism of Principles — Applicant sought to express loadings payable for shift and weekend work as per hour, in lieu of per shift or time and one-half, thus resulting in increases in the additional remuneration paid to employees performing their ordinary hours of work in a shift work mode — Respondent supported application — CICS noted from analysis of the history of instant Award that nexus claimed could not be established and "Special Case" was to be considered in accordance with the Structural Efficiency and other relevant Principles — Furthermore CICS found question of merit must be established before it could deal with "special case", there must be no likelihood of flow-on and that the increase must be a once only matter — CICS proposed new order consistent with Principles — Supplementary Decision — Parties sought to have application withdrawn, dismissed or adjourned, as administrative increase of shift allowance to retain parity was greater than the order proposed by CICS — CICS having regard to new facts, found appropriate action was an order of dismissal — Dismissed — FMWU and Activ Foundation — No. 799 of 1989— Halliwell S.C., Martin C., Gregor C. — 23/5/90 — Health/Welfare

Board of Reference re travelling costs for recuperative leave — Applicant claimed on basis of Custom and Practice that all employees irrespective of where they spent their recuperative leave be reimbursed as though they had travelled to Perth — Respondent submitted the purpose of Travelling and Transportation Costs Clause was to reimburse employees for actual cost of travel — Board of Reference found on interpretation of clause and on submissions relating to Custom and Practice Applicant's contention unfounded — Trades and Labor Council ofWA v. Naval Communication Station — Harold Holt — No. 2 of 1990 — Board of Reference — 27/7/90 — Naval Commication

Application to vary Av/ard re new classifications and wage rates, qualifications and work functions allowances — Applicant union argued changes in quality control had to led to changes in duties and responsibilities of some employees — Respondents opposed application with Respondent supermarkets concerned that general wage relativities would not be upset — Commission reviewed Work Value Principles and found no party had addressed whether existing classifications covered the work wholly or partly — Commission conducted inspections and on evidence found to inert in the Award function specific classification agreed appropriate, but not the calculation of wage relativities with reference to the Government Meat Industry Awards — Commission refused remainder of claim as not justified by what was submitted — Granted in Part — AMIEU v. Action Food Bams and Others — No. 1082 of 1988 — Parks C. — 1/8/89 — Meat

Application to vary award by consent — Parties sought to implement broadbanding of salary tables and work related allowances, and work value increases — Government School Teacher's Tribunal found on the evidence and with regard to the Special Case, Work Value, Allowances and Structural Efficiency Principles that the proposed variations ought to be ratified with amendents to remuneration in two classifications — Ordered Accordingly — SSTUWA v. Hon Minister for Education — Tl(2) of 1989(R2) — Government School Teachers Tribunal — 18/7/90 — Education

Conference referred re travelling allowance — Applicant union submitted a basis on which it claimed a travelling allowance sought to be paid under the new Allowances Principle — Respondent rejected claim — Commission found that proposed allowance was within the State Wage Principles and having regard for the evidence and previous travelling allowance orders determined the terms of the allowance — Ordered Accordingly — AMWSU and Others v. Barclay Mowlem and Others — No. CR562 of 1990 — Halliwell S.C. - 20/8/90 - Construction

application to vary Award re extension New Allowance to be paid to linespersons outside metropolitan area — Applicant Union argued on the basis of the Anomalies and Inequities Principle — Respondent argued allowance was paid to compensate for different responsiblitics — CICS reviewed establishment of allowance and found an inequity in that linesperson were paid differently when they were performing the same work by an allowance which would have been usually part of the wage or higher duties payments — CICS found however it would be unfair to alternatively deprive persons of a payment received, so dismissed the Union's claim while ordering the continued payment to those already in receipt at an amount not to be increased for any reason — Ordered Accordingly — ASEMFWU and Others and SEC — No. 2237 of 1989 — Salmon C.. Gregor C.. Kennedy C. — 7/8/90 — Electricity Supply

Application to vary Award re Second Structural Efficiency Wage Adjustment — Applicants submitted award was modern and reflected efficient conditions of employment — Commission found radical changes to Allowances forcleaning toilets and leading hands designed respectively to overcome "administrative nightmares" and truly reflect the work and responsibilities involved where within the Wage Fixing Principles — Granted — FMWU and Ministry of Education — No. 597 of I990(R2)— Fielding C. — 6/9/90 — Cleaning Services

Applications to vary Awards by consent re Shift Penalties, New Definition and other Allowances as an interim measure pending issue of New Award — Public Service Arbitrator found various amendments either reflected existing practise, arose out of Structural Efficiency negotiations in the case of new "recruit in training" definition/rate of pay. had been earlier determined, related to increased costs or rationalisation of Allowances or corrected errors and ommissions — Granted — Hon. Minister for Police and WAPOU — Nos. 1558-1560 of 1990 — Fielding C. — 15/10/90 — Police ,

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70 W.A.LG. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE

CUMULATIVE DIGEST—continued

ALLOWANCES —continued Conference referred — Applicant union claimed allowance for lifting of solid core doors in construction — Respondent argued the

granting of such allowance would have flow-on implications for other workers handling the doors — Confederation of WA Industry, intervening, submitted manufacture of such doors in private sector was encompassed in wage rate — Parties addressed State Wage Principles — Commission found that circumstances did not provide a significant net addition to work requirements to warrant a new allowance under the Allowances or Work Value Principles — Commission found further that difficulties associated with lifting the doors ought be addressed further rather than compensated and that additional manufacturing costs could be to employees* detriment if competitiveness with the private sector could not be maintained — Dismissed — CMEU v. Hon. Minister for Works — CR570/90 — Beech C. — 25/9/90 — Construction

Application for new award — Matter came before Commission by consent with the exception of the commuted overtime allowance — Applicant based claim for and general allowance of 22 per cent of gross annual salary on a survey of field work which showed increased incidence of overtime — Respondent questioned validity of survey based on time in the field rather than work in the field and asserted further that the additional cost would impair research projects specific funding — Commission found little justification for any change to the existing agreement except in regard to the allowance for extensive field work where the respondent's proposal to substitute a single allowance for the previous additional loading ought be adopted — Commission found further that the applicant's claim did not meet the Work Value Change Principle — Ordered Accordingly — CSA v. PSA — No. A5 of 1986 — Fielding C. — 6/9/90 - Public Service

Claim recontractual entitlements — Appellant claimed wages earned and sustenance allowance — Respondent argued applicant had been paid some moneys but the outstanding amount was the liability of another company which had taken over applicant's employment, Commission found on evidence applicant had not received the sum indicated by respondent and that liability lay with respondent for all moneys earned as the applicant was not made aware of and not had not agreed to change of employer — Granted — TKF Vass v. Trafalgar Mining Co — No. 581 of 1990 — Gregor C. — 3/10/% — Mining

Application to vary award to increase district allowance in line with General Order — Application sought further to amend memorandum of agreement, a schedule to award relating to superannuation as a formula for which included district allowance — Commission satisfied that application complied with State Wage Principles — Granted — Hamersley Iron Pty Ltd v. AWU and Others — No. 1454 of 1990 — Fielding C. — 16/10/% — Mining

Application to to one cancelling award and vary another to incorporate coverage of that cancelled as a part of second stage structural efficiency — Only matters to arbitrate were title of a classification, level of rates to be applied and status of a $10.00 allowance — Commission established rates by comparing of the most "like with like" classifications found in the Victorian Rail System, found the designation "senior" was sufficient to cover its supervisory role and no justification for the allowance in the context of the rates set — In Supplementary Reasons Commission dealt with service components of actual rates — Granted in Part — IRU and WAGRC and Others — Nos. 2829 and 2600 of 1989 — Kennedy C. — 11/5/% — Railways

ANNUAL LEAVE - Application for denied contractual entitlements — Applicant sought payment for work done to date of termination, salary in lieu of

notice and pro rata holiday pay with loading, on the basis that he had been dismissed — Respondent argued Applicant had abandoned employment — Commission found on evidence that there had been a mutual parting of the ways — Commission found contract was clear that there was no entitlement to annual leave until a year of service had been completed and the Commission did not have jurisdiction to deal with benefits arising under the General Order for annual leave to non-award employees — Commission ordered payment of agreed sum for work done — Granted in Part — Bishop A. and Comfix Computer Maintenance, a division of Otago Pty Limited — No. 26 of 1990 — Fielding C. — 3/5/% — Computers

Claim re contractual entitlements — Applicants sought payment of wages — Commission found in favour of applicants re wages, however claim for holiday pay by first applicant not established — Clapton M.W. and S. and Livestock Enterprises Pty Ltd — No. 743 of 1988 - Parks C. - 6/12/88 - Farming

Claim re contractual entitlement — Applicant sought payment ofoutstanding wages — Respondent argued work performed had been unsatisfactory — Commission from evidence found in favour of applicant, however no evidence for entitlement to annual leave on pro rata basis — Ordered Accordingly — Jorgensen C.N. and Erepon Pty Ltd — No. 237 of 19% — Fielding C. — 14/5/% — Construction

Claim re contractual entitlements — Applicant sought payment of bonuses, holiday pay and leave loading accrued over a period of seven years — Respondent refuted claim and argued terms had changed whereby bonuses were to be payable on a discretionary basis — Commission noted oddities in Applicant's and Respondent's evidence and found that Applicant had not discharged onus of making out his claim — Dismissed — Thomson D.S. and Insulation Process and Contracting — No. 2323 of 1989 — Fielding C. - 24/4/%

Claim re contractual entitlements — Applicant claimed respondent failed to pay salary and sought outstanding moneys made up of a fortnight's pay in lieu of notice, holiday pay and annual leave loading less taxation — Respondent advised of intention to settle matter without Commission determination, however no such settlement was made — Commission found from evidence that applicant was entitled to payment of moneys claimed, less amount of leave loading which cannot reasonably be implied into the contract — Granted in Part — Rutley G.M. and Brenden Leppard trading as Instant Carpet Dry Cleaners — No. 2316 of 1989 — Gregor C. — 7/5/% — Domestic Cleaning

Claim re contractual entitlement — Employee claimed employment mutually terminated and sought moneys owing i.e. one week's pay and leave loading for accumulated annual leave — Respondent submitted at conference payment was refused as leave loading did not apply and employee ceased employment without required period of notice — Commission found annual leave loading paid for holiday taken is prima facie evidence that leave loading was a term of the contract — Granted — P. Nowell and Gloria Marshall's Figure Salon — No. 2224 of 1989 — Negus C. — 24/4/% — Health/Beauty

Application for interpretation of an Award re whether payment for annual leave was based on actual shift hours or 38 hours only— Commission found on examination of Award that the amounts which may be included in the calculation all referred to rates in ordinary time, which hours averaged 38 per week and did not include overtime hours — Dismissed — Brick Tile and Pottering Union and Bristile Limited — No. 1570 of 1989 — Beech C. — 11/5/90 — Brick and Tile Manufacture

Claim re contractual entitlements — Applicant claimed payment of retainer, commission payment and holiday pay — Respondent argued retainer ceased by consent and that Applicant and not effected sale relating toclaimed commission — Commission found that holiday pay was not a benefit under the contract and that parties agreed upon condition of retainer — Commission found further on the authority cited that Applicant was entitled to commission for the disputed transaction — Ordered Accordingly — C.J. Payne v. Hi-Point Homes Pty Ltd — No. 545 of 1990 — Martin C. — 5/7/% — Building

'Application to exclude Real Estate Representatives from effect of Annual Leave General Order — Commission in Court Session acceded to claim to restore the relationship between employers and employees within the industry but was not persuaded that the effect of its decision be differed to the anniversary date — Granted — CWAI and Hon Ministry for Productivity and Labor Relations and Others — No. 450 of 1990 — Coleman C.C., Halliwell S.C., Martin C. — Real Estate

Claim re contractual entitlements — Applicant claimed wages earned and moneys in lieu of annual leave — Respondent argued right to deduct pay in lieu of notice or alternatively to withhold payment for the final uncompleted weekly contract period — Commission reviewed authorities and found applicant not en titled to payment for incomplete contract period and on evidence no express provision {or pr rata payment in lieu of annual leave — Commission found further, that payment was due for wages earned during an earlier pay period — Granted in Part — R.A.Taylor v. Vipond Pty Ltd trading asThe Relationship Connection — 284of 1989 — Parks C. — 17/9/% — Introduction Agencies

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WESTERN AUSTRALIAN INDUSTRIAL GAZETTE

CUMULATIVE DIGEST—con tin ued

APPEAL — Appeal against decision of Commission at (70WAIG 2A2>l)re contractual entitlements — Respondent claimed it had not been present

at the hearing at first instance due to differing dateson notices of hearing and sought the right to state its case — Full Bench found it could deal with matter of notices of hearing, because they had been a part of and formed part of the record of the matter before the Commission at first instance — Full Bench did not attach culpability to anyone for the error in the notices of hearing, found decision should be suspended and remitted matter to Commission at first instance — Upheld — Heyford Holdings Pty Ltd trading as Nashua Karratha and Lane A. — No. 93 of 1990 — Sharkey P./Negus C./Beech C. — 26/4/90 — Retail

2Appeal against decision of Commission at (69 WAIG 31%) re dismissed claim of unfair dismissal — Appellant argued Commission had failed to give sufficient weight to various matters of evidence, had erred in not making findings on the separate grounds of dismissal and sought Order that the matter be remitted for further hearing and determination — Full Bench reviewed Authorities and found there was a requirement for procedural fairness on the part of the employer, which had been met in the events surrounding the dismissal and by the Respondents reliance upon the investigations of the Commissioner of Health in the act of dismissal — Respondent had conducted no inquiry of its own relating to the allegations against the Appellant as required by Authorities and had acted unjustly in not referring the allegations to the Appellant for answer—Full Bench found Commissioner of Health had power to remove Appellant from office of Health Surveyor but not dismiss him from employment and that the Commission had erred in its construction of the Health Act — Full Bench found it was unable to admit a letter as fresh evidence and as a matter of public interest, after considering the Evidence Act, that the Commission was unable to compel a witness to give evidence that may be self-incriminating—Full Bench further found Commission haderredinnotmakingafindingasto whether dismissal was justified on fraud allegations, that a finding of unfairness could not be made without it and that it was the Commission s duty to make such findings — Commission further erred in failing to meet evidentiary burden re further and better particulars, the manner in which it attached weight to evidence and in the exercise of its discretion — Full Bench found there had been a harsh and oppressive act of dismissal in line with Ong's case, that it had power to vary Commission's decision, though not that of the Commissioner for Health and there were no real barriers to re-instatement — Upheld — Mouritz P.M. and Shire of Esperance — Appeal No. 2384 of 1989 — Sharkey P., Coleman C.C., George C. — 6/4/90 — Meat :

2Appeal against decision of Industrial Magistrate at (70 WAIG 170) re breach of award — Appellant argued that Magistrate had erred in law, fact and acted in excess of jurisdiction — Full Bench found complaint was not relevant to clause directed to and noted, justification for stopping work, if it was not connected to OHSW Act would relate to the "no work no pay" concept — Upheld — WA Government Railways Commission and ARU — Appeal Nos. 2733 and 2734of 1989 — Sharkey P., Coleman C.C., FieldingC. — Railways

2Appeal against decision of Government School Teachers Tribunal re dismissed promotion appeals — Appellants argued Commission had restrictively interpreted section 78(2)(b) of the Act and they had been denied natural justice — Respondent argued Full Bench did not have power to hear appeal and that the appellants were using the wrong section ofthe Act in attempting to show injustice — Full Bench reviewed authorities and Industrial Relations Act and found the Tribunal was a constituent authority, but not the Commission constituted by a single Commissioner and therefore a decision against the decision of the Tribunal could not be appealed against — Dismissed — Hampson P. and Ritchie N. v. Ministry of Education — Nos. 2684 and 2685 of 1989 — Sharkey P./Salmon C./Kennedy C. — 17/5/90 — Education

2Appeal against decision of Commission at (70 WAIG 358) re variation of an Award pursuant to Structural Efficiency Principle — Applicant Union argued that Commission erred in not following decision of the Full Bench of the Victorian Commission in setting wage rate increases and not approving the FCU's National classification structure — Appellant argued that not to follow the Victorian Commission was not to follow the Commission in Court Session — Full Bench found only real question in issue was whether the $12.50 variation to wages was sustainable — Full Bench found that the Commission was not bound to follow the Victorian decision and that there were not grounds made out to persuade it that it should substitute its decision for that of the Commission at first instance within the principles of an appeal against a discretionary judgment — FCU and Swan Brewery Co Ltd — No. 2688 of 1989 — Sharkey P., Coleman C.C., Gregor C. 23/5/90 — Clerical

Appeal against decision of Commission at (70 WAIG 89) re Second Structural Efficiency Wage Increase — Appellant argued Commission had failed to exercise independent judgment and simply applied a decision ofthe Victorian Industrial Relations Commission in amending the wage rates and other provisions ofthe Award — Furthermore that the application had not been properly before the Commission — Full Bench reviewed principles relating to appeals against a discretionary decision and considered the question "What weight should the Commission at first instance given to the General Order and the views of the Commission in the Court Session in the State Wage Decision" — Full Bench found, there was a miscarriage of the Commission's discretion in the terms set out in House v. the King in that it did not assess or give sufficient weight to a number of factors before reaching its decision, and gave undue weight to the Victorian decision, nor did it sufficiently exercise independent judgment, save that the Award Modernisation clause was properly inserted in the Award — Upheld and Remitted — Coles New World Supermarkets and Others and FCU — No. 2783 of 1989 — Sharkey P., Coleman C.C., Martin C. — 18/5/90 — Retail and Wholesale (Clerks)

Appeal against decision ofCommission at (69 WAIG 3135)re claim for reinstatement on thegrounds of unfair dismissal — Appellant argued Commission erred in finding employee had terminated her employment, left children unsupervised and in not givingdue weight to all the circumstances — Applicant Union further argued Commission failed toconsider the merits ofthe matter and that to "inquire into and deal with any industrial matter" by a combination of sections 7 and 23 ofthe Act was a phrase of very broad scope — Full Bench noted important distinction between a 29b(i) matter and a section 44 matter — Full Bench reviewed authorities, evidence and found that although the employee terminated her own services, the refusal to re-employ was an industrial matter and that the Commission therefore had jurisdiction and was bound to deal with the matter — Full Bench further found that what had occurred was not merely a gratuitous abandonment ofthe contract and, in the absence of a request for a re- employment order, a declaration as to the unfairness of the refusal to re-employ should issue — Upheld — FMWU and Anna Pineira tradingas Aunty Joan's Child Care Centre — No. 2487 of 1989—Sharkey P., Coleman C.C., Salmon C. —26/4/90—Child Care

2Appeal against decision of Commission re finding of jurisdiction to deal with the matter of employees being required to purchase housing as a condition of employment — Appellant argued inter alia "Home Ownership Plan" was not part of contract of employment. Commission failed to give full weight to the full terms of the contract of sale, misdirected itself in its reliance of authorities and the definition of industrial matter — Full Bench reviewed evidence, authorities, definitions, and the Industrial Relations Act and found the definition of industrial matter was wider than that considered by authorities relation to the Federal Act — Full Bench found there was a clear "custom" and "usage" within an industry that accommodation was clearly to be provided as part of remuneration and the fact that a house was purchased under separate contract did not detract from the fact that it occurred only because the parties are employer and employee — Dismissed — Hamersley Iron Pty Ltd and AMWSU and Others — No. 2619 of 1989 — Sharkey P., Coleman C.C., Gregor C. — 2/7/90 — Iron Ore Mining and Processing

2Appeal against decision of Commission at (70 WAIG 192) re unfair dismissal — Appellant argued Commission erred in not finding dismissal unfair as termination was in breach ofcontract, the Appellant had not repudiated contract and finding was inconsistent with remainderof decision — Full Bench noted that it was for Appellant to pursuade that there was an error at first instance, even though Respondent did not appear or contest appeal — Full Bench reviewed evidence and found Commission had failed to give sufficient or any weight to evidence of performance and that there was insufficient warning given to the employee — Full Bench found dismissal was harsh in all the circumstances under the Undercliffe test and ordered reinstatement — Upheld and varied — LA. Margio and Fremantlc Arts Centre Press — No. 2749 of 1989 — Sharkey P.. Negus C. George C. — 21/6/90 — Arts Management

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

CUMULATIVE DIGEST —contintied

APPEAL —continued 'Appeal against decision of Special Board of Reference at (70 WAIG 1929) re long service leave entitlements — Appellant argued

Board of Reference had placed too much emphasis on the act of physical control rather than the entitlement to control and placed too much emphasis of the absence of notices of termination in determining the employer for the material times — Commission in Court Session reviewed authorities. Long Service Leave Act and Industrial Relations Act and found the appeal against a Board of Reference was limited to the memorandum of facts found by the Board — The Commission in Court Session should be slow to interfere with determinations of such a Board except where it is satisfied that they were not reasonably open to find — Commission in Court Session reviewed "unfortunate" history of the claims, further authorities and found that control was more often than not exercised by employees of the Appellant — Further there was ample evidence for the Board of Reference to conclude that the Respondents were employed by the Appellant rather than another Company — Verbatim Reporters (1980) and Purvis L. and Others — No. 966 of 1990 — Fielding C. Kennedy C. Parks C — 14/8/90 — Court Reporting

'Appeal against decision of Board of Reference re company not required to register with Construction Industry Long Service Leave Payments Board — Commission in Court Session reviewed Construction Industry Long Service Leave Portable Paid Act 1985, definitions of, inter alia, employee, construction industry and prescribed Award and classifiation, to find that the Board of Reference had erred in its substantial findings and the Respondent engaged persons as employees in the construction industry within the terms of that Act — Upheld — Construction Industry Long Service Leave Payments Board and Positron Pty Limited — No. 759 of 1990 — Martin C., Kennedy C.. Parks C. — 9/8/90 — Construction

'Appeal against decision of Commission at (70 WAIG 1597) re site allowance — Appellant argued that there had been no new conditions to warrant a new allowance under the Allowances Principle, the Commission erred in its consideration of evidence and not finding that the Award did not adequately provide for such conditions — Full Bench reviewed evidence and on majority found Commission had not erred in its discretion in. inter alia, admitting predated evidence — Majority of Full Bench found Commission had erred in making an order operating after the work had ceased and in the limits given to allow for the duration of particular conditions — Dissenting opinion was in part non-acceptance that the nuisance caused by flies was outside the contemplation of the Award — Upheld and remitted — SEC and ETU and Others — Appeal No. 292 of 1990 — Sharkey P., Fielding C., Kennedy C. — 15/6/90 — Electricity Supply

'Appeal against decision of Commission at (70 WAIG 2493) re unfair dismissal claim — Appellant Union argued Commission had erred in law and fact in determining no constructive dismissal occurred — Full Bench noted Commission had considered correct principle, however found Commission having inferred that there was no alternative for employee other than resignation, erred in retreating from that finding, and remitted matter for further hearing and determination — Upheld — FCU andCargill Australia Ltd. Leslie Salt Division — Appeal No. 810 of 1990 — Sharkey P., Negus C, Gregor C. — 23/7/90 — Clerical

'Appeal against decision of Commission at (70 WAIG 1339) re new Award — Appellant argued denial of natural justice in that they had no opportunity to be heard on certain matters and sought matter to be referred back to Commission — Full Bench found in favour of appellant and varied Scope Clause of Award — Upheld — Airlite Cleaning Pty Ltd and Others and FMWU — Appeal No. 539 of 1990 — Sharkey P., Martin C, Parks C. — 10/7/90 — Cleaning

'Appeal against decision of Commission at (70 WAIG 87) re Award variation of meal allowance — Appellant sought quashing of Order or matter being remitted back, arguing Commission had erred in fact and law by applying particular sub-part of Principles, in finding taxation laws were irrelevant and that allowance does not consistitute a reimbursable expense — Furthermore Commission had failed to attach sufficient weight to the fact that meal allowance was clearly distinguished from other allowances the natural meaning of the term, comparisons between movements in CPI and percentage wage increases, changes in meal allowance in other Awards and changes in employers attitude — Full Bench found Commission had calculated allowance on evidence before it and within the principles of case cited, would not interefere with the discretion as exercised at first instance — Dismissed — FCU and Mycr WA Stores Ltd and Others — Appeal No. 2833 of 1989 — Sharkey P., Salmon C., Kennedy C. — 13/7/90 —Clerical/Retail

'Appeal against decision of Commission at (70 WAIG 1060) re Award variation pursuant to Structural Efficiency Principle — Appellant argued Commission had erred in fact and in law on six grounds and sought order prescribing higher wage rate (i.e. $ 15.00 or three per cent) with operative date of order being made retrospective — Full Bench found no error in the exercise of the discretion of the Commission at first instance and noted that parties must address a proper audit of the relativities of the respective classification in the minimum rates classification — Dismissed — FCUandCBH Ltd — No. 675 of 1990— Sharkey P., Martin C., George C. — 8/8/90 — Clerical

'Appeal against decision of Industrial Magistrate in (Complaint No. 238 of 1989) re breach of Award — Appellant argued Magistrate had erred in holding that the respondent was employed in classification of "hostess" pursuant to Award and that respondent was underpaid — Full Bench found from evidence respondent had not been employed in the above calling or underpaid — Full Bench in supplementary decision found order sought by appellant for recovery of moneys as ordered by Magistrate could not be dealt with pursuant to section 84(4) of Industrial Relations Act, however could be pursued via common law proceedings — Upheld/Quashed — Southern Pacific Hotel Corporation trading as the Perth Parkroyal Hotel and T.G. Clarke — Appeal No. 376 of 1990 — Sharkey P.. Kennedy C. Beech C. — 20/6/90 — Hospitality

'Appeal against decision of Industrial Magistrate at (70 WAIG 891) re failure to make available time and wages record — Appellant sought quashing of order, arguing Magistrate had erred in fact and law in finding that they were bound by Award, employed persons in the industry "Vehicle Hiring" and that persons were employed for "the transportation of goods and materials" — Full Bench noted principles applied in interpreting Awards and found from definitions of "carry", "convey" and "take" that employees concerned were clearly employed in or in connection with the transportation of goods and materials — Dismissed — Mountgrove Holdings Pty Ltd trading as Titan Ford and Tranport Workers Union of Australia — Appeal No. 91 of 1990 — Sharkey P.. Halliwell S.C.. George C. — 21/6/90 — Transport

•Two Appeals by opposing parties against decision of Full Bench (70 WAIG 1659) to suspend decision of Commission and remit case to Commission for further hearingand determination due to procedural unfairness — Industrial Appeal Court found procedural unfairness was a failure of natural justice and that the balance of authority takes the view that a decision reached contrary to the provisions of natural justice is void — If the decision is void it is a nullity and can't be suspended as there is nothing to suspend — Section 49(5) of the I ndustrial Relations Act 1979, therefore, only allows quashing of the decision — Further, as the decision of the Commission has been quashed it means a decision has not been made at all and the Commission is notfanctus officio as far as the matters concerning the original application were purported to be determined — The Commission may, therefore, take up these matters again — Upheld — Robe River Iron Associates and AMWSU and Others r. AMWSU and Others and Robe River Iron Associates — IAC Appeals 3 and 4 of 1990 — Brinsden, Roland and Nicholson JJJ. — 13/6/90 — Iron Ore

'Appeal against decision of Commission at(70 WAIG 846)reavailability and on-call allowance — Appellant argued on the basis of an Industrial Appeal Court decision, that the Commission erred in determining the basis for assessment and had applied the wrong Wage Fixing Principle — Full Bench found real argument on Appeal concerned quantum of allowance and its applicability on weekends — Full Bench found in the sense that the workers were susceptible to disciplinary action, the duty was not voluntary and the Commission was entitled to find that there were entitlements that should have been met under the overtime clause of the Award — Full Bench further found no arguments as to why $11.00 was preferable to $22.00. sufficient reason to justify the quantum awarded and that the discretion ofthe Commission had not miscarried — Dismissed — SEC and ASEMWUand Others — Appeal No. 454 of 1990 — Sharkey P.. Martin C.. Gregor C. — 9/8/90 — Electricity Supply

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WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 70 W.A.I.G.

CUMULATIVE DIGEST—continued

APPEAL;—continued ^Appeal against decision of Commission at (70 WAIG 250) re demarcation dispute—Appellant argued, inter alia. Commission's order

was beyond power, was contrary to a finding of the Commission concerning the same demarcation, that it was managerial prerogative as to what calling of employee was employed to do what work and that the Commission had used powers that were specifically granted to the Full Bench — Respondent argued section 44 of Industrial Relations Act necessarily limited the order to binding only the parties in relation to whom the matter was not settled and raised a question of bias in the Full Bench — Full Bench extensively reviewed authorities. Industrial Relations Act and evidence before the Commission at first instance to find matter before it an industrial matter which the Commission had jurisdiction to deal with at first instance — However, Full Bench found plain words of order extended its effect to all persons in the industry, which was beyond power under section 44 and a denial of Natural Justice — Full Bench further found existence of a provision similar to section 118 of the Commonwealth Industrial Relations Act, however useful it might be was not a sine qua non to the exercise of jurisdiction in demarcation matters by the Commission — Full Bench found Commission had power to demark work and determine coverage but not alter Union Rules — Full Bench found insufficient evidence to find that the dispute occurred in the Building Construction Industry, hence the scope of the Building Trades (Construction) Award, Commission gave too much weight to the effects of differences in pay between the callings and failed to account for the uncontroverted evidence of unilateral action of the Respondent to impose a practice and its Industrial Record — Full Bench stated it was the right of a party to submit bias to a Tribunal, it was aware of its duty to disqualify itself in a case of actual or apparent bias, but that it was not assisted by gratituitous remarks which might have the effect of colouring the record of proceeding before it — Upheld and Remitted — UFTU and CMEU and Others — Appeal No, 2723 of 1989 — Sharkey P., Negus C, George C. — 15/6/90 — Building Construction

2Appeal against decision of Commission at (70 WAIG 553) re payment for lost time over safety issue — Appellant argued Commission erred in applying test rather than provisions of Occupational Health, Safety and Welfare Act and that Commission had no basis on the facts to exercise power — Full Bench reviewed IR and Occupational Health, Safety and Welfare Acts and evidence at first instance — Full Bench found that by virtue of section 26(1) of the OHSW Act and the criteria of prohibition and improvement notices the employees must have had reasonable grounds to believe that to continue work would expose them to the risk of imminent and serious injury — Furthermore Full Bench found there was clearly sufficient notification under the OHSW Act whether by union official or not — no reasonable alterantive work available — Full Bench reviewed authorities and found powers of Commission to settle a dispute were unrestricted and not fettered by OHSW Act — OHSW Act was not a code and that the Commission had not erred in its discretion — Dismissed — Transfield Pty Ltd and BTA and Others — Appeal No. 230of 1990 — 10/8/90 — Sharkey P., George C, Beech C. — Construction

Appeal against determination re misrepresentation in job applications of employment of a Public Servant — Appellant sought order for re-employment with a penalty — Appellant argued she had not resigned and there were lesser and more appropriate penalties for the misconduct committed — PSAB reviewed Public Service Act and found that although the Appellant was in breach of that Act for not resigning when required to, the Respondent had not authority to deem a resignation, nor effect a retrospective date of termination — the Act was of dismissal with payments in lieu of notice — majority PSAB then considered whether the Respondents" discretion was fettered in practice and if so was it unfair — Majority of PSAB found on evidence Respondents application of a penalty and its corollary was fundamentally flawed and should be adjusted — Upheld — Robertson D.M. and Public Service Commissioner — No. PSAB 1 of 1990 — Kennedy C, Carrington, McDonald — 1/8/90 — Public Service

'Appeal against decision of Full Bench (70 WAIG 8) not to allow appeal against decision of Commission to register Industrial Agreement — Appellant argued that section 41 and 29A of Industrial Relations Act 1979 when taken together require an Agreement which has been amended during proceedings to be advertised in the WAIG which had not occurred in this instance — Further Commission had exceeded its power by allowing Agreement to be amended other than provided by section 41(3) — Industrial Appeal Court found section 27(1 XI) gave Commission discretionay power to amend proceedings and that the changes to original Agreement did not require re-advertisement — Appellant also argued that one clause of the Agreement did not relate to an "industrial matter" and therefore registration of the Agreement was beyond the jurisdiction of the Commission — IAC found clause in question was an industrial matter and in any event the fact that the clauses of the Agreement were looked at as a whole were an industrial matter was sufficient—Appellant further claimed it had been denied natural justice and not being afforded the opportunity of putting the submissions about the amendments to the Agreement and also in not having the opportunity to "speak to the minutes" — IAC found Appellant had not applied to Commission to make submissions on the amendments so there could have been no denial of natural justice and that an intervener is not a "party" to proceedings and thus has no right under section 35 to speak to the minutes — Dismissed — Australian Bank Employees Union and Federated Clerks Union and Others — Appeal No. 14 of 1989 — Brinsden J., (President), Kennedy L, Rowland J. — 28/3/90 — Banking 2Appeal against decision of Commision at (70 WAIG 238)re unfair dismissal — Appellant sought leave to amend grounds of appeal in that reinstatement was no longer sought should appeal be successful and provide "fresh evidence" on an incorrect fact, that. Commission in first instance placed weight on in making its decision — Question re matters being introduced contrary to section 49(4) of Industrial Relations Act — Parties made submission and cited cases re whether hearing of an appeal should be restricted to "evidence and matters raised before the Commission" — Full Bench found from submissions cases cited that the discretion to admit fresh evidence on appeal is not specifically excluded — Granted — FCU and George Moss Limited — Appeal No. 2834 of 1990 — Sharkey P., Martin C, Beech C. — 3/8/90 — Clerical

2Appeal against decision of Commission (70 WAIG 2928) re warning issued to worker — Appellant sought quashing of decision and argued Commission had erred in law and exceeded jurisdiction in holding which supervisor had power to issue lawful and reasonable instruction as such matters were one of managerial prerogative — Furthermore appellant submitted Commission had erred in fact that shift supervisor made a mere request and as such did not constitute a lawful and reasonable direction — Full Bench found direction given to employee, although expressed in the form of a request, was a lawful and reasonable direction and that the Commission at first instance was in error in purporting to quash it — Upheld — Burswood Management Ltd and FI.AIF.U — Appeal No. 1224 of 1990 — Sharkey P., Coleman C.C., Fielding C. — 14/7/90 — Hotel/Gaming 2AppeaI against decision of Commission (70 WAIG 2218) re award variation pursuant to Structural Efficiency — Appellant argued Commission at first instance erred in failing to allow respondent the opportunity to call evidence, failed to make any independent assessment of the merits of the case by adopting reasons applicable to other industries and awards, failed to have sufficient regard for new community attitudes and finally erred in acting contrary to Wage Fixing Principles — Full Bench found, principle of audi alterant partem was breached. Commission had prevented itself from properly considering merits of case and failed to make an independent assessment and confirmed allegation that Commission at first instance erred in acting contrary to Wage Fixation Principles — Full Bench found decision ofCommission at first instance was void and on authority cited, be quashed — Upheld — Bread Manufacturers' (Perth and Suburbs) Industrial Union of Employers and Bakers, Pastrycooks and Confestioners Union — Appeal No. 916 of 1990 — Sharkey P., Coleman C.C., Fielding C. — 17/7/90 — Bakery

2Appeal against decision of Commission (70 WAIG 2917) re order issued to prevent deterioration of industrial relations pending determination of substantive issues — Appellant argued decision was contrary to section 26 and section 44 IR Act — Full Bench found order purported to vary previous conciliation order in one respect, that the interim nature of both, such that the order appealed was a finding, did not finally dispose of the matter and was not of such importance that in the public interest an appeal should lie under section 49 — Dismissed — WA Newspapers Ltd and PKIU — No. 1154 of 1990 — Sharkey P., George C, Beech C. — 5/11/90 — Newspapers

2Appeal against decision of Commission (70 WAIG 2884) re denied contractual entitlements arising out of a fixed term contract — Appellant argued Commission had erred in finding contract had terminated and had failed to account for offer of re-employment — Full Bench found on evidence that contract was unilaterally varied by the appellant, the respondent had protested and was dismissed by a personal authority to do so — Full Bench reviewed authorities and found respondent was not bound to accept offer of re-employment at a lower status either at law or as a matter of equity and good conscience — Dismissed — Bamboo Creek Management Pty Ltd and Fisher C.A. — No. 1268 of 1990 — Sharkey P., Kennedy C, Parks C. — 29/10/90 — Mining

(xxxii)

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

CUMULATIVE DIQ-EST—continued

APPEAL—continued 2Appeal against decision of Commission (70WAIG 3393)re payment of outstanding commission pursuant tocontractofemployment

— Appellant argued contract of sale which attracts commission had been effected by respondent as finance had not been approved — Full Bench adopted judgment in Hall v. Berkus trading as MBM Marketing Consultants and found Commission had not erred in finding the respondent the effective cause of contract of sale — Full Bench held further evidence the appellant sought to be adduced was not admissable fresh evidence — Dismissed — Hi Point Homes and Paine CJ. — Appeal No. 1320 of 1990 — Sharkey P., Halliwell SC.. Beech C. - 2/11/90 - Building

2Appeal against decision of Commission (70 WAIG 2444) re claim for contractual entitlement — Appellant argued there was no sworn orsubstantive evidence to establish that a contract for 10 days had existed — Full Bench noted both appellant and respondent had given evidence on oath, however only appellant had specified period under oath "a couple of days" — Full Bench found only evidence on oath for Commission, re period of time, was that of appellant and as it was not contradicted refusal to accept it constituted an error — Upheld — Boulazeris C. v. McFadyen J. — Appeal No. 1088 of 1990 — Sharkey P., Coleman C.C., Parks C. — 12/9/90 2Appeal against decision of Commission (70 WAIG 230) re payment for lost time — Appellant argued Commission erred in concluding that employees had a reasonable concern or apprehension re safety and that insufficient weight was given to evidence of company's concern and of the clean up at the site — Furthermore, it was argued Commission misinterpreted the company's acknowledgment of concern re employees safety — Question of permission of Counsel to appear — Full Bench found no substance in submission that Commission at first instance had erred asa real test was whether employees were reasonably entitled to believe that a hazard existed so as to justify action, to which the answer was yes — Dismissed — Western Mining Corporation Ltd v. AWU and Others — Appeal No. 2794 of 1989 — Sharkey P.. Beech C., Parks C. — Mining (Nickel) 2Speaking to Minutes in Appeal against decision of Commission (70 WAIG 3561) — Respondent submitted that a broadbanding payment agreed between the parties should have been exempted from Full Bench Order — Full Bench determined that appeal and the decision of the Full Bench related to the whole of the decision at first instance and it would not be appropriate to amend the order upon a Speaking to Minutes — Ordered Accordingly — Central Districts Bakery and Others v. TWU — Nos. 922 and 924 of 1990 — Sharkey P., Halliwell S.C.. Salmon C. — 29/10/90 — Transport 2Appeal decision of Industrial Magistrate following further hearing and determination after remittal (70 WAIG 1570) re pursuance of severance payment claim contrary to award and State Wage Principles — Majority Full Bench reviewed principles applying to appeals against decision of, admissability of evidence and standard of proof before an Industrial Magistrate — Majority of Full Bench found the prescription that the Justice Act apply to section 83 of the IR Act matters was an an unnecessary complication to practices and procedures and a contradiction by regulation — Majority of Full Bench found on evidence rather than there being no case to answer, there were evidence and asssertions to support the finding of a breach of Award/Wage Fixing Principles — Dissenting Commissioner reviewed authorities as to the nature of the union as a principle party and concluded there was no evidence ofpalpable error on the part ofthe Industrial Magistrate — Upheld — Registrars AMWSU — Appeal No. 600 of 1990 — Sharkey P.. Fielding €., Beech C. — 25/9/90 — Construction 2Appeals against decision oflndustrial Magistrate (70 WAlG 890) re breach of an award — Appellant argued Industrial Magistrate had erred in finding that the appellant was bound by the Transport (General) Award as there was insufficient evidence to support the findings of fact made — Full Bench reviewed authorities extensively, particularly that relating to the common object test, registration found inter alia that it may be arguable that the identity concerned can be determined only as they are at present rather than as the date of the award — Furthermore that was open on the evidence to the Industrial Magistrate to find as he did — Dismissed — Freshwest Corporation Pty Ltd v. TWU — Appeal Nos. 407-413 of 1990 — Sharkey P., Beech C., Parks C. — 24/10/90 — Transport 2Appeal against decision of Commission (70 WAIG 247) re transfer and redundancies of employees — Appellant argued that Commission had erred in fact and in law in determining that there was no obligation to offer redundancy pay — Respondent argued there was no redundancy — Full Bench found questions was not one of unreasonableness but whether the charges in classification constituted the creation of a redundancy and whether refusal to take alternative employment made such redundancy voluntary — Full Bench reviewed authorites and found that though redundancies occurred, any obligation on the part of the employer was met by the offer of transfer — Full Bench found Commission erred only in so far as statements to the reasonableness of the being required to accept the transfer and of not doing so were concerned and varied the decision accordingly — Upheld in Part — FMWU v. Anglican Homes (Inc) — Appeal No. 2803 of 1989 — Sharkey P., Halliwell S.C., Parks C. — 21/9/90 — Nursing Homes 2Appeal against decision of Commission (70 WAIG 1940) re dismissal of site allowance claim — Appellant argued Commission's decision was against the weight of evidence and Commission had erred in failing to give consideration to previous decision with respect to similar sites — Full Bench found Commission was bound to consider the claim in accordance with Sapre's case, the award in section 26 ofthe IR Act and had not made a palpable error in assessing the evidence — Dismissed — BLF and G. and R. Constructions — Appeal No. 914 of 1990 — Sharkey P., Halliwell S.C., George C. — 16/11/90 — Building Construction 2Appeal against decision of Commission (70 WAIG 2386) re dismissal of application to insert new classification into award — Appellant argued Commission erred in fact and finding primary function of new position was controlling trains rather than working signals and safe working apparatus — Full Bench found there was sufficient evidence for the Commission at first instance to find the position was closely enough related to a position in another award to refuse the application — Dismissed — IRU and WAGRC — Appeal No. 957 of 1990 — Sharkey P.. Coleman C.C., Parks C. — 2/11/90 — Railways 2Appeal against decision of Commission (70 WAIG 180) re unfair dismissal — Full Bench noted distinction between unfair dismissal and summary dismissal and its evidentiary onus on parties — Full Bench cited case for test re competence/unsatisfactory performance — Full Bench found claim for unfair dismissal could not be substantial as contract provided for termination by payment in lieu of notice and noted on this there was a palpable error in findings in first instance, appeal tribunals should not intereferwith findings — Dismissed — Ismael S.A. and Turk Ellis Pty Ltd of Elverston Nominees — Appeal No. 2798 of 1989 — Sharkey P.. Halliwell S.C., Parks C. — 12/9/90 — Accounting Practice 2Appeal against decision of Commission (70 WAIG 2398) re claim for unfair dismissal seeking reinstatement — Extension of time — Full Bench noted Commission at first instance found that there was an abandonment of the contract, however contract continued until terminated by mutual agreement — Full Bench found question of constructive dismissal could not be substantiated as appellant had not recanted from postion taken in the period of time between abandonment and date of termination by mutual agreement, thus no relief available under section 29 of IR Act — Dismissed — Beardmand P.O. and NZ Insurance — Appeal No. 1354 of 1990 — Sharkey P., Coleman C.C., Halliwell S.C. — 12/9/90 — Insurance/Clerical

■Appeal against decision of Full Bench (70 WAIG 2563) re preliminary that it had jurisdiction to hear application re cancellation or suspension of appellant pursuant to section 73 of IR Act — Appellant argued amongst other things that it was not an "organisation" as meant by section 73, it had not registration to which section 73 can apply and the Full Bench did not have power to cancel its registration while section 73A(2) remained in force — Industrial Appeal Court found Full Bench was correct in its interpretation that section 73A(2) "deemed" appellant to be an organisation under the Act — Consequently the appellant is treated as if it had been registered under the Industrial Arbitration Act and it then became, within the meaning ofthe IR Act, an organisation which was at all times liable to have its registration cancelled pursuant to section 73 — Dismissed — SSTUWA — IAC Appeal No. 8 of 1990 — Kennedy J. (P), Seaman and Nicholson J.J. — 24/9/90 — Education

■Appeal against a "finding" of the Full Bench (70 WAIG 3044) that an application to it for enforcement for proceedings under section 84A have improved — Question to be answered was whether that finding amounted to a "decision" capable of being appealed to the Industrial Appeal Court under section 90 ofthe IR Act — IAC found section 34(1) makes it mandatory that the decisions of Commission shall be in form of award, order or declaration and shall be signed and delivered by Commission — Section 36 requires decisions of the Commission to be sealed, deposited in the office of the Registrar and made open for inspection — As a finding in this case is not processed in the manner provided by sections 34 and 36 IAC found that it was not a decision subject to

• appeal under section 90 and this appeal was therefore incompetent — Dismissed — CMEWU and IFTIU — IAC Appeal No. 5 of 1990 - Roland J. (DP). Nicholson and Walsh J.J. - 22/8/90 — Unions

06348—2 (xxxiii)

WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 70 W.A.LG.

CUMULATIVE DIGEST—continued

APPEAL —continued 2Appeal against decision of Commission (70 WA1G 1909) re award variations pursuant to Structural Efficiency Principles —

Appellant argued Commission had erred in concluding broadbanding of classifications, insertion of Award Modernisation clause and award commitment clause were of sufficient value to justify first stage of wage increase — Furthermore appellant argued Commission had erred in concluding that there was insufficient material to allow part-time worker clause and stand- down clause would amount to trade-off bargaining and erred in concluding that there were special circumstances to justify retrospective payment — Full Bench noted decision at first instance was a discretionary decision and therefore appellant to establish that the exercise of discretion had miscarried — Full Bench from submission and within principles of cases cited found in favour of appellant — Supplementary Reasons — Respondent sought proposed order of Full Bench to issue differently so as to the decision appealed against in tact until remitted matter was determined — Full Bench found failure to suspend appealed decision and allowing it to remain in tact would be a nullification of its own decision and outside power under section 49(5Xc)of IR Act — Upheld — Australian Glass Manufacturers Co Ply Ltd and Others v. TWU — Appeal No. 691 of 1990 — Sharkey P.. Halliwell S.C., Martin C. — 8/8/90 — Transport

Application for an order for production of documents in relation to reclassification appeals — Hon Minister for Productivity and Labour Relations intervene on behalf of the State — Public Service Arbitrator extensively reviewed the procedures in history of the appeals and found that there was a question as to whether any of the appeals had been proceeded upon a condition prerequisite to the making of the instant application — Moreover, Public Service Arbitrator found that as the applicant in this instant matter was not a principle in the appeals, in order issued would confer on the agent in the appeals a right of discovery exclusive of the principals represented in the substantive matterand it was insurmountable that the applicant was not authorised to appear on behalf of all principals — Dismissed — CSA and Commissioner, Public Service Commission — No. P43 of 1990 — Kennedy P.S.A. — 11/10/90 — Public Service 2Appeal against decision of Commission (70 WAIG 2922) re starting and finishing times and place for crane drivers — Appellant argued inter alia in finding that a claim of a Second Tier Wage Fixing Principle Agreement had never been implemented or was overriden — Respondent argued the wording of a letter replaced the arrangements of a clause — Full Bench reviewed authorities and found the decision was not a discretionary one, there was a waiver in the sense of an election between consistent rights and the Commission did not err — Dismissed — Fremantle Port Authority v. CMEWU — Appeal No. 1002 of 1990 — Sharkey P.. Coleman C.C., George C. — 5/11/90 — Construciton — Port Facilities

2Appeal against decision of Commission (70 WAIG 2495) re unchanged decision over redundancies payments following remittance from Full Bench — First appellant argued inter alia Commission had no jurisdiction, failed to give sufficient reasoning and inappropriately applied the Government Employees Consent General Order — Furthermore that the Commission had demonstrated judicial bias — TWU argued it had sufficient interest in the matter not be struck out as a party to the application at first instance — Respondent union to first appeal argued much of the grounds of the first appellant had been canvassed in the original appeal to Full Bench and that Commission never adopted the General Order — Full Bench found question of jurisdiction had been dealt with in the original appeal, that it was quite clear that the standards of Government Employees Consent General Order were of importance in the Commission's deliberations and there was a failure to make sufficient findings of fact on which a sound discretionary judgment could be based, hence the discretion miscarried — Full Bench found on authority in not submitting has at first instance the appellant waived its right to do so — Full Bench further found Commission had not erred in striking out TWU from the application at first instance and in any event it was a finding as defined by section 7 of the IR Act — Upheld and Dismissed — Tip Top Bakeries (Canning Vale) v. FCU and Others, TWU and Tip Top Bakeries (Canning Vale) — Appeal Nos. 870 of 1990 and 954 of 1990 — Sharkey P., Coleman C.C., Salmon C. — 2/11/90 — Bread Manufacturing

1 Appeal against decision of Full Bench (70 WAIG 2152) to uphold Industrial Magistrate's decision re breach of award — Question of whether employee delivering vehicles from driving them from place to place is substantially employed "in connection with transportation ofgoods and materials" — Industrial Appeal Court found that scope clause ofTransport Workers (General) Award had been misconstrued as a motor vehicle which is being driven cannot at the same time constitute the goods or materials being transported — This being the case no breach of award occurred as award did not apply to subject employee — Upheld — Mountgrove Holdings Pty Ltd trading as Titan Ford and TWU — IAC Appeal No. 10 of 1990 — Kennedy, J. (P), Rowland and Seaman KJ. — 23/10/90 — Transport

2Appeal against decision ofCommission (70 WAIG 2512) re redundancy payments ordered — Appellant submitted Commission had erred in law, in finding it used power to orderpayments for dismissed employees without an order for reinstatement and in making an order pursuant to section 44(9) of IR Act that had the effect of varying awards with respect to entitlements of terminated employees — Furthermore Commission erred in making a order on a case by case basis without proper regard for principle enunciated in State Termination and Redundancy case, and in ordering payment to employees in eligible to be enrolled as members of union — Full Bench from submissions and cases cited found Commission had the jurisdiction and power as claim was an "industrial matter" — Further Full Bench found Commission Order was made to settle dispute between parties as to terms and conditions upon which redundancies were effected, and it did not vary nor was it inconsistent with award, and finally absence of award provision should not provided in did not become a substitute for a provision in an award, prevent Commission from its duty under section 44 of IR Act Dismissed — McLeans Consolidated Pty Ltd and United Timber Yards, Sawmills and Woodworkers Employees Union — Appeal No. 917 of 1990 — Sharkey P., Coleman C.C., Gregor C. — 25/10/90 •— Timber ...

2Appeal against decision ofCommission (70 WAIG 2415) re order of employment — Appellant appealed on a numberofgrounds and argued Commission had failed to heed principle adopted by IA Court and Full Bench in that the Commission should not seek to take over the role of an employer to determine who should be employed and failed to have regard for the fact that services of employee were terminated on notice pursuant to clause because of overall unsatisfactory nature of employment — Full Bench noted fundamental task was for union to establish that dismissal was unfair and from submissions and evidence found Commission had not given due weight to employees overall record ofemployment, thus Commission's discretionary judgment at first instance miscarried — Upheld — RRIA and AWU — Appeal No. 728 of 1990 — Sharkey P., Fielding C. Kennedy C. — 26/9/ 90 — Mining

2Appeals against decision of Industrial Magistrate as a test case (70 WAIG 2391) re breach of award — Appellants argued award did not apply to the industry in which they operated upon a proper construction of its scope and area and did not apply to the operation of those bound by an Industrial Agreement — Respondent argued the agreement should not have been registered — Full Bench found that the award covered employers and employees referred to in the agreement and was not persuaded that any wrong principle was applied in the Jubilee Jackpot case — Full Bench reviewed IR Act and Industrial Arbitration Act and found what existed was an award and an agreement deemed to be a consent award almost identical save for rates of pay — Full Bench reviewed authorities and found that where the award purported to cover the field, it should prevail over a consent award of limited scope, that the Industrial Magistrate has sufficient evidence to support the finding of the breach and could not have erred in any manner involving section 26 of the IR Act — Dissenting Commissioner reviewed the history of the award, agreement and legistation and found the employees in question save those of one appellant were governed by the agreement — Dismissed — Hungry Jacks Pty Ltd and Others v.G.R. Wilkins, OIR and Others — Appeal No. 791 of 1990 and 793 of 1990 — Sharkey P., Fielding C., Beech C. — 2/11/90 — Fast Food *

2Appeal against decision ofCommission (70 WAIG 1146)re amendment to superannuation clause in award — Appeal based upon the question of whether there is a choice available of superannuation funds — Question re jurisdiction and "Industrial Matter" —Full Bench from submissions found appellant had not established that Commission at first instance erred in the exercise of its discretion and further noted certain points as to why it was within the Commission's power and jurisdiction at first instance to decline to vary order, which without doubt related to an industrial matter— Dismissed — CWAI and SDA — Appeal No. 561 of 1990 — Sharkey P.. Halliwell S.C., George C. — 27/9/90 — Wholesale and Retail

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70 W.A.I.G m

CUMULATIVE DIGEST—continued

Page AWARDS —

Breaches of Award re underpayment of wages — Respondents argued no case to answer — Industrial Magistrate found for both no case to answer claims and complaints proper that the award overruled any Industrial Agreement because the Awards were the law at the material times and that the Respondents were covered by the Award by common rule — Proven — Wilkins G., OIR and Padstow Grange Pty Limited trading as Chicken Treat, Padbury and Others — Complaint Nos. 374-377 a nd 381 of 1989 — Walsh S.M. — 10/4/90 — Fast Food 2391

Application to vary Award pursuant to Structural Efficiency Principle — Applicant Union sought three per cent wage increase on basis of proposals and commitments under the Principles — Respondent opposed claim and argued all Award clauses were open for discussion — Commission found Applicant had satisfied Principles in line with pattern set in Federal and State Metal Trades and Building Trades Awards and Agreements — Commission further stated Respondent's counterproposals may have extreme relevance when the Applicant sought the second Structural Efficiency increase — Granted — WA Bakers, Pastrycooks' and Confectioners Union and Bread Manufacturing (Perth and Suburbs) Union of Employers of WA — No. 2296 of 1989(R) — Halliwell S.C. — 5/4/90 — Bread Manufacturing 2218

Applications to vary Awards re second wage increase under Structural Efficiency Principle — Commission split application to allow different parties to pursue their own agendas — Commission found process of change at Swan Brewery Co had not resulted in substantive Award/Agreement variations but was nonetheless one which by its very thoroughness, degree of co-operation and evident prospects in the shorter term met the test for the second phase under the Structural Efficiency Principle — Particularly an intense exercise in work re design — Commission further split applications to allow for further variations and review in finalisation of applications — Granted and Adjourned — Brewery and Bottleyards Employees Union and Swan Brewery Co Ltd and Others — Nos 443,485, 622, 670 and 744 of 1990(R2) — Kennedy C. — 9/5/90 — Brewing and Malting Industries 2226

Application to vary Award by increasing wages pursuant to Structural Efficiency Principle — Respondent argued agreed proposed changes did not satisfy the Structural Efficiency Principle so as to warrant ratification of $15.00 wage increase — Commission reviewed authorities and found it was not obligated to follow what had occurred in a Victorian Decision — Commission determined matters of increase in spread of hours of work and provision for time of in lieu of overtime — Commission split application so as to deal with matters of disagreement at a later stage — Granted in Part and Adjourned — FCU and HPC Pty Ltd and Others - No. 1583A and B of 1989(R) — Parks C. - 13/6/90 — Clerical 2242

Application to vary Award pursuant to Structural Efficiency Principle by consent — Applicant Unions sought first Structural Efficiency Wage Adjustment and increase in allowances — Commission found variations proposed in accordance with the Principles and referred to Reasons for Decision in other Government Engineering Award Cases — Commission further reviewed agreement for Structural Efficiency in Public Sector Engineering, including a proposed new Award to replace existing Awards — Commission specifically dealt with submissions of parties to maintain wages and classification structures finks with a related Award and its history so as to assist the parties on their deliberations for the second Structural Efficiency adjustment —- Granted — AMWSU and Another v. WAFBB — No. 175 of 1989(R) — George C. — 24/4/90 — Emergency Services 2276

Application for new award — Amalgamation of two awards, to give effect to first stage of Structural Efficiency Principle — Commission noted rationalisation of a number of conditions and found parties committed to restructuring and efficiency — Ordered Accordingly — Operative Plasterers and Plaster Workers Federation and HB Brady and Co and Others — No. A29 of 1989 - Beech C.-24/4/90 2336

Application to vary Award rescope —Applicant sought to expand definition of construction industry tocover award free areas — BLF objected on the grounds of incorrect advertising of application — Employers/Respondents argued wording may encompass activity beyond the stated intention — Commission found it in public interest and consistent with the State Wage principles to grant application — Commission, however, inserted provision that award would not apply to employees covered by existing awards — Granted — CMEU and Adsigns Pty Ltd and Others — No. 2651 of 1989 — Beech C. — 6/6/90 — Construction 2661

Application to vary Award re Second Structural Efficiency Wage Adjustment — Public Service Arbitrator reviewed parties efforts in Structural Efficiency, including previous Award changes and broadbanding, changes to the ordinary hours of work, shift work and overtime and was satisfied that the parties had done sufficient under the Wage Adjustments Principle — PSA in granting $15.00 or three per cent increase to all classifications, distinguished the Award from private sector Awards and referred to nexus with Public Service Salaries Agreement — Allowances also varied — Granted — FCU and WA Coastal Shipping Commission and Others — No. P10 of 1990{R2) — Fielding C. — 4/7/90 — Public Administration 2585

Application for interpretation of an Award re whether payment for annual leave was based on actual shift hours or 38 hours only — Commission found on examination of Award that the amounts which may be included in the calculation all referred to rates in ordinary time, which hours averaged 38 per week and did not include overtime hours — Dismissed — Brick Tile and Pottering Union and Bristile Limited — No. 1570 of 1989 — Beech C. — 11/5/90 — Brick and Tile Manufacture 2870

Application to vary Area, Scope, Title and Provisions of the Award to reflect changes of single employer in the industry and incorporate Structural Efficiency Wage increase as relevant to the industry — Granted — Brick Tile and Pottery Union and Heat Containment Industries — No. 586 of 1989 — Beech C. — 12/12/89 — Refractory 2805

Application for first Structural Efficiency Wage increase — Parties had set about inter alia rationalising, salary scales for classifications and compacting long service leave — Commission noted Award applied to a small organisation with perhaps not the scope for radical changes and with tortuous path of Second Tier adjustments, it is not surprising that the parties had not been able to do more to date — Granted — HSOA and Paraplegic-Quadriplegic Association of WA — Fielding C. — No. 2107 of 1990(R) — Health Services 2814

2Appeal against decision of Commission at (70 WAIG 358) re variation of an Award pursuant to Structural Efficiency Principle — Applicant Union argued that Commission erred in not following decision of the Full Bench of the Victorian Commission in setting wage rate increases and not approving the FCU's National classification structure — Appellant argued that not to follow the Victorian Commission was not to follow the Commission in Court Session — Full Bench found only real question in issue was whether the $12.50 variation to wages was sustainable — Full Bench found that the Commission was not bound to follow the Victorian decision and that there were not grounds made out to persuade it that it should substitute its decision for that of the Commission at first instance within the principles of an appeal against a discretionary judgment — FCU and Swan Brewery Co Ltd — No. 2688 of 1989 — Sharkey P.. Coleman C.C., Gregor C. 23/5/90 — Clerical 2103

Application to vary Award pursuant to Structural Efficiency Principle by consent save question of Operative Date — Applicant Union sought second Structural Efficiency Wage Adjustment on basis of agreed Award amendments including changes to work practice, part-time and casual employment provisions — Railways Classification Board found changes sought should be ratified, however addressed matters of concern such as the establishment of 21 year rate as a reference point for skilled employees and. noting the legislative demarcation for the parties before it, the functioningof Promotion Appeal Boards — Majority of RCB found insufficient reason to depart from the usual awarding of an Operative Date — Granted in Part — ROU v. WAGRC — No, R3 of 1990(R2) — Kennedy C.. Phillips, Thompson — 25/5/90 — Railways 2355

Application for joinder to Award — Psychiatric Nurses Association objected on the grounds of specific constitutional and industrial coverage, the creation of unnecessary competition and an agreement with the Government to amalgamate Awards — PNF intervened on similargrounds — Commission carefuly considered principles outlined by the President in relation to intervention and found on evidence that the ANA and ANF (Federal) relationship provided sufficient interest to allow intervention on a limited basis, but not the ANF (State) — Commission at request of parties continued hearing submissions to application, rather than allowing time for appeals, at the request of the parties for expediency — Commission examined evidence of disenchantment with existing union representation and preference towards Applicant Union — Commission examined eligibility rule, in particular, reference to "in hospitals", and found on the authorities a restrictive interpretation was not appropriate and that the Applicant had constitutional coverage — Commission however found on the merits of the claim that the application would not meet the objects of the Act. would only complicate processes such as Structural Efficiency and that the highly likely outcome of "healthy competition" would be industrial disputation — Dismissed — FMWU and Hon Minister for Health and Another — No. 2596 of 1989 — Negus C. — 8/5/90 — Mental Health Services 2520

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CUMULATIVE DIGEST—continued

AWARDS —continued Application for Award variation pursuant to Structural Efficiency Principle, Second Stage — Implementation of Structural

Efficiency Principle in instant Awards have primarily been handled nationally via the appropriate counterpart Award — Commission noted final form of amendment to the Federal Award was unavailable, but preferred to finalise matters at hand — Commission further outlined means to address any difference of substance between State and Federal Award should it occur — Granted — CMEU and Civil and Civic Pty Ltd and Archibald and Thorpe and Others — Nos. 437 and 559 of 1990 — Beech C. — 7/6/90 — Construction

Application for Award variation pursuant to Structural Efficiency Principle — Parties were in agreement to variation sought — Commission found parties have detailed new arrangements which increased the opportunity for employees to acquire and maintain relevant skills with consequent progress — Furthermore Commission noted the development of the operator/ maintainer role and its ramifications in terms of the Structural Efficiency Principle — Granted — AWU and Hamersley Iron Pty Ltd and Others — No. 555 of 1990 — Kennedy C. — 11/4/90 — Iron Ore .....

Application for Award variation pursuant to Structural Efficiency Principle — Applicant Union proposed wage structures modelled on the provisions that have been determined by the AIRC in the Federal Award, giving effect to the first step in strategy of aligning wage rates — Respondents support the proposed wage structures with respect to the classifications, however did not accept the rates ascribed to the various levels, arguing, any movement in relativities should be conditional upon an extensive work value assessment ofeach particularclassification — Commission noted and commented on issues raised by parties and found in favour of applicant union except that wage rates be expressed in terms of base rates and supplementary payments — Ordered Accordingly — TWU and Central Districts Bakery and Others — Nos. 1612 and 1614 of 1989 — Coleman C.C. — 21/3/90 — Transport/Bakery

Application for new Award — Parties were in agreement on Award being issued — Application opposed by objecting union re classification of "keyboard operators" — Commission from submissions of all parties found definition of above classification in Award provided protection for the objecting union and made it clear that there was no intention to upsQXstatusquo — Commission noted First Awards Principle had been followed and approved application subject to redrafting of offending clause and an adjustment towage rate — Granted — PKIUv. Community Newspaper Group — No. A21 of 1989 — Negus C. — 26/3/90— Print Media

Application for Award variation pursuant to Structural Efficiency Principle — Second Stage — Parties submitted progress report on review of Awards and implementation measures to improve efficiency such as Permanent Part-Time Employment policy; amalgamation of Awards and Agreements dealing with Allowances; delegation of authority to Chief Executive Officers; streamlining arrangements for Promotion and Reclassification Appeals; On call provision; flexibility in Overtime; Property Allowance; and the Skills Resource Management System — Commission from evidence found second salary adjustment now sought was justified and approved date of increase as at conclusion of hearing — Granted — CSA and Commissioner, Public Service Commission — No. P2-P9 of 1990(R2) — Negus C. — 18/4/90 — Pubic Sector

Application to vary Award — Leave to intervene granted to opposing Union — Introduction of a new system of centralised train control —■ Applicant Union sought insertion of new classification in wages clause — Respondent objected, arguing signalling function in new system only a small part of the overall train control, thus creating another position specific to signalling would be wasteful and less efficient — Intervener supported Respondent — Commission found from inspections and technical evidence found to acede to Unions application would be to allow an industrial imperative which could have the effect of reducing the intrinsic benefits of the new technology to overall efficiency of the enterprise and concluded that it should not intervene — Dismissed — ARU v. WAGRC — No. 1622 of 1988 — Kennedy C. — 11/5/90 - Railways

Application for Award variation pursuant to Structural Efficiency — Parties were in agreement on changes to Award relating to Hours; Overtime; Shift Work; Annual Leave; Absence Through Sickness; Introduction of Casual Workers and other administrative changes — Commission approved most changes, however noted reservation on some amendments due to lack of submission from parties in relation to them and rejected variations sought on Definition of Misconduct; Long Service Leave and provision of "National StandardofCode for the National Occupational Health and Safety Commission"— Ordered Accordingly — Federated Brick Tile and Pottery Industrial Union and Midland Brick and Others — No. 1960 of 1989—Beech C. — 12/12/89 — Brick Manufacturing

Appeal against decision of Commission at (70 WAIG 89) re Second Structural Efficiency Wage Increase — Appellant argued Commission had failed to exercise independent judgment and simply applied a decision of the Victorian Industrial Relations Commission in amending the wage rates and other provisions of the Award — Furthermore that the application had not been properly before the Commission — Full Bench reviewed principles relating to appeals against a discretionary decision and considered the question "What weight should the Commission at first instance given to the General Order and the views of the Commission in the Court Session in the State Wage Decision" — Full Bench found, there was a miscarriage of the Commission's discretion in the terms set out in House v. the King in that it did not assess or give sufficient weight to a number of factors before reaching its decision, and gave undue weight to the Victorian decision, nor did it sufficiently exercise independent judgment, save that the Award Modernisation clause was properly inserted in the Award — Upheld and Remitted — Coles New World Supermarkets and Others and FCU — No. 2783 of 1989 — Sharkey P., Coleman C.C., Martin C. — 18/5/90 — Retail and Wholesale (Clerks)

Application to vary Award re first Structural Efficiency Wage Increase — Applicants presented new classification structure as first interim step in restructuring process and noted that the Award was subject also to a whole Government approach — ETU gave agreement to proposal with provisors relating to further restructuring and the relationship of another Award, in the development of the final position — Commission reviewed agreement concerning inter alia, a proposed new Award, training education process, job security and demarcation and specific Award variations — Commission approved agreement subject to "safeguards" on issues such as service increments and the inclusion of a paragraph, relating to reclassification claims, in the wages clause — Allowances varied by three per cent — Granted — AMWSU and Others and Transperth — No. 1736 of 1989(R) — George C. — 2/ 4/90 — Public Transport

Application for variation to Award pursuant to Structural Efficiency Principle, second stage — Parties have addressed more than that which was committed to be undertaken at the first stage, most notably the system of merit based promotion and radical changes to hours ofduty — Question of under which "Principle" should shift penalties be granted — Commission having answered question of "Principle" found in favour of amendments proposed by parties — Granted — WA Police Union and Hon Minister for Police - Nos P25, P26 and P27 of 1990 — Fielding C. — 17/5/90 — Police Services

Applications to vary Awards re Second Tier and Structural Efficiency Wage Increases — Commission granted three per cent wage increase for same reasons as a related application and then gave reasons for decision to examine matters of hours of work and income maintenance — Applicant Union argued tradeoffs sought by employers were outrageous, beyond the scope of what was appropriate in arbitral proceedings for second tier wage increases and that an agreement reached in the Bakers'(Metropolitan) Award was unconscionable — Respondents argued changes to hours and penalty rates agreed in the Bakers' (Metropolitan) Award should be flowed to the subject Awards and that the differences between the Awards had a deteriorating effect on business competition — Commission reviewed reasons for decision in the other application and was not prepared to "inflict" by arbitration the consent reached in another Award on a strongly dissenting party — Granted — Bakers Union and Bakewell Foods Pty Ltd and Others — Nos. 2294 and 2295 of 1989(R) — Halliwell S.C. — 6/4/90 and 21/5/90 — Bakeries

Application to vary Award by consent re redundancy benefits — Claims sought to apply the standard Termination Change and Redundancy provisions of Part I of Metal Trades General Award — Parties submitted, provisions would ensure fairer treatment of employees at minimal cost and enhance industrial relations in the industry — Commission found that the merit of the claims had been demonstrated and proposed amendments were within the Structural Efficiency Principle — Granted — AMWSU and Others v. Alma Engineering Pty Limited and Others — Nos. 489,490 and 2626 of 1989 — Coleman C.C., George C. Beech C. — 16/7/90 — Building and Construction

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

CUMULATIVE DIGEST—continued

AWARDS—continued 'Application to vary Award re classification and wage increases — CICS found Work Value Principle satisfied. Wage Fixing

Principles complied with, and no problem of flow on or unfavourable cost increase — Furthermore CICS found no special circumstances to grant retrospectivity — Granted in Part — CMEU and SECWA — No. 678 of 1990 — Salmon C, Kennedy C, Beech C. — 26/6/90 — Electricity Supply

Applications to vary Awards pursuant to Structural Efficiency Principle on the basis of a Memorandum Agreement with the Awards' Respondents — Commission found Award amendments submitted and commitments given by parties were in toto sufficient to approve payment of the first Structural Efficiency Wage Increase — Commission further dealt with issues where parties had not reached complete accord, including demarcation, part-time employees, casual and temporary employees, hours, relieving and higher duties, whether to insert a clause into the Agreement re-stating part of the National Wage Decision, and performance appraisal — Granted — ANF and Alfred Carson Hospital and Others — Nos. 2708-2711 of 1989 — Negus C. — 2/7/90 — Health :

Conference referred re whether a dispute settlement procedure should be inserted in an Award — RCB reviewed history of establishing an agreed Dispute Settlement Procedure for the whole of the State's rail industry — RCB found on the particular application that as the parties had not taken action to proceed for a long period and the general history of the parties was that disputes were usually resolved through proper avenues, the application and Interim Order should lapse — Furthermore that it was not necessary for the RCB to force such a course of action on the parties — Ordered Accordingly — ROU and WAGRC — No. CR694 of 1989 — Kennedy C., Phillips, Thompson — 22/6/90 — Railways

Application to vary Award re wages — Applicant Union sought additional loading on wage rate as it had been in existence in the preceeding Award — Respondent argued application should be joined to another application as it would be inappropriate to prescribe a loading when the Applicant was seeking to replace the concept in the near future or that the loading should be 44 per cent not 60 per cent of the hourly base rate of pay — Commission was not prepared to adjourn and join the application properly before it as there was no good reason to do so and due to a deficiency in the Award under review—Commission reviewed history of loading and State Wage Principles which lead the Commission to consider the establishment of any new loading by reference to the value of any similar loadings that have already been assessed within the Award — Commission found as a matter of valued judgment, taking into account that the employees concerned did not receive, inter alia, annual leave, a loading of 46 per cent to be appropriate — Granted in Part — FCU and WA Turf Club and Others — No. 868 of 1989 — Parks C. — 20/8/90 — Racing and Gaming

'Appeal against decision of Commission at (70 WAIG 1339) re new Award — Appellant argued denial of natural justice in that they had no opportunity to be heard on certain matters and sought matter to be referred back to Commission — Full Bench found in favour of appellant and varied Scope Clause of Award — Upheld — Airlite Cleaning Pty Ltd and Others and FMWU — Appeal No. 539 of 1990 — Sharkey P., Martin C, Parks C. - 10/7/90 — Cleaning

'Appeal against decision oflndustrial Magistrate at (70 WAIG 891) re failure to make available time and wages record — Appellant sought quashing of order, arguing Magistrate had erred in fact and law in finding that they were bound by Award, employed persons in the industry "Vehicle Hiring" and that persons were employed for "the transportation of goods and materials" — Full Bench noted principles applied in interpreting Awards and found from definitions of'carry", "convey" and "take" that employees concerned were clearly employed in or in connection with the transportation of goods and materials — Dismissed — Mountgrove Holdings Pty Ltd trading as Titan Ford and Tranport Workers Union of Australia — Appeal No. 91 of 1990 — Sharkey P., Halliwell SC., George C. — 21/6/90 — Transport

Applications to vary Awards re Second Structural Efficiency Wage Adjustments — AMMA intervened and argued against variation on the basis that the Structural Efficiency Principle was not satisfied — Commission reviewed negotiations, parties agreement and addressed concerns regarding various matters such as, training clause, contract of service clause, and construction of the wage and supplementary payments clause — Parties were directed to realign (base) classification rates and proposed minimum rates adjustments before presenting draft for final orders — Ordered Accordingly — AMWSU and Others and Anodisers WA and Others — Nos. 478,479 and 483 of 1990(R2) — George C. — 24/5/90 — Metal and Building Trades

Applications to vary award to include termination, change and redundancy provisions — Union relied on Australian Conciliation and Arbitration Commission Full Bench decision and Commission in Court Session decision inserting termination, change and redundancy provisions into Federal and State Metal Trades Awards — For reasons support argument — Claim represents sensible workable improvements insuring fairness — Clearnexus between Federal and State Awards — Recent developments in job security in other states — Inequity exists between states in job protection — Respondents claimed no case to answer — Merit finding not an argument — Claim should be dismissed — Movement in other states and Commission in Court Session decision reinforces view held that equity should exist in conditions of employment — Granted — AMWSU and Boltons Pty Ltd and Others — No. 860 of 1986 — Halliwell S.C. — 29/6/88 — Metal Trades

Application by consent to vary award pursuant to Second Tier Restructing and Efficiency Principle — Parties were in agreement to restructure or make more efficient a number of work practices — Commission found measures undertaken by the parties were designed to improve efficiency and to enhance productivity in a real sense — Granted — HSOAand Attadale Hospital and Others — Nos. 994,998-1000, 1002 and 1003 of 1987 - Fielding C. - 22/9/88 - Health and Welfare Services

Application to vary award pursuant to Structural Efficiency Principle — Parties were in agreement, respondents from tertiary institutions sought prospect date due to supplementary finding from Commonwealth — Applicant opposed claim for institutions as they had not demonstrated an incapacity to pay — Commission found in favour of tertiary institutions and prescribed prospective date — Ordered Accordingly — TWU and Hon Premierof WA and Others — No. 936 of 1988 — Martin C. — 21/9/88 — Government

Application to vary award re Structural Efficiency Wage Adjustment — Applicant employers sought changes to Hours of Work, Allowances, Penalty Rates and Second Tier Wage Adjustment on the basis of uniformity within the industry — Further, the joinder of an employer organisation to the Award — Respondent union argued employees were part of the clerical industry and that there should be consistency with a decision on the Commercial Clerks Award in Victoria — Further that the Second Tier Wage negotiations should be left the subject of another application lodged by the union — Commission was not prepared to accede to Second Tier claims as procedures, e.g. advertising had not been met — Commission found parties differing views on the industry were both correct and not incompatible and the Victorian Decision was to be considered, not necessarily adhered to — Commission determined matters of, inter alia, changes to flexible arrangements of Hours of Work, Time of in Lieu of Overtime Pay, Penalty Rates, Annual Leave Spliting, Wages and Classifications — Commission finalised matter of Record Clause in Supplementary Reasons — Granted in Part — Booragoon Motor Hotel and Others v. FCU — No. 2176of 1989(R) — Parks C. — 2/ 8/90 — Hospitality (Clerks)

Application to vary award by consent re Second Structural Efficiency Wage increase — Applicant submitted agreement followed closely those in the Metal Industry Awards and inter-Union concerns had been largely overcome — Commission found inclusion of BMA and Government Hospitals appropriate as they were subject to separate proceedings before the Commission, but found no grounds to do likewise with the Water Authority — Commission reviewed issues such as broadbanded wage and classification structure and found the inclusion of two new classifications would possibly change the scope of the award, hence could be subject to separate application, if the need was established in the implementation/transition process, such that the IR Act could be complied with — Granted in Part — AMWSU and Others and Hon Minister for Works and Others — No. 513 of 1990(R2) — George C. — 24/5/90 — Government (Engineering Trades)

Application to vary award re Extension of First Structural Efficiency Increase to employees eligible to be members of the ETU — Commission found notwithstanding respective concerns as to ascertain of rights to parties had an agreed framework approach, underpinned by a healthy mutual respect and there was every reason to believe they would be successful in pursuing further the twin goals of increased productivity and opportunity for employees — Granted — HI and Another and AWU and Others — No. 1146 of 1990(R) - Kennedy C. — 19/7/90 - Iron Ore

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WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 70 W.A.I.G.

CUMULATIVE DIGEST—continued

AWARDS—continued 'Appeal against decision of Full Bench (70 WAIG 8) not to allow appeal against decision of Commission to register Industrial

Agreement — Appellant argued that section 41 and 29A of Industrial Relations Act 1979 when taken together require an Agreement which has been amended during proceedings to be advertised in the WAIG which had not occurred in this instance — Further Commission had exceeded its power by allowing Agreement to be amended other than provided by section 41(3) — Industrial Appeal Court found section 27( 1XI) gave Commission discretionay power to amend proceedings and that the changes to original Agreement did not require re-advertisement—Appellant also argued that one clause of the Agreement did not relate to an "industrial matter" and therefore registration of the Agreement was beyond the jurisdiction of the Commission — IAC found clause in question was an industrial matter and in any event the fact that the clauses of the Agreement were looked at as a whole were an industrial matter was sufficient — Appellant furtherclaimed it had been denied natural justice and not being afforded the opportunity of putting the submissions about the amendments to the Agreement and also in not having the opportunity to "speak to the minutes" — IAC found Appellant had not applied to Commission to make submissions on the amendments so there could have been no denial of natural justice and that an intervener is not a "party" to proceedings and thus has no right under section 35 to speak to the minutes — Dismissed — Australian Bank Employees Union and Federated Clerks Union and Others — Appeal No. 14 of 1989 — Brinsden J., (President), Kennedy J., Rowland J. — 28/3/90 — Banking

Applications to vary Award by consentreFirst Phase Structural Efficiency Wage Increase — Parties submitted that rather than pursue a single award to cover private and government sectors, it was more appropriate to remodel existing awards with particular emphasis on training — Commission noted due consideration of rates and relativities for second phase increase — Granted — HSOA and Another v. J. Arnold and Others — Nos. 1062 and 1063 of I99()(R) — Kennedy C. — 18/9/90 — Health (Dental) ■••••

Application to vary Award by consentreFirst Structural Efficiency Wage Increase — Commission found there needed to be provision accommodate the preculiar idiosyncrasies of the various enterprises covered by the Award and that the proposed enterprise agreement clause was an example for others to follow — Commission accepted argument for $15.00 increase 85 per cent of that amount for those on probation — Granted — Sales Representatives and Commercial Travellers Guild and Carborundum Pty Ltd and Others - No. 59 of 1990(R) — Fielding C. — 24/8/90 - Sales

Application to vary Award re Second Structural Efficiency Wage Adjustment — Applicants submitted award was modem and reflected efficient conditionsofemployment — Commission found radical changes to Allowances forcleaning toilets and leading hands designed respectively to overcome "administrative nightmares" and truly reflect the work and responsibilities involved where within the Wage Fixing Principles — Granted — FMWU and Ministry of Education — No. 597 of 1990(R2) — Fielding C. — 6/9/90 — Cleaning Services

Application to vary Award pursuant to Structural Efficiency Principle — Commission reviewed Unions attempts to notify and negotiate with Respondent employers — Commission found second schedule of proposed variations were within the State Wage Principles and ratified them by consent — Granted — MUA v. Sheraton Hotel and Others — No. 2342 of 1989(R) — Kennedy C. — 24/9/90 — Entertainment

Application to vary Award re Second Structural Efficiency Wage Increase — Applicant argued date ofoperation should be from when substantive agreement was reached — Respondent argued there was no government approval at that time — Commission found Wages Principles were met and applying the rules specified in another decision concerning operative date in favour of the Applicant — Granted — FMWU and Hospital Laundry and Linen Service — No. 163 of 1990(R2) — Gregor C. 29/8/90 — Laundry and Linen Services

Applications to vary Awards by consent re Shift Penalties, NewDefinition and other Allowances as an interim measure pending issue of New Award — Public Service Arbitrator found various amendments either reflected existing practise, arose out of Structural Efficiency negotiations in the case of new "recrait in training" definition/rate of pay, had been earlier determined, related to increased costs or rationalisation of Allowances or corrected errors and ommissions — Granted — Hon. Minister for Police and WAPOU — Nos. 1558-1560 of 1990 — Fielding C. — 15/10/90 — Police

Application for new award to replace previous award and agreement in respect to named respondents — Matter came before Commission by consent — Commission found new award significantly restructured employment in the industry and complied with State Wage Fixing Principles and in particular with Structural Efficiency Principle — Granted — FLAIEU v. Amalgamated Food and Poultry Pty Ltd trading as Red Rooster Foods and Others — No. A14/90 — Fielding C. — 22/8/90 — Fast Food

Application for Second Stage Structural Efficiency award amendments — Matter came before Commission by consent at a previous hearing and was stood aside pending compliance with procedural requirements under Act — Commission found previously that variations were within the Principles and thus with procedural requirements satisfied ordered the variations to be operative from date of first hearing — Ordered Accordingly — WAGHSOA v. CBH Limited — No. 965 of 1990(R2) — Fielding C. — 7/9/90 — Grain Handling

Conference referred re dispute settlement procedure — Parties sought determination as to whether such a procedure should be inserted into relevant awards — Submissions were directed to the appointment of a mediator with neither party in favour of such — The Minister intervening supported the mediator system and submitted there was no legal bar to the Commission making provisions—Commission found appointment of a mediator was a matter for the parties and that the strength of such system lay in the commitment of the parties — Commission found further that the parties had no deep commitment to a voluntary dispute settlement procedure therefore there was little point in the Commission legislating for a code — Discontinued — ASE and Others v. WA Government Railways Commission — No. CR563 of 1989 — Gregor C. — 21/9/90 — Railways

Application for new award — Matter came before Commission by consent with the exception of the commuted overtime allowance — Applicant based claim for and general allowance of 22 per cent of gross annual salary on a survey of field work which showed increased incidence of overtime — Respondent questioned validity of survey based on time in the field rather than work in the field and asserted further that the additional cost would impair research projects specific funding — Commission found little justification for any change to the existing agreement except in regard to the allowance for extensive field work where the respondent's proposal to substitute a single allowance for the previous additional loading ought be adopted — Commission found further that the applicant's claim did not meet the Work Value Change Principle — Ordered Accordingly — CSA v. PSA — No. A5 of 1986 — Fielding C. — 6/9/90 — Public Service

Application for new Award — Parties presented submissions and evidence regarding the proposed coverage of hydrographic surveyors, wage rates and a 38 hour week — Commission found that hydrographic surveying is within the surveying industry and should be included in scope of award, that the wage rates claimed by consent were warranted and should receive the three per cent structural efficiency adjustment and that a 38 hour week was a Commission standard — Parties were directed to prepare final draft award — ADSTE v. Association of Consulting Surveyors and Others — No. A2 of 1988 — Halliwell S.C. — 27/3/90 — Surveying

Application to vary two awards pursuant to Structural Efficiency Principle — Second Stage — Parties reviewed awards as per Memorandum of Agreement and sought second increase in view of proposed changes — Commission noted parties had "addressed" matters and although there were no dramatic changes, accepted the submission of parties that matters were progressing satisfactorily and in time would produce constructive results — Commission found on matter of operative date that salary adjustments should operate with effect from the first pay period on or after today's date — Ordered Accordingly — AMA WA Branch and Royal Perth Hospital and Others — Nos P22 and P23 of 1990 — Fielding C. — 24/7/90 — Health

Application to vary award pursuant to Structural Efficiency Principle — Second Stage — Parties were in agreement to variation except with regard to operative date and whether new metal trades classification should be inserted into award — Commission noted concerns re non participation in negotiation by other unions party to the award and found operative date should be first pay period on or after date of hearing — Furthermore Commission found on issue of new classifications the matter would be arbitrated — Ordered Accordingly — ARUv. WAGRC and Others — No. 264Aof 1990(R2) — KennedyC. — 21/6/90 — Railways/ Transport

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

CUMULATIVE DIGEST—continued

AWARDS —continued Application for exemption from payment to nominated superannuation fund — Applicant submitted basis of application was that it

had a scheme underwritten through another company — Respondent objected and referred Commission to various AIRC decisions — Commission found cases referred to by respondent were not appropriate as this application dealt with provisions of an award which was specifically designed to regulate the area — Commission found application was not competent due to award and could not grant exemption — Furthermore Commission noted that if there still was a dispute re current arrangements it would be a matter for Industrial Magistrate — Dismissed — Narrogin Cottage Home Inc and FMWU — No.502 of 1990 — Gregor C. — 29/5/90 — Health/Welfare

Application to vary award "Common Rule" pursuant to Structual Efficiency Principle — Second Stage parties sought insertion of new clause "Enterprise Agreements" — Commission cautioned parties as to wording within new clause and noted clause proposed allowed for any number of agreements to be reached without notification or endorsement of the Commission, thus contrary to intent of IR Act — Furthermore Commission noted overtime and depending on degree to which the clause is used, it may render the award document meaningless in some areas — Commission found after deliberation and further submission that clause should be inserted as per redraft which includes a number of safeguards which address the issues outlined — Ordered Accordingly — WA Timber Industry Union and Runnings Limited and Others — No. 900 of 1990(R2) — Beech C. — 12/7/90 — Timber

Applications for new awards to cover enrolled nurses employed by registered dental and medical practitioners and in pathology clinics, the Red Cross Blood Transfusion Service, independent day and boarding schools and in the provision of community and occupational health in the Government sector — Royal Australian Nursing Federation lodged objections due to the coverage of theTransfusion Service and Community and Occupational Health in Government sector and itsclaim to include enrolled nurses in Nurses (Independent Schools) Award — Applicant claimed Federation gained such coverage by legislative accident and that enrolled nurses under its own coverage had superiorconditions — Respondent objected on various grounds including preference for industry, enterprise or extension of current awards and a lack of numbers in dental and medical surgeries and schools — Commission found applicant did not establish on merits of the case that the awards should be — Dismissed — FMWU v Doctors Davies, Pavlos and Singh, Amelia Heights Medical Centre and Others — Nos. A21, A31, A32 of 1987 and A4ofl989 — Fielding C. — 4/5/90 — Health

Consent application to vary award pursuant to Structural Efficiency Principle — Second Stage — Application sought to amend Special Rates, Casual Employees, Leading Hand, Meal Money and Wages clauses — Parties proposed six month implementation and trial period — Commission satisfied by terms of proposed amendments subject to provisos and directives relating to scope, application of wage increases and one classification still under negotiation — Ordered Accordingly — FMWU v. Brownes Dairy Pty Ltd and Others — No. 149 of 1990(R2) — George C. — 20/8/90 — Dairy Food

Application to vary award by abolition of Yardman classification — Parties sought variation to overcome demarcation disputes and streamline maintenance operations — Commission satisfied that the amendments were within State Wage Principles — Granted — Hamersley Pty Ltd and CMEWU v AMWSU and Others — No. 1481 of 1990 — Fielding C. — 16/10/90 — Mining

Application for exemption from requirements to make payments of employee superannuation contributions to the recommended fund —Commission found no grounds to justify the exemption sought — Dismissed — Ron Smales Jewellers v. SDA — No. 1211 of 1989 — Salmon C. — 4/12/90 — Jeweller

Application to vary awards pursuant to Structural Efficiency Principle — Second Stage — Matter came before Commission by consent — Parties sought to vary hours clauses to meet exingencies of particular enterprises — Commission satisfied that parties had made substantial amendments to awards and in allowing claim took into account agreement reached on a new award to replaced the named awards once statutory formalities were met — Granted — FPU v. Edgells Birdseye and Others — Nos. 978, 979. 980, 981 and 982 of 1990(R2) — Fielding C. — 3/10/90 — Food Processing and Retailing

Application to vary award pursuant to Structural Efficiency Principle — Matter came before Commission by consent — Parties sought to broadband existing classifications which would result in increased wage rates, establishment of careerpaths and greater flexibility for the company — Commission was satisfied that claim complied with the principles and that variations would help overcome restrictive work practices and established career paths through multiskilling—Granted — AWU and Hamersley Iron v. AMWSU and Others — No. 1353 of 1990 — Fielding C. - 18/9/90 - Mining

Application to vary award to increase district allowance in line with General Order — Application sought further to amend memorandum ofagreement, a schedule to award relating to superannuation as a formula forwhich included district allowance — Commission satisfied that application complied with State Wage Principles — Granted — Hamersley Iron Pty Ltd v. AWU and Others — No. 1454 of 1990 — Fielding C. — 16/10/90 — Mining

Application for new award to replaced existing award — Matter came before Commission by consent — Parties claimed proposed award merely sought to modernise existing award — Commission satisfied that proposed award reflected existing conditions — Granted — RAC Patrolmen's Association v. Royal Automobile Club ofWA(Inc) — No. A Wand 1235 of 1988 — FieldingC. —16/ 12/88

Application for new award to replace existing agreement — Parties claimed proposed award contained existing conditions and commission standards for the public service — Commission satisfied application complied with Principles — Granted — CSA v. Hon. Minister for Health — No. PSA A20 of 1985 — Fielding C. — 29/11/90 - Health

2Appeals against decision of Industrial Magistrate (70 WAIG 890) re breach of an award — Appellant argued Industrial Magistrate had erred in finding that the appellant was bound by the Transport (General) Award as there was insufficient evidence to support the findings of fact made — Full Bench reviewed authorities extensively, particularly that relating to the common object test, registration found inter alia that it may be arguable that the identity concerned can be determined only as they are at present rather than as the date of the award — Furthermore that was open on the evidence to the Industrial Magistrate to find as he did — Dismissed — Freshwest Corporation Pty Ltd v. TWU — Appeal Nos. 407-413 of 1990 — Sharkey P., Beech C., Parks C. — 24/10/90 — Transport

Application to replace order with a new Order to implement Second Stage Structural Efficiency Principle — Commission reviewed what was submitted as an improvement on the first Order, new classification structure and found them with the principles — Commission found discrepancy between paid rates and base rate and supplementary payments to be dealt with reference to State Wage Decision and Metal Trades (General) Award though change might occur as the question received further clarification and compression of relativities now fixed was an issue for Natural and State Wage Benches — Commission further found variations to award and special circumstances to cause it to exercise its discretion to grant retrospectivity — Granted — AMWSU and Another v. Coca Cola Bottlers Perth — No. 533 of 1990(R2) — George C. — 17/9/90 — Carbonated Drinks

Application for a first Award to cover a single enterprise — Objections of other Unions met in negotiations — Commission found as Award contained existing conditions of employment it complied with State Wage Fixing Principles and it had regard to the Structural Efficiency Principle — Commission further made particular comments as to Rates of Pay, Long Service Leave, Hours and Meal Money — Granted — HSOA v. GSI — No. A8 of 1989 — Fielding C. — 25/9/90 — Supported Employees Industry

2Appeal against decision of Commission (70 WAIG 2220) re award variations — Appellant argued retrospective operative dates were contrary to Wage Principle and that there were no special circumstances put forward for variation to operate from that date — Full Bench noted onus was on union to show special circumstances existed for award to be varied retrospectively and fund such onus had not been discharged — Further Full Bench found miscarriage of Commissions discretion had been established and that requirements mentioned in section 39(3) of IR Act had not been satisfied — Halliwell SC. dissented noting to deny employees benefits of agreed wage increases due to clarification of one point, which subsequently wasas submitted, wascontrary to section 26 of Act and that operative date in question was prospective insofar as initial date of hearing occurred — Upheld — Central Districts Bakery and Others and Bread Manufacturers Association of WA v. TWU — Appeal Nos. 922 and 924 of 1990 — Sharkey P., Halliwell SC.. Salmon C. — 25/9/90 — Transport

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CUMULATIVE DIGEST—continued

AWARDS—continued Appeal against decision of Commission (70 WAIG 1909) re award variations pursuant to Structural Efficiency Principles —

Appellant argued Commission had erred in concluding broadbanding of classifications, insertion of Award Modernisation clause and award commitment clause were of sufficient value to justify first stage of wage increase — Furthermore appellant argued Commission had erred in concluding that there was insufficient material to allow part-time worker clause and stand- down clause would amount to trade-off bargaining and erred in concluding that there were special circumstances to justify retrospective payment — Full Bench noted decision at first instance was a discretionary decision and therefore appellant to establish that the exercise of discretion had miscarried — Full Bench from submission and within principles of cases cited found in favour of appellant — Supplementary Reasons — Respondent sought proposed order of Full Bench to issue differently so as to the decision appealed against in tact until remitted matter was determined — Full Bench found failure to suspend appealed decision and allowing it to remain in tact would be a nullification of its own decision and outside power under section 49(5Xc) of IR Act — Upheld — Australian Glass Manufacturers Co Pty Ltd and Others v. TWU — Appeal No. 691 of 1990 — Sharkey P., Halliwell S.C., Martin C. — 8/8/90 — Transport

Application to to one cancelling award and vary another to incorporate coverage of that cancelled as a part of second stage structural efficiency — Only matters to arbitrate were title of a classification, level of rates to be applied and status of a $10,00 allowance — Commission established rates by comparing of the most "like with like" classifications found in the Victorian Rail System, found the designation "senior" was sufficient to cover its supervisory role and no justification for the allowance in the context of the rates set — In Supplementary Reasons Commission dealt with service components of actual rates — Granted in Part — IRU and WAGRC and Others — Nos. 28,29 and 2600 of 1989 — Kennedy C. — 11/5/90 — Railways

Application to vary award re Second Stage Structural Efficiency Wage Adjustment by consent save date of operation — Commission considered matters such as changes to the classification structure, including broadbanding, in line with Metal Trades (General) Award, the changes in Wage Structure, including minimum rates adjustment, supplementary payments and difficulties in applying second instalment of wage increases — Though Commission was in agreement with Australians Commissions expressed views on the matters it was prepared to accept the submissions of both parties in the circumstances of the industry — Commission found no special circumstances to justify a date of operation earlier than when the matter was before the Commission in hearing — Granted in Part — AMWSU v. J.W. Bolton Pty Ltd and Others — No. 482 of 1990(R2) — George C. — 30/7/90 — Vehicle Building

'Appeal against decision of Full Bench (70 WAIG 2152) to uphold Industrial Magistrate's decision re breach of award — Question of whether employee delivering vehicles from driving them from place to place is substantially employed "in connection with transportation of goods and materials" — Industrial Appeal Court found that scope clause ofTransport Workers (General) Award had been misconstrued as a motor vehicle which is being driven cannot at the same time constitute the goods or materials being transported — This being the case no breach of award occurred as award did not apply to subject employee — Upheld — Mountgrove Holdings Pty Ltd trading as Titan Ford and TWU — IAC Appeal No. 10 of 1990 — Kennedy, J. (P), Rowland and Seaman KJ. — 23/10/90 — Transport

Claim re award variation pursuant to Structural Efficiency Principle arising from conference application — Parties sought to implement extensive changes in classification structures and job requirements and a productivity bonus scheme — Commission reviewed authorities and submissions and found that amendments sought complied with the principles — Granted — Mt. Newman Mining Pty Limited v. AMWSU and Others — No. C131 of 1990 — Gregor C. — 20/3/90

Application to vary award pursuant to Structural Efficiency Principle — Applicant union argued agreement between respondent and its employees did not reflect co-operation between the parties to the award and did not accord with the State Wage Principles, particularly in the area of training and career paths, as did the variations it sought — Respondent argued that as the agreement with wage increases already paid, was such that the Commission had no power to deal with the application — Commission reviewed IR Act and authorities and found it had power and an obligation to arbitrate, taking into account that such an agreement be accepted as persuasive, in submissions, as it had the support of the workforce — Commission concluded the agreement once subject to exposure in arbitration was one capable of ratification pursuant to the principles — Commission further provided a one month period for negotiations with CMEU and in view of the parties difficulties the Standard Award Modernisation and Structural Efficiency clauses — Commission further found it necessary togive warning to respondents advocate that he would not be heard before the Commission constituted again — Award Varied — ETU and Others and Western Mining Corporation — No. 1752 of 1989 — Gregor C. — 1/8/90 — Nickel Refining

Application to vary award re Second Structural Efficiency Wage Adjustment — Although parties had not reached agreement on all areas intended as of the first instalment Commission was satisfied that they had complied with the spirit and intent of the principles and made further comment as to the need for modernisation within the Industry—Commission found no good reason to award retrospectivity and depart from the Commissions norm — Granted in Part— LEDFCU and WAGRC — No. 620 of 1990 — Fielding C. — 6/9/90 — Railways ....

'Appeals against decision of Industrial Magistrate as a lest case (70 WAIG 2391) re breach of award — Appellants argued award did not apply to the industry in which they operated upon a proper construction of its scope and area and did not apply to the operation of those bound by an Industrial Agreement — Respondent argued the agreement should not have been registered — Full Bench found that the award covered employers and employees referred to in the agreement and was not persuaded that any wrong principle was applied in the Jubilee Jackpot case — Full Bench reviewed IR Act and Industrial Arbitration Act and found what existed was an award and an agreement deemed to be a consent award almost identical save for rates of pay — Full Bench reviewed authorities and found that where the award purported to cover the field, it should prevail over a consent award oflimited scope, that the Industrial Magistrate has sufficient evidence to support the finding of the breach and could not have erred in any manner involving section 26 of the IR Act — Dissenting Commissioner reviewed the history of the award, agreement and legislation and found the employees in question save those of one appellant were governed by the agreement — Dismissed — Hungry Jacks Pty Ltd and Others v.G.R. Wilkins, OIR and Others — Appeal No. 791 of 1990 and 793 of 1990 — Sharkey P., Fielding C., Beech C. — 2/11/90 — Fast Food

Application to vary award re Second Stage Structural Efficiency Principle by consent saved date of operation — Applicant argued date of operation should be six months after first instalment due to the provocative nature of the respondent's response to negotiations and that it was unfair that a small number of employees in a large workplace had had to face a different process to their colleagues — Respondent argued the employer had had the right to consider its position, therefore there had been no undue delay and the operative date should be that of the Commission's approval — Commission reviewed authorities. State Wage Principles and Industrial Relations Act and found at the end of six months following the first instalment to no impediment granting retrospectivity in accordance with the provisions of section 39(3). of the IR Act — Commission found special circumstances existed and it was a matter of equity and good conscience to accede the applicants claim — FMWU and Perth Dental Hospital — No. 162 of 1990(R2) — Gregor C. — 29/8/90 — Health

BOARD OF REFERENCE — Application for Long Service Leave entitlements — Majority of Board of Reference found that as Applicant had not been terminated

by one employer and, in the circumstances of changed contractors for the rubbish disposal, his services had been transmitted to a new employer, that the current employer was liable to grant Long Service Leave — Granted — Ryan R.J. and Carnarvon Rubbish Disposal — Carrigg Registrar, Beech, Jones — 23/4/90 — Rubbish Disposal 2392

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70W.A.La WESTERN AUSTRALIAN INDUSTRIAL GAZETTE

CUMULATIVE DIGEST—continued

BOARD OF REFERENCE —continued 3Appeal against decision of Special Board of Reference at (70 WAIG 1929) re long service leave entitlements — Appellant argued Board of Reference had placed too much emphasis on the act of physical control rather than the entitlement to control and placed too much emphasis of the absence of notices of termination in determining the employer forthe material times — Commission in Court Session reviewed authorities. Long Service Leave Act and Industrial Relations Act and found the appeal against a Board of Reference was limited to the memorandum of facts found by the Board — The Commission in Court Session should be slow to interfere with determinations of such a Board except where it is satisfied that they were not reasonably open to find —Commission in Court Session reviewed "unfortunate" history of the claims, further authorities and found that control was more often than not exercised by employees of the Appellant — Further there was ample evidence for the Board of Reference to conclude that the Respondents were employed by the Appellant rather than another Company — Verbatim Reporters (1980) and Purvis L. and Others — No. 966 of 1990 — Fielding C, Kennedy C, Parks C — 14/8/90 — Court Reporting 3Appea! against decision of Board of Reference re company not required to register with Construction Industry Long Service Leave Payments Board — Commission in Court Session reviewed Construction Industry Long Service Leave Portable Paid Act 1985, definitions of, inter alia, employee, construction industry and prescribed Award and classifiation, to find that the Board of Reference had erred in its substantial findings and the Respondent engaged persons as employees in the construction industry within the terms of that Act—Upheld — Construction Industry Long Service Leave Payments Board and Positron Pty Limited — No. 759 of 1990 — Martin C, Kennedy C, Parks C. — 9/8/90 — Construction

Board of Reference re travelling costs for recuperative leave — Applicant claimed on basis of Custom and Practice that all employees irrespective of where they spent their recuperative leave be reimbursed as though they had travelled to Perth — Respondent submitted the purpose of Travelling and Transportation Costs Clause was to reimburse employees for actual cost of travel — Board of Reference found on interpretation of clause and on submissions relating to Custom and Practice Applicant s contention unfounded — Trades and Labor Council of WA v. Naval Communication Station — Harold Holt — No. 2 of 1990 — Board of Reference — 27/7/90 — Naval Communication

Claim re registration with Construction Industry Long Service Leave Payments Board — BOR examined work performed, definitions of construction industry and found definition of construction industry did not include brickpaving in and around private homes, hence the applicant was not required to register — Granted — Doug Ritchie Paving and the Construction Industry Long Service Leave Payments Board — Carrigg Registrar, Latter, Jones — 29/8/90 — Brickpaving

Application fox pro rata Long Service Leave entitlements — Respondent argued there had been no transmission of business — BOR found on evidence of the sale of the workplace that the Respondent was the transmitter of the business in question and the Applicant had entitlements under the Long Service Leave Standard Provisions — Granted — Moffat J. and Tip Top Abattoir — Carrigg Registrar, Beech, Uphill — 21/9/90 — Meat

Application for Long Service Leave Entitlements — BOR found on evidence employment was not terminated to avoid liability for Long Service Leave, recommencement of employment was after expiration of maximum period under section 6 of Long Service Leave Act for previous employment to be deemed continuous and neither periods of employment provided any entitlement to Long Service Leave — Dismissed — Bruce M. and Roland Smith and Company (Nell Gray Fashions)—Carrigg Registrar, Latter, Uphill - 4/10/90 — Clothing

BONUS- Claim re contractual entitlements — Applicant sought payment of bonuses, holiday pay and leave loading accrued over a period of

seven years — Respondent refuted claim and argued terms had changed whereby bonuses were to be payable on a discretionary basis — Commission noted oddities in Applicant's and Respondent's evidence and found that Applicant had not discharged onus of making out his claim — Dismissed — Thomson D.S. and Insulation Process and Contracting — No. 2323 of 1989 — Fielding C. - 24/4/90 ; 2463

Claim re contractual entitlement — Applicant claimed balance of pay in lieu of leave accrued as compensation for overtime worked — Respondent claimed that applicant had been paid, on an earlier date, a sum in lieu of leave accumulated to that date and on termination had been paid for leave accrued since — Respondent submitted further that in any event the contract had changed in course of employment such that applicant was no longer entitled to take accumulated overtime as leave — Commission found that the contract did provide for leave to be granted for overtime worked and that contract was not varied but that there was no provision for payment in lieu thereof — Commission found further that previous payments were ex gratia — Dismissed — Carter K. v. WA Cricket Association (Inc) — No. 838 of 1990 — Parks C. — 25/9/90 — Entertainment 3766

BREACH OF AWARD — Breaches of Award re underpayment of wages — Respondents argued no case to answer — Industrial Magistrate found for both no

case to answer claims and complaints proper that the award overruled any Industrial Agreement because the Awards were the law at the material times and that the Respondents were covered by the Award by common rule — Proven — Wilkins G., OIR and Padstow Grange Pty Limited trading as Chicken Treat, Padbury and Others — Complaint Nos. 374-377 and 381 of 1989 — Walsh S.M. — 10/4/90 — Fast Food

2Appeal against decision of Industrial Magistrate at (70 WAIG 170) re breach of award — Appellant argued that Magistrate had erred in law, fact and acted in excess of jurisdiction — Full Bench found complaint was not relevant to clause directed to and noted, justification for stopping work, if it was not connected to OHSW Act, would relate to the "no work no pay" concept — Upheld — WA Government Rail ways Commission and ARU—Appeal Nos. 2733 and 2734of 1989 — SharkeyP., ColemanC.C, FieldingC. — Railways

Claim re unfair dismissal seeking reinstatement and contractual entitlements — Applicant believed his services were terminated unfairly for taking sick leave to which he was entitled — Respondent argued that the Applicant had abondoned his employment and in any event had pre-empted dismissal for misconduct—Commission found that Applicant was summarily dismissed which was unfair in the circumstances, reinstatement was not a viable proposition and due to Award coverage Applicant should proceed before Industrial Magistrate for moneys in lieu of notice and annual leave — Ordered Accordingly — Ferguson P.N. v. Southside Autos (1981) Pty Ltd as trustee for Southside Unit Trust tradingas"Southside Mitsubishi" — No. 762 of 1990—Martin C — 3/7/90 — Motor Vehicle (Retail and Service) 2Appeal against decision of Industrial Magistrate in (Complaint No. 238 of 1989) re breach of Award — Appellant argued Magistrate had erred in holding that the respondent was employed in classification of "hostess" pursuant to Award and that respondent was underpaid — Full Bench found from evidence respondent had not been employed in the above calling or underpaid — Full Bench in supplementary decision found order sought by appellant for recovery of moneys as ordered by Magistrate could not be dealt with pursuant to section 84(4) of Industrial Relations Act, however could be pursued via common law proceedings — Upheld/Quashed — Southern Pacific Hotel Corporation trading as the Perth Parkroyal Hotel and T.G. Clarke — Appeal No. 376 of 1990 — Sharkey P., Kennedy C, Beech C. — 20/6/90 — Hospitality 2Appeal against decision of Industrial Magistrate at (70 WAIG 891) re failure to make available time and wages record — Appellant sought quashing of order, arguing Magistrate had erred in fact and law in finding that they were bound by Award, employed persons in the industry "Vehicle Hiring" and that persons were employed for "the transportation of goods and materials" — Full Bench noted principles applied in interpreting Awards and found from definitions of "carry", "convey" and "take" that employees concerned were clearly employed in or in connection with the transportation of goods and materials — Dismissed — Mountgrove Holdings Pty Ltd trading as Titan Ford and Tranport Workers Union of Australia — Appeal No. 91 of 1990 — Sharkey P., Halliwell S.C., George C. — 21/6/90 — Transport

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CUMULATIVE DIGEST—continued

BREACH OF AWARD —continued Complaint re alleged failure to pay Annual Leave entitlements pursuant to an award — Industrial Magistrate found on evidence that

the Complainant was, at the material terms, employed as managing director and not a plasterer, was in complete control of the company concerned and hence not covered by the award — Dismissed — Miles P. and Insul-Plast Pty Ltd — Complaint No. 137 of 1990 — Brown S.M. — 1/8/90 — Building Construction

Application for stay of execution against decision of Industrial Magistrate — application was opposed on grounds that appeal of a decision from Industrial Magistrate could not be instituted under section 49 of Industrial Relations Act — applicant submitted regulation 29 and section 113 of IR Act empowered President to hear the application for stay — President from submissions as to, powers and the merit of application found serious issue to be tried and balance of convenience favours applicant—however, so as to not deprive employee of the fruits of the Magistrate s order. President found that payment of moneys should be made into an account administered jointly by the parties — Ordered Accordingly — Como Investments Pty Ltd and McCorry G. — OIR — No. 1134 of 1990 — Sharkey P. — 17/8/90

Complaint re breach of Award — Defendant questioned jurisdiction of Industrial Magistrate appointed under WA Act to hear complaints pursuant to Commonwealth Act — Distinction drawn between Conciliation and Arbitration Act and new Commonwealth Act — Industiral Magistrate having examined the various Acts and cases cited found that he had no jurisdiction to hear complaints brought pursuant to section 178 of IR Act 1988 (Commonwealth Act) — Dismissed — Australian Theatrical and Amusement Employees Association and Delarene Pty Ltd trading as Hoyts Theatres Ltd — Complaint Nos. 45-46 of 1990 — Brown S.M. — 17/8/90 — Entertainment

Application for exemption from payment to nominated superannuation fund — Applicant submitted basis of application was that it had a scheme underwritten through another company — Respondent objected and referred Commission to various AIRC decisions — Commission found cases referred to by respondent were not appropriate as this application dealt with provisions of an award which was specifically designed to regulate the area — Commission found application was not competent due to award and could not grant exemption — Furthermore Commission noted thatifthere still was a dispute recurrent arrangements it would be a matter for Industrial Magistrate — Dismissed — Narrogin Cottage Home Incand FMWU — No.502of 1990 — GregorC.— 29/5/90 — Health/Welfare

2Appeal against decision of Commission (70 WAIG 322) re registration of Industrial Agreement — Appellant argued Commission had erred in finding award did not apply to businesses of respondent, in registering an agreement when its terms were in conflict with an award that applied by common rule, in failing to remove inconsistency between agreement and award in exercise of discretion by excluding from operation of agreement some employees who did identical work, and in registering agreement which had the effect of retrospectively affecting the right of employers and employees — Full Bench from evidence and submissions found Commission in registering agreement had not exercised its power as it was mandatorily required to under sectin 41 (2) of IR Act and that there was no provision pursuant to section 41 ofIR Act for retrospectivity—Furthermore Full Bench noted pursuant to section 1 HoflR Act insofar as agreement was in conflict with award then agreement is null and void and could not be registered — Full Bench found agreement was contrary to Act and Wage Fixing Principles — Upheld — Hon. Minister for Labour v. Como Investments and Others — Appeal No. 120 of 1990 — Sharkey P., Negus C, Kennedy C. — 27/8/90 — Fast Food/Catering

2 Appeal decision of Industrial Magistrate following further hearing and determination after remittal (70 WAIG 1570) re pursuance of severance payment claim contrary to award and State Wage Principles — Majority Full Bench reviewed principles applying to appeals against decision of, admissability of evidence and standard of proof before an Industrial Magistrate — Majority of Full Bench found the prescription that the Justice Act apply to section 83 of the IR Act matters was an an unnecessary complication to practices and procedures and a contradiction by regulation — Majority of Full Bench found on evidence rather than there being no case to answer, there were evidence and asssertions to support the finding of a breach of Award/Wage Fixing Principles — Dissenting Commissioner reviewed authorities as to the nature of the union as a principle party and concluded there was no evidence ofpalpableerroron the part of the Industrial Magistrate—^Upheld — Registrar v. AMWSU — Appeal No. 600 of 1990 — Sharkey P., Fielding C, Beech C. — 25/9/90 — Construction

2Appeals against decision of Industrial Magistrate (70 WAIG 890) re breach of an award — Appellant argued Industrial Magistrate had erred in finding that the appellant was bound by the Transport (General) Award as there was insufficient evidence to support the findings of fact made — Full Bench reviewed authorities extensively, particularly that relating to the common object test, registration found inter alia that it may be arguable that the identity concerned can be determined only as they are at present rather than as the date of the award — Furthermore that was open on the evidence to the Industrial Magistrate to find as he did — Dismissed — Fresh west Corporation Pty Ltd v. TWU — Appeal Nos. 407-413 of 1990 — Sharkey P., Beech C., Parks C. — 24/10/% — Transport

'Appeal against decision of Full Bench (70 WAIG 2152) to uphold Industrial Magistrate's decision re breach of a wa rd — Question of whether employee delivering vehicles from driving them from place to place is substantially employed "in connection with transportation of goods and materials"—Industrial Appeal Court found that scope clause ofTransport Workers (General) Award had been misconstrued as a motor vehicle which is being driven cannot at the same time constitute the goods or materials being transported — This being the case no breach of award occurred as award did not apply to subject employee — Upheld — Mountgrove Holdings Pty Ltd trading as Titan Ford and TWU — IAC Appeal No. 10 of 19% — Kennedy, J. (P), Rowland and Seaman K.J. — 23/10/% — Transport

Complaint re Breach of Overtime provisions of two difierent awards — Separate consideration given by Industrial Magistrate as awards differed — Respondent argued employee was not eligible for overtime as he was not subject to close supervision under either award and that the overtime was subject to agreement that the first 50 hours were to be taken as time in lieu — Industrial Magistrate distinguished instant case from one before the Commission and found close supervision did not require some one watching him and further that any agreement between employee and employer in breach of award conditions was null and void — Proven — CSA and Hon. Minister for Agriculture — Complaints Nos. 209,210 and 229 of 19% — Brown S.M. — 22/10/% — Public Administration

2Appeals against decision of Industrial Magistrate as a test case (70 WAIG 2391) re breach of award — Appellants argued award did not apply to the industry in which they operated upon a proper construction of its scope and area and did not apply to the operation of those bound by an Industrial Agreement — Respondent argued the agreement should not have been registered — Full Bench found that the award covered employers and employees referred to in the agreement and was not persuaded that any wrong principle was applied in the Jubilee Jackpot case — Full Bench reviewed IR Act and Industrial Arbitration Act and found what existed was an award and an agreement deemed to be a consent award almost identical save for rates of pay — Full Bench reviewed authorities and found that where the award purported to cover the field, it should prevail over a consent award of limited scope, that the Industrial Magistrate has sufficient evidence to support the finding of the breach and could not have erred in any manner involving section 26 of the IR Act — Dissenting Commissioner reviewed the history of the award, agreement and legislation and found the employees in question save those of one appellant were governed by the agreement — Dismissed — Hungry Jacks Pty Ltd and Others v.G/R. Wilkins, OIR and Others — Appeal No. 791 of 19% and 793 of 19% — Sharkey P., Fielding C, Beech C. — 2/11/% — Fast Food

Complaint re failure to pay overtime in accordance with an award and related 38 hour week agreement — Industrial Magistrate reviewed shift work clause of award, agreement and the decision of the Commission to find the purpose of the award provision was to discourage management requiring a shift worker to work parts of a week on afternoon or night shift rather than a straight five day shift — Industrial Magistrate, though not agreeing with all respondents submissions, found it would be a perverse result if the provision was held to mean the employee was entitled to overtime rates for all afternoon shifts worked prior to his rostered day off — Industrial Magistrate found on balance of probabilities complainant had failed to prove a breach — Dismissed — ETU v. Hon. Minister for Health — Complaint No. 48 of 19% — Brown S.M. — 2/11/% — Laundry and Linen Services

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

CUMULATIVE DIGEST—continued

CAPACITY TO PAY — Employees dismissed for economic reasons i.e. financial hardship — Applicant Unions sought re-instatement on the grounds that

failure to keep the employees informed and dismiss them without warning was unfair—Commission found that although action of the Respondent in keeping the real nature of its difficulties was unfair, the final termination was due to the Respondent being unable to fund the employees employment any longer and was not unfair in context of the authorities at large — Dismissed — Plumbers and Gasfitters Union and Another and Enola Gay Pty Ltd trading as Croydon Painting and Roofing — CR246 and CR260 of 1990 — Martin C. — 25/5/90 — Building

Employee terminated due to closure of business — Applicant sought payment of wages — No appearance on behalf of respondent — Commission from evidence found in favour of applicant — Granted — Wilkins J. and West Coast Publishing and Media — No. 223 of 1990 — Gregor C. — 19/4/90 — Print/Advertising

Claim re contractual entitlement — Applicant claimed underpayment of wages and sought moneys owed — Respondent argued hourly rate was gross rather than nett — Commission from evidence found contract terms to be as described by applicant — Granted — Markham G.C. and Railways Institute Travel Pty Ltd — No. 2805 of 1989 — Parks C. 6/4/90 — Travel Agency

Claim re contractual entitlement — Applicant claimed six months" salary as agreed by parties on termination — Respondent pleaded inability to pay — Commission found as payment had not been made by stipulated date, applicant wasentitled to recover moneys owed by way of a benefit denied under his contract of employment — Granted — Meyer K J. and Capital City Properties Ltd —No. 82 of 1990 — Fielding C. — 1/5/90 — Secretary/Financial Controller

Claim re contractual entitlements — Applicant claimed respondent failed to pay salary and sought outstanding moneys made up of a fortnight's pay in lieu of notice, holiday pay and annual leave loading less taxation — Respondent advised of intention to settle matter without Commission determination, however no such settlement was made — Commission found from evidence that applicant was entitled to payment of moneys claimed, less amount of leave loading which cannot reasonably be implied into the contract — Granted in Part — Rutley G.M. and Brenden Leppard trading as Instant Carpet Dry Cleaners — No. 2316 of 1989 — Gregor C. — 7/5/90 — Domestic Cleaning

Claim re contractual entitlement — Applicant sought payment of outstanding wages — Respondent admitted liability — Commission found in favourof applicant — Granted in Part— ReesG.W. and Erepon Pty Ltd — No. 118 of 1990—FieldingC.— 14/5/90 — Construction

Claim re contractual entitlements — Applicant claimed accrued wages pursuant to contract of employment — Respondent denied existence of contract arguing that it had not been Applicant's employer — Commission found on the evidence that there was a contract of employment between Applicant and Respondent and that wages were due under the terms of that contract — Granted — O'Sullivan J.J. v. Australian Granaries Limited — No. 216 of 1990 — Kennedy C. — 29/6/90 — Food

Application to vary award pursuant to Structural Efficiency Principle — Parties were in agreement, respondents from tertiary institutions sought prospect date due to supplementary finding from Commonwealth — Applicant opposed claim for institutions as they had not demonstrated an incapacity to pay — Commission found in favour of tertiary institutions and prescribed prospective date — Ordered Accordingly — TWU and Hon Premier of WA and Others — No. 936 of 1988 — Martin C. — 21/9/88 — Government

CASUAL WORK — Application for new award to replace previous award and agreement in respect to named respondents — Matter came before

Commission by consent — Commission found new award significantly restructured employment in the industry and complied with State Wage Fixing Principles and in particular with Structural Efficiency Principle — Granted — FLAIEU v. Amalgamated Food and Poultry Pty Ltd trading as Red Rooster Foods and Others — No. A14/90 — Fielding C. — 22/8/90 — Fast Food 3602

CLASSIFICATION — Application for denied contractual entitlements — Applicants sought payment of wages on the arguments that they had been assured

employment as Managers was for a period of not less than five years and that the work performed was more consistent with them being managers than caretakers — Respondent argued employment was on a casual basis as caretakers — Commission found on fact employment had not commenced until the property in question was purchased and that acts performed prior to that time by the Applicants were not done in furtherance of any employer/employee relationship — Cmmission further was not satisfied even on balance that there was an express or implied term that the Applicants should be employed for at least five years — Commission gave further reasons for decision on order issued for some of the costs claimed by the Respondents — Dismissed and Ordered Accordingly — Conza F. & J. and Watson C. & J. — No. 1811 of 1989 — Fielding C. — 31/5/90 — Farming

Application to vary Award pursuant to Structural Efficiency Principle by consent — Applicant Unions sought first Structural Efficiency Wage Adjustment and increase in allowances — Commission found variations proposed in accordance with the Principles and referred to Reasons for Decision in other Government Engineering Award Cases — Commission further reviewed agreement for Structural Efficiency in Public Sector Engineering, including a proposed new Award to replace existing Awards — Commission specifically dealt with submissions of parties to maintain wages and classification structures links with a related Award and its history so as to assist the parties on their deliberations for the second Structural Efficiency adjustment — Granted — AMWSU and Another v. WAFBB — No. 175 of 1989(R) — George C. — 24/4/90 — Emergency Services

2Appeal against decision of Commission at {70 WAIG 358) re variation of an Award pursuant to Structural Efficiency Principle — Applicant Union argued that Commission erred in not following decision of the Full Bench of the Victorian Commission in setting wage rate increases and not approving the FCU's National classification structure — Appellant argued that not to follow the Victorian Commission was not to follow the Commission in Court Session — Full Bench found only real question in issue was whether the $12.50 variation to wages was sustainable — Full Bench found that the Commission was not bound to follow the Victorian decision and that there were not grounds made out to persuade it that it should substitute its decision for that of the Commission at first instance within the principles of an appeal against a discretionary judgment — FCU and Swan Brewery Co Ltd — No. 2688 of 1989 — Sharkey P., Coleman C.C., Gregor C. 23/5/90 — Clerical

Application to vary Award pursuant to Structural Efficiency Principle by consent save question of Operative Date — Applicant Union sought second Structural Efficiency Wage Adjustment on basis of agreed Award amendments including changes to work practice, part-time and casual employment provisions — Railways Classification Board found changes sought should be ratified, however addressed matters of concern such as the establishment of 21 year rate as a reference point for skilled employees and, noting the legislative demarcation for the parties before it, the functioning of Promotion Appeal Boards—Majority of RCB found insufficient reason to depart from the usual awarding of an Operative Date — Granted in Part — ROU v. WAGRC — No. R3 of 1990(R2) — Kennedy C., Phillips, Thompson — 25/5/90 — Railways

Application for reclassification of employee with retrospective effect — Applicant Union argued Respondent had failed to accord employee a review in accordance with contract of service and that standard of work performance would normally have resulted in promotion — Respondent argued that breach had already been remedied by employees current classification — RCB found on evidence that a performance review was a term of the contract of service and that although there was a regular appraisal administered it was not within the terms of the contract — RCB found in all the circumstances and on merit that the application of the result of a review held being recognised from the commencement of a trial to be an equitable relief — Operative Date set in Supplementary Reasons — Granted in Part — ROU and WAGRC — No. RCB CR2 of 1989 — Kennedy C, Phillips, Gabrovec — 24/4/90 — Railways

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CUMULATIVE DIGEST—continued

CLASSIFICATION —continued Application for Award variation pursuant to Structural Efficiency Principle — Applicant Union proposed wage structures modelled

on the provisions that have been determined by the AIRC in the Federal Award, giving effect to the first step in strategy of aligning wage rates — Respondents support the proposed wage structures with respect to the classifications, however did not accept the rates ascribed to the various levels, arguing, any movement in relativities should be conditional upon an extensive work value assessment of each particular classification — Commission noted and commented on issues raised by parties and found in favour of applicant union except that wage rates be expressed in terms of base rates and supplementary payments — Ordered Accordingly — TWU and Central Districts Bakery and Others — Nos, 1612 and 1614 of 1989 — Coleman C.C. — 21/3/90 — Transport/Bakery

Conference referred for hearing and determination re refusal of Trades Assistants to clean ablution and lunchroom facilities — Applicant argued cleaning duties were within the scope of the Tradesmen's Assistants duties and that in irregularly used facilities hygiene was maintained on a "user cleans" basis — Respondent Unions argued cleaning duties of those employees were those associated with work directly performed by the Tradesman or Ancillary to the maintenance of the work area and the insistence of the Applicant may give rise to demarcation disputes — Respondents further argued on the grounds of safety and hygiene — Commission found no reason why Tradesman Assistants could not perform such cleaning duties, that cleaning was required on a daily basis to meet DOHSWA standards, but there needed to be some central authority within Applicant's operations to co- ordinate resources to ensure required standards ofhygiene were maintained — Reasons issued only — SEC and ETU and Others — CR114 of 1987 — Coleman C.C. — 16/9/87 — Electricity Supply

Application to vary Award re first Structural Efficiency Wage Increase — Applicants presented new classification structure as first interim step in restructuring process and noted that the Award was subject also to a whole Government approach — ETU gave agreement to proposal with provisors relating to further restructuring and the relationship of another Award, in the development of the final position—Commission reviewed agreement concerning inter alia, a proposed new Award, training education process, job security and demarcation and specific Award variations — Commission approved agreement subject to "safeguards" on issues such as service increments and the inclusion of a paragraph, relating to reclassification claims, in the wages clause — Allowances varied by three percent — Granted — AMWSU and Others and Transperth — No. 1736of 1989(R) — George C. — 2/ 4/90 — Public Transport

Application to vary Award — Leave to intervene granted to opposing Union — Introduction of a new system of centralised train control — Applicant Union sought insertion of new classification in wages clause — Respondent objected, arguing signalling function in new system only a small part of the overall train control, thus creating another position specific to signalling would be wasteful and less efficient — Intervener supported Respondent — Commission found from inspections and technical evidence found to acede to Unions application would be to allow an industrial imperative which could have the effect of reducing the intrinsic benefits of the new technology to overall efficiency of the enterprise and concluded that it should not intervene — Dismissed — ARU v. WAGRC — No. 1622 of 1988 — Kennedy C. — 11/5/90 — Railways

'Application to vary Award re classification and wage increases — CICS found Work Value Principle satisfied. Wage Fixing Principles complied with, and no problem of flow on or unfavourable cost increase — Furthermore CICS found no special circumstances to grant retrospectivity — Granted in Part — CMEU and SECWA — No. 678 of 1990 — Salmon C, Kennedy C, Beech C. — 26/6/90 — Electricity Supply

'Appeal against decision of Industrial Magistrate in (Complaint No. 238 of 1989) re breach of Award — Appellant argued Magistrate had erred in holding that the respondent was employed in classification of "hostess" pursuant to Award and that respondent was underpaid — Full Bench found from evidence respondent had not been employed in the above calling or underpaid — Full Bench in supplementary decision found order sought by appellant for recovery of moneys as ordered by Magistrate could not be dealt with pursuant to section 84(4) of Industrial Relations Act, however could be pursued via common law proceedings — Upheld/Quashed — Southern Pacific Hotel Corporation trading as the Perth Parkroyal Hotel and T.G. Clarke — Appeal No. 376 of 1990 — Sharkey P., Kennedy C, Beech C. — 20/6/90 — Hospitality

Application to vary Award re new classifications and wage rates, qualifications and work functions allowances — Applicant union argued changes in quality control had to led to changes in duties and responsibilities of some employees — Respondents opposed application with Respondent supermarkets concerned that general wage relativities would not be upset — Commission reviewed Work Value Principles and found no party had addressed whether existing classifications covered the work wholly or partly — Commission conducted inspections and on evidence found to inert in the Award function specific classification agreed appropriate, but not the calculation of wage relativities with reference to the Government Meat Industry Awards — Commission refused remainderof claim as not justified by what was submitted — Granted in Part — AMIEU v. Action Food Bams and Others — No. 1082 of 1988 - Parks C. - 1/8/89 - Meat

Application to vary award by consent — Parties sought to implement broadbanding of salary tables and work related allowances, and work value increases — Government School Teacher's Tribunal found on the evidence and with regard to the Special Case, Work Value, Allowances and Structural Efficiency Principles that the proposed variations ought to be ratified with amendents to remuneration in two classifications — Ordered Accordingly — SSTUWA v. Hon Minister for Education — Tl(2) of 1989(R2) — Government School Teacher's Tribunal — 18/7/90 — Education

Application for order by consentreenterprise agreement reflecting interim arrangements for implementation ofStructural Efficiency Principle — Commission found with some reservation the proposed order, subject to adjustment in some rates to properly reflect agreed relativities and no change in rates for non-trades classification, could be notified under the Structural Efficiency Principle — Commission's reservations went to matters beyond the control of the parties to unfinalised developments under the Federal and State Metal Trades Awards — However, Commission further determined issued of those classifications and the Second Structural Efficiency Wage Adjustment in Supplementary Reasons — Granted in Part — Readymix Group (WA) Ltd and Another and AMWSU and Another — No. 2397 of 1989 — George C. — 22/3/90 — Quarrying Industry

Application to vary award by consent re Second Structural Efficiency Wage increase — Applicant submitted agreement followed closely those in the Metal Industry Awards and inter-Union concerns had been largely overcome — Commission found inclusion of BMA and Government Hospitals appropriate as they were subject to separate proceedings before the Commission, but found no grounds to do likewise with the Water Authority — Commission reviewed issues such as broadbanded wage and classification structure and found the inclusion of two new classifications would possibly change the scope of the award, hence could be subject to separate application, if the need was established in the implementation/transition process, such that the IR Act could be complied with — Granted in Part — AMWSU and Others and Hon Minister for Works and Others — No. 513 of 1990(R2) — George C. — 24/5/90 — Government (Engineering Trades)

'Application to vary Award by consent re Wage rate of two classifications as a Special Case — CICS found on evidence all tests ofWork Value Principle met, new duties and responsibilities constituting a net addition to work requirements, for which recompense was sought were the same as those experienced and recognised in the determination of rates for the Victorian Counterparts — CICS further found no double counting of factors recognised under Structural Efficiency exercises — Majority of CICS found no special circumstances to warrant a retrospective operative date, with each Commissioner issuing his/her own reasons for decision — Granted in Part — FMWU and St John Ambulance Association — No. 724of 1989 — Coleman C.C., Kennedy C., George C. — 4/9/90 — Emergency Services

Applications to vary Awards by consent re Shift Penalties, New Definition and other Allowances as an interim measure pending issue of New Award — Public Service Arbitrator found various amendments either reflected existing practise, arose out of Structural Efficiency negotiations in the case of new "recruit in training" definition/rate of pay, had been earlier determined, related to increased costs or rationalisation of Allowances or corrected errors and ommissions — Granted — Hon. Minister for Police and WAPOU — Nos. 1558-1560 of 1990 — Fielding C. — 15/10/90 — Police

CUMULATIVE DIGEST—continued

CLASSIFICATION —continued Application to vary award pursuant to Structural Efficiency Principle — Second Stage — Parties were in agreement to variation except

with regard to operative date and whether new metal trades classification should be inserted into award — Commission noted concerns re non participation in negotiation by other unions party to the award and found operative date should be first pay period on or after date of hearing — Furthermore Commission found on issue of new classifications the matter would be arbitrated — Ordered Accordingly —ARU v. WAGRCandOthers — No.264Aofl990(R2) — Kennedy C — 21/6/90 — Railways/ Transport

Application to vary award by abolition of Yardman classification — Parties sought variation to overcome demarcation disputes and streamline maintenance operations — Commission satisfied that the amendments were within State Wage Principles — Granted — Hamersley Pty Ltd and CMEWU v AMWSU and Others — No. 1481 of 1990 — Fielding C. — 16/10/90 — Mining

Application to vary award pursuant to Structural Efficiency Principle — Matter came before Commission by consent — Parties sought to broadband existing classifications which would result in increased wage rates, establishmentofcareerpathsand greater flexibility for the company — Commission was satisfied that claim complied with the principles and that variations would help overcome restrictive work practices and established career paths through multiskilling — Granted — AWU and Hamersley Iron v. AMWSU and Others — No. 1353 of 1990 — Fielding C. — 18/9/90 — Mining

Application to replace order with a new Order to implement Second Stage Structural Efficiency Principle — Commission reviewed what was submitted as an improvement on the first Order, new classification structure and found them with the principles — Commission found discrepancy between paid rates and base rate and supplementary payments to be dealt with reference to State Wage Decision and Metal Trades (General) Award though change might occur as the question received further clarification and compression of relativities now fixed wasan issue forNatural and State Wage Benches — Commission further found variations to award and special circumstances to cause it to exercise its discretion to grant retrospectivity — Granted — AMWSU and Another v. Coca Cola Bottlers Perth — No. 533 of 1990(R2) — George C. — 17/9/90 — Carbonated Drinks

2ApPea* against decision of Commission (70 WAIG 2386) re dismissal of application to insert new classification into award — Appellant argued Commission erred in fact and finding primary function of new position was controlling trains rather than working signals and safe working apparatus — Full Bench found there was sufficient evidence for the Commission at first instance to find the position was closely enough related to a position in another award to refuse the application — Dismissed — IRU and WAGRC — Appeal No. 957 of 1990 — Sharkey P., Coleman C.C., Parks C. — 2/11/90 — Railways

2Appeal against decision of Commission (70 WAIG 1909) re award variations pursuant to Structural Efficiency Principles — Appellant argued Commission had erred in concluding broadbanding of classifications, insertion of Award Modernisation clause and award commitment clause were of sufficient value to justify first stage of wage increase — Furthermore appellant argued Commission had erred in concluding that there was insufficient material to allow part-time worker clause and stand- down clause would amount to trade-off bargaining and erred in concluding that there were special circumstances to justify retrospective payment — Full Bench noted decision at first instance was a discretionary decision and therefore appellant to establish that the exercise of discretion had miscarried — Full Bench from submission and within principles of cases cited found in favour of appellant — Supplementary Reasons — Respondent sought proposed order of Full Bench to issue differently so as to the decision appealed against in tact until remitted matter was determined — Full Bench found failure to suspend appealed decision and allowing it to remain in tact would be a nullification of its own decision and outside power under section 49(5Xc) of IR Act — Upheld — Australian Glass Manufacturers Co Pty Ltd and Others v. TWU — Appeal No. 691 of 1990 — Sharkey P., Halliwell S.C., Martin C. — 8/8/90 — Transport

Application to to one cancelling award and vary another to incorporate coverage of that cancelled as a part of second stage structural efficiency — Only matters to arbitrate were title of a classification, level of rates to be applied and status of a $10.00 allowance — Commission established rates by comparing of the most "like with like" classifications found in the Victorian Rail System, found the designation "senior" was sufficient to cover its supervisory role and no justification for the allowance in the context of the rates set — In Supplementary Reasons Commission dealt with service components of actual rates — Granted in Part — IRU and WAGRC and Others — Nos. 28,29 and 2600 of 1989 — Kennedy C. — 11/5/90 — Railways

Application to vary award re Second Stage Structural Efficiency Wage Adjustment by consent save date of operation — Commission considered matters such as changes to the classification structure, including broadbanding, in line with Metal Trades (General) Award, the changes in Wage Structure, including minimum rates adjustment, supplementary payments and difficulties in applying second instalment of wage increases — Though Commission was in agreement with Australians Commissions expressed views on the matters it was prepared to accept the submissions of both parties in the circumstances of the industry — Commission found no special circumstances to justify a date of operation earlier than when the matter was before the Commission in hearing — Granted in Part — AMWSU v. J.W. Bolton Pty Ltd and Others — No. 482 of 1990(R2) — George C. — 30/7/90 — Vehicle Building

Application to vary award pursuant to Structural Efficiency Principle — Applicant union argued agreement between respondent and its employees did not reflect co-operation between the parties to the award and did not accord with the State Wage Principles, particularly in the area of training and career paths, as did the variations it sought — Respondent argued that as the agreement with wage increases already paid, was such that the Commission had no power to deal with the application — Commission reviewed IR Act and authorities and found it had power and an obligation to arbitrate, taking into account that such an agreement be accepted as persuasive, in submissions, as it had the support of the workforce — Commission concluded the agreement once subject to exposure in arbitration was one capable of ratification pursuant to the principles — Commission further provided a one month period for negotiations with CMEU and in view of the parties difficulties the Standard Award Modernisation and Structural Efficiency clauses — Commission further found it necessary to give warning to respondents advocate that he would not be heard before the Commission constituted again — Award Varied — ETU and Others and Western Mining Corporation — No. 1752 of 1989 - Gregor C. — 1/8/90 — Nickel Refining

2APPeal against decision of Commission (70 WAIG 247) re transfer and redundancies of employees — Appellant argued that Commission had erred in fact and in law in determining that there was no obligation to offer redundancy pay — Respondent argued there was no redundancy — Full Bench found questions was not one of unreasonableness but whether the charges in classification constituted the creation of a redundancy and whether refusal to take alternative employment made such redundancy voluntary — Full Bench reviewed authorites and found that though redundancies occurred, any obligation on the part of the employer was met by the offer of transfer — Full Bench found Commission erred only in so far as statements to the reasonableness of the being required to accept the transfer and of not doing so were concerned and varied the decision accordingly — Upheld in Part — FMWU v. Anglican Homes (Inc) — Appeal No. 2803 of 1989 — Sharkey P., Halliwell S.C., Parks C. — 21/9/90 — Nursing Homes

COMMON RULE — Breaches of Award re underpayment of wages — Respondents argued no case to answer — Industrial Magistrate found for both no

case to answer claims and complaints proper that the award overruled any Industrial Agreement because the Awards were the law at the material times and that the Respondents were covered by the Award by common rule — Proven — Wilkins G., OIR and Padstow Grange Pty Limited trading as Chicken Treat, Padbury and Others — Complaint Nos. 374-377 and 381 of 1989 — Walsh S.M. — 10/4/90 — Fast Food

Application to vary Award — Leave to intervene granted to opposing Union — Introduction of a new system of centralised train control Applicant Union sought insertion of new classification in wages clause — Respondent objected, arguing signalling function in new system only a small part of the overall train control, thus creating another position specific to signalling would be wasteful and less efficient — Intervener supported Respondent — Commission from inspections and technical evidence found to accede to Unions application would be to allow an industrial imperative which could have the effect of reducing the intrinsic benefits of the new technology to overall efficiency of the enterprise and concluded that it should not intervene — Dismissed — ARU v. WAGRC — No. 1622 of 1988 — Kennedy C. — 11/5/90 — Railways

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WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 70 W.A.LG.

CUMULATIVE DIGEST—continued

COMMON RULE—continued Application to vary award "Common Rule" pursuant to Structual Efficiency Principle—Second Stage parties sought insertion of new

clause "Enterprise Agreements" — Commission cautioned parties as to wording within new clause and noted clause proposed allowed for any number of agreements to be reached without notification or endorsement of the Commission, thus contrary to intent of IR Act — Furthermore Commission noted overtime and depending on degree to which the clause is used, it may render the award document meaningless in some areas — Commission found after deliberation and further submission that clause should be inserted as per redraft which includes a number of safeguards which address the issues outlined — Ordered Accordingly — WA Timber Industry Union and Runnings Limited and Others — No. 900 of 1990{R2) — Beech C. — 12/7/90 — Timber 2Appea! against decision of Commission (70 WAIG 322) re registration of Industrial Agreement — Appellant argued Commission had erred in finding award did not apply to businesses of respondent, in registering an agreement when its terms were in conflict with an award that applied by common rule, in failing to remove inconsistency between agreement and award in exercise of discretion by excluding from operation ofagreement some employees who did identical work, and in registering agreement which had the effect of retrospectively affecting the right of employers and employees — Full Bench from evidence and submissions found Commission in registering agreement had not exercised its power as it was mandatorily required to under sectin 41(2) ofIR Act and that there was no provision pursuant to section 41 of IR Act for retrospectivity — Furthermore Full Bench noted pursuant to section 114 of IR Act insofar as agreement was in conflict with award then agreement is null and void and could not be registered — Full Bench found agreement was contrary to Act and Wage Fixing Principles — Upheld — Hon. Minister for Labour v. Como Investments and Others — Appeal No. 120 of 1990 — Sharkey P., Negus C., Kennedy C. — 27/8/90 — Fast Food/Catering 2Appeals against decision of Industrial Magistrate as a test case (70 WAIG 2391) re breach of award — Appellants argued award did not apply to the industry in which they operated upon a proper construction of its scope and area and did not apply to the operation of those bound by an Industrial Agreement — Respondent argued the agreement should not have been registered — Full Bench found that the award covered employers and employees referred to in the agreement and was not persuaded that any wrong principle was applied in the Jubilee Jackpot case — Full Bench reviewed IR Act and Industrial Arbitration Act and found what existed was an award and an agreement deemed to be a consent award almost identical save for rates of pay — Full Bench reviewed authorities and found that where the award purported to cover the field, it should prevail over a consent award of limited scope, that the Industrial Magistrate has sufficient evidence to support the finding of the breach and could not have erred in any manner involving section 26 of the IR Act — Dissenting Commissioner reviewed the history of the award, agreement and legislation and found the employees in question save those of one appellant were governed by the agreement — Dismissed — Hungry Jacks Pty Ltd and Others v.G.R. Wilkins, OIR and Others — Appeal No. 791 of 1990 and 793 of 1990 — Sharkey P.. Fielding C, Beech C. — 2/11/90 — Fast Food

COMPARATIVE WAGE JUSTICE — Application for Award variation pursuant to Structural Efficiency Principle — Applicant Union proposed wage structures modelled

on the provisions that have been determined by the AIRC in the Federal Award, giving effect to the first step in strategy of aligning wage rates — Respondents support the proposed wage structures with respect to the classifications, however did not accept the rates ascribed to the various levels, arguing, any movement in relativities should be conditional upon an extensive work value assessment of each particularclassification — Commission noted and commented on issues raised by parties and found in favour of applicant union except that wage rates be expressed in terms of base rates and supplementary payments — Ordered Accordingly — TWU and Central Districts Bakery and Others — Nos. 1612 and 1614 of 1989 — Coleman C.C. — 21/3/90 — Transport/Bakery 1 2Appeal against decision of Commission at (70 WAIG 1060) re Award variation pursuant to Structural Efficiency Principle — Appellant argued Commission had erred in fact and in law on six grounds and sought order prescribing higher wage rate (i.e. $ 15.00 or three per cent) with operative date of order being made retrospective — Full Bench found no error in the exercise of the discretion of the Commission at first instance and noted that parties must address a proper audit of the relativities of the respective classification in the minimum rates classification — Dismissed — FCU and CBH Ltd — No. 675 of 1990 — Sharkey P., Martin C, George C. - 8/8/90 — Clerical 3 Application for Award variation based on nexus via Special Case Mechanism of Principles — Applicant sought to express loadings payable for shift and weekend work as per hour, in lieu of per shift or time and one-half, thus resulting in increases in the additional remuneration paid to employees performing their ordinary hours of work in a shift work mode — Respondent supported application — CICS noted from analysis of the history of instant Award that nexus claimed could not be established and "Special Case" was to be considered in accordance with the Structural Efficiency and other relevant Principles — Furthermore CICS found question of merit must be established before it could deal with "special case", there must be no likelihood of flow-on and that the increase must be a once only matter — CICS proposed new order consistent with Principles — Supplementary Decision — Parties sought to have application withdrawn, dismissed or adjourned, as administrative increase of shift allowance to retain parity was greater than the order proposed by CICS — CICS having regard to new facts, found appropriate action was an order of dismissal — Dismissed — FMWU and Activ Foundation — No. 799 of 1989 — Halliwell S.C., Martin C, Gregor C - 23/5/90 — Health/Welfare

2AppeaI against decision of Commission (70 WAIG 1909) re award variations pursuant to Structural Efficiency Principles — Appellant argued Commission had erred in concluding broadbanding of classifications, insertion of Award Modernisation clause and award commitment clause were of sufficient value to justify first stage of wage increase — Furthermore appellant argued Commission had erred in concluding that there was insufficient material to allow part-time worker clause and stand- down clause would amount to trade-off bargaining and erred in concluding that there were special circumstances to justify retrospective payment — Full Bench noted decision at first instance was a discretionary decision and therefore appellant to establish that the exercise of discretion had miscarried — Full Bench from submission and within principles of cases cited found in favour of appellant — Supplementary Reasons — Respondent sought proposed order of Full Bench to issue differently so as to the decision appealed against in tact until remitted matter was determined — Full Bench found failure to suspend appealed decision and allowing it to remain in tact would be a nullification of its own decision and outside power under section 49(5Kc) of IR Act — Upheld — Australian Glass Manufacturers Co Pty Ltd and Others v. TWU — Appeal No. 691 of 1990 — Sharkey P., Halliwell S.C., Martin C. - 8/8/90 — Transport

COMPENSATION — Claim re unfair dismissal/contractual entitlement — Applicant initially sought reinstatement, however amended claim to "monetary

compensation" i.e. redundancy paymerits based on length of service — Respondent objected to matter proceeding claiming abuse of process and due to elapsed time since dismissal occurred — Commission having regard fortime delay, exercised discretionary powers pursuant to IR Act and dismissed matter without deciding on question of jurisdiction — Dismissed — Johnston M.C. and Wesfarmers Ltd — No.2828 of 1989 — Fielding C. —- 23/4/90 — Farm Produce 1... 2434

Claim re benefit not being benefit under an Award or Order of Commission — Commission noted agreement between parties to settle original claim is a new contract — Commission found if dispute concerns terms of new agreement then it should be determined in Local Court as this Commission is without jurisdiction — Furthermore if amount in new agreement relates to compensation then similarly Commission has no power to order compensation without reinstatement — Application Discontinued — SinclairT.W. and Georges France Photography — No. 2179 of 1989 — Gregor C. — 10/4/90 — Photography 2457

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CUMULATIVE DIGEST—continued

COMPENSATION —continued Claim re contractual entitlements — Applicant sought ex gratia payment and claimed entitlement to moneys due to termination

outside the terms of her contract — Respondent argued the Applicant was not eligible for ex gratia payment and was not denied entitlement to sick leave nor was the termination invalidly effected as such leave was dependent on contituation of the contract of service — Commission found from evidence and the balance of probabilities that the Applicant could not qualify for the ex gratia payment and that sick leave was granted for a period of up to three months on review Dismissed — Cassar C. v. Peko Gold Limited — No. 2725 of 1989 — Gregor C. — 25/5/90 — Mining (Gold)

Employee dismissed summarily for misconduct — Applicant Union claimed dismissal unfair and sought reinstatement without loss of entitlements — Respondent argued dismissal was justified for withholding and falsifying information relating to medical condition — Commission found that Applicant had been dismissed for reasons other than that stated, dismissal on those grounds was unfair and ordered reinstatement without loss of entitlements — Granted — FMWU v. Hospital Laundry and Linen Service — No. CR525 of 1990 — Gregor C. - 20/7/90 — Laundry

Employee dismissed as result of conflict with superior — Applicant claimed dismissal unfair and sought reinstatement — Respondent argued only option had been to dismiss one of the employees concerned — Commission found that a misunderstanding between Applicant and Manageress had triggered the dismissal and ordered reinstatement without loss of entitlements — Granted — Hutchinson V.A. v. WA Flick and Co Pty Ltd — No. 814 of 1990 — Halliwell S.C. — 6/7/90 — Sanitary Disposal

Claim for reinstatement on the grounds of unfair dismissal without loss of entitlements — Respondent argued employees work performance was unsatisfactory and absence from duty was the final transgression — Commission found on evidence that the employee had not been warned — Had returned to duty being absent on union business when directed toand that the termination, though lawfufl, was unfair — Commission found positions existed which the employee was competent to perform and ordered a sum on compensation for loss of entitlements — Granted — AMIEU and Aylesbury Holdings Pty Ltd trading as Preston River Abattoir — No. CR982 of 1989 — Parks C. — 1/6/90 — Meat

Claim re contractual entitlement — Applicant claimed balance of pay in lieu of leave accrued as compensation for overtime worked — Respondent claimed that applicant had been paid, on an earlier date, a sum in lieu of leave accumulated to that date and on termination had been paid for leave accrued since — Respondent submitted further that in any event the contract had changed in course of employment such that applicant was no longer entitled to take accumulated overtime as leave — Commission found that the contract did provide for leave to be granted for overtime worked and that contract was not varied but that there was no provision for payment in lieu thereof — Commission found further that previous payments were ex gratia — Dismissed — Carter K. v. WA Cricket Association (Inc) — No. 838 of 1990 — Parks C. — 25/9/90 — Entertainment

Conference referred re claim for pro rata Long Service Leave payment on behalf of two employees, one resigned, one made redundant — Respondent argued Commission had no power as what was sought was compensation and also redundancy payments had the effect of varying an award — Commission found on the authority of McLean s case Peplers case was on authority in relations to unfair dismissal matters — Commission found circumstances of termination for both workers were not on all fours with the substratum of case law which derived Wages Case — On evidence the employee had disqualified herself as by resigning due to ill health rather than accepting to respondents offer of a rehabilitation programme and continued employment — Commission further found even if it could be found that the second worker was forced to retire on the basis of redundancy, on Ingle s case he had been adequately compensated by voluntary payment — Dismissed — FMWU and Bicton Private Hospital — No. CR519 of 1990 - Gregor C. - 25/10/90 - Health 2Appeal against decision ofCommission (70 WAIG 2512) re redundancy payments ordered — Appellant submitted Commission had erred in law, in finding it used power to order payments for dismissed employees without an order for reinstatement and in making an order pursuant to section 44(9) of IR Act that had the effect of varying awards with respect to entitlements of terminated employees — Furthermore Commission erred in making a order on a case by case basis without proper regard for principle enunciated in State Termination and Redundancy case, and in ordering payment to employees in eligible to be enrolled as members of union — Full Bench from submissions and cases cited found Commission had the jurisdiction and power as claim was an "industrial matter" — Further Full Bench found Commission Order was made to settle dispute between parties as to terms and conditions upon which redundancies were effected, and it did not vary nor was it inconsistent with award, and finally absence of award provision should not provided in did not become a substitute for a provision in an award, prevent Commission from its duty under section 44 of IR Act — Dismissed — McLeans Consolidated Pty Ltd and United Timber Yards, Sawmills and Woodworkers Employees Union — Appeal No. 917 of 1990 — Sharkey P., Coleman C.C., Gregor C. — 25/10/90 — Timber ...

CONFERENCE - Claim for redundancy payment for employee terminated due to rationalisation of workforce — Applicant Union argued payment

should be calculated over a period of employment with two companies as they were related and the employee had been told that his move to the Respondent would not affect his redundancy payments — Respondent argued inter alia Commission did not have jurisdiction to entertain claim due to Pepler Case — Commission reviewed Industrial Relations Act and Authorities and found that the points raised by the Respondent that the Commission was without jurisdiction to consider the matter lacked substance — Commission found on evidence that though the legal distinction between the two companies was clear, for the purposes of the matter they were one and the same and that the service was continuous — Commission found it equitable to apply the redundancy provisions of the Metal Trades (General) Award — Granted in Part — WA Timber Industry Union and Adelaide Timber Company Pty Ltd — No. CR395 of 1989 — Beech C. — 6/4/90 — Timber

Conferences summary dismissal of a worker— Commission found it necessary to prevent a deterioration in industrial relations and equitable to re-employ worker pending hearing and determination of claim for reinstatement — Ordered Accordingly — Multiplex Constructions Pty Ltd and BLF — No. C211 of 1990 — Beech C. — 15/3/90 — Building Construction

Claim for redundancy payments—Respondent argued Commission did not have jurisdiction to grant claim on the basis of the Pepler Case — Commission adjourned matter pending a decision of the Full Bench and then heard further submissions — Commission found that although the matter was distinguished in fact from the Tip Top Case, it was a matter referred from a conference notified to the Commission prior to any termination of employees, and on reviewing authorities, that in any event the jurisdiction of the Commission did not depend on such prior notification — Commission further found such an order would not have the effect of varying the Award and that in the absence of general provisions the consideration of redundancy in a case by case manner was permissible — Commission found on the basis of fairness that only employees not compensated for loss ofpro rata long service leave entitlements warranted further payments than offered by the Respondent — Granted in Part—United Timber Yards Union and McLeans Consolidated Pty Ltd — No. CR305 of 1989 — Beech C. — 6/4/90 — Timber

Conference referred re claim for wages for lost time over health and safety issues — Applicant Union claimed that stoppages on two construction projects were justifiable and did not relieve the respective employers of the obligation to pay for time lost and drew on decisions of the Commission as precedent for its claims — Respondents relied on guidelines contained within the Occupational Health, Safety and Welfare Act 1984 to support their opposing position — Commission noted that the matter was not referred under the Safety Act and was thus to be treated as an industrial matter — Furthermore Commission found payment was not due where reasonable alternative work had been offered and refused, or where another issue was under the guise of a safety issue — Payment allowed for one bonafide claim — Ordered Accordingly — CMEU v. Southdown Construction Co Pty Ltd and Others — No. CR139 of 1990 — Martin C. — 17/5/90 — Building Construction

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CUMULATIVE DIGEST—continued

CONFERENCE ^continued. Conference referred re dispute over payment of site allowance for a period during a work stoppage by another Union — Respondent

Union sought payment on the bans that work was available to be performed by member labourers during bricklayer's stoppage — Applicant employers argued that there was insufficient work available and thus were relieved of the liability to pay pursuant to the Standowns clause of the Building Trades (Construction) Award — Commission determined that if work was available and could have been performed economically then the payments due were the payments which would have been received had it been carried out — Further Commission found that there was work to be performed and accounting for when labourers were available or not ordered appropriate payments for site allowance — Ordered Accordingly — Jennings Industries and Colgan Industries v. ABLF — No. CR222(1) of 1990 — Gregor C. - 9/4/90 — Building Construction ...

Conference referred re dispute over payment for processing of goats — Applicant Union sought Order that slaughtermen be paid as if goats processed at other times had been processed at end of normal kill: Award unit rate for goats plus any over-tally payment due — Respondent argued that as goats had usually been slaughtered at end ofkills for practicality and health reasons, over-tally rates usually applied to their processing, however over-tally rates was not a negotiated element in the setting of the unit rates for goats — Further, there was no agreement that goats would always be processed at end of kill — Commission found, that the time at which goats were usually processed resulted in over-tally payments did not influence the unit rate agreed upon for processing goats — Dismissed — Australasian Meat Industry Union v. Metro Meat Katanning Limited — No. CR1071 of 1989 — Halliwell S.C. — 18/ 6/90 — Meat

Conference re written warning issued to employee for non compliance of request — Commission from submissions found due to "legal technicality" instruction to confer with respondents management was not a lawful order but simply a request — Ordered Accordingly — FLAIEU and Burswood Management Ltd — CR238 of 1990 — Halliwell S.C. — 21/5/90

Dispute re where employees (crane drivers) should report for duties — Declaration sought from Commission — Applicant argued second tier agreement provided for employees to start and finish at job site — Union argued second tier agreement was never implemented for crane drivers as a rule, rather it was selective, furthermore new arrangements have replaced second tier agreement — Commission from evidence found applicants interpretation incorrect — Dismissed/Ordered Accordingly — Fremantle Port Authority and CMEU — No. CR103 of 1990 - Beech C. — 11/5/90 — Construction 2Appeal against decision ofCommission at (70 WAIG 2S0)re demarcation dispute — Appellant argued, inter alia. Commission's order was beyond power, was contrary to a finding of the Commission concerning the same demarcation, that it was managerial prerogative as to what calling of employee was employed to do what work and that the Commission had used powers that were specifically granted to the Full Bench — Respondent argued section 44of Industrial Relations Act necessarily limited the order to binding only the parties in relation to whom the matter was not settled and raised a question of bias in the Full Bench — Full Bench extensively reviewed authorities. Industrial Relations Act and evidence before the Commission at first instance to find matter before it an industrial matter which the Commission had jurisdiction to deal with at first instance — However, Full Bench found plain wordsoforderextended its effect to all persons in the industry, which was beyond power under section 44and a denial of Natural Justice — Full Bench further found existence of a provision similar to section 118 of the Commonwealth Industrial Relations Act, however useful it might be was not a sine qua non to the exercise of jurisdiction in demarcation matters by the Commission — Full Bench found Commission had power to demark work and determine coverage but not alter Union Rules — Full Bench found insufficient evidence to find that the dispute occurred in the Building Construction Industry, hence the scope of the Building Trades (Construction) Award, Commission gave too much weight to the effects of differences in pay between the callings and failed to account for the uncontroverted evidence of unilateral action of the Respondent to impose a practice and its Industrial Record — Full Bench stated it was the right of a party to submit bias to a Tribunal, it was aware of its duty to disqualify itself in a case of actual or apparent bias, but that it was not assisted by gratituitous remarks which might have the effect of colouring the record of proceeding before it — Upheld and Remitted — UFTU and CMEU and Others — Appeal No. 2723 of 1989 — Sharkey P., Negus C, George C. — 15/6/90 — Building Construction

Conference referred re wage rates — Applicant union submitted that wage provisions of Enrolled Nurses and Nursing Assistants Award should apply to three ward assistants pursuant to an agreement with Respondent — Respondent denied claim on basis that a review of the agreement had been overlooked — Commission found it was not open to Respondent to unilaterally vary a contract of employment — Commission found further that two named employees should never have been subject to the agreement—Granted in Part — FMWUv. Board of Management, Stirling Community Hospital — No.CRl 171 of 1989 — Martin C. — 17/7/90 — Health

Conference referred re repayment for lost time — Applicant union claimed payment relating of three stoppages over health and safety issues — Respondent claimed union did not follow safety procedures — Commission found the manner in which Respondent dealt with to the issues had contributed to deterioration of industrial relations thus, and with regard to authorities cited, payment was ordered for lost time on those occasions — Granted in Part — ABLF v. Geraldton Building Company — No. CR225 of 1990 — Beech C. — 13/7/90 — Construction

Conference referred re dismissal — Applicant union claimed dismissal unfair as incident resulting in dismissal was not work related and sought reinstatement of contract with no loss of entitlements — Respondent argued that the incident in question had serious ramifications for work place relations — Commission found on evidence that dismissal was unfair and required Respondent to offer employment to Applicant — Ordered Accordingly — AWU v. Robe River Iron Associates — No. CR442 of 1990 — Kennedy C. — 30/4/90 — Mining

Conference referred re travelling allowance — Applicant union submitted a basis on which it claimed a travelling allowance sought to be paid under the new Allowances Principle — Respondent rejected claim — Commission found that proposed allowance was within the State Wage Principles and having regard for the evidence and previous travelling allowance orders determined the terms of the allowance — Ordered Accordingly — AMWSU and Others v. Barclay Mowlem and Others — No. CR562 of 1990 — Halliwell S.C. — 20/8/90 — Construction

Conference re redundancy agreements — Applicant claimed attempts to negotiate level of lump sum payments failed as offers were refused and sought determination — Respondent unions argued Applicant's offers inadequate — Commission found that only Applicant had conducted a valid exercise to determine redundancy payments and ordered a reflection of such calculations — Commission determined further however that in the event parties reached consent within 14 days of Decision it would consider the revised position — Ordered Accordingly — Kalgoorlie Consolidated Gold Mines Pty Ltd v. AWU and Others — No. CR923 of 1989 - Gregor C. — 13/3/90 - Mining

Conference referred re dismissal — Applicant union claimed dismissal of employee was harsh and unjust and sought reinstatement — No appearance by or on behalf of respondent — Commission determined matter pursuant to section 27(lXd) in absence of respondent — Commission found on evidence and authorities cited that the employer's right to terminate employment had been exercised harshly, no counselling or reasons having been offered — Commission found in favour of reinstatement with no loss of entitlements — Granted — ABLF v. Barry Shardlow trading as High Quality Bricklayers — No. CR617 of 1990—Beech C. — 4/9/ 90 — Construction

Conference referred re dispute settlement procedure — Parties sought determination as to whether such a procedure should be inserted into relevant awards — Submissions were directed to the appointment of a mediator with neither party in favour of such — The Minister intervening supported the mediator system and submitted there was no legal bar to the Commission making provisions—Commission found appointment of a mediator was a matter for the parties and that the strength of such system lay in the commitment of the parties — Commission found further that the parties had no deep commitment to a voluntary dispute settlement procedure therefore there was little point in the Commission legislating for a code — Discontinued — ASE and Others v. WA Government Railways Commission — No. CR563 of 1989 — Gregor C. — 21/9/90 — Railways

Conference referred re dismissal — Union claimed dismissal of employee was unfair and sought reinstatement with no loss of entitlements — Employer argued that regardless of training and counselling the employee failed to meet the required standards — Commission found on evidence that dismissal was not summary and had not been unfair in the circumstances — Dismissed — Burswood Management Ltd v. FLAIEU — No. CR545 of 1990 — Parks C. — 3/9/90 — Hospitality

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CUMULATIVE DIGEST—con/mned

CONFERENCE —continued Conference referred re dismissal — Applicant union claimed dismissal was harsh and sought reinstatement with no loss of

entitlements — Respondent argued employee's work was not satisfactory and that he was a disruptive influence on the workforce — Commission found on evidence that dismissal was unfair as no reasons were given — Commission ordered employee be reinstated with no loss of entitlements — Granted — ABLF v. Barry Shardlow trading as High Quality Bricklayers — No. CR581 of 1990 — Beech C. — 4/9/90 —Construction

Conference referred re dismisal — Applicant Union claimed dismissal resulted from employee's complaints about safety and conditions and sought reinstatement with no loss of entitlements — Respondent argued employee was dismissed due to agressive behaviour at company accommodation which had potential to spill over to the work place — Commission rejected employee's evidence as untruthful and found in favour of the Respondent — Dismissed — No. CR663 of 1990 — Gregor C. — 15/10/90 — Mining

Conference referred re dismissal — Applicant Union sought reinstatement of employee with no loss of entitlements — Respondent claimed summary dismissal was warranted on grounds of insubordination and refusal to obey a lawful command — Commission found, with regard to principles of Undercliffe case and other authorities sighted and on evidence, in favour of respondent — Dismissed — PKIU v. Western Australian Newspapers — No. CR607 of 1990 — Halliwell S.C. — 27/9/90 — Printing 2Appeal against decision of Commission (70 WAIG 2495) re unchanged decision over redundancies payments following remittance from Full Bench — First appellant argued inter alia Commission had no jurisdiction, failed to give sufficient reasoning and inappropriately applied the Government Employees Consent General Order — Furthermore that the Commission had demonstrated judicial bias — TWU argued it had sufficient interest in the matter not be struck out as a party to the application at first instance — Respondent union to first appeal argued much of the grounds of the first appellant had been canvassed in the original appeal to Full Bench and that Commission never adopted the General Order — Full Bench found question of jurisdiction had been dealt with in the original appeal, that it was quite clear that the standards of Government Employees Consent General Order were of importance in the Commission's deliberations and there was a failure to make sufficient findings of fact on which a sound discretionary judgment could be based, hence the discretion miscarried — Full Bench found on authority in not submitting has at first instance the appellant waived its right to do so — Full Bench further found Commission had not erred in striking out TWU from the application at first instance and in any event it was a finding as defined by section 7 of the IR Act — Upheld and Dismissed — Tip Top Bakeries (Canning Vale) v. FCU and Others, TWU and Tip Top Bakeries (Canning Vale) — Appeal Nos. 870 of 1990 and 954 of 1990 — Sharkey P., Coleman C.C., Salmon C. — 2/11/90 — Bread Manufacturing

Confernce referred re demarcation dispute over rigging work — Commission found it had power to deal with issue under both IR Act and Occupational Health Safety and Welfare Regulations 1988 and it more appropriate to interpret the regulations — Commission reviewed definition of "construction site" and "workplace" and found that work should be carried out by fitters where "construction work" was not being carried out — Ordered and delcared accordingly — SEC and AMWSU and others — No. CR666 of 1990 — Salmon C. — 16/10/90 — Electricity Supply

CONSUMER PRICE INDEX — Application for variation to Award re increase in "Additional Allowances" — Parties were in agreement to variations sought of which

increases varied in accordance to last CPI amendment and were for provisions such as uniform, clothing, boot allowance and conditions of work in relation to gaining information from informants — Commission from evidence found in favour of application — Granted — WA Police Union and Hon Minister for Police — No. 749 of 1989 — Fielding C. — 30/4/90 — Police Service

2Appeal against decision of Commission at (70 WAIG 87) re Award variation of meal allowance — Appellant sought quashing of Order or matterbeing remitted back, arguing Commission had erred in fact and lawby applying particular sub-part of Principles, in finding taxation laws were irrelevant and that allowance does not consistitute a reimbursable expense — Furthermore Commission had failed to attach sufficient weight to the fact that meal allowance was clearly distinguished from other allowances the natural meaning of the term, comparisons between movements in CPI and percentage wage increases, changes in meal allowance in other Awards and changes in employers attitude — Full Bench found Commission had calculated allowance on evidence before it and within the principles of case cited, would not interefere with the discretion as exercised at first instance — Dismissed — FCU and Myer WA Stores Ltd and Others — Appeal No. 2833 of 1989 — Sharkey P., Salmon C, Kennedy C. — 13/7/90 —Clerical/Retail

CONTRACT OF SERVICE — Application for denied contractual entitlements — Applicant sought payment for work done to date of termination, salary in lieu of

notice and pro rata holiday pay with loading, on the basis that he had been dismissed — Respondent argued Applicant had abandoned employment — Commission found on evidence that there had been a mutual parting of the ways — Commission found contract was clear that there was no entitlement to annual leave until a year of service had been completed and the Commission did not have jurisdiction to deal with benefits arising under the General Order for annual leave to non-award employees — Commission ordered payment of agreed sum for work done — Granted in Part — Bishop A. and Comfix Computer Maintenance, a division of Otago Pty Limited — No. 26 of 1990 — Fielding C. — 3/5/90 — Computers

Application for denied contractual entitlements, namely wages — Commission referred to another matter with same Respondent concerning Respondent's non-appearance and found on evidence in favour of Applicant — Granted — Dallmon M.R. and Gloria Marshall Figure Salon — No. 2673 of 1989 — Negus C. — 24/4/90 — Health and Beauty Salons

Application for denied contractual entitlements — Applicant sought payment for cumulative leave, leave loadings and reimbursement of telephone expenses — Respondent did not appear — Commission found Respondent to have due notice and found on evidence in favour of Applicant — Granted — Clarke A.V. and City Model and Talent Management — No. 2164 of 1989 — Kennedy C. 7/5/90 — Modelling and Talent Agencies

Claim re contractual entitlement — Applicant sought payment of wages at verbally agreed rate and one week's pay in lieu of notice — Commission found in favour of Applicant re payment of wages, however disallowed claim for pay in lieu of notice as industry practices, is not automatically imported into a contract — Granted in Part — Flynn T and Tanya Martin trading as Noranda Beauty Centre — No. 2578 of 1989 — Parks C. — 27/4/90 — Hairdressers

Claim re contractual entitlement — Applicant sought payment of 50 per cent commission due on sale of property — Respondent argued entitlement was only 20 per cent of commission — Question re terms of contract — Commission found in favour of applicant from "tests" referred to on contract of employment — Granted — Dupont S.L. v. O'Reilly P.H. & E.A. trading as O'Reilly Real Estate — No. 280 of 1990 — Martin C. — 28/5/90 — Real Estate

Employee summarily dismissed for allegedly refusing to carry out lawful command — Applicant argued command to train subordinate in use of particular apparatus was dangerous and claimed unfair dismissal seeking payment in lieu of four weeks' notice — Respondent argued it had acted within its rights as applicant's assertion of danger in training was not a satisfactory explanation — Commission found in applicant's favour as refusal was due to concern for safety — Granted — Le Hoa Ma and Milne Feeds Pty Ltd - No. 569 of 1990 — Salmon C. — 21/5/90

Claim re contractual entitlements — Applicants sought payment of wages — Commission found in favour of applicants re wages, however claim for holiday pay by first applicant not established — Clapton M.W. and S. and Livestock Enterprises Pty Ltd — No. 743 of 1988 — Parks C. — 6/12/88 — Farming

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WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 70 W.A.LG.

CUMULATIVE DIGEST—continued

CONTRACT OF SERVICE —continued Application for denied contractual entitlements — Applicants sought payment ofwages on the arguments that they had been assured

employment as Managers was for a period of not less than five years and that the work performed was more consistent with them being managers than caretakers — Respondent argued employment was on a casual basis as caretakers — Commission found on fact employment had not commenced until the property in question was purchased and that acts performed prior to that time by the Applicants were not done in furtherance ofany employer/employee relationship — Cmmission further was not satisfied even on balance that there was an express or implied term that the Applicants shouldbe employed forat least five years — Commission gave further reasons for decision on order issued for some of the costs claimed by the Respondents — Dismissed and Ordered Accordingly — Conza F. & J. and Watson C. & J. — No. 1811 of 1989 — Fielding C. — 31/5/90 — Farming

Claim re contractual entitlement — Applicant sought payment of outstanding wages — Respondent argued work performed had been unsatisfactory — Commission from evidence found in favour of applicant, however no evidence for entitlement to annual leave on pro rata basis — Ordered Accordingly — Jorgensen C.N. and Erepon Pty Ltd — No. 237 of 1990 — Fielding C. — 14/5/90 — Construction

Claim re contractual entitlements — Applicant sought payment of bonuses, holiday pay and leave loading accrued over a period of seven years — Respondent refuted claim and argued terms had changed whereby bonuses were to be payable on a discretionary basis — Commission noted oddities in Applicants and Respondent's evidence and found that Applicant had not discharged onus of making out his claim — Dismissed — Thomson D.S. and Insulation Process and Contracting — No. 2323 of 1989 — Fielding C. — 24/4/90

Claim re contractual entitlement — Applicant sought six weeks' wages which parties had agreed to credit as a deposit for a van — Commission found in favour of applicant however as applicant terminated contract without due notice, entitlement was only for five weeks — Granted in Part — Lane A. and Heyford Holdings trading asNashua Karratha —No. 796of 1989—HalliwellS.C.— 9/5/90 — Transport

Claim re contractual entitlement — Applicant claimed base salary negotiated was nett per annum rather than gross per annum including commission agreed and sought contractual benefit allegedly withheld — Respondent refuted claim and argued such an agreement would be totally at odds with custom and practice — Commission from evidence found in favour of Respondent — Dismissed — Fogarty M.K. and Key Master Holdings — No. 255 of 1990 — Negus C. — 19/6/90

Claim re unfair dismissal seeking reinstatement and contractual entitlements — Applicant believed his services were terminated unfairly for taking sick leave to which he was entitled — Respondent argued that the Applicant had abondoned his employment and in any event had pre-empted dismissal for misconduct — Commission found that Applicant was summarily dismissed which was unfair in the circumstances, reinstatement was not a viable proposition and due to Award coverage Applicant should proceed before Industrial Magistrate for moneys in lieu of notice and annual leave — Ordered Accordingly — Ferguson P.N. v. Southside Autos( 1981) Pty Ltd as trustee for Southside Unit Trust tradingas "Southside Mitsubishi" — No. 762 011990 — Martin C. — 3/7/90 — Motor Vehicle (Retail and Service)

Employees summarily dismissed for alleged misconduct — Applicants claimed resignations were tendered with one month's notice and sought benefits entitled pursuant to contracts of employment — Respondent argued applicants had solicited its customers which was detrimental to business — Commission from evidence found in favour of applicants, with exception to claim for commission — Ordered Accordingly — Graham M. & Carr R. and Mavor Holdings trading as Decision Management — Nos 2386 and 2387 of 1989 — Halliwell S.C. 30/4/90 - Computing Sales

Claim re contractual entitlement — Applicant claimed underpayment of wages and sought moneys owed — Respondent argued hourly rate was gross rather than nett — Commission from evidence found contract terms to be as described by applicant — Granted — Markham G.C. and Railways Institute Travel Pty Ltd — No. 2805 of 1989 — Parks C. 6/4/90 — Travel Agency

Claim re contractual entitlement — Applicant claimed verbal agreement and sought payment of wages — Standard of evidence — Applicant's preferred — Commission found in favour of Applicant — Granted — McFayden J. and Constantine Boulazeris — No. 561 of 1989 — Halliwell S.C. — 25/5/90

Claim re contractual entitlement — Applicant sought reimbursement of study costs as per "Employment Agreement" on successful completion of course — Respondent argued as a consequence of the operative date of "Agreement" it could be construed as&pro rata entitlement—Commission noted crux of dispute goes to interpretation of study leave clause and found in favour of Applicant as there was no express provision for a pro rata entitlement — Granted — Harrison J. and State School Teachers Union — No. 285 of 1990 — Kennedy C. — 24/5/90 — Union

Claim re contractual entitlement — Applicant claimed six months' salary as agreed by parties on termination — Respondent pleaded inability to pay — Commission found as payment had not been made by stipulated date, applicant was entitled to recover moneys owed by way of a benefit denied under his contract of employment — Granted — Meyer K J. and Capital City Properties Ltd —No. 82 of 1990 — Fielding C. — 1/5/90 — Secretary/Financial Controller

Claim re contractual entitlement — Applicant claimed underpayment of wages and sought payment for outstanding proportion — Respondent argued applicant was an independent contractor and alleged invoices tendered for payment for services rendered were paid — Commission found applicant to be an employee and accepted evidence that invoices were signed by applicant under extreme duress as a desperate means of obtaining funds — Granted — Wills S. and Fire Power Holdings Pty Ltd trading as Perth Social Times — No. 105 of 1990 — Fielding C. — 18/6/90 — Print Media

Employee terminated contract seeking contractual entitlements — Applicant claimed pay in lieu of notice, redundancy payment, interest on money borrowed for relocating and expenses incurred on credit card — Respondent "confirmed" applicant's resignation and agreed in answers filed to pay some of the claimed amount — Commission from evidence noted if applicant resigned as alleged, then it could only properly be seen as a constructive dismissal and found in favour of applicant, except amount of redundancy claimed — Granted in Part—Mackay-Scollay R.A. and Signplus International Pty Ltd — No. 2615 of 1989 — Fielding C. — 12/4/90 — Advertising

Claim recontractual entitlements — Applicant claimed respondent failed to pay salary and sought outstanding moneys made up of a fortnight's pay in lieu of notice, holiday pay and annual leave loading less taxation — Respondent advised of intention to settle matter without Commission determination, however no such settlement was made — Commission found from evidence that applicant was entitled to payment of moneys claimed, less amount of leave loading which cannot reasonably be implied into the contract — Granted in Part — Rutley G.M. and Brenden Leppard trading as Instant Carpet Dry Cleaners — No. 2316 of 1989 — Gregor C. — 7/5/90 — Domestic Cleaning

Claim re contractual entitlement — Applicant sought payment of outstanding wages — Respondent admitted liability — Commission found in favourof applicant — Granted in Part — Rees G.W. and Erepon Pty Ltd — No. 118 of 1990—FieldingC. — 14/5/90 — Construction

Claim re contractual entitlement — Employee claimed employment mutually terminated and sought moneys owing i.e. one week's pay and leave loading for accumulated annual leave — Respondent submitted at conference payment was refused as leave loading did not apply and employee ceased employment without required period of notice — Commission found annual leave loading paid for holiday taken is prima facie evidence that leave loading was a term of the contract — Granted — P. Nowell and Gloria Marshall's Figure Salon — No. 2224 of 1989 — Negus C. — 24/4/90 — Health/Beauty

Claim re contractual entitlements — Applicant sought payment of employer superannuation contributions for term of employment — Commission found no specific contract term and no term adopted by implication from trust deed that would allow the applicant the claimed entitlement upon termination of his services—Dismissed—Jones A. v. Edlyn Pty Ltd — No. 2319 of 1989 — Parks C. — 26/6/90 — Accountancy

Claim re contractual entitlements — Applicant claimed balance of brief fee and payment in lieu of notice pursuant to written contract of employment—Respondent denied underpayment of brief fee and argued that the contract contained no provision for payment in lieu of notice — Commission found in favour of the respondent — Dismissed — Briant R.P. v. Waimex Pty Ltd — No. 967 of 1990 — Halliwell S.C. - 10/7/90 - Sales

0)

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

CUMULATIVE DIGEST—continued

CONTRACT OF SERVICE—continued. Claim recontractual entitlements — Applicant claimed wages for portion of fixed term contract following termination by respondent

and solicitor's fees — Respondent argued the Applicant ultimately terminated the contract and no payment was warranted — Commission found that an invitation, not accepted by the Applicant, to renew the original contract did not relieve the respondent from liability under the original fixed term contract and that the claim for solicitor's fees was ultra vires section 27( 1 Xc) of the Act — Granted in Part — Fisher C.A. v. Bamboo Creek Management Pty Limited — No. 291 of 1990 — Halliwell S.C. — 7/6/90 — Mining

Claim re Contractual entitlements — Applicant claimed entitlement to vehicle allowance being a denied part of redundancy payment and annual leave paid in lieu and as an accrued entitlement; salary in lieu of notice; and employer superannuation contributions on redundancy and notice — Respondent argued that redundancy and vehicle allowance payments were not benefits under the terms of the contract, that there was no contractual arrangement for notice or payment lieu thereof and that superannuation payments were limited by trust deed to matching employee contributions — Commission found that redundancy payment had been ex gratia, applicant failed to establish right to vehicle allowance or superannuation contributions and the contract did not prescribe notice or payment in lieu thereof— Dismissed — Bettel MJ.C. v. Bell Group Press Pty Ltd — No. 72 of 1990 — Parks C. - 6/7/90 - Publishing

A.pplication for reclassification of employee with retrospective effect — Applicant Union argued Respondent had failed to accord employee a review in accordance with contract of service and that standard of work performance would normally have resulted in promotion — Respondent argued that breach had already been remedied by employees current classificationRCB found on evidence that a performance review was a term of the contract of service and that although there was a regular appraisal administered it was not within the terms of the contract — RCB found in all the circumstances and on merit that the application of the result of a review held being recognised from the commencement of a trial to be an equitable relief— Operative Date set in Supplementary Reasons — Granted in Part — ROU and WAGRC — No. RCB CR2 011989 — Kennedy C., Phillips, Gabrovec — 24/4/90 — Railways

Claim re contractual entitlement — Applicant sought payment of wages for a fixed term contract — Respondent argued, prescribed period of notice given — Parties sought Commission ruling on "implied term" — Commission applying the rules as set out in cases cited found level of recompense i.e. one week's pay for three days worked does not appear to be unreasonable or contrary to industry standards — Dismissed — Francillon P.J. and Quality Pacific Hotels Ltd — No. 2571 of 1989 — GregorC. — 25/5/90 — Hospitality

Claim re contractual entitlements — Applicant sought ex gratia payment and claimed entitlement to moneys due to termination outside the terms of her contract — Respondent argued the Applicant was not eligible for ex gratia payment and was not denied entitlement to sick leave nor was the termination invalidly effected as such leave was dependent on contituation of the contract of service — Commission found from evidence and the balance of probabilities that the Applicant could not qualify for iheex gratia payment and that sick leave was granted for a period of up to three months on review — Dismissed — Cassar C. v. Peko Gold Limited — No. 2725 of 1989 — Gregor C. — 25/5/90 — Mining (Gold)

Claim re unfair dismissal and contractual entitlements — Applicant claimed payment in lieu of notice from an implied term of his contract for reasonable notice but question of reinstatement was not addressed — Respondent argued Applicant was not an employee but an independent contractor and in any event termination of the contract was not unfair—Commission found on the evidence and with reference to authorities cited Applicant was an independent contractor thus the Commission was without jurisdiction — Dismissed — Pagoda G.M. v. Snowfresh (Australia) Ltd — No. 2766 of 1989 — Fielding C. — 7/5/90 — Food (Retail)

Claim re unfair dismissal and contractual entitlements — Applicant withdrew dismissal claim and sought salary arrears, payment in lieu of notice, rental subsidy and motor vehicle lease instalments pursuant to oral agreements — Respondent disputed Applicant's description of contract, claimed Applicant was a consultant not an employee and that the Applicant had withdrawn from the contractual arrangement — Commission found from evidence and on the balance of probabilities that the parties had a contract for services thus the Applicant was not an employee and the Commission was without jurisdiction — Dismissed — Mohr H.AU. v. Pacific Dental Corporation — No. 508 of 1989 — Gregor C. — 18/5/90 — Dental Services

Employee summarily dismissed for misconduct seeking reinstatement — Applicant claimed dismissal resulted from refusal to operate company aircraft in breach of safety and legal regulations and sought payment in lieu of notice failing reinstatement — Respondent argued summary dismissal was justified for serious and wilful misconduct — Commission found that the applicant was in fundamental breach of his contract by refusing to work as directed during his notice period and thus summary dismissal was not unfair — Dismissed — Smith BJ. v. Ross Atkins Mining — No. 15 of 1990 — Gregor C. — 10/5/90 — Mining 2Appeal against decision of Commission re finding of jurisdiction to deal with the matter of employees being required to purchase housing as a condition of employment — Appellant argued inter alia "Home Ownership Plan" was not part of contract of employment. Commission failed to give full weight to the full terms of the contract of sale, misdirected itself in its reliance of authorities and the definition of industrial matter — Full Bench reviewed evidence, authorities, definitions, and the Industrial Relations Act and found the definition of industrial matter was wider than that considered by authorities relation to the Federal Act — Full Bench found there was a clear "custom" and "usage" within an industry that accommodation was clearly to be provided as partof remuneration and the fact that a house was purchased under separate contract did not detract from the fact that it occurred only because the parties are employer and employee — Dismissed — Hamersley Iron Pty Ltd and AMWSU and Others — No. 2619 of 1989 — Sharkey P., Coleman C.C., Gregor C. — 2/7/90 — Iron Ore Mining and Processing 2Appeal against decision of Commission at (70 WAIG 192) re unfair dismissal — Appellant argued Commission erred in not finding dismissal unfair as termination was in breach of contract, the Appellant had not repudiated contract and finding was inconsistent with remainder of decision — Full Bench noted that it was for Appellant to pursuade that there was an error at first instance, even though Respondent did not appear or contest appeal — Full Bench reviewed evidence and found Commission had failed to give sufficient or any weight to evidence of performance and that there was insufficient warning given to the employee — Full Bench found dismissal was harsh in all the circumstances under the Undercliffe test and ordered reinstatement — Upheld and varied — J.A. Margio and Fremantle Arts Centre Press — No. 2749 of 1989 — Sharkey P., Negus C., George C. — 21/6/90 — Arts Management

Claim re contractual entitlements — Applicant claimed accrued wages pursuant to contract of employment — Respondent denied existence of contract arguing that it had not been Applicant's employer — Commission found on the evidence that there was a contract of employment between Applicant and Respondent and that wages were due under the terms of that contract — Granted — O'Sullivan Ji. v. Australian Granaries Limited — No. 216 of 1990 — Kennedy C. — 29/6/90 — Food

Claim re contractural entitlements — Applicant claimed wages, payment in lieu of notice, holiday pay and income foregone on basis of an implied contract — Respondent denied existence of any contract between the parties —Commission found from evidence and authorities that applicant was not an employee and therefore Commission was without jurisdiction — Further, Commission determined that, in any event, in so far as the applicant relied upon implied terms of contract he had not made out those terms — Dismissed — Ringshaw N.A. v. Inkam Pty Ltd — No. 2686 of 1989 — Gregor C. — 20/7/90 — Diving Industry

Claim re contractual entitlements—Applicant claimed moneys in lieu of notice and reimbursement of expenses incurred in pursuant of claim — No appearance by or on behalf of Respondent — Commission found implied term of wages in lieu of notice had been denied — Commission found further that Applicant should not be out of pocket as a result of prosecuting the claim — Granted — L.K. Johnson v. Dalgety Holdings Pty Ltd — No. 596 of 1990 — Beech C. — 13/8/90 — Clerical

Claim re contractual entitlements — Applicant claimed wages in compensation arising from the need to liquidate personal property — Respondent denied existence of a contract — Commission found that there was no contract and on authorities cited that there were no implied terms of the contract thus Commission was without jurisdiction — Dismissed — R. MacAuley v. Jamac Fishing — No. 2787 of 1989 — Gregor C. — 29/6/90 — Fishing

(li)

WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 70 W.A.I.G.

CUMULATIVE DIGEST—continued

CONTRACT OF SERVICE^Co««>W Claim re contractual entitlements — Applicant claimed payment of retainer, commission payment and holiday pay — Respondent

argued retainer ceased by consent and that Applicant and not effected sale relating to claimed commission — Commission found that holiday pay was not a benefit under the contract and that parties agreed upon condition of retainer — Commission found further on the authority cited that Applicant was entitled to commission for the disputed transaction — Ordered Accordingly — C.J. Payne v. Hi-Point Homes Pty Ltd — No. 545 of 1990 — Martin C. — 5/7/90 — Building

Claim re contractual entitlements — No appearance by or on behalf of either party — Commission proceeded ex pane pursuant to section 27 of the Act and dismissed the matter for want of prosecution — Ordered Accordingly — P.H. Wright v. Goldfield Waterwell Drillers — No. 1325 of 1990 — Gregor C. — 15/5/90 — Drilling

Claim re unfair dismissal seeking reinstatement and contractual entitlements — Applicant withdrew reinstatement claim but sought additional moneys in lieu of notice, vehicle and fuel expenses pursuant to contract — Respondent argued length of notice justified due to Applicant's probationary status but admitted liability for vehicle expenses — Commission found no vision for extension of probation hence additional required — Commission determined further that Respondent's liability for expenses be offset against previous unauthorised expense — Ordered Accordingly — D.G. Carlson v. CSA Credit Union Limited — No. 582 of 1990 — Martin C. — 5/9/90 — Finance

Claim re contractual entitlements — In hearing the application Commission found fundamental deficiencies in the application and in prosecution of case — Commission found further that claim was not made out — Dismissed — A.D. Emmerton — Ryan Mining Contracting — No. 700 of 1990 — Gregor C. — 6/7/90 — Mining

"•Application for stay of order re contractual entitlements (70 WAIG 2884) pending hearing of appeal by Full Bench — Applicant argued that it would be administratively difficult to recover moneys ordered to be paid by Commission should appeal be successful — Furthermore it was submitted balance of convenience favours Applicant and as Respondent was presently employed, granting of stay would not jeopardise Respondents financial circumstances — President from fact found in favour of Applicant — Ordered Accordingly — Bamboo Creek Management Pty Ltd and Fisher C.A. — No. 1281 of 1990 — Sharkey P. — 17/8/90 - Mining

Claim re contractual entitlements — Applicant claimed what balance of wages, superannuation and annual leave on basis that a salary increase had been granted — Respondent argued it did not agree to a salary other than stipulated in a written offer of employment — Commission found on evidence that so far as the material contract of employment with the Respondent was concerned salary was to be reviewed and there had been no agreement to pay salaries set by a review under previous employment — Dismissed — G.D. Cox v. Rural and Industries Bank of Western Australia — No. 857 of 1990 — Fielding C. — 21/9/90 — Finance

Claim re contractual entitlements — Applicant claimed moneys in lieu of one month's notice — Respondent argued Applicant was dismissed from expiration of probationary period and no moneys were due — Commission found that the probationary period had existed, the Applicant had been paid for the full three months and as it was open to either party to reconsider their position at the end of the period, no deprivation of entitlements existed — MJ Brenner v. Photo Kevron — No. 1003 of 1990 — Beech C — 14/9/90 — Retail

Claim re contractual entitlements — Applicant claimed wages earned and moneys in lieu of annual leave — Respondent argued right to deduct pay in lieu of notice or alternatively to withhold payment for the final uncompleted weekly contract period — Commission reviewed authorities and found applicant not entitled to payment for incomplete contract period and on evidence no express provision for pr ram payment in lieu of annual leave — Commission found further, that payment was due for wages earned during an earlier pay period — Granted in Part — R.A. Taylor v. Vipond Pty Ltd trading as The Relationship Connection — 284 of 1989 — Parks C. — 17/9/90 — Introduction Agencies

Claim re contractual entitlement — Applicant claimed balance of pay in lieu of leave accrued as compensation for overtime worked — Respondent claimed that applicant had been paid, on an earlier date, a sum in lieu ofleave accumulated to that date and on termination had been paid for leave accrued since — Respondent submitted further that in any event the contract had changed in course of employment such that applicant was no longer entitled to take accumulated overtime as leave — Commission found that the contract did provide for leave to be granted for overtime worked and that contract was not varied but that there was no provision for payment in lieu thereof— Commission found further that previous payments were ex gratia — Dismissed — Carter K. v. WA Cricket Association (Inc) — No. 838 of 1990 — Parks C. — 25/9/90 — Entertainment

Claim re contractual entitlements by seconded employee — Applicant claimed payment for superannuation and pro rata long service leave — Respondent gave commitment to enquire into superannuation entitlements but denied that applicant's length of service was sufficient to entitle long service leave payment pursuant to contract — Commission found that applicant had not established a contract breach with regard to superannuation but determined that pursuant to the contract the respondent, to whom the applicant was seconded, was obliged to have account for the different rates of long service leave entitlement between the employers to ensure the applicant would not be disadvantaged — Commission directed parties to confer to determine amount to apply — Ordered Accordingly — J. Harrison v. SSTU (WA) — No. 904 of 1990 — Kennedy C. — 31/8/90 — Trade Union

Claim re contractual entitlements — Applicant claimed outstanding wages, motor vehicle and telephone expenses, payment in lieu of annual leave and severance pay — Respondent alleged that applicant was employed under terms of an award, the respondent having received a subsidy for the applicant's employment under the Commonwealth Job Start Scheme, and thus Commission was without jurisdiction — Commission determined that issues raised by applicant related more to the business relationship than the employment relationship between the parties through the applicant's part owner status and exercised its discretion under section 27( IXa) of the Act to dismiss the application — J.R. Clohessy v. New Product Development Pty Ltd — No. 1181 of 1990 — Fielding C. — 21/9/90 — Chemical Manufacturing

Application for contractual entitlement — Applicant claimed entitlements not subject of an award and sought payment of moneys at $10.00 per hour for hours worked — Respondent questioned jurisdiction, argued payments had been made for all hours worked as per documentation and, asserted applicant was a contractor — Commission noted question to be answered was whether relationship was indeed that of an employee and from evidence found relationship was not that of a contract of service between an employee and an employer, therefore Commission had no jurisdiction to deal with claim — Dismissed — Burkin P J. and Atlas Farms Pty Ltd — No. 1132 of 1989 — Kennedy C. — 15/8/90 — Farming

Claim re contractual entitlement — Applicant claimed dismissal was effected before completion of probation which is alleged to be a fixed term and sought payment for uncompleted portion of probationary period — Respondent argued probationary period did not limit either party from terminating contract — Commission from evidence found that probationary period was to determine whether work was performed in a satisfactory manner and was not of itself employment for a fixed term — Dismissed — Drayton J. and Aboriginal Child Care Agency of WA — No. 56 of 1990 — Beech C. — 17/8/90 — Welfare

Application for Contractural Entitlements — Applicant claimed wages for work performed,pro rata annual leave payments and one weeks payment in lieu of notice — No appearance on behalf of Respondent — Commission found from evidence claimed entitlements were substantiated — Granted — Folley M.A. and Barradale Properties trading as the Aussie BBQ Company — No. 884 of 1990 — Kennedy C. — 24/8/90 — Restaurant/Catering

JAppeal against decision of Commission (70 WAIG 2884) re denied contractual entitlements arising out of a fixed term contract — Appellant argued Commission had erred in finding contract had terminated and had failed to account for offer of re-employment — Full Bench found on evidence that contract was unilaterally varied by the appellant, the respondent had protested and was dismissed by a personal authority to do so — Full Bench reviewed authorities and found respondent was not bound to accept offer of re-employment at a lower status either at law or as a matter of equity and good conscience — Dismissed — Bamboo Creek Management Pty Ltd and Fisher C.A. — No. 1268 of 1990 — Sharkey P., Kennedy C, Parks C. — 29/10/90 — Mining

(Hi)

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

CUMULATIVE DIGEST—continued

CONTRACT OF SERVICE — (continued) — 2Appeal against decision of Commission (70 WAIG 3393) re payment of outstanding commission pursuant to contract of employment

— Appellant argued contract of sale which attracts commission had been effected by respondent as finance had not been approved — Full Bench adopted judgment in Hall v. Berkus trading as MBM Marketing Consultants and found Commission had

Sharkey P., Halliwell S.C., Beech C. — 2/11/90 — Building Claim re contractual entitlement — Applicant claimed moneys earned pursuant to terms of contract Respondent admitted

applicant's entitlement but argued remuneration was not payable until expiration of customers guarantee periods Commission found moneys claimed were due and were payable upon clearance of customers cheques Granted D.G. Christie v. Sintage Pty Ltd — No. 1215 of 1990 — Fielding C. — 22/10/90 — Employment Agency

Claim re contractual entitlements — Respondent claimed matter ought be dismissed pursuant to section 27 of Act due to delay in pursuit of claim — Commission heard prelimenary point — Commission found, with regard to authorities sited that respondent was entitled to expect a claim for such a substantial sum to be dealt with promptly — Dismissed G. Lewicki. A. Szymenderski and M. Spychalski v. H.B. Brady Co Pty Ltd — Nos. 224, 225 and 226 of 1990 — Beech C. — 5/10/90 — Construction

Employee terminated for failing to follow safety procedures — Applicant claimed dismissal unfair and sought reinstatement — Respondent argued that failure to comply with policies of the Company could legally result in termination under terms of contract — Commission found on evidence and authorities cited that respondent had not exercised its right to terminate the contract harshly or unreasonably — Dismissed — PJ. Collins v. Mawson Pacific Ltd — No. 726 of 1990 — Gregor C. — 3/10/90 — Mining

Claim re contractual entitlement — Applicant claimed moneys earned — No appearance by or on behalf of respondent — Commission satisfied on evidence that applicant was due sum claimed — Granted — L.Tustian v. Group Plan — No. 1055 oflOOO — Beech C. — 25/10/90 — Finance

Claim recontractual entitlements — Appellant claimed wages earned and sustenance allowance — Respondent argued applicant had been paid some moneys but the outstanding amount was the liability of another company which had taken over applicant's employment Commission found on evidence applicant had not received the sum indicated by respondent and that liability lay with respondent for all moneys earned as the applicant was not made aware of and not had not agreed to change of employer — Granted — TKF Vass v. Trafalgar Mining Co — No. 581 of 1990 — Gregor C. — 3/10/90 — Mining

Claim re contractual entitlement — applicant claimed wages — respondent argued applicant attended a Commission hearing, a training course and was otherwise absent without authorisation during the periods for which wages were claimed — Commission found that applicant had not been denied wages earned in regard to attendance at the hearing and training course but wasentitled to payment for the final period when he had performed his duties but failed to report to his supervisor — Granted in Part — K. Luck v. the MBA Group Apprenticeship Scheme — No. 730 of 1990 — Beech C. — 4/10/90 — Construction

Claim re contractual entitlement — Commission found on evidence that the respondent was not the applicant's employer and in the circumstances the claim for denied contractual benefit was not made out — Dismissed — M. Frost v. D.W. Webster, Brunswick Country Club — No. 1416 of 1990 — Fielding C. — 9/10/90 — Hospitality

Claim re unfair dismissal and contractual entitlement — applicant claimed dismissal resulting from absence from work due to pressing domestic circumstances was unfair — applicant further claimed retrenchment pay as implied term of the contract — respondent argued applicant disregarded requirements of his position — Commission found insufficient regard was given to applicant's good service and domestic pressure imposed upon him and declared dismissal unfair — Commission however found that applicant failed to show that retrenchment pay as an implied term was necessary to give efficacy to the contract — Declaration/Dismissed — C.D. Blogg v. T.R. Services Pty Ltd — No. 671 of 1990 — Salmon C. — 8/6/90, 15/10/90 — Manufacturing

2Appeal against decision of Commission (70 WAIG 2444) reclaim for contractual entitlement — Appellant argued there was no sworn orsubstantiveevidence to establish that a contract for 10 days had existed — Full Bench noted both appellant and respondent had given evidence on oath, however only appellant had specified period under oath "a couple of days" — Full Bench found only evidence on oath for Commission, re period of time, was that of appellant and as it was not contradicted refusal to accept it constituted an error — Upheld — Boulazeris C. v. McFadyen J. — Appeal No. 1088 of 1990 — Sharkey P., Coleman C.C., Parks C. — 12/9/90 •;••••;

Claim re unfair dismissal seeking reinstatement or in the alternative contractual entitlements — Commission heard as preliminary point question of whether there was a contract of service or a contract for services — Commission examined indicia from authorities cited and the evidence and determined that contract was for services thus applicant was not an employee and Commission was without jurisdiction — Dismissed — P. Inglis v. Nor-West Seafoods Pty Ltd — No. 997 of 1990 — Halliwell S.C. — 25/10/90 — Fishing

Complaint re Breach of Overtime provisions of two different awards — Separate consideration given by Industrial Magistrate as awards differed — Respondent argued employee was not eligible for overtime as he was not subject to close supervision under either award and that the overtime was subject to agreement that the first 50 hours were to be taken as time in lieu — Industrial Magistrate distinguished instant case from one before the Commission and found close supervision did not require some one watching him and further that any agreement between employee and employer in breach of award conditions was null and void — Proven — CSAand Hon. Minister for Agriculture — Complaints Nos. 209,210 and 229 oflOOO— Brown S.M. — 22/10/90— Public Administration

CONTRACTOUTOF AWARD Claim re contractual entitlement — Applicant sought six weeks' wages which parties had agreed to credit as a deposit for a van —

Commission found in favour of applicant however as applicant terminated contract without due notice, entitlement was only for five weeks — Granted in Part—Lane A and Heyford Holdings trading as Nashua Karratha—No. 796 of 1989 — Halliwell S.C. — 9/5/90 — Transport

Claim re benefit not being benefit under an Award or Order of Commission — Commission noted agreement between parties to settle original claim is a new contract — Commission found if dispute concerns terms of new agreement then it should be determined in Local Court as this Commission is without jurisdiction — Furthermore if amount in new agreement relates to compensation then similarly Commission has no power to order compensation without reinstatement — Application Discontinued — Sinclair T.W. and Georges France Photography — No. 2179 of 1989 — Gregor C. — 10/4/90 — Photography

Employee terminated contract seeking contractual entitlements — Applicant claimed pay in lieu of notice, redundancy payment, interest on money borrowed for relocating and expenses incurred on credit card — Respondent "confirmed" applicant's resignation and agreed in answers filed to pay some of the claimed amount — Commission from evidence noted if applicant resigned as alleged, then it could only properly be seen as a constructive dismissal and found in favour of applicant, except amount of redundancy claimed — Granted in Part—Mackay-Scollay R.A. and Signplus International Pty Ltd—No. 2615 of 1989 — Fielding C. — 12/4/90 — Advertising

Claim re contractual entitlements — Applicant claimed respondent failed to pay salary and sought outstanding moneys made up of a fortnight's pay in lieu of notice, holiday pay and annual leave loading less taxation — Respondent advised of intention to settle matter without Commission determination, however no such settlement was made — Commission found from evidence that applicant was entitled to payment of moneys claimed, less amount of leave loading which cannot reasonably be implied into the contract — Granted in Part — Rutley G.M. and Brenden Leppard trading as Instant Carpet Dry Cleaners — No. 2316 of 1989 — Gregor C. — 7/5/90 — Domestic Cleaning

(Hii)

CUMULATIVE DIGEST—continued

CONTRACT OUT OF AWARD—continued Claim re unfair dismissal and contractual entitlements — Applicant withdrew dismissal claim and sought salary arrears, payment in

lieu of notice, rental subsidy and motor vehicle lease instalments pursuant to oral agreements — Respondent disputed Applicant's description of contract, claimed Applicant was a consultant not an employee and that the Applicant had withdrawn from the contractual arrangement — Commission found from evidence and on the balance of probabilities that the parties had a contract forservices thus the Applicant was not an employee and the Commission was without jurisdiction — Dismissed — Mohr H.A,U. v. Pacific Dental Corporation — No, 508 of 1989 — Gregor C. — 18/5/90 — Dental Services

Claim re contractual entitlements — Applicant claimed accrued wages pursuant to contract of employment — Respondent denied existence of contract arguing that it had not been Applicant's employer — Commission found on the evidence that there was a contract of employment between Applicant and Respondent and that wages were due under the terms of that contract — Granted — O'Sullivan JJ. v. Australian Granaries Limited — No, 216 of 1990 — Kennedy C, — 29/6/90 — Food

Claim re contractual entitlements — Applicant claimed payment of retainer, commission payment and holiday pay — Respondent argued retainer ceased by consent and that Applicant and not effected sale relating to claimed commission — Commission found that holiday pay was not a benefit under the contract and that parties agreed upon condition of retainer — Commission found further on the authority cited that Applicant was entitled to commission for the disputed transaction — Ordered Accordingly — CJ. Payne v. Hi-Point Homes Pty Ltd — No. 545 of 1990 — Martin C. — 5/7/90 — Building

Claim re contractual entitlements by seconded employee — Applicant claimed payment for superannuation and pro rata long service leave — Respondent gave commitment to enquire into superannuation entitlements but denied that applicant's length of service was sufficient to entitle long service leave payment pursuant to contract — Commission found that applicant had not established a contract breach with regard to superannuation but determined that pursuant to the contract the respondent, to whom the applicant was seconded, was obliged to have account for the different rates of long service leave entitlement between the employers to ensure the applicant would not be disadvantaged — Commission directed parties to confer to determine amount to apply — Ordered Accordingly — J. Harrison v. SSTU (WA) — No. 904 of 1990 — Kennedy C. — 31/8/90 — Trade Union

Claim re contractual entitlements — Applicant claimed outstanding wages, motor vehicle and telephone expenses, payment in lieu of annual leave and severance pay — Respondent alleged that applicant was employed under terms of an award, the respondent having received a subsidy for the applicant's employment under the Commonwealth Job Start Scheme, and thus Commission was without jurisdiction — Commission determined that issues raised by applicant related more to the business relationship than the employment relationship between the parties through the applicant's part owner status and exercised its discretion under section 27(lXa)ofthe Act to dismiss the application — J.R. Clohessy v. New Product Development Pty Ltd — No. 1181 of 1990 — Fielding C. — 21/9/90 — Chemical Manufacturing

Application for contractual entitlement — Applicant claimed entitlements not subject of an award and sought payment of moneys at $ 10.00 per hour for hours worked — Respondent questioned jurisdiction, argued payments had been made for all hours worked as per documentation and, asserted applicant was a contractor — Commission noted question to be answered was whether relationship was indeed that of an employee and from evidence found relationship was not that of a contract of service between an employee and an employer, therefore Commission had no jurisdiction to deal with claim — Dismissed — Burkin P.J. and Atlas Farms Pty Ltd — No. 1132 of 1989 — Kennedy C. — 15/8/90 — Farming

CUSTOM AND PRACTICE — Claim re contractual entitlement — Applicant sought payment of wages at verbally agreed rate and one week's pay in lieu of notice —

Commission found in favour of Applicant re payment of wages, however disallowed claim for pay in lieu of notice as industry practices, is not automatically imported into a contract — Granted in Part — Flynn T and Tanya Martin trading as Noranda Beauty Centre — No. 2578 of 1989 — Parks C. — 27/4/90 — Hairdressers

Claim re contractual entitlement — Applicant claimed base salary negotiated was nett per annum rather than gross per annum including commission agreed and sought contractual benefit allegedly withheld — Respondent refuted claim and argued such an agreement would be totally at odds with custom and practice — Commission from evidence found in favour of Respondent — Dismissed — Fogarty M.K. and Key Master Holdings — No. 255 of 1990 — Negus C. — 19/6/90

Claim re contractual entitlement — Applicant sought reimbursement of study costs as per "Employment Agreement" on successful completion of course — Respondent argued as a consequence of the operative date of "Agreement" it could be construed asapro raid entitlement — Commission noted crux of dispute goes to interpretation ofstudy leave clause and found in favourof Applicant as there was no express provision for a pro rata entitlement — Granted — Harrison J. and State School Teachers Union — No. 285 of 1990 — Kennedy C. — 24/5/90 — Union

Board of Reference re travelling costs for recuperative leave — Applicant claimed on basis of Custom a nd Practice that all employees irrespective of where they spent their recuperative leave be reimbursed as though they had travelled to Perth — Respondent submitted the purpose of Travelling and Transportation Costs Clause was to reimburse employees for actual cost of travel — Board of Reference found on interpretation of clause and on submissions relating to Custom and Practice Applicant's contention unfounded — Trades and Labor Council of WA v. Naval Communication Station — Harold Holt — No. 2 of 1990 — Board of Reference — 27/7/90 — Naval Communication

"Application for stay of order pending appeal — Applicant claimed serious issue to be tried in that Commission had wrongly interpreted material before it and had failed to take into account the custom within the industry — No appearance by or on behalf of respondent — President found in the interest of both parties payment of money in question to be paid into an interest bearing bank account and issued order staying the operation of the whole of decision at first instance — Granted — Hi Point Homes Pty Ltd and Paine CJ. — No. 1458 of 1990 — Sharkey P. — 26/9/90

DATE OF OPERATION- Application to vaiy Award pursuant to Structural Efficiency Principle by consent save question of Operative Date — Applicant

Union sought second Structural Efficiency Wage Adjustment on basis of agreed Award amendments including changes to work practice, part-time and casual employment provisions — Railways Classification Board found changes sought should be ratified, however addressed matters of concern such as the establishment of 21 year rate as a reference point for skilled employees and, noting the legislative demarcation for the parties before it, the functioningof Promotion Appeal Boards — Majority of RGB found insufficient reason to depart from the usual awarding of an Operative Date — Granted in Part — ROU v. WAGRC — No. R3 of 1990(R2) — Kennedy C., Phillips, Thompson — 25/5/90 — Railways

Application for reclassification of employee with retrospective effect — Applicant Union argued Respondent had failed to accord employee a review in accordance with contract of service and that standard of work performance would normally have resulted in promotion — Respondent argued that breach had already been remedied by employees current classification — RCB found on evidence that a performance review was a term of the contract of service and that although there was a regular appraisal administered it was not within the terms of the contract — RCB found in all the circumstances and on merit that the application of the result of a review held being recognised from the commencement of a trial to be an equitable relief — Operative Date set in Supplementary Reasons — Granted in Part — ROU and WAGRC — No. RCB CR2 of 1989 — Kennedy C, Phillips, Gabrovec — 24/4/90 — Railways

'Application to vary Award re classification and wage increases — CICS found Work Value Principle satisfied. Wage Fixing Principles complied with, and no problem of flow on or unfavourable cost increase — Furthermore CICS found no special circumstances to grant retrospectivity — Granted in Part — CMEU and SECWA — No. 678 of 1990 — Salmon C, Kennedy C, Beech C. — 26/6/90 — Electricity Supply

Application to vary award pursuant to Structural Efficiency Principle — Parties were in agreement, respondents from tertiary institutions sought prospect date due to supplementary finding from Commonwealth — Applicant opposed claim for institutions as they had not demonstrated an incapacity to pay — Commission found in favour of tertiary institutions and prescribed prospective date — Ordered Accordingly — TWU and Hon Premier ofWA and Others — No. 936 of 1988 — Martin C. — 21/9/88 — Government

(liv)

CUMULATIVE DIGEST—continued

DATE OF OPERATION —continued application to exclude Real Estate Representatives from effect of Annual Leave General Order — Commission in Court Session

acceded to claim to restore the relationship between employers and employees within the industry but was not persuaded that the effect of its decision be differed to the anniversary date — Granted — CWAI and Hon Ministry for Productivity and Labor Relations and Others — No. 450 of 1990 — Coleman C.C., Halliwell S.C., Martin C. —.Real Estate

Application to vary Award by consent re Wage rate of two classifications as a Special Case — CICS found on evidence all tests ofWork Value Principle met, newduties and responsibilities constituting a net addition to work requirements, for which recompense was sought were the same as those experienced and recognised in the determination of rates for the Victorian Counterparts — CICS further found no double counting of factors recognised under Structural Efficiency exercises — Majority of CICS found no special circumstances to warrant a retrospective operative date, with each Commissioner issuing his/her own reasons for decision — Granted in Part — FMWU and St John Ambulance Association — No. 724 of 1989 — Coleman C.C., Kennedy C., George C. — 4/9/90 — Emergency Services

Application to vary Award re Second Structural Efficiency Wage Increase — Applicant argued date ofoperation should be from when substantive agreement was reached — Respondent argued there was no government approval at that time — Commission found Wages Principles were met and applying the rules specified in another decision concerning operative date in favour of the Applicant — Granted — FMWU and Hospital Laundry and Linen Service — No. 163 of 1990(R2) — Gregor C. 29/8/90 — Laundry and Linen Services

Application to vary award pursuant to Structural Efficiency Principle — Second Stage — Parties were in agreement to variation except with regard to operative date and whether new metal trades classification should be inserted into award — Commission noted concerns re non participation in negotiation by other unions party to the award and found operative date should be first pay period on or after date of hearing — Furthermore Commission found on issue of new classifications the matter would be arbitrated — Ordered Accordingly'— ARU v. WAGRC and Others — No. 264Aof 1990(R2) — Kennedy C. — 21/6/90— Railways/ Transport

Application to vary two awards pursuant to Structural Efficiency Principle — Second Stage — Parties reviewed awards as per Memorandum of Agreement and sought second increase in view of proposed changes — Commission noted parties had "addressed" matters and although there were no dramatic changes, accepted the submission of parties that matters were progressing satisfactorily and in time would produce constructive results — Commission found on matter of operative date that salary adjustments should operate with effect from the first pay period on or after todays date — Ordered Accordingly — AM A WA Branch and Royal Perth Hospital and Others — Nos. P22 and P23 of 1990 — Fielding C. — 24/7/90 — Health

Appeal against decision of Commission (70 WAIG 322) re registration of Industrial Agreement — Appellant argued Commission had erred in finding award did not apply to businesses of respondent, in registering an agreement when its terms were in conflict with an award that applied by common rule, in failing to remove inconsistency between agreement and award in exercise of discretion by excluding from operation of agreement some employees who did identical work, and in registering agreement which had the effect of retrospectively affecting the right of employers and employees — Full Bench from evidence and submissions found Commission in registering agreement had not exercised its power as it was mandatorily required to under sectin 41 (2) of IR Act and that there was no provision pursuant to section 41 of IR Act for retrospectivity — Furthermore Full Bench noted pursuant to section 114ofIR Act insofar as agreement was in conflict with award then agreement is null and void andcould not be registered — Full Bench found agreement was contrary to Act and Wage Fixing Principles — Upheld — Hon. Minister for Labour v. Como Investments and Others — Appeal No. 120 of 1990 — Sharkey P., Negus C, Kennedy C. — 27/8/% — Fast Food/Catering

Application to replace order with a new Order to implement Second Stage Structural Efficiency Principle — Commission reviewed what was submitted as an improvement on the first Order, new classification structure and found them with the principles — Commission found discrepancy between paid rates and base rate and supplementary payments to be dealt with reference to State Wage Decision and Metal Trades (General) Award though change might occur as the question received further clarification and compression of relativities now fixed was an issue for Natural and State Wage Benches — Commission further found variations to award and special circumstances to cause it to exercise its discretion to grant retrospectivity — Granted — AMWSU and Another v. Coca Cola Bottlers Perth — No. 533 of 1990(R2) — George C. — 17/9/90 — Carbonated Drinks

Appeal against decision of Commission (70 WAIG 2220) re award variations — Appellant argued retrospective operative dates were contrary to Wage Principle and that there were no special circumsta nces put forward for variation to operate from that date — Full Bench noted onus was on union to show special circumstances existed for award to be varied retrospectively and fund such onus had not been discharged — Further Full Bench found miscarriage of Commissions discretion had been established and that requirements mentioned in section 39(3) of IR Act had not been satisfied — Halliwell S.C. dissented noting to deny employees benefits of agreed wage increases due to clarification ofone point, which subsequently was as submitted, wascontrary to section 26 of Act and that operative date in question was prospective insofar as initial date of hearing occurred — Upheld — Central Districts Bakery and Others and Bread Manufacturers Association of WA v. TWU — Appeal Nos. 922 and 924 of 1990 — Sharkey P., Halliwell S.C., Salmon C. — 25/9/90 — Transport

Application to vary award re Second Stage Structural Efficiency Wage Adjustment by consent save date of operation — Commission considered matters such as changes to the classification structure, including broadbanding, in line with Metal Trades (General) Award, the changes in Wage Structure, including minimum rates adjustment, supplementary payments and difficulties in applying second instalment of wage increases — Though Commission was in agreement with Australians Commissions expressed views on the matters it was prepared to accept the submissions of both parties in the circumstances of the industry — Commission found no special circumstances to justify a date of operation earlier than when the matter was before the Commission in hearing — Granted in Part — AMWSU v. J.W. Bolton Pty Ltd and Others — No. 482 of 1990(R2) — George C. — 30/7/90 — Vehicle Building

Application to vary award re Second Structural Efficiency Wage Adjustment — Although parties had not reached agreement on all areas intended as of the first instalment Commission was satisfied that they had complied with the spirit and intent of the principles and made furthercomment as to the need for modernisation within the Industry — Commission found no good reason to award retrospectivity and depart from the Commissions norm — Granted in Part — LEDFCU and WAGRC — No. 620 of 1990 — Fielding C. — 6/9/90 — Railways

Application to vary award re Second Stage Structural Efficiency Principle by consent saved date of operation — Applicant argued date of operation should be six months after first instalment due to the provocative nature of the respondent's response to negotiations and that it was unfair that a small number of employees in a large workplace had had to face a different process to their colleagues — Respondent argued the employer had had the right to consider its position, therefore there had been no undue delay and the operative date should be that of the Commission's approval — Commission reviewed authorities. State Wage Principles and Industrial Relations Act and found at the end of six months following the first instalment to no impediment granting retrospectivity in accordance with the provisions of section 39(3) of the IR Act — Commission found special circumstances existed and it was a matter of equity and good conscience to accede the applicants claim — FMWU and Perth Dental Hospital - No. 162 of 1990(R2) — Gregor C. — 29/8/90 — Health

DEMARCATION — Application for new Award — Parties were in agreement on Award being issued — Application opposed by objecting union re

classification of "keyboard operators" — Commission from submissions of all parties found definition of above classification in Award provided protection for the objecting union and made it clear that there was no intention to upset status quo — Commission noted First Awards Principle had been followed and approved application subject to redrafting of offending clause and an adjustment to wage rate — Granted — PKIU v. Community Newspaper Group — No. A21 of 1989 — Negus C. — 26/3/90 — Print Media 2175

(lv)

WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 70 W.A.I.G.

CUMULATIVE DIGEST—continued

DEMARCATION —continued Conference referred for hearing and determination re refusal of Trades Assistants to clean ablution and lunchroom facilities —

Applicant argued cleaning duties were within the scope of the Tradesmen's Assistants duties and that in irregularly used facilities hygiene was maintained on a "user cleans" basis — Respondent Unions argued cleaning duties of those employees were those associated with work directly performed by the Tradesman or Ancillary to the maintenance of the work area and the insistence of the Applicant may give rise to demarcation disputes — Respondents further argued on the grounds of safety and hygiene — Commission found no reason why Tradesman Assistants could not perform such cleaning duties, that cleaning was required on a daily basis to meet DOHSWA standards, but there needed to be some central authority within Applicant's operations to co- ordinate resources to ensure required standards of hygiene were maintained — Reasons issued only — SEC and ETU and Others — CR114 of 1987 — Coleman C.C. — 16/9/87 — Electricity Supply

Application to vary Award — Leave to intervene granted to opposing Union — Introduction of a new system of centralised train control — Applicant Union sought insertion of new classification in wages clause — Respondent objected, arguing signalling function in new system only a small part of the overall train control, thus creating another position specific to signalling would be wasteful and less efficient — Intervener supported Respondent — Commission found from inspections and technical evidence found to acede to Unions application would be to allow an industrial imperative which could have the effect of reducing the intrinsic benefits of the new technology to overall efficiency of the enterprise and concluded that it should not intervene — Dismissed — ARU v. WAGRC - No. 1622 of 1988 — Kennedy C. - 11/5/90 — Railways

Applications to vary Awards pursuant to Structural Efficiency Principle on the basis of a Memorandum Agreement with the Awards' Respondents — Commission found Award amendments submitted and commitments given by parties were in toto sufficient to approve payment of the first Structural Efficiency Wage Increase — Commission further dealt with issues where parties had not reached complete accord, including demarcation, part-time employees, casual and temporary employees, hours, relieving and higher duties, whether to insert a clause into the Agreement re-stating part of the National Wage Decision, and performance appraisal — Granted — ANF and Alfred Carson Hospital and Others — Nos. 2708-2711 of 1989 — Negus C. — 2/7/90 — Health

2Appeal against decision of Commission at (70 WAIG 250) re demarcation dispute — Appellant argued, inter alia. Commission's order was beyond power, was contrary to a finding of the Commission concerning the same demarcation, that it was managerial prerogative as to what calling of employee was employed to do what work and that the Commission had used powers that were specifically granted to the Full Bench — Respondent argued section 44 oflndustrial Relations Act necessarily limited the order to binding only the parties in relation to whom the matter was not settled and raised a question of bias in the Full Bench — Full Bench extensively reviewed authorities. Industrial Relations Act and evidence before the Commission at first instance to find matter before it an industrial matter which the Commission had jurisdiction to deal with at first instance — However, Full Bench found plain words oforder extended its effect to all persons in the industry, which was beyond power under section 44andadenial of Natural Justice — Full Bench further found existence of a provision similar to section 118 of the Commonwealth Industrial Relations Act, however useful it might be was not a sine qua non to the exercise of jurisdiction in demarcation matters by the Commission — Full Bench found Commission had power to demark work and determine coverage but not alter Union Rules — Full Bench found insufficient evidence to find that the dispute occurred in the Building Construction Industry, hence the scope of the Building Trades (Construction) Award, Commission gave too much weight to the effects of differences in pay between the callings and failed to account for the uncontroverted evidence of unilateral action of the Respondent to impose a practice and its Industrial Record — Full Bench stated it was the right of a party to submit bias to a Tribunal, it was aware of its duty to disqualify itself in a case of actual or apparent bias, but that it was not assisted by gratituitous remarks which might have the effect of colouring the record of proceeding before it — Upheld and Remitted — UFTU and CMEU and Others — Appeal No. 2723 of 1989 — Sharkey P., Negus C, George C. — 15/6/90 — Building Construction

Application to registerorganisation by amalgamating two organisations—Objector argued amalgamation would cause competition between unions in the industry and destroy the traditional industrial harmony created by the Objector and one of the amalgamatingunions — Full Bench reviewed Rules, Industrial Relations Actand authorities to and found as there was nochange in the scope of eligibility by amalgamating the two unions then section 55(5) of the Act did not apply when there was no mandatory requirement to refuse an application in a case of overlapping or potential overlapping — Full Bench further found to hold null and void any acts done in error in the discharge of the duty pertaining to advertising the application cost upon the Registrar would work serious general inconvenience or injustice to or upon persons who had no control over those entrusted with the duty under the Act — Granted — FMWU and Another — No. 212 of 1990 — Sharkey P., Coleman C.C., Negus C. — 20/7/90 — Unions

Applications for new awards to cover enrolled nurses employed by registered dental and medical practitioners and in pathology clinics, the Red Cross Blood Transfusion Service, independent day and boarding schools and in the provision of community and occupational health in the Government sector — Royal Australian Nursing Federation lodged objections due to the coverage of the Transfusion Service and Community and Occupational Health in Government sector and its claim to include enrolled nurses in Nurses (Independent Schools) Award — Applicant claimed Federation gained such coverage by legislative accident and that enrolled nurses under its own coverage had superiorconditions — Respondent objected on various grounds including preference for industry, enterprise or extension of current awards and a lack of numbers in dental and medical surgeries and schools — Commission found applicant did not establish on merits of the case that the awards should be — Dismissed — FMWU v Doctors Da vies, Pavlos and Singh, Amelia Heights Medical Centre and Others — Nos. A21, A31, A32 of 1987 and A4 of 1989 — Fielding C. — 4/5/90 — Health

Application to vary award by abolition of Yardman classification — Parties sought variation to overcome demarcation disputes and streamline maintenance operations — Commission satisfied that the amendments were within State Wage Principles — Granted — Hamersley Pty Ltd and CMEWU v AMWSU and Others — No. 1481 of 1990 — Fielding C. — 16/10/90 — Mining

Appeal against decision of Commission (70 WAIG 2386) re dismissal of application to insert new classification into award — Appellant argued Commission erred in fact and finding primary function of new position was controlling trains rather than working signals and safe working apparatus — Full Bench found there was sufficient evidence for the Commission at first instance to find the position was closely enough related to a position in another award to refuse the application — Dismissed — IRU and WAGRC — Appeal No. 957 of 1990 — Sharkey P.. Coleman C.C., Parks C. — 2/11/90 — Railways

Appeal against a "finding" of the Full Bench (70 WAIG 3044) that an application to it for enforcement for proceedings under section 84A have improved — Question to be answered was whether that finding amounted to a "decision" capable of being appealed to the Industrial Appeal Court under section 90 of the IR Act — IAC found section 34(1) makes it mandatory that the decisions of Commission shall be in form of award, order or declaration and shall be signed and delivered by Commission — Section 36 requires decisions of the Commission to be sealed, deposited in the office of the Registrar and made open for inspection — As a finding in this case is not processed in the manner provided by sections 34 and 36 IAC found that it was not a decision subject to appeal under section 90 and this appeal was therefore incompetent — Dismissed — CMEWU and IFTIU — IAC Appeal No. 5 of 1990 — Roland J. (DP), Nicholson and Walsh J.J. — 22/8/W — Unions

Conference referred re demarcation dispute over rigging work — Commission found it had power to deal with issue under both IR Act and Occupational Health Safety and Welfare Regulations 1988 and it more appropriate to interpret the regulations — Commission reviewed definition of "construction site" and "workplace" and found that work should be carried out by fitters where "construction work" was not being carried out — Ordered and delcared accordingly — SEC and AMWSU and others — No. CR666 of 1990 — Salmon C. — 16/10/90 — Electricity Supply

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70 W.A.LG. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE

CUMULATIVE DIGEST—continued

DEMARCATION—continued 3Matter remitted on Appeal (70 WAIG 1653) to Commission in Court Session for further hearing and determination re demarcation dispute — Appeal Court directed CICS to determine as a matter of fact which operators of which plant operated that plant as their usual employment as a builders labourer—CMEU argued BLF coverage should be confirmed to builders labourers who operate Bobcats occasionally and incidentally to their substantial labouring duties — MBA intervened in support of BLF — CICS found on evidence Builders Labourers often spent a large proportion of time operating equipment as a usual incident of their employment, as tools of the trade, but did not do nothing but operate such plant — Ordered Accordingly — ABLF and Another and Civil and Civic Pty Ltd and Others — No. CR1511 of 1988 — Coleman C.C., Fielding C, Beech C. — 6/9/90 — Building Construction 3572

DIRT MONEY - Conference referred re dispute over which circumstances should lead to payment of "dirt money" pursuant to Award — Applicant

Union claimed tasks additional to those recognised by Respondent should attract payment — Respondent argued, such tasks should only attract penalty in unusual circumstances and that rate of pay encompassed and envisaged disabilities relating to dirty conditions in offset printing process — Commission noted that whilst Respondent's argument could underpin an application for the abolition of the disability allowance that was not the task at hand — Commission made finding of which tasks should attract the allowance and directed that in exceptional circumstances other duties could be authorised for payment by Pressroom Manager — Delcaration — PKJU and WA Newspaper Ltd — No. CR308 of 1990 — Negus C. — 6/7/90 — Printing (Newspaper) 2932

DISABILITIES — 2Appeal against decision of Commission at (70 WAIG 1597) re site allowance — Appellant argued that there had been no new conditions to warrant a new allowance under the Allowances Principle, the Commission erred in its consideration of evidence and not finding that the Award did not adequately provide for such conditions — Full Bench reviewed evidence and on majority found Commission had not erred in its discretion in, inter alia, admitting predated evidence — Majority of Full Bench found Commission had erred in making an order operating after the work had ceased and in the limits given to allow for the duration of particular conditions — Dissenting opinion was in part non-acceptance that the nuisance caused by flies was outside the contemplation of the Award — Upheld and remitted — SEC and ETU and Others — Appeal No. 292 of 1990 — Sharkey P., Fielding C, Kennedy C. — 15/6/90 — Electricity Supply

Conference referred forhearingand determination reclaim for lost time re industrial action due to safety issue i.e. infestation of flies — Commission found on evidence neither resolution of safety grievance procedures, nor resolution of grievance procedures were followed in accordance with Site Agreement and that the industrial action was unnecessary — Dismissed — BTA and Others v. MBA on behalf of Sabemo (WA) Pty Ltd and Another — No. CR734(2) of 19% — Beech C. — Construction

Conference referred for hearing and determination re claim for provision of fly screen doors and insert controls for amenities sheds — Commission expressed the view that the matter would not have normally required the attention of the Commission and that the issue may have been exaggerated in the unions submissions — However, because matters had been raised in Safety Minutes and other measures of the Respondent had not addressed the issue of flies the claim should be granted to address the problem raised — Granted — BTA and Others and MBA on behalf of Sabemo and Another — No. CR734(1) of 1990 — Beech C. — 25/9/90 — Building/Construction 2Appeal against decision of Commission (70 WAIG 1940) re dismissal of site allowance claim — Appellant argued Commission's decision was against the weight of evidence and Commission had erred in failing to give consideration to previous decision with respect to similar sites — Full Bench found Commission was bound to consider the claim in accordance with Sapre's case, the award in section 26 of the IR Act and had not made a palpable error in assessing the evidence — Dismissed — BLF and G. and R. Constructions — Appeal No. 914 of 1990 — Sharkey P., Halliwell SC., George C. — 16/11/90 — Building Construction

DISCRIMINATION - Claim re unfair dismissal seeking reinstatement — Applicant claimed dismissal due to criminal record unfair — Respondent argued

dismissal necessitated by concern about impact of applicant's presence on business and staff — Commission found on authorities cited that in the circumstances dismissal was unfair and reinstatement was ordered by consent of the parties — AG. Stocks v. Narribri Nominees Pty Ltd trading as Tyre Mart Bunbury — No. 1122 of 1990 — Fielding C. — 16/8/90 — Retail

Application for a General Order re New Standard Maternity Leave Provisions for Awards and Agreements — Applicant (TLC) argued that some awards did not contain maternity leave provisions should be corrected by a General Order and the current standard was discriminatory and contrary to the Equal Opportunity Act 1984 — Interveners submitted their various positions with respect to the nature of such a General Order — CWAI argued question of la w was for the EEO Commission and on medical grounds — CICS found Test Case of Federal Commission, nor EEO Act were bars to Commission dealing on industrial matter — CICS found applicant had not established that previous CICS conclusions over 52 week leave limit were unfounded or that the existing compulsory leave provision were unfair or unreasonable and that there had been no ruling made by the Equal Opportunity Tribunal — Furthermore the granting of an order for the Public Sector would not remove distinctions within the public sectors in maternity leave entitlements and that it was only for want of application that any award did not contain the existing standard — Dismissed — TLC and CWAI and Others — No. 62 of 1989 — Coleman C.C., Gregor, Kennedy C. — 13/7/90 — All Industries

Entitlement of union membership — Applicant was refused membership ofan organisation, union application and sought ruling on matter — President found from unions rule that the respondent union had no option but to admit applicant to its membership — Furthermore President found applicant had established on the balance of probabilities that he was and is employed as a crane driver — Granted — Leavey W.A. and CMEWU — No. 877 of 1990 — Sharkey P. — 1/8/90 — Union

EMPLOYEE — Claim re contractual entitlement — Applicant claimed underpayment of wages and sought payment for outstanding proportion —

Respondent argued applicant was an independent contractor and alleged invoices tendered for payment for services rendered were paid — Commission found applicant to be an employee and accepted evidence that invoices were signed by applicant under extreme duress as a desperate means of obtaining funds — Granted — Wills S. and Fire Power Holdings Pty Ltd trading as Perth Social Times — No. 105 of 1990 — Fielding C. — 18/6/% — Print Media 2464

Claim re unfair dismissal and contractual entitlements — Applicant claimed payment in lieu of notice from an implied term of his contract for reasonable notice but question of reinstatement was not addressed — Respondent argued Applicant was not an employee but an independent contractor and in any event termination of the contract was not unfair—Commission found on the evidence and with reference to authorities cited Applicant was an independent contractor thus the Commission was without jurisdiction — Dismissed — Pagoda G.M. v. Snowfresh (Australia) Ltd — No. 2766 of 1989 — Fielding C. — 7/5/% — Food (Retail) 245?

(Ivii)

CUMULATIVE DIGEST—continued

EMPLOYEE —continued Claim re unfair dismissal and contractual entitlements — Applicant withdrew dismissal claim and sought salary arrears, payment in

lieu of notice, rental subsidy and motor vehicle lease instalments pursuant to oral agreements — Respondent disputed Applicant s description of contract, claimed Applicant was a consultant not an employee and that the Applicant had withdrawn from the contractual arrangement — Commission found from evidence and on the balance of probabilities that the parties had a contract for services thus the Applicant was not an employee and the Commission was without jurisdiction — Dismissed — Mohr H.AU. v. Pacific Dental Corporation — No. 508 of 1989 — Gregor C. — 18/5/90 — Dental Services

Claim recontractural entitlements — Applicant claimed wages, payment in lieu of notice, holiday pay and income foregone on basis of an implied contract — Respondent denied existence of any contract between the parties —Commission found from evidence and authorities that applicant was not an employee and therefore Commission was without jurisdiction — Further, Commission determined that, in any event, in so far as the applicant relied upon implied terms of contract he had not made out those terms — Dismissed — Ringshaw N.A. v. Inkam Pty Ltd — No. 2686 of 1989 — Gregor C. — 20/7/90 — Diving Industry

•^Appeal against decision of Special Board of Reference (70 WAIG 1979) re Long Service Leave entitlements — Appellant argued Board of Reference had placed too much emphasis on the act of physical control rather than the entitlement to control and place too much emphasis of the absence of notices of termination in determining the employer for the material times — Commission in Court Session reviewed authorities. Long Service Act and Industrial Relations Act and found the appeal against a Board of Reference was limited to the memorandum of facts found by the Board — The Commission in Court Session should be slow to interfere with determiantions of such a Board except where it is satisfied that they were not reasonably open to find — Commission in Court Session reviewed "unfortunate" history of the claims, further authorities and found that control was more often than not exercised by employees of the Appellant — Further there was ample evidence for the Board of Reference to conclude that the Respondents were employed by the Appellant rather than another company — Verbatim Reporters (1980) and Purvis L. and Others — No. 966 of 1990 — Fielding G, Kennedy C, Parks C. — 14/8/90 — Court Reporting 3 Application to vary Award re Travelling Allowance — Applicant Union sought increased Allowance to maintain real value against a new tax ruling and provision of a bus service to shift employees in lieu of the allowance — Respondent argued there was no anomaly or inequity and against the bus service on economic grounds—The Minister and CWAI intervened in opposition to the claim — CICS found tax import was not a consideration the Commission could entertain under the Anomalies and Inequities Principle — Moreover CICS found Applicant had not demonstrated the extent of the inequity or identified the relevant factors in determining the appropriate allowance which would then form the basis upon which the allowance would be adjusted to ensure the inequity did not re-emerge — Dismissed — CMEUand SECWA—No. CR243 of 1990—Coleman C.C., Salmon, C., George C. — 2/8/90 — Electricity Supply

Complaint re alleged failure to pay Annual Leave entitlements pursuant to an award — Industrial Magistrate found on evidence that the Complainant was, at the material terms, employed as managing director and not a plasterer, was in complete control of the company concerned and hence not covered by the award — Dismissed — Miles P. and Insul-Plast Pty Ltd — Complaint No. 137 0f 1990 __ Brown S.M. — 1/8/90 — Building Construction

Application for contractual entitlement — Applicant claimed entitlements not subject of an award and sought payment of moneys at $10.00 per hour for hours worked — Respondent questioned jurisdiction, argued payments had been made for all hours worked as per documentation and, asserted applicant was a contractor — Commission noted question to be answered was whether relationship was indeed that of an employee and from evidence found relationship was not that of a contract of service between an employee and an employer, therefore Commission had no jurisdiction to deal with claim — Dismissed — Burkin P J. and Atlas Farms Pty Ltd - No. i 132 of 1989 — Kennedy C. — 15/8/90 — Farming

Claim rccontractual entitlements — Appellant claimed wages earned and sustenance allowance — Respondent argued applicant had been paid some moneys but the outstanding amount was the liability of another company which had taken over applicant's employment. Commission found on evidence applicant had not received the sum indicated by respondent and that liability lay with respondent for all moneys earned as the applicant was not made aware of and not had not agreed to change of employer — Granted — TKF Vass v. Trafalgar Mining Co — No. 581 of 1990 — Gregor C. — 3/10/90 — Mining

Claim re contractual entitlement — Commission found on evidence that the respondent was not the applicant's employer and in the circumstances the claim for denied contractual benefit was not made out — Dismissed — M. Frost v. D.W. Webster, Brunswick Country Club — No. 1416 of 1990 — Fielding C. — 9/10/90 — Hospitality

Claim re unfair dismissal seeking reinstatement or in the alternative contractual entitlements — Commission heard as preliminary point question of whether there was a contract of service or a contract for services — Commission examined indicia from authorities cited and the evidence and determined that contract was for services thus applicant was not an employee and Commission was without jurisdiction — Dismissed — P. Inglisv. Nor-West Seafoods Pty Ltd — No. 997 of 1990— Halliwell S.C — 25/10/90 —Fishing

ENFORCEMENT OF AWARDS/ORDERS — Application for enforcement of Act — Full Bench found on admission of respondent a failure to comply with summons of the

Commission and accepted the undertaking given in accordance with section 84(AXa) of IR Act — Ordered Accordingly — Registrar and Secretary CMEU — No. 374 of 1990 — Sharkey P., Martin C., Salmon C. — 16/5/90

Application for enforcement of Commission order re removal of picket line — Applicant argued failure to remove picket fine was a clear and unequivocal contravention of Commission order and sought imposition of maximum fine — Respondent advised that facts were not in issue, however submitted that its summons to conference and orders were issued pursuant to Federal Act and not State Act — Full Bench found failure to comply with Commission's order proven, however exercised its discretion and accepted respondents undertaking as to future conduct — Ordered Accordingly — Registrar and Australian Federation of Air Pilots — No. 441 of 1990 — Sharkey P., Coleman C.C., Fielding C. — 4/5/90 — Transport/Pilots

Complaint re alleged failure to pay Annual Leave entitlements pursuant to an award — Industrial Magistrate found on evidence that the Complainant was, at the material terms, employed as managing director and not a plasterer, was in complete control of the company concerned and hence not covered by the award — Dismissed — Miles P. and Insul-Plast Pty Ltd — Complaint No. 137 of 1990 — Brown S.M. — 1/8/90 — Building Construction

Application for enforcement of Act — Applicant union alleged that Respondent Union had breached an order of the Commission re demarcation an eligibility to enrol members — Respondent argued Full Bench reviewed authorities. Industrial Relations Act and found the "Order" to be an "Order" as its meaning read in section 66(2) of the Industrial Relations Act and that such an Order may be "a declaration of Interpretation" — Full Bench found that there was a "defence of mistake" on honest and reasonable belief, metis rea, but that the Respondent had not discharged the evidential burden and that there was various liability on the Respondent for the acts of its servants or agents — In Supplementary Reasons Full Bench found that no mitigating circumstances, a serious failure to comply and also given a lack of undertakings as to future conduct that the maximum penalty, short of deregistration proceedings should apply — Further that costs ought be awarded — Full Bench also found Industrial Appeal Court regulations deliberately used the words judgment or order because it would create an intolerable situation ifevery time there was a finding the whole proceedings had to be stayed pending the Appeal to the Industrial Appeal Court — Full Bench found right to submit bias was waived, noted that the submission was made after the breach was established, that the Full Bench was constrained in its constitution by the legislation and was awareof its duty to disqualify itself— Full Bench found it had a duty to continue to hear the matter and did not grant adjournment sought by Respondents — Proven — UFTU and CMEWU — No. 2633 of 1989 — Sharkey P.. Coleman C.C.. Salmon C. — 5/4/90 — Building Construction/Furniture Manufacture

CUMULATIVE DIGEST—continued

ENFORCEMENT OF AWARDS/ORDERS—continued 2AppeaI decision oflndustrial Magistrate following further hearing and determination after remittal (70 WAIG 1570) re pursuance of severance payment claim contrary to award and State Wage Principles — Majority Full Bench reviewed principles applying to appeals against decision of, admissability of evidence and standard of proof before an Industrial Magistrate — Majority of Full Bench found the prescription that the Justice Act apply to section 83 of the IR Act matters was an an unnecessary complication to practices and procedures and a contradiction by regulation — Majority of Full Bench found on evidence rather than there being no case to answer, there were evidence and asssertions to support the finding of a breach of Award/Wage Fixing Principles — Dissenting Commissioner reviewed authorities as to the nature of the union as a principle party and concluded there was no evidence of palpable error on the part of the Industrial Magistrate — Upheld — Registrar v. AMWSU — Appeal No. 600 of 1990 — Sharkey P., Fielding C, Beech C. — 25/9/90 — Construction 2Appeals against decision oflndustrial Magistrate as a test case (70 WAIG 2391) re breach of award — Appellants argued award did not apply to the industry in which they operated upon a proper construction of its scope and area and did not apply to the operation of those bound by an Industrial Agreement — Respondent argued the agreement should not have been registered — Full Bench found that the award covered employers and employees referred to in the agreement and was not persuaded that any wrong principle was applied in the Jubilee Jackpot case — Full Bench reviewed IR Act and Industrial Arbitration Act and found what existed was an award and an agreement deemed to be a consent award almost identical save for rates of pay — Full Bench reviewed authorities and found that where the award purported to cover the field, it should prevail over a consent award of limited scope, that the Industrial Magistrate has sufficient evidence to support the finding of the breach and could not have erred in any manner involving section 26 of the IR Act — Dissenting Commissioner reviewed the history of the award, agreement and legistation and found the employees in question save those of one appellant were governed by the agreement — Dismissed — Hungry Jacks Pty Ltd and Others v.G.R. Wilkins, OIR and Others — Appeal No. 791 of 1990 and 793 of 1990 — Sharkey P., Fielding C., Beech C. — 2/11/90 — Fast Food

Complaint re failure to pay overtime in accordance with an award and related 38 hour week agreement — Industrial Magistrate reviewed shift work clause ofaward, agreement and the decision oftheCommission to find the purpose of the award provision was to discourage management requiring a shift worker to work parts of a week on afternoon or night shift rather than a straight five day shift — Industrial Magistrate, though not agreeing with all respondents submissions, found it would be a perverse result if the provision was held to mean the employee was entitled to overtime rates for all afternoon shifts worked prior to his rostered day off — Industrial Magistrate found on balance of probabilities complainant had failed to prove a breach — Dismissed — ETU v. Hon. Minister for Health — Complaint No. 48 of 1990 — Brown S.M. — 2/11/90 — Laundry and Linen Services

HOURS OF WORK - Application to vary Award by increasing wages pursuant to Structural Efficiency Principle — Respondent argued agreed proposed

changes did not satisfy the Structural Efficiency Principle so as to warrant ratification of $15.00 wage increase — Commission reviewed authorities and found it was not obligated to follow what had occurred in a Victorian Decision — Commission determined matters of increase in spread of hours of work and provision for time of in lieu of overtime — Commission split application so as to deal with matters of disagreement at a later stage — Granted in Part and Adjourned — FCU and HPC Pty Ltd and Others - No. 1583A and B of 1989(R) — Parks C. — 13/6/90 - Clerical

Application for new award — Amalgamation of two awards, to give effect to first stage of Structural Efficiency Principle — Commission noted rationalisation of a number of conditions and found parties committed to restructuring and efficiency — Ordered Accordingly — Operative Plasterers and Plaster Workers Federation and HB Brady and Co and Others — No. A29 of 1989 — Beech C. — 24/4/90

Applications to vary Awards re Second Tier and Structural Efficiency Wage Increases — Commission granted three per cent wage increase for same reasons as a related application and then gave reasons for decision to examine matters of hours of work and income maintenance — Applicant Union argued tradeoffs sought by employers were outrageous, beyond the scope of what was appropriate in arbitral proceedings for second tier wage increases and that an agreement reached in the Bakers' (Metropolitan) Award was unconscionable — Respondents argued changes to hours and penalty rates agreed in the Bakers' (Metropolitan) Award should be fiowed to the subject Awards and that the differences between the Awards had a deteriorating effect on business competition — Commission reviewed reasons for decision in the other application and was not prepared to "inflict" by arbitration the consent reached in another Award on a strongly dissenting party — Granted — Bakers Union and Bakewell Foods Pty Ltd and Others — Nos. 2294 and 2295 of 1989(R) — Halliwell S.C. — 6/4/90 and 21/5/% — Bakeries

Applications to vary Awards pursuant to Structural Efficiency Principle on the basis of a Memorandum Agreement with the Awards' Respondents — Commission found Award amendments submitted and commitments given by parties were in toto sufficient to approve payment of the first Structural Efficiency Wage Increase — Commission further dealt with issues where parties had not reached complete accord, including demarcation, part-time employees, casual and temporary employees, hours, relieving and higher duties, whether to insert a clause into the Agreement re-stating part of the National Wage Decision, and performance appraisal — Granted — ANF and Alfred Carson Hospital and Others — Nos. 2708-2711 of 1989 — Negus C. — 2/7/90 — Health

Application to vary award re Structural Efficiency Wage Adjustment — Applicant employers sought changes to Hours of Work, Allowances. Penalty Rates and Second Tier Wage Adjustment on the basis of uniformity within the industry — Further, the joinder of an employer organisation to the Award — Respondent union argued employees were part of the clerical industry and that there should be consistency with a decision on the Commercial Clerks Award in Victoria — Further that the Second Tier Wage negotiations should be left the subject of another application lodged by the union — Commission was not prepared to accede to SecondTierclaims as procedures, e.g. advertising had not been met — Commission found parties differing views on the industry were both correct and not incompatible and the Victorian Decision was to be considered, not necessarily adhered to — Commission determined matters of. inter alia, changes to flexible arrangements of Hours of Work, Time of in Lieu of Overtime Pay, Penalty Rates. Annual Leave Spliting, Wages and Classifications — Commission finalised matter of Record Clause in Supplementary Reasons — Granted in Part — Booragoon Motor Hotel and Others v. FCU — No. 2376 of 1989(R) — ParksC. — 2/ 8/90 — Hospitality (Clerks)

Claim re unfair constructive dismissed seeking reinstatement —- Applicant claimed change in roster from permanent night shift to a rotating shift amounted to constructive dismissal — Respondent argued injury sustained by applicant resulted in applicant being able to do light duties available only in the day shifts — Furthermore due to changes in the hospital work was only available on a rotating roster — Commission found from evidence provided in favour of respondent and noted event though case law cited by Counsel was relevant, each unfair dismissal case has to be treated in accordance with its own facts — Dismissed — McDowell E. and Swan Cottage Home Inc — No. 830 of 1989 — Gregor C. — 17/11/89 — Nursing

Application for new Award — Parties presented submissions and evidence regarding the proposed coverage of hydrographic surveyors, wage rates and a 38 hour week — Commission found that hydrographic surveying is within the surveying industry and should be included in scope of award, that the wage rates claimed by consent were warranted and should receive the three percent structural efficiency adjustment and that a 38 hour week was a Commission standard — Parties were directed to prepare final draft award — ADSTE v. Association of Consulting Surveyors and Others — No. A2 of 1988 — Halliwell S.C. — 27/3/90 — Surveying

2Appeal against decision of Commission (70 WAIG 2922) re starting and finishing times and place for crane drivers — Appellant argued inter alia in finding that a claim of a Second Tier Wage Fixing Principle Agreement had never been implemented or was overriden — Respondent argued the wording of a letter replaced the arrangements of a clause — Full Bench reviewed authorities and found the decision was not a discretionary one. there was a waiver in the sense of an election between consistent rights and the Commission did not err — Dismissed — Fremantle Port Authority v. CMEWU — Appeal No. 1002 of 1990 — Sharkey P.. Coleman C.C., George C. — 5/11/90 — Construciton — Port Facilities

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WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 70 W.A.I.G.

CUMULATIVE DIGEST—continued

HOURS OF WORK —continued Application for a first Award to cover a single enterprise — Objections of other Unions met in negotiations — Commission found as

Award contained existing conditions of employment it complied with State Wage Fixing Principles and it had regard to the Structural Efficiency Principle — Commission further made particular comments as to Rates of Pay, Long Service Leave, Hours and Meal Money — Granted — HSOA v. GSI — No. A8 of 1989 — Fielding C. — 25/9/90 — Supported Employees Industry

Application to vary award re Second Structural Efficiency Wage Adjustment — Although parties had not reached agreement on all areas intended as of the first instalment Commission was satisfied that they had complied with the spirit and intent of the principles and made further comment as to the need for modernisation within the Industry — Commission found no good reason to award retrospectivity and depart from the Commissions norm — Granted in Part — LEDFCU and WAGRC — No. 620 of 1990 — Fielding C. — 6/9/90 — Railways

INDUSTRIAL ACTION - Conference re summary dismissal of a worker — Commission found it necessary to prevent a deterioration in Industrial Relations

and equitable to re-employ worker pending hearing and determination of claim for reinstatement — Ordered Accordingly — Multiplex Constructions Pty Ltd and BLF — No. C211 of 1990 — Beech C. — 15/3/90 — Building Construction

Conference referred re whether a dispute settlement procedure should be inserted in an Award — RCB reviewed history of establishing an agreed Dispute Settlement Procedure for the whole of the State's rail industry — RCB found on the particular application that as the parties had not taken action to proceed for a long period and the general history of the parties was that disputes were usually resolved through proper avenues, the application and Interim Order should lapse — Furthermore that it was not necessary for the RCB to force such a course of action on the parties — Ordered Accordingly — ROU and WAGRC — No. CR694 of 1989 — Kennedy C, Phillips, Thompson — 22/6/90 — Railways 2Application for enforcement of Commission order re removal of picket line — Applicant argued failure to remove picket line was a clear and unequivocal contravention of Commission order and sought imposition of maximum fine — Respondent advised that facts were not in issue, however submitted that its summons to conference and orders were issued pursuant to Federal Act and not State Act — Full Bench found failure to comply with Commission's order proven, however exercised its discretion and accepted respondents undertaking as to future conduct — Ordered Accordingly — Registrar and Australian Federation of Air Pilots — No. 441 of 1990 — Sharkey P., Coleman C.C., Fielding C. — 4/5/90 — Transport/Pilots

Conference referred re repayment for lost time — Applicant union claimed payment relating of three stoppages over health and safety issues — Respondent claimed union did not follow safety procedures — Commission found the manner in which Respondent dealt with to the issues had contributed to deterioration of industrial relations thus, and with regard to authorities cited, payment was ordered for lost time on those occasions — Granted in Part — ABLF v. Geraldton Building Company — No. CR225 of 1990 — Beech C. — 13/7/90 — Construction

Conference referred for hearing and determination re for lost time — Applicant union argued strike was justified on safety grounds and was a last resort following failure of management to address braking problems on/or trains — Respondent argued was not extremely over safety issue but a standard response of the Applicant to the standdown of a member — Commission found on evidence strike occurred because of genuine and reasonably held concerns over safety, the future of the Respondent to ensure that its policy was effected consistently and the consequent deterioration and trust — However, Commission strike so far as it concerned compliance with an orderofthe Commission was not over a safety issue — Granted in Part—CMEWUand HI Pty Ltd — No. CR798 of 1989 — Kennedy C. — 9/8/90 — Iron Ore

2 Appeal against decision of Commission at (70 WAIG 553) re payment for lost time over safety issue — Appellant argued Commission erred in applying test rather than provisions of Occupational Health, Safety and Welfare Act and that Commission had no basis on the facts to exercise power — Full Bench reviewed IR and Occupational Health, Safety and Welfare Acts and evidence at first instance — Full Bench found that by virtue of section 26(1) of the OHSW Act and the criteria of prohibition and improvement notices the employees must have had reasonable grounds to believe that to continue work would expose them to the risk of imminent and serious injury — Furthermore Full Bench found there was clearly sufiicient notification under the OHSW Act whether by union official or not — no reasonable alterantive work available — Full Bench reviewed authorities and found powers of Commission to settle a dispute were unrestricted and not fettered by OHSW Act — OHSW Act was not a code and that the Commission had not erred in its discretion — Dismissed — TransfieldPty Ltd and BTAand Others — Appeal No. 230of 1990 — 10/8/90 — Sharkey P., George C, Beech C. — Construction

Conference referred forhearingand determination reclaim for lost timere industrial action due to safety issue i.e. infestation of flies — Commission found on evidence neither resolution of safety grievance procedures, nor resolution of grievance procedures were followed in accordance with Site Agreement and that the industrial action was unnecessary — Dismissed — BTA and Others v. MBA on behalf of Sabemo (WA) Pty Ltd and Another — No. CR734{2) of 1990 — Beech C. — Construction

2Appeal against decision of Commission (70 WAIG 2917) re order issued to prevent deterioration of industrial relations pending determination of substantive issues — Appellant argued decision was contrary to section 26 and section 44 IR Act — Full Bench found order purported to vary previous conciliation order in one respect, that the interim nature of both, such that the order appealed was a finding, did not finally dispose of the matter and was not of such importance that in the public interest an appeal should lie under section 49 — Dismissed — WA Newspapers Ltd and PKIU — No. 1154ofl990 — Sharkey P.. George C, Beech C. — 5/11/90 — Newspapers ■■■■■•■ ;■■■

2Appeal against decision of Commission (70 WAIG 230) re payment for lost time — Appellant argued Commission erred in concluding that employees had a reasonable concern or apprehension re safety and that insufficient weight wasgiven to evidence of company's concern and of the clean up at the site — Furthermore, it was argued Commission misinterpreted the company's acknowledgment of concern re employees safety — Question of permission of Counsel to appear — Full Bench found no substance in submission that Commission at first instance had erred as a real test was whetheremployees were reasonably entitled to believe that a hazard existed so as to justify action, to which the answer was yes — Dismissed — Western Mining Corporation Ltd v. AWU and Others — Appeal No. 2794 of 1989 — Sharkey P.. Beech C. Parks C. — Mining (Nickel) 2Appeal decision of Industrial Magistrate following further hearing and determination after remittal (70 WAIG 1570) re pursuance of severance payment claim contrary to award and State Wage Principles — Majority Full Bench reviewed principles applying to appeals against decision of, admissability of evidence and standard of proof before an Industrial Magistrate — Majority of Full Bench found the prescription that the Justice Act apply to section 83 of the IR Act matters was an an unnecessary complication to practices and procedures and a contradiction by regulation — Majority of Full Bench found on evidence rather than there being no case to answer, there were evidence and asssertions to support the finding of a breach of Award/Wage Fixing Principles — Dissenting Commissioner reviewed authorities as to the nature of the union as a principle party and concluded there was no evidence of palpable error on the part of the Industrial Magistrate — Upheld — Registrar v. AMWSU Appeal No. 600 of 1990 — Sharkey P., Fielding C. Beech C. — 25/9/90 — Construction

2Appeal against decision of Commission (70 WAIG 2922) re starting and finishing times and place for crane drivers — Appellant argued inter alia in finding that a claim of a Second Tier Wage Fixing Principle Agreement had never been implemented or was overriden — Respondent argued the wording of a letter replaced the arrangements of a clause — Full Bench reviewed authorities and found the decision was not a discretionary one, there was a waiver in the sense of an election between consistent rights and the Commission did not err — Dismissed — Fremantle Port Authority v. CMEWU — Appeal No. 1002 of 1990 — Sharkey P., Coleman C.C.. George C. — 5/11/90 — Construciton — Port Facilities

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INDUSTRIAL MATTER — Claim re unfair dismissal seeking reinstatement — Respondent alleged Commission was without jurisdiction and further that the

matter was not an industrial matter but if not so found denied that the dismissal was unfair — Commission found from the evidence and with reference to authorities cited that the Federal Award to which the Applicant had been subject and the provisions of section 29(i) of the State Act are inconsistent and therefore the Commission is without jurisdiction — Dismissed — Eatts W.G. v. General Manager, Aboriginal Hostels Limited — No. 2625 of 1989 — Fielding C. 22/6/90 — Accommodation (Hostels)

Conference referred re claim for wages for lost time over health and safety issues — Applicant Union claimed that stoppages on two construction projects were justifiable and did not relieve the respective employers of the obligation to pay fortimelost and drew on decisions of the Commission as precedent for its claims — Respondents relied on guidelines contained within the Occupational Health, Safety and Welfare Act 1984 to support their opposing position — Commission noted that the matter was not referred under the Safety Act and was thus to be treated as an industrial matter — Furthermore Commission found payment was not due where reasonable alternative work had been offered and refused, or where another issue was under the guise of a safety issue — Payment allowed for one bonafide claim — Ordered Accordingly — CMEU v. Southdown Construction Co Pty Ltd and Others —■ No. CR139 of 1990 — Martin C. — 17/5/90 — Building Construction

Appeal against decision of Commission at (69 WAIG 3135) re claim for reinstatement on the grounds of unfair dismissal — Appellant argued Commission erred in finding employee had terminated her employment, left children unsupervised and in not giving due weight to all the circumstances—Applicant Union further argued Commission failed to consider the merits of the matter and that to "inquire into and deal with any industrial matter" by a combination of sections 7 and 23 of the Act was a phrase of very broad scope — Full Bench noted important distinction between a 29b(i) matter and a section 44 matter — Full Bench reviewed authorities, evidence and found that although the employee terminated her own services, the refusal to re-employ was an industrial matter and that the Commission therefore had jurisdiction and was bound to deal with the matter—Full Bench further found that what had occurred was not merely a gratuitous abandonment of the contract and, in the absence of a request for a re- employment order, a declaration as to the unfairness of the refusal to re-employ should issue — Upheld — FMWU and Anna Pineira trading as Aunty Joan's Child Care Centre — No. 2487 of 1989 —• Sharkey P., Coleman C.C., Salmon C. — 26/4/90—Child Care

2Appeal against decision of Commission re finding of jurisdiction to deal with the matter of employees being required to purchase housing as a condition of employment — Appellant argued inter alia "Home Ownership Plan" was not part of contract of employment. Commission failed to give full weight to the full terms of the contract of sale, misdirected itself in its reliance of authorities and the definition of industrial matter— Full Bench reviewed evidence, authorities, definitions, and the Industrial Relations Act and found the definition of industrial matter was wider than that considered by authorities relation to the Federal Act — Full Bench found there was a clear "custom" and "usage" within an industry that accommodation was clearly to be provided as part of remuneration and the fact that a house was purchased under separate contract did not detract from the fact that it occurred only because the parties are employer and employee — Dismissed — Hamersley Iron Pty Ltd and AMWSU and Others — No. 2619 of 1989 — Sharkey P., Coleman C.C., Gregor C. — 2/7/90 — Iron Ore Mining and Processing

2Appeal against decision of Commission at (70 WAIG 250) re demarcation dispute — Appellant argued, inter alia. Commission's order was beyond power, was contrary to a finding of the Commission concerning the same demarcation, that it was managerial prerogative as to what calling of employee was employed to do what work and that the Commission had used powers that were specifically granted to the Full Bench — Respondent argued section 44 of Industrial Relations Act necessarily limited the order to binding only the parties in relation to whom the matter was not settled and raised a question of bias in the Full Bench — Full Bench extensively reviewed authorities. Industrial Relations Act and evidence before the Commission at first instance to find matter before it an industrial matter which the Commission had jurisdiction to deal with at first instance — However, Full Bench found plain words of order extended its effect to all persons in the industry, which was beyond power under section 44 and a denial of Natural Justice — Full Bench further found existence of a provision similar to section 118 of the Commonwealth Industrial Relations Act, however useful it might be was not a sine qua non to the exercise of jurisdiction in demarcation matters by the Commission — Full Bench found Commission had power to demark work and determine coverage but not alter Union Rules — Full Bench found insufficient evidence to find that the dispute occurred in the Building Construction Industry, hence the scope of the Building Trades (Construction) Award, Commission gave too much weight to the effects of differences in pay between the callings and failed to account for the uncontroverted evidence of unilateral action of the Respondent to impose a practice and its Industrial Record — Full Bench stated it was the right of a party to submit bias to a Tribunal, it was aware of its duty to disqualify itself in a case of actual or apparent bias, but that it was not assisted by gratituitous remarks which might have the effect of colouring the record of proceeding before it — Upheld and Remitted — UFTU and CMEU and Others — Appeal No. 2723 of 1989 — Sharkey P., Negus C, George C. — 15/6/90 — Building Construction

3Application for a General Order re New Standard Maternity Leave Provisions for Awards and Agreements — Applicant (TLC) argued that some awards did not contain maternity leave provisions should be corrected by a General Order and the current standard was discriminatory and contrary to the Equal Opportunity Act 1984 — Interveners submitted their various positions with respect to the nature of such a General Order — CWAI argued question of law was for the EEO Commission and on medical grounds — CICS found Test Case of Federal Commission, nor EEO Act were bars to Commission dealing on industrial matter — CICS found applicant had not established that previous CICS conclusions over 52 week leave limit were unfounded or that the existing compulsory leave provision were unfair or unreasonable and that there had been no ruling made by the Equal Opportunity Tribunal — Furthermore the granting of an order for the Public Sector would not remove distinctions within the public sectors in maternity leave entitlements and that it was only for want of application that any award did not contain the existing standard — Dismissed — TLC and CWAI and Others — No. 62 of 1989 — Coleman C.C., Gregor, Kennedy C. — 13/7/90 — All Industries

'Appeal against decision of Full Bench (70 WAIG 8) not to allow appeal against decision of Commission to register Industrial Agreement — Appellant argued that section 41 and 29A of Industrial Relations Act 1979 when taken together require an Agreement which has been amended during proceedings to be advertised in the WAIG which had not occurred in this instance — Further Commission had exceeded its power by allowing Agreement to be amended other than provided by section 41(3) — Industrial Appeal Court found section 27( 1 )(1) gave Commission discretionay power to amend proceedings and that the changes to original Agreement did not require re-advertisement — Appellant also argued that one clause of the Agreement did not relate to an "industrial matter" and therefore registration of the Agreement was beyond the jurisdiction of the Commission — IAC found clause in question was an industrial matter and in any event the fact that the clauses of the Agreement were looked at as a whole were an industrial matter was sufficient — Appellant further claimed it had been denied natural justice and not being afforded the opportunity of putting the submissions about the amendments to the Agreement and also in not having the opportunity to "speak to the minutes" — IAC found Appellant had not applied to Commission to make submissions on the amendments so there could have been no denial of natural justice and that an intervener is not a "party" to proceedings and thus has no right under section 35 to speak to the minutes — Dismissed — Australian Bank Employees Union and Federated Clerks Union and Others — Appeal No. 14 of 1989 — Brinsden J., (President), Kennedy J., Rowland J. — 28/3/90 — Banking

Finding of jurisdiction re application for Order that employer will not require any worker to purchase any real property from it as a mandatory condition of employment — respondent housing arrangements were a pre-employment agreement not an incident of employment — Commission reviewed authorities. Industrial Relations Act and arrangements for having to find contrary to the Respondents assertions, hence the issue was an industrial matter — Decision only — AMWSU and Others v. Hamersley Pty Ltd — No. 185 of 1988 — Kennedy C. — 31/10/89 — Iron Ore

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INDUSTRIAL MATTER —continued zAppeal against decision ofCommission (70 WAIG 1146)reamendment to superannuation clause in award — Appeal based upon the

question of whether there is a choice available of superannuation funds — Question re jurisdiction and "Industrial Matter" — Full Bench from submissions found appellant had not established that Commission at first instance erred in the exercise of its discretion and further noted certain points as to why it was within the Commission's power and jurisdiction at first instance to decline to vary order, which without doubt related to an industrial matter— Dismissed — CWAI and SDA — Appeal No. 561 of 1990 — Sharkey P., Halliwell S.C., George C. — 27/9/90 — Wholesale and Retail 3544

INDUSTRY — 2 Appeal against decision ofCommission at(70 WAIG 250)redemarcation dispute — Appellant argued, inter alia. Commission's order

was beyond power, was contrary to a finding of the Commission concerning the same demarcation, that it was managerial prerogative as to what calling of employee was employed to do what work and that the Commission had used powers that were specifically granted to the Full Bench — Respondent argued section 44 of Industrial Relations Act necessarily limited the order to binding only the parties in relation to whom the matter was not settled and raised a question of bias in the Full Bench — Full Bench extensively reviewed authorities. Industrial Relations Act and evidence before the Commission at first instance to find matter before it an industrial matter which the Commission had jurisdiction to deal with at first instance — However, Full Bench found plain words of order extended its effect to all persons in the industry, which was beyond power under section 44 and a denial of Natural Justice — Full Bench further found existence of a provision similar to section 118 of the Commonwealth Industrial Relations Act. however useful it might be was not a sine qua non to the exercise of jurisdiction in demarcation matters by the Commission — Full Bench found Commission had power to demark work and determine coverage but not alter Union Rules — Full Bench found insufficient evidence to find that the dispute occurred in the Building Construction Industry, hence the scope of the Building Trades (Construction) Award, Commission gave too much weight to the effects of differences in pay between the callings and failed to account for the uncontroverted evidence of unilateral action of the Respondent to impose a practice and its Industrial Record — Full Bench stated it was the right of a party to submit bias to a Tribunal, it was aware of its duty to disqualify itself in a case of actual or apparent bias, but that it was not assisted by gratituitous remarks which might have the effect of colouring the record of proceeding before it — Upheld and Remitted — UFTU and CMEU and Others — Appeal No. 2723 of 1989 — Sharkey P., Negus C, George C. — 15/6/90 — Building Construction

Application to vary award re Structural Efficiency Wage Adjustment — Applicant employers sought changes to Hours of Work. Allowances, Penalty Rates and Second Tier Wage Adjustment on the basis of uniformity within the industry — Further, the joinder of an employer organisation to the Award — Respondent union argued employees were part of the clerical industry and that there should be consistency with a decision on the Commercial Clerks Award in Victoria — Further that the Second Tier Wage negotiations should be left the subject of another application lodged by the union — Commission was not prepared to accede to Second Tierclaims as procedures, e.g. advertising had not been met — Commission found parties differing views on the industry were both correct and not incompatible and the Victorian Decision was to be considered, not necessarily adhered to — Commission determined matters of, inter alia, changes to flexible arrangements of Hours of Work, Time of in Lieu of Overtime Pay, Penalty Rates, Annual Leave Spliting, Wages and Classifications — Commission finalised matter of Record Clause in Supplementary Reasons —Granted in Part— Booragoon Motor Hotel and Others v. FCU — No.2176of 1989(R) — Parks C. — 2/ 8/90 — Hospitality (Clerks)

Claimreregistration with Construction Industry Long Service Leave Payments Board — BOR examined work performed, definitions of construction industry and found definition of construction industry did not include brickpaving in and around private homes, hence the applicant was not required to register — Granted — Doug Ritchie Paving and the Construction Industry Long Service Leave Payments Board — Carrigg Registrar, Latter, Jones — 29/8/90 — Brickpaving

2AppeaI against decision of Commission (70 WAIG 2218) re award variation pursuant to Structural Efficiency — Appellant argued Commission at first instance erred in failing to allow respondent the opportunity to call evidence, failed to make any independent assessment of the merits of the case by adopting reasons applicable to other industries and awards, failed to have sufficient regard for newcommunity attitudes and finally erred in acting contrary to Wage Fixing Principles — Full Bench found, principle ofaudi alterant partem was breached. Commission had prevented itself from properly considering merits of case and failed to make an independent assessment and confirmed allegation that Commission at first instance erred in acting contrary to Wage Fixation Principles — Full Bench found decision ofCommission at first instance was void and on authority cited, be quashed — Upheld — Bread Manufacturers" (Perth and Suburbs) Industrial Union of Employers and Bakers, Pastrycooks and Confestioners Union — Appeal No. 916 of 1990 — Sharkey P., Coleman C.C., Fielding C. — 17/7/90 — Bakery 2Appeals against decision of Industrial Magistrate (70 WAIG 890) re breach of an award — Appellant argued Industrial Magistrate had erred in finding that the appellant was bound by the Transport (General) Award as there was insufficient evidence to support the findings of fact made — Full Bench reviewed authorities extensively, particularly that relating to the common object test, registration found inter alia that it may be arguable that the identity concerned can be determined only as they are at present rather than as the date of the award — Furthermore that was open on the evidence to the Industrial Magistrate to find as he did — Dismissed — Freshwest Corporation Pty Ltd v. TWU — Appeal Nos. 407-413 011990 — Sharkey P.. Beech C., Parks C. — 24/10/90 — Transport

2Appeals against decision oflndustrial Magistrate as a test case (70 WAIG 2391) re breach of award — Appellants argued award did not apply to the industry in which they operated upon a proper construction of its scope and area and did not apply to the operation of those bound by an Industrial Agreement — Respondent argued the agreement should not have been registered — Full Bench found that the award covered employers and employees referred to in the agreement and was not persuaded that any wrong principle was applied in the Jubilee Jackpot case — Full Bench reviewed IR Act and Industrial Arbitration Act and found what existed was an award and an agreement deemed to be a consent award almost identical save for rates of pay — Full Bench reviewed authorities and found that where the award purported to cover the field, it should prevail over a consent award of limited scope, that the Industrial Magistrate has sufficient evidence to support the finding of the breach and could not have erred in any manner involving section 26 of the IR Act — Dissenting Commissioner reviewed the history of the award, agreement and legislation and found the employees in question save those of one appellant were governed by the agreement — Dismissed — Hungry Jacks Pty Ltd and Others v.G.R. Wilkins, OIR and Others — Appeal No. 791 of 1990 and 793 of 1990 — Sharkey P., Fielding ('.. Beech C. — 2/11/90 - Fast Food

INTERPRETATION - WORDS AND PHRASES - Claim re contractual entitlement — Applicant sought reimbursement of study costs as per "Employment Agreement" on successful

completion of course — Respondent argued as a consequence of the operative date of "Agreement" it could be construed as a pro rata entitlement — Commission noted crux ofdispute goes to interpretation ofstudy leave clause and found in favour of Applicant as there was no express provision for a pro rata entitlement — Granted — Harrison J. and State School Teachers Union — No. 285 of 1990 — Kennedy C. — 24/5/90 — Union 2432

Application to vary Award re scope — Applicant sought to expand definition of construction industry to coveraward free areas — BLF objected on the grounds of incorrect advertising of application — Employers/Respondents argued wording may encompass activity beyond the stated intention — Commission found it in public interest and consistent with the State Wage principles to grant application — Commission, however, inserted provision that award would not apply to employees covered by existing awards — Granted — CMEU and Adsigns Pty Ltd and Others — No. 2651 of 1989 — Beech C. — 6/6/90 — Construction 2661

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CUMULATIVE DIGEST—continued

INTERPRETATION — WORDS AND PHRASES—continued Application for interpretation of an Award re whether payment for annual leave was based on actual shift hours or 38 hours only —

Commission found on examination of Award that the amounts which may be included in the calculation all referred to rates in ordinary time, which hours averaged 38 per week and did not include overtime hours — Dismissed — Brick Tile and Pottery Union and Bristile Limited — No. 1570 of 1989 — Beech C. — 11/5/90 — Brick and Tile Manufacture

Application for joinder to Award — Psychiatric Nurses Association objected on the grounds of specific constitutional and industrial coverage, the creation of unnecessary competition and an agreement with the Government to amalgamate Awards — PNF intervened on similargrounds — Commission carefuly considered principles outlined by the President in relation to intervention and found on evidence that the ANA and ANF (Federal) relationship provided sufficient interest to allow intervention on a limited basis, but not the ANF (State) — Commission at request of parties continued hearing submissions to application, rather than allowing time for appeals, at the request ofthe parties forexpediency — Commission examined evidence of disenchantment with existing union representation and preference towards Applicant Union — Commission examined eligibility rule, in particular, reference to "in hospitals", and found on the authorities a restrictive interpretation was not appropriate and that the Applicant had constitutional coverage — Commission however found on the merits of the claim that the application would not meet the objects of the Act, would only complicate processes such as Structural Efficiency and that the highly likely outcome of "healthy competition" would be industrial disputation — Dismissed — FMWU and Hon Minister for Health and Another—No. 2596 of 1989 — Negus C. — 8/5/90 — Mental Health Services 4Complaint re failure of Union to comply with its rules — Applicant claimed Respondent had neglected its membership in that agreement to modify an Award was without proper consultation with its members and resulted in gross discrimination — Applicant sought orders to redress situation — President reviewed rules, authorities and Industrial Relations Act and found on evidence that the onus of proof upon the Applicant was not made out according to the civil standard — Alternatively that no breach of rules had been established to an extent that the discretionary powers under section 66 should be exercised — Dismissed — ion V. and FMWU — No. 290 of 1990 — Sharkey P. — 12/4/90 — Unions

Conference referred re dispute over which circumstances should lead to payment of "dirt money" pursuant to Award — Applicant Union claimed tasks additional to those recognised by Respondent should attract payment — Respondent argued, such tasks should only attract penalty in unusual circumstances and that rate of pay encompassed and envisaged disabilities relating to dirty conditions in offset printing process — Commission noted that whilst Respondent's argument could underpin an application for the abolition of the disability allowance that was not the task at hand — Commission made finding of which tasks should attract the allowance and directed that in exceptional circumstances other duties could be authorised for payment by Pressroom Manager — Delcaration —- PKIU and WA Newspaper Ltd — No. CR308 of 1990 — Negus C. — 6/7/90 — Printing (Newspaper)

Application for an order declaring a Union's committee decision a nullity and that the Union permit the transfer of the Applicant's membership between branches in accordance with Union Rules — President examined Union's Rules, definitions of"Branch" and "Locality" and found that the Applicant was ineligible to be a member of the branch he sought to transfer — President further found Administrative Committee was an advisory body and its resolution a nullity — Pratt R.D.R. and SSTU — No. 942 of 1990 — Sharkey P. — 4/7/90 — Unions

Appeal against decision of Board of Reference re company not required to register with Construction Industry Long Service Leave Payments Board — Commission in Court Session reviewed Construction Industry Long Service Leave Portable Paid Act 1985. definitions of, inter alia, employee, construction industry and prescribed Award and classifiation, to find that the Board of Reference had erred in its substantial findings and the Respondent engaged persons as employees in the construction industry within the terms of that Act — Upheld — Construction Industry Long Service Leave Payments Board and Positron Pty Limited — No. 759 of 1990 — Martin C. Kennedy C. Parks C — 9/8/90 — Construction

Appeal against decision of Industrial Magistrate at (70 WAIG 891) re failure to make available time and wages record — Appellant sought quashing of order, arguing Magistrate had erred in fact and law in finding that they were bound by Award, employed persons in the industry "Vehicle Hiring" and that persons were employed for "the transportation of goods and materials" — Full Bench noted principles applied in interpreting Awards and found from definitions of'carry", "convey" and "take" that employees concerned were clearly employed in or in connection with the transportation ofgoods and materials — Dismissed — Mountgrove Holdings Pty Ltd trading as Titan Ford and Tranport Workers Union of Australia — Appeal No. 91 of 1990 — Sharkey P., Halliwell S.C., George C. — 21/6/90 — Transport

Appeal against decision of Commission at (70 WAIG 250) re demarcation dispute — Appellant argued, inter alia. Commission's order was beyond power, was contrary to a finding of the Commission concerning the same demarcation, that it was managerial prerogative as to what calling of employee was employed to do what work and that the Commission had used powers that were specifically granted to the Full Bench — Respondent argued section 44 of Industrial Relations Act necessarily limited the order to binding only the parties in relation to whom the matter was not settled and raised a question of bias in the Full Bench — Full Bench extensively reviewed authorities. Industrial Relations Act and evidence before the Commission at first instance to find matter before it an industrial matter which the Commission had jurisdiction to deal with at first instance — However, Full Bench found plain words of order extended itseffect to all persons in the industry, which was beyond power under section 44 and a denial of Natural Justice — Full Bench further found existence of a provision similar to section 118 of the Commonwealth Industrial Relations Act, however useful it might be was not a sine qua non to the exercise of jurisdiction in demarcation matters by the Commission — Full Bench found Commission had power to demark work and determine coverage but not alter Union Rules — Full Bench found insufficient evidence to find that the dispute occurred in the Building Construction Industry, hence the scopeof the Building Trades (Construction) Award, Commission gave too much weight to the effects of differences in pay between the callings and failed to account for the uncontroverted evidence of unilateral action of the Respondent to impose a practice and its Industrial Record — Full Bench stated it was the right of a party to submit bias to a Tribunal, it was aware of its duty to disqualify itself in a case of actual or apparent bias, but that it was not assisted by gratituitous remarks which might have the effect of colouring the record ofproceeding before it — Upheld and Remitted — UFTUandCMEUandOthers — Appeal No. 2723 of 1989 — Sharkey P., Negus C, George C. — 15/6/90 — Building Construction

Board of Reference re travelling costs for recuperative leave — Applicant claimed on basis of Custom and Practice that all employees irrespective of where they spent their recuperative leave be reimbursed as though they had travelled to Perth — Respondent submitted the purpose of Travelling and Transportation Costs Clause was to reimburse employees for actual cost of travel — Board of Reference found on interpretation of clause and on submissions relating to Custom and Practice Applicant's contention unfounded — Trades and Labor Council of WA v. Naval Communication Station — Harold Holt — No. 2 of 1990 — Board of Reference — 27/7/90 — Naval Commication

Application forenforcement of Act — Applicant union alleged that Respondent Union had breached an order of the Commission re demarcation an eligibility to enrol members — Respondent argued Full Bench reviewed authorities. Industrial Relations Act and found the "Order" to be an "Order'as its meaning read in section 66(2) of the Industrial Relations Act and that such an Order may be "a declaration of Interpretation" — Full Bench found that there was a "defence of mistake" on honest and reasonable belief, mensrea. but that the Respondent had not discharged the evidential burden and that there was various liability on the Respondent for the acts of its servants or agents — In Supplementary Reasons Full Bench found that no mitigating circumstances, a serious failure to comply and also given a lack of undertakings as to future conduct that the maximum penalty, short of deregistration proceedings should apply — Further that costs ought be awarded — Full Bench also found Industrial Appeal Court regulations deliberately used the words judgment ororder because it would create an intolerable situation ifevery time there was a finding the whole proceedings had to be stayed pending the Appeal to the Industrial Appeal Court — Full Bench found right to submit bias was waived, noted that the submission was made after the breach was established, that the Full Bench was contrained in its constitution by the legislation and was aware of its duty to disqualify itself— Full Bench found it had a duty to continue to hear the matter and did not grant adjournment sought by Respondents — Proven — UFTU andCMEWU — No. 2633 of 1989 — Sharkey P.. Colcman C.C.. Salmon C. — 5/4/90 — Building Construction/Furniture Manufacture

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CUMULATIVE DIGEST—continued

INTERPRETATION — WORDS AND PHRASES—continued 2Appeal against decision of Commission at (70 WAIG 553) re payment for lost time over safety issue — Appellant argued Commission

erred in applying test rather than provisions of Occupational Health, Safety and Welfare Act and that Commission had no basis on the facts to exercise power — Full Bench reviewed IR and Occupational Health, Safety and Welfare Acts and evidence at first instance — Full Bench found that by virtue of section 26(1) of the OHSW Act and the criteria of prohibition and improvement notices the employees must have had reasonable grounds to believe that to continue work would expose them to the risk of imminent and serious injury — Furthermore Full Bench found there was clearly sufficient notification under the OHSW Act whether by union official or not — no reasonable alterantive work available — Full Bench reviewed authorities and found powers of Commission.to settle a dispute were unrestricted and not fettered by OHSW Act — OHSW Act was not a code and that the Commission had not erred in its discretion — Dismissed — Transfield Pty Ltd and BTA and Others — Appeal No. 230 ofl990 — 10/8/90 — Sharkey P., George C. Beech C. — Construction

'Appeal against decision of Full Bench (70 WAIG 8) not to allow appeal against decision of Commission to register Industrial Agreement — Appellant argued that section 41 and 29A of Industrial Relations Act 1979 when taken together require an Agreement which has been amended during proceedings to be advertised in the WAIG which had not occurred in this instance — Further Commission had exceeded its power by allowing Agreement to be amended other than provided by section 41(3) — Industrial Appeal Court found section 27( 1)(1) gave Commission discretionay power to amend proceedings and that the changes to original Agreement did not require re-advertisement — Appellant also argued that one clause of the Agreement did not relate to an "industrial matter" and therefore registration of the Agreement was beyond the jurisdiction of the Commission — IAC found clause in question was an industrial matter and in any event the fact that the clauses of the Agreement were looked at as a whole were an industrial matter was sufficient — Appellant furtherclaimed it had been denied natural justice and not being afforded the opportunity of putting the submissions about the amendments to the Agreement and also in not having the opportunity to "speak to the minutes" — IAC found Appellant had not applied to Commission to make submissions on the amendments so there could have been no denial of natural justice and that an intervener is not a "party" to proceedings and thus has no right under section 35 to speak to the minutes — Dismissed — Australian Bank Employees Union and Federated Clerks Union and Others — Appeal No. 14 of 1989 — Brinsden J., (President), Kennedy J., Rowland J. — 28/3/90 — Banking

Claim re contractual entitlement — Applicant claimed dismissal was effected before completion of probation which is alleged to be a fixed term and sought payment for uncompleted portion of probationary period — Respondent argued probationary period did not limit either party from terminating contract — Commission from evidence found that probationary period was to determine whether work was performed in a satisfactory manner and was not of itself employment for a fixed term — Dismissed — Drayton J. and Aboriginal Child Care Agency of WA — No. 56 of 1990 — Beech C. — 17/8/90 — Welfare

"Application for stay of order pending appeal — Applicant claimed serious issue to be tried in that Commission had wrongly interpreted material before it and had failed to take into account the custom within the industry — No appearance by or on behalf of respondent — President found in the interest of both parties payment of money in question to be paid into an interest bearing bank account and issued order staying the operation of the whole of decision at first instance — Granted — Hi Point Homes Pty Ltd and Paine CJ. — No. 1458 of 1990 — Sharkey P. — 26/9/90

'Appeal against decision of Full Bench (70 WAIG 2563) re preliminary that it had jurisdiction to hear application re cancellation or suspension of appellant pursuant to section 73 of IR Act — Appellant argued amongst other things that it was not an "organisation" as meant by section 73, it had not registration to which section 73 can apply and the Full Bench did not have power to cancel its registration while section 73A(2) remained in force — Industrial Appeal Court found Full Bench was correct in its interpretation that section 73A(2) "deemed" appellant to be an organisation under the Act — Consequently the appellant is treated as if it had been registered under the Industrial Arbitration Act and it then became, within the meaning of the IR Act, an organisation which was at all times liable to have its registration cancelled pursuant to section 73 — Dismissed — SSTUWA — IAC Appeal No. 8 of 1990 — Kennedy J. (P), Seaman and Nicholson JJ. — 24/9/90 — Education

'Appeal against a "finding" of the Full Bench (70 WAIG 3044) that an application to it for enforcement for proceedings under section 84A have improved — Question to be answered was whether that finding amounted to a "decision" capable of being appealed to the Industrial Appeal Court under section 90 of the IR Act — IAC found section 34(1) makes it mandatory that the decisions of Commission shall be in form of award, order or declaration and shall be signed and delivered by Commission — Section 36 requires decisions of the Commission to be sealed, deposited in the office of the Registrar and made open for inspection — As a finding in this case is not processed in the manner provided by sections 34 and 36 IAC found that it was not a decision subject to appeal under section 90 and this appeal was therefore incompetent — Dismissed — CMEWU and IFTIU — IAC Appeal No. 5 of 1990 — Roland J. (DP), Nicholson and Walsh J.J. —■ 22/8/90 — Unions

"Application for inter alia order declaring Union elections void — Applicants claimed there had been an irregularity as the elected person (Respondent) was ineligible to be a member of the Union — President established that the onus was on the Applicants to deny the validity of the appointment and that it had jurisdiction — President found question were the parties at the time of the election eligible to stand for office dependant on their eligibility for membership — President examined evidence, definition of office and Union rules to find the Respondent was not eligible at the material time — President therefore found one of the applications made out but the other two contrary to equity good conscience and the substantial merits of the case — In Supplementary Reasons President gave reasons why not to deem elected the successful Applicant to office but to hold fresh elections — Ordered Accordingly — Fry E.L. and Others v. Baxter W.T. — No. 71 of 1990 — Sharkey P. — 28/8/90 — Unions ; 2 Applications to object to application to register a new organisation by the amalgamation of two registered organistions — Objecting unions sought to be heard and that the question before the Full Bench was a matter of discretion — Full Bench reviewed Hansard, IR Act and Interpretations Act and found power to grant application was discretionary but where the eligibility rules of the new union had no greater scope than the separate unions, unless an objection lies under section 72(1) of the IR Act and only by member "applicant" unions, no objection should be permitted — Furthermore there was not sufficient interest — One Commissioner expressed opinion that matters raised by objecting unions were of practical concern to the community as a whole, but did not dissent from the decision — Ordered Accordingly — Forrest Products, Furnishings and Allied Industries Union — No. 820 of 1990 — Sharkey P., Coleman C.C., Beech C. — 18/10/90 — Unions

'Appeal against decision of Full Bench (70 WAIG 2152) to uphold Industrial Magistrate's decision re breach of award — Question of whether employee delivering vehicles from driving them from place to place is substantially employed "in connection with transportation ofgoods and materials"—Industrial Appeal Court found that scope clause ofTransport Workers (General) Award had been misconstrued as a motor vehicle which is being driven cannot at the same time constitute the goods or materials being transported — This being the case no breach of award occurred as award did not apply to subject employee — Upheld — Mountgrove Holdings Pty.Ltd trading as Titan Ford and TWU — IAC Appeal No. 10 of 1990 — Kennedy, J. (P), Rowland and Seaman K.J. — 23/10/90 — Transport

Conference referred re demarcation dispute over rigging work — Commission found it had power to deal with issue under both IR Act and Occupational Health Safety and Welfare Regulations 1988 and it more appropriate to interpret the regulations — Commission reviewed definition of "construction site" and "workplace" and found that work should be carried out by fitters where "construction work" was not being carried out — Ordered and delcared accordingly — SEC and AMWSU and others — No. CR666 of 1990 — Salmon C. — 16/10/90 — Electricity Supply

Complaint re failure to pay overtime in accordance with an award and related 38 hour week agreement — Industrial Magistrate reviewed shiftwork clause of award, agreement and the decision oftheCommission to find the purpose of the award provision was to discourage management requiring a shift worker to work parts of a week on afternoon or night shift rather than a straight five day shift — Industrial Magistrate, though not agreeing with all respondents submissions, found it would be a perverse result if the provision was held to mean the employee was entitled to overtime rates for all afternoon shifts worked prior to his rostered day off — Industrial Magistrate found on balance ofprobabilities complainant had failed to prove a breach — Dismissed — ETU v. Hon. Minister for Health — Complaint No. 48 of 1990 — Brown S.M. — 2/11/90 — Laundry and Linen Services

(Ixiv)

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

CUMULATIVE DIGEST—continued

INTERVENTION - Application for joinder to Award — Psychiatric Nurses Association objected on the grounds of specific constitutional and industrial

coverage, the creation of unnecessary competition and an agreement with the Government to amalgamate Awards — PNF intervened on similar grounds — Commission carefully considered principles outlined by the President in relation to intervention and found on evidence that the ANA and ANF (Federal) relationship provided sufficient interest to allow intervention on a limited basis, but not the ANF (State) — Commission at request of parties continued hearing submissions to application, rather than allowing time for appeals, at the request of the parties for expediency — Commission examined evidence of disenchantment with existing union representation and preference towards Applicant Union — Commission examined eligibility rule, in particular, reference to "in hospitals", and found on the authorities a restrictive interpretation was not appropriate and that the Applicant had constitutional coverage — Commission however found on the merits of the claim that the application would not meet the objects of the Act, would only complicate processes such as Structural Efficiency and that the highly likely outcome of "healthy competition" would be industrial disputation — Dismissed — FMWU and Hon Minister for Health and Another — No. 2596 of 1989 — Negus C. — 8/5/90 — Mental Health Services

Application to vary Award — Leave to intervene granted to opposing Union — Introduction of a new system of centralised train control — Applicant Union sought insertion of new classification in wages clause — Respondent objected, arguing signalling function in new system only a small part of the overall train control, thus creating another position specific to signalling would be wasteful and less efficient — Intervener supported Respondent — Commission found from inspections and technical evidence found to acede to Unions application would be to allow an industrial imperative which could have the effect of reducing the intrinsic benefits of the new technology to overall efficiency of the enterprise and concluded that it should not intervene — Dismissed — ARU v. WAGRC — No. 1622 of 1988 — Kennedy C. — 11/5/90 — Railways

'Appeal against decision of Full Bench (70 WAIG 8) not to allow appeal against decision of Commission to register Industrial Agreement — Appellant argued that section 41 and 29A of Industrial Relations Act 1979 when taken together require an Agreement which has been amended during proceedings to be advertised in the WAIG which had not occurred in this instance — Further Commission had exceeded its power by allowing Agreement to be amended other than provided by section 41(3) — Industrial Appeal Court found section 27(l)(l)gave Commission discretionay power to amend proceedings and that the changes to original Agreement did not require re-advertisement — Appellant also argued that one clause of the Agreement did not relate to an "industrial matter" and therefore registration of the Agreement was beyond the jurisdiction of the Commission — IAC found clause in question was an industrial matter and in any event the fact that the clauses of the Agreement were looked at as a whole were an industrial matter was sufficient — Appellant further claimed it had been denied natural justice and not being afforded the opportunity of putting the submissions about the amendments to the Agreement and also in not having the opportunity to "speak to the minutes" — IAC found Appellant had not applied to Commission to make submissions on the amendments so there could have been no denial of natural justice and that an intervener is not a "party" to proceedings and thus has no right under section 35 to speak to the minutes — Dismissed — Australian Bank Employees Union and Federated Clerks Union and Others — Appeal No. 14 of 1989 — Brinsden J., (President), Kennedy J., Rowland J. — 28/3/90 — Banking

Application for an order for production of documents in relation to reclassification appeals — Hon Minister for Productivity and Labour Relations intervene on behalf of the State — Public Service Arbitrator extensively reviewed the procedures in history of the appeals and found that there was a question as to whether any of the appeals had been proceeded upon a condition prerequisite to the making of the instant application — Moreover. Public Service Arbitrator found that as the applicant in this instant matter was not a principle in the appeals, in order issued would confer on the agent in the appeals a right of discovery exclusive of the principals represented in the substantive matter and it was insurmountable that the applicant was not authorised to appear on behalf of all principals — Dismissed — CSA and Commissioner, Public Service Commission — No. P43 of 1990 — Kennedy P.S.A. — 11/10/90 — Public Service

Applications to object to application to register a new organisation by the amalgamation of two registered organistions — Objecting unions sought to be heard and that the question before the Full Bench was a matter of discretion — Full Bench reviewed Hansard. IR Act and Interpretations Act and found power to grant application was discretionary but where the eligibility rules of the new union had no greater scope than the separate unions, unless an objection lies under section 72(1) of the IR Act and only by member "applicant" unions, no objection should be permitted — Furthermore there was not sufficient interest — One Commissioner expressed opinion that matters raised by objecting unions were of practical concern to the community as a whole, but did not dissent from the decision — Ordered Accordingly — Forrest Products, Furnishings and Allied Industries Union — No. 820 of 1990 — Sharkey P.. Coleman C.C., Beech C. — 18/10/90 — Unions

JURISDICTION - Application for stay of orders re dismissal of applications to vary awards — President found application as framed was incompetent

and was unable to see how the balance of convenience would be served by a stay of the orders constituting the decision within the meaning of section 49( 11) of the Industrial Relations Act — Moreover President was without power to reinstate application at first instance — Dismissed — CWAI and SDA — No. 794 of 1990 — Sharkey P. — 7/6/90 — Retail .....

Appeal against decision of Commission at (69 WAIG 3106) re dismissed claim of unfair dismissal — Appellant argued Commission had failed to give sufficient weight to various matters of evidence, had erred in not making findings on the separate grounds of dismissal and sought Order that the matter be remitted for further hearing and determination — Full Bench reviewed Authorities and found there was a requirement for procedural fairness on the part of the employer, which had been met in the events surrounding the dismissal and by the Respondents reliance upon the investigations of the Commissioner of Health in the act of dismissal — Respondent had conducted no inquiry of its own relating to the allegations against the Appellant as required by Authorities and had acted unjustly in not referring the allegations to the Appellant for answer — Full Bench found Commissioner of Health had power to remove Appellant from office of Health Surveyor but not dismiss him from employment and that the Commission had erred in its construction of the Health Act — Full Bench found it was unable to admit a letter as fresh evidence and as a matter of public interest, after considering the Evidence Act, that the Commission was unable to compel a witness to give evidence that may be self-incriminating — Full Bench further found Commission had erred in not making a finding as to whether dismissal was justified on fraud allegations, that a finding of unfairness could not be made without it and that it was the Commission s duty to make such findings — Commission further erred in failing to meet evidentiary burden re further and better particulars, the manner in which it attached weight to evidence and in the exercise of its discretion — Full Bench found there had been a harsh and oppressive act of dismissal in line with Ong's case, that it had power to vary Commission's decision, though not that of the Commissioner for Health and there were no real barriers to re-instatement — Upheld — Mouritz P.M. and Shire of Esperance — Appeal No. 2384 of 1989 — Sharkey P., Coleman C.C., George C. — 6/4/90 — Meat

Claim for redundancy payment for employee terminated due to rationalisation of workforce — Applicant Union argued payment should be calculated over a period of employment with two companies as they were related and the employee had been told that his move to the Respondent would not affect his redundancy payments — Respondent argued inter alia Commission did not have jurisdiction to entertain claim due to Pepler Case — Commission reviewed Industrial Relations Act and Authorities and found that the points raised by the Respondent that the Commission was without jurisdiction to consider the matter lacked substance — Commission found on evidence that though the legal distinction between the two companies was clear, for the purposes of the matter they were one and the same and that the service wascontinuous — Commission found it equitable to apply the redundancy provisions of the Metal Trades (General) Award — Granted in Part — WA Timber Industry Union and Adelaide Timber Company Pty Ltd — No. CR395 of 1989 — Beech C. — 6/4/90 — Timber

Application for Commission to refrain from determining a claim of unfair dismissal — Commission found power to dismiss under section27( 1 Xa) of Industrial Relations Act was limited and could only be exercised by the Commission in relation to and prior to finalisation of a matter allocated to it — Dismissed — RRIA and AWU — No. 2412 of 1989 — Kennedy C. — 4/4/90 — Mining (Iron Ore)

06348—3 (Ixv)

CUMULATIVE DIGEST—continued

JURISDICTION—continued JAppeal against decision of Government School Teachers Tribunal re dismissed promotion appeals — Appellants argued

Commission had restrictively interpreted section 78(2)(b) of the Act and they had been denied natural justice — Respondent argued Full Bench did not have power to hear appeal and that the appellants were using the wrong section of the Act in attempting to show injustice — Full Bench reviewed authorities and Industrial Relations Act and found the Tribunal was a constituent authority, but not the Commission constituted by a single Commissioner and therefore a decision against the decision of the Tribunal could not be appealed against — Dismissed — Hampson P. and Ritchie N. v. Ministry of Education — Nos. 2684 and 2685 of 1989 — Sharkey P./Salmon C./Kennedy C. — 17/5/90 — Education

Claim re benefit not being benefit under an Award or Order of Commission — Commission noted agreement between parties to settle original claim is a new contract — Commission found if dispute concerns terms of new agreement then it should be determined in Local Court as this Commission is without jurisdiction — Furthermore if amount in new agreement relates to compensation then similarly Commission has no power to order compensation without reinstatement — Application Discontinued — Sinclair T.W. and Georges France Photography — No. 2179 of 1989 — Gregor C. — 10/4/90 — Photography

Claim re unfair dismissal seeking reinstatement — Respondent alleged Commission was without jurisdiction and further that the matter was not an industrial matter but if not so found denied that the dismissal was unfair — Commission found from the evidence and with reference to authorities cited that the Federal Award to which the Applicant had been subject and the provisions of section 29(i) of the State Act are inconsistent and therefore the Commission is without jurisdiction — Dismissed — Eatts W.G. v. General Manager, Aboriginal Hostels Limited — No. 2625 of 1989 — Fielding C. — 22/6/90 — Accommodation (Hostels) : v :: :

Complaint re Unions refusal to renew membership — Applicant argued that he was eligible to be a member of the Respondent by virtue of being a financial member of the "equivalent" Federal Union — President found it not proper to join the Federal Union to the application — President reviewed Union rules. Industrial Relations Act and found on evidence that the Applicant had only been a member of, applied for and refused membership by the Federal Union and that hence there was no breach of rules on the part of the organisation for the purposes of section 66 of the Act — Dismissed — Bellamy R.T. and WA Municipal Road Boards, and Racecourses Employees' Union of Workers — No. 508 of 1990 — Sharkey P. — 23/3/90 — Unions .'

Claim for redundancy payments —Respondent argued Commission did not have jurisdiction to grant claim on the basis of the Pepler Case — Commission adjourned matter pending a decision of the Full Bench and then heard further submissions — Commission found that although the matter was distinguished in fact from the Tip Top Case, it was a matter referred from a conference notified to the Commission prior to any termination of employees, and on reviewing authorities, that in any event the jurisdiction of the Commission did not depend on such prior notification — Commission further found such an order would not have the effect of varying the Award and that in the absence of general provisions the consideration of redundancy in a case by case manner was permissible — Commission found on the basis of fairness that only employees not compensated for loss of pro rata long service leave entitlements warranted further payments than offered by the Respondent—Granted in Part — United Timber Yards Union and McLeans Consolidated Pty Ltd — No. CR305 of 1989 — Beech C. — 6/4/90 — Timber

Appeal against decision of Commission at (70 WAIG 89) re Second Structural Efficiency Wage Increase — Appellant argued Commission had failed to exercise independent judgment and simply applied a decision of the Victorian Industrial Relations Commission in amending the wage rates and other provisions of the Award — Furthermore that the application had not been properly before the Commission — Full Bench reviewed principles relating to appeals against a discretionary decision and considered the question "What weight should the Commission at first instance given to the General Order and the views of the Commission in the Court Session in the State Wage Decision" — Full Bench found, there was a miscarriage of the Commission's discretion in the terms set out in House v. the King in that it did not assess or give sufficient weight to a number of factors before reaching its decision, and gave undue weight to the Victorian decision, nor did it sufficiently exercise independent judgment, save that the Award Modernisation clause was properly inserted in the Award — Upheld and Remitted — Coles New World Supermarkets and Others and FCU — No. 2783 of 1989 — Sharkey P., Coleman C.C., Martin C. — 18/5/90 — Retail and Wholesale (Clerks)

Appeal against decision of Commission at (69 WAIG 3135)reclaim for reinstatement on the grounds ofunfair dismissal —Appellant argued Commission erred in finding employee had terminated her employment, left children unsupervised and in not giving due weight to all the circumstances — Applicant Union further argued Commission failed to consider the merits of the matter and that to "inquire into and deal with any industrial matter" by a combination of sections 7 and 23 of the Act was a phrase of very broad scope — Full Bench noted important distinction between a 29b(i) matter and a section 44 matter — Full Bench reviewed authorities, evidence and found that although the employee terminated her own services, the refusal to re-employ was an industrial matter and that the Commission therefore had jurisdiction and was bound to deal with the matter—Full Bench further found that what had occurred was not merely a gratuitous abandonment of the contract and, in the absence of a request for a re- employment order, a declaration as to the unfairness of the refusal to re-employ should issue — Upheld — FMWU and Anna Pineira trading as Aunty Joan's Child Care Centre — No. 2487 of 1989 — Sharkey P., Coleman C.C.. Salmon C. — 26/4/90—Child Care ;

2Appeal against decision of Commission re finding of jurisdiction to deal with the matter of employees being required to purchase housing as a condition of employment — Appellant argued inter alia "Home Ownership Plan" was not part of contract of employment. Commission failed to give full weight to the full terms of the contract of sale, misdirected itself in its reliance of authorities and the definition of industrial matter — Full Bench reviewed evidence, authorities, definitions, and the Industrial Relations Act and found the definition of industrial matter was wider than that considered by authorities relation to the Federal Act — Full Bench found there was a clear "custom" and "usage" within an industry that accommodation was clearly to be provided as part of remuneration and the fact that a house was purchased under separate contract did not detract from the fact that it occurred only because the parties are employer and employee — Dismissed — Hamersley Iron Pty Ltd and AMWSU and Others — No. 2619 of 1989 — Sharkey P., Coleman C.C., Gregor C. — 2/7/90 — Iron Ore Mining and Processing ...

Claim recontractural entitlements — Applicant claimed wages, payment in lieu of notice, holiday pay and income foregone on basis of an implied contract — Respondent denied existence of any contract between the parties —Commission found from evidence and authorities that applicant was not an employee and therefore Commission was without jurisdiction — Further, Commission determined that, in any event, in so far as the applicant relied upon implied terms of contract he had not made out those terms — Dismissed — Ringshaw N.A. v. Inkam Pty Ltd — No. 2686 of 1989 — Gregor C. — 20/7/90 — Diving Industry

'Appeal against decision of Special Board of Reference at (70 WAIG 1929) re long service leave entitlements — Appellant argued Board of Reference had placed too much emphasis on the act of physical control rather than the entitlement to control and placed too much emphasis of the absence of notices of termination in determining the employer forthe material times — Commission in Court Session reviewed authorities. Long Service Leave Act and Industrial Relations Act and found the appeal against a Board of Reference was limited to the memorandum of facts found by the Board — The Commission in Court Session should be slow to interfere with determinations of such a Board except where it is satisfied that they were not reasonably open to find — Commission in Court Session reviewed "unfortunate" history of the claims, further authorities and found that control was more often than not exercised by employees of the Appellant — Further there was ample evidence for the Board of Reference to conclude that the Respondents were employed by the Appellant rather than another Company — Verbatim Reporters (1980) and Purvis L. and Others — No. 966 of 1990 — Fielding C, Kennedy C, Parks C — 14/8/90 — Court Reporting

■•Application re breach of union rules —Applicant claimed reasons provided for refusal to grant "Sprinkler Fitters Endorsement" by respondent union was beyond what it was entitled to do — Furthermore respondents oppressive and restrictive behaviour had prevented him from obtaining employment as a sprinkler fitter—Respondent union refuted claim and asserted Commission had no jurisdiction or power to make orders under implied section of Act — President in absence of evidence that a sprinkler fitter is the same as a pipefitter, was not persuaded that state union has the right to deal with persons who are not eligible to be members of the union, thus no jurisdiction, as no breach of rules has been proven — Dismissed — D. Roberts and Plumbers and Gasfitters Employees Union — No. 419 of 1990 — Sharkey P. — 20/6/90 — Plumbing

(Ixvi)

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

CUMULATIVE DIGEST—continued

JURISDICTION —continued 'Two Appeals by opposing parties against decision of Full Bench (70 WAIG 1659) to suspend decision ofCommission and remit case

to Commission for further hearing and determination due to procedural unfairness — Industrial Appeal Court found procedural unfairness was a failure of natural justice and that the balance of authority takes the view that a decision reached contrary to the provisions of natural justice is void — If the decision is void it is a nullity and can't be suspended as there is nothing to suspend — Section 49(5) of the Industrial Relations Act 1979, therefore, only allows quashing of the decision — Further, as the decision of the Commission has been quashed it means a decision has not been made at all and the Commission is nolfunctusofficio as far as the matters concerning the original application were purported to be determined — The Commission may, therefore, take up these matters again — Upheld — Robe River Iron Associates and AMWSU and Others v. AMWSU and Others and Robe River Iron Associates — IAC Appeals 3 and 4 of 1990 — Brinsden, Roland and Nicholson JJJ. — 13/6/90 — Iron Ore

2Appeal against decision of Commission at (70 WAIG 250) re demarcation dispute — Appellant argued, inter alia. Commission's order was beyond power, was contrary to a finding of the Commission concerning the same demarcation, that it was managerial prerogative as to what calling of employee was employed to do what work and that the Commission had used powers that were specifically granted to the Full Bench — Respondent argued section 44 of I ndustrial Relations Act necessarily limited the order to binding only the parties in relation to whom the matter was not settled and raised a question of bias in the Full Bench — Full Bench extensively reviewed authorities. Industrial Relations Act and evidence before the Commission at first instance to find matter before it an industrial matter which the Commission had jurisdiction to deal with at first instance — However, Full Bench found plain words of order extended its effect to all persons in the industry, which was beyond power under section 44 and a denial of Natural Justice — Full Bench further found existence of a provision similar to section 118 of the Commonwealth Industrial Relations Act, however useful it might be was not a sine qua non to the exercise of jurisdiction in demarcation matters by the Commission — Full Bench found Commission had power to demark work and determine coverage but not alter Union Rules — Full Bench found insufficient evidence to find that the dispute occurred in the Building Construction Industry, hence the scope of the Building Trades (Construction) Award, Commission gave too much weight to the effects of differences in pay between the callings and failed to account for the uncontroverted evidence of unilateral action of the Respondent to impose a practice and its Industrial Record — Full Bench stated it was the right of a party to submit bias to a Tribunal, it was aware of its duty to disqualify itself in a case of actual or apparent bias, but that it was not assisted by gratituitous remarks which might have the effect of colouring the record of proceeding before it — Upheld and Remitted — UFTU and CMEU and Others — Appeal No. 2723 of 1989 — Sharkey P.. Negus C, George C. — 15/6/90 — Building Construction

2Preliminary submissions and applications, for organisation to show cause why its registration should not be cancelled or suspended — Party submitted that as person who initiated the summons. Registrar should be joined as a party to proceedings because there was no one else to prosecute the summons — Furthermore it would be a breach of natural justice if Full Bench took on the role of prosecutor—Full Bench found Registrar should not be joined as he had no interest in the matter "litigated" or "to be determined" and noted that Registrar's appearance in person or through Counsel is to assist Commission in manner of amieus curiae — Full Bench further found mere absence of a party does not make it (Full Bench) the prosecutor and it was clear the nature of these proceedings lie squarely on the organisation summonsed to show cause — Full Bench on matter of adjournment found valid submission re orders subject to appeal and adjourned matter pending hearing and determination of appeal — Proceedings resumed — Party submitted Industrial Relations Act 1979 did not empower Commission to cancel or suspend its registration — Full Bench on reading of Industrial Relations Act found that it had jurisdiction to deal with application —Ordered Accordingly — State School Teachers Union — No. 24 of 1989 — 22/11/89 and 25/5/90 — Sharkey P., Halliwell S.C., Martin C. — Unions

Claim re unfair dismissal seeking reinstatement — respondent sought to have question of jurisdiction termed as preliminary point — respondent claimed provisions of the Federal Award of which the parties were bound provided superior legislation to that under which the Commission operates and thus in accordance with section 109 of the Australian Constitution the Commission had no jurisdiction to hear the matter—Commission found on authorities cited that Commission was without jurisdiction — Dismissed — S.E. Needham v. Western Atlas International — No. 540 of 1990 — Gregor C. — 19/5/90 — Surveying

Claim re contractual entitlements — Applicant claimed wages in compensation arising from the need to liquidate personal property — Respondent denied existence of a contract — Commission found-that there was no contract and on authorities cited that there were no implied terms of the contract thus Commission was without jurisdiction — Dismissed — R. MacAuley v. Jamac Fishing — No. 2787 of 1989 — Gregor C. — 29/6/90 — Fishing

2 Application for enforcement of Act — Applicant union alleged that Respondent Union had breached an order of the Commission re demarcation an eligibility to enrol members — Respondent argued Full Bench reviewed authorities, Industrial Relations Act and found the "Order" to be an "Order" as its meaning read in section 66(2) of the Industrial Relations Act and that such an Order may be "a declaration of Interpretation" — Full Bench found that there was a "defence of mistake" on honest and reasonable belief, mensrea. but that the Respondent had not discharged the evidential burden and that there was various liability on the Respondent for the acts of its servants or agents — In Supplementary Reasons Full Bench found that no mitigating circumstances, a serious failure to comply and also given a lack of undertakings as to future conduct that the maximum penalty, short of deregistration proceedings should apply — Further that costs ought be awarded — Full Bench also found Industrial Appeal Court regulations deliberately used the words judgment or order because it would create an intolerable situation if every time there was a finding the whole proceedings had to be stayed pending the Appeal to the Industrial Appeal Court — Full Bench found right to submit bias was waived, noted that the submission was made after the breach was established, that the Full Bench was contrained in its constitution by the legislation and was aware of its duty to disqualify itself — Full Bench found it had a duty to continue to hear the matter and did not grant adjournment sought by Respondents — Proven — UFTU and CMEWU — No. 2633 of 1989 — Sharkey P., Coleman C.C., Salmon C. — 5/4/90 — Building Construction/Furniture Manufacture

2Appeal against decision of Commission at (70 WAIG 553) re payment for lost time over safety issue — Appellant argued Commission erred in applying test rather than provisions of Occupational Health, Safety and Welfare Act and that Commission had no basis on the facts to exercise power — Full Bench reviewed IR and Occupational Health, Safety and Welfare Acts and evidence at first instance — Full Bench found that by virtue of section 26(1) of the OHSW Act and the criteria of prohibition and improvement notices the employees must have had reasonable grounds to believe that to continue work would expose them to the risk of imminent and serious injury — Furthermore Full Bench found there was clearly sufficient notification under the OHSW Act whether by union official or not — no reasonable alterantive work available — Full Bench reviewed authorities and found powers of Commission to settle a dispute were unrestricted and not fettered by OHSW Act — OHSW Act was not a code and that the Commission had not erred in its discretion — Dismissed — Transfield Pty Ltd and BTA and Others — Appeal No. 230 of 1990 — 10/8/90 — Sharkey P.. George C.. Beech C. — Construction

^Application for a General Order re New Standard Maternity Leave Provisions for Awards and Agreements — Applicant (TLC) argued that some awards did not contain maternity leave provisions should be corrected by a General Order and the current standard was discriminatory and contrary to the Equal Opportunity Act 1984 — Interveners submitted their various positions with respect to the nature of such a General Order — CWAI argued question of law was for the EEO Commission and on medical grounds — CICS found Test Case of Federal Commission, nor EEO Act were bars to Commission dealing on industrial matter— CICS found applicant had not established that previous CICS conclusions over 52 week leave limit were unfounded or that the existing compulsory leave provision were unfair or unreasonable and that there had been no ruling made by the Equal Opportunity Tribunal — Furthermore the granting of an order for the Public Sector would not remove distinctions within the public sectors in maternity leave entitlements and that it was only for want of application that any award did not contain the existing standard — Dismissed — TLC and CWAI and Others — No. 62 ofl989 — Coleman C.C., Gregor, Kennedy C. — 13/7/90 — All Industries

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WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 70 W.A.I.G.

CUMULATIVE DIGEST—continued

JURISDICTION —continued •Appeal against decision of Full Bench (70 WAIG 8) not to allow appeal against decision of Commission to register Industrial

Agreement — Appellant argued that section 41 and 29A of Industrial Relations Act 1979 when taken together require an Agreement which has been amended during proceedings to be advertised in the WAIG which had not occurred in this instance — Further Commission had exceeded its power by allowing Agreement to be amended other than provided by section 41(3) — Industrial Appeal Court found section 27( 1)(!) gave Commission discretionay power to amend proceedings and that the changes to original Agreement did not require re-advertisement — Appellant also argued that one clause of the Agreement did not relate to an "industrial matter" and therefore registration of the Agreement was beyond the jurisdiction of the Commission — IAC found clause in question was an industrial matter and in any event the fact that the clauses of the Agreement were looked at as a whole were an industrial matter was sufficient — Appellant further claimed it had been denied natural justice and not being afforded the opportunity of putting the submissions about the amendments to the Agreement and also in not having the opportunity to "speak to the minutes" — IAC found Appellant had not applied to Commission to make submissions on the amendments so there could have been no denial of natural justice and that an intervener is not a "party" to proceedings andthushasno right under section 35 to speak to the minutes — Dismissed — Australian Bank Employees Union and Federated Clerks Union and Others — Appeal No. 14 of 1989 — Brinsden J., (President), Kennedy J., Rowland J. — 28/3/90 — Banking

Finding of jurisdiction re application for Order that employer will not require any worker to purchase any real property from it as a mandatory condition of employment — respondent housing arrangements were a pre-employment agreement not an incident of employment — Commission reviewed authorities. Industrial Relations Act and arrangements for having to find contrary to the Respondents assertions, hence the issue was an industrial matter —• Decision only — AMWSU and Others v. Hamersley Pty Ltd — No. 185 of 1988 — Kennedy C. — 31/10/89 — Iron Ore

Application for dismissal of another application re claim for reinstatement on the grounds of unfair dismissal — Applicant claimed a lack of expedition by respondent in prosecuting the application decreased the quality of evidence and the jurisdiction of the Commission to order reinstatement — Respondent claimed it was in the public interest that the matter be heard — Commission found no substantial reason to deny the respondent the right to have his application heard — Dismissed — Mt Newman Mining Co Pty Ltd v. Anthony Francis Stokes — No. 1180 of 1990 — Gregor C. — 4/9/90 — Mining

Complaint re breach of Award — Defendant questioned jurisdiction of Industrial Magistrate appointed under WA Act to hear complaints pursuant to Commonwealth Act — Distinction drawn between Conciliation and Arbitration Act and new Commonwealth Act — Industiral Magistrate having examined the various Acts and cases cited found that he had no jurisdiction to hear complaints brought pursuant to section 178 of IR Act 1988 (Commonwealth Act) — Dismissed — Australian Theatrical and Amusement Employees Association and Delarene Pty Ltd trading as Hoyts Theatres Ltd — Complaint Nos. 45-46 of 1990 — Brown S.M. — 17/8/90 — Entertainment

Application for contractual entitlement — Applicant claimed entitlements not subject of an award and sought payment of moneys at $ 10.00 per hour for hours worked — Respondent questioned jurisdiction, argued payments had been made for all hours worked as per documentation and, asserted applicant was a contractor — Commission noted question to be answered was whether relationship was indeed that of an employee and from evidence found relationship was not that of a contract of service between an employee and an employer, therefore Commission had no jurisdiction to deal with claim — Dismissed — Burkin P.J. and Atlas Farms Pty Ltd — No. 1132 of 1989 — Kennedy C. — 15/8/90 — Farming

2Appeal against decision ofCommission (70 WAIG 1146)reamendment to superannuation clause in award — Appeal based upon the question of whether there is a choice available of superannuation funds — Question re jurisdiction and "Industrial Matter" — Full Bench from submissions found appellant had not established that Commission at first instance erred in the exercise of its discretion and further noted certain points as to why it was within the Commission's power and jurisdiction at first instance to decline to vary order, which without doubt related loan industrial matter— Dismissed — CWAI and SDA — Appeal No. 561 of 1990 — Sharkey P., Halliwell S.C., George C. — 27/9/90 — Wholesale and Retail

Claim re unfair dismissal seeking reinstatement or in the alternative contractual entitlements — Commission heard as preliminry point question of whether there was a contract of service or a contract for services — Commission examined indicia from authorities cited and the evidence and determined that contract was for services thus applicant was not an employee and Commission was without jurisdiction — Dismissed — P. Inglis v. Nor-West Seafoods Pty Ltd — No. 997 of 1990 — Halliwell S.C. — 25/10/90 — Fishing

Conference referred reclaim forpro rata Long Service Leave payment on behalf of two employees, one resigned, one made redundant — Respondent argued Commission had no power as what was sought was compensation and also redundancy payments had the effect of varying an award — Commission found on the authority of McLean's case Pepler's case was on authority in relations to unfair dismissal matters — Commission found circumstances of termination for both workers were not on all fours with the substratum of case law which derived Wages Case — On evidence the employee had disqualified herself as by resigning due to ill health rather than accepting to respondents offer of a rehabilitation programme and continued employment — Commission further found even if it could be found that the second worker was forced to retire on the basis of redundancy, on Ingle's case he had been adequately compensated by voluntary payment — Dismissed — FMWU and Bicton Private Hospital — No. CR519of 1990 - Gregor C. - 25/10/90 - Health

•Appeal against decision of Full Bench (70 WAIG 2563) re preliminary that it had jurisdiction to hear application re cancellation or suspension of appellant pursuant to section 73 of IR Act — Appellant argued amongst other things that it was not an "organisation" as meant by section 73, it had not registration to which section 73 can apply and the Full Bench did not have power to cancel its registration while section 73A(2) remained in force — Industrial Appeal Court found Full Bench was correct in its interpretation that section 73A(2) "deemed" appellant to be an organisation under the Act — Consequently the appellant is treated as if it had been registered under the Industrial Arbitration Act and it then became, within the meaning of the IR Act, an organisation which was at all times liable to have its registration cancelled pursuant to section 73 — Dismissed — SSTUWA — IAC Appeal No. 8 of 1990 — Kennedy J. (P), Seaman and Nicholson JJ. — 24/9/90 — Education

Application for an order for production of documents in relation to reclassification appeals — Hon Minister for Productivity and Labour Relations intervene on behalf of the State — Public Service Arbitrator extensively reviewed the procedures in history of the appeals and found that there was a question as to whether any of the appeals had been proceeded upon a condition prerequisite to the making of the instant application — Moreover, Public Service Arbitrator found that as the applicant in this instant matter was not a principle in the appeals, in order issued would confer on the agent in the appeals a right of discovery exclusive of the principals represented in the substantive matter and it was insurmountable that the applicant was not authorised to appear on behalf of all principals — Dismissed — CSA and Commissioner, Public Service Commission — No. P43 of 1990 — Kennedy P.S.A. — 11/10/90 — Public Service

■•Application (or inter alia order declaring Union elections void — Applicants claimed there had been an irregularity as the elected person (Respondent) was ineligible to be a member of the Union — President established that the onus was on the Applicants to deny the validity of the appointment and that it had jurisdiction — President found question was were the parties at the time of the election eligible to stand for office dependant on their eligibility for membership — President examined evidence, definition of office and Union rules to find the Respondent was not eligible at the material time — President therefore found one of the applications made out but the other two contrary to equity good conscience and the substantial merits of the case — In Supplementary Reasons President gave reasons why not to deem elected the successful Applicant to office but to hold fresh elections — Ordered Accordingly — Fry E.L. and Others v. Baxter W.T. — No. 71 of 1990 — Sharkey P. — 28/8/90 — Unions

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CUMULATIVE DIGEST—continued

JURISDICTION —continued Applications to object to application to register a new organisation by the amalgamation of two registered organistions — Objecting

unions sought to be heard and that the question before the Full Bench was a matter of discretion — Full Bench reviewed Hansard, IR Act and Interpretations Act and found power to grant application was discretionary but where the eligibility rules of the new union had no greater scope than the separate unions, unless an objection lies under section 72(1) of the IR Act and only by member "applicant" unions, no objection should be permitted — Furthermore there was not sufficient interest — One Commissioner expressed opinion that matters raised by objecting unions were of practical concern to the community as a whole, but did not dissent from the decision — Ordered Accordingly — Forrest Products, Furnishings and Allied Industries Union — No. 820 of 1990 — Sharkey P., Coleman C.C., Beech C. — 18/10/90 — Unions

Appeal against decision of Commission (70 WAIG 2495) re unchanged decision over redundancies payments following remittance from Full Bench — First appellant argued inter alia Commission had no jurisdiction, failed to give sufficient reasoning and inappropriately applied the Government Employees Consent General Order — Furthermore that the Commission had demonstrated judicial bias — TWU argued it had sufficient interest in the matter not be struck out as a party to the application at first instance — Respondent union to first appeal argued much of the grounds of the first appellant had been canvassed in the original appeal to Full Bench and that Commission never adopted the General Order — Full Bench found question of jurisdiction had been dealt with in the original appeal, that it was quite clear that the standards of Government Employees Consent General Order were of importance in the Commission's deliberations and there was a failure to make sufficient findings of fact on which a sound discretionary judgment could be based, hence the discretion miscarried — Full Bench found on authority in not submitting has at first instance the appellant waived its right to do so — Full Bench further found Commission had not erred in striking out TWU from the application at first instance and in any event it was a finding as defined by section 7 of the IR Act — Upheld and Dismissed — Tip Top Bakeries (Canning Vale) v. FCU and Others, TWU and Tip Top Bakeries (Canning Vale) — Appeal Nos. 870 of 1990 and 954 of 1990 — Sharkey P., Coleman C.C., Salmon C. — 2/11/90 — Bread Manufacturing

Conference referred re demarcation dispute over rigging work — Commission found it had power to deal with issue under both IR Act and Occupational Health Safety and Welfare Regulations 1988 and it more appropriate to interpret the regulations — Commission reviewed definition of "construction site" and "workplace" and found that work should be carried out by fitters where "construction work" was not being carried out — Ordered and delcared accordingly — SEC and AMWSU and others — No. CR666 of 1990 — Salmon C. — 16/10/90 — Electricity Supply

Appeal against decision of Commission (70 WAIG 2512) re redundancy payments ordered — Appellant submitted Commission had erred in law, in finding it used power to order payments for dismissed employees without an order for reinstatement and in making an order pursuant to section 44(9) of IR Act that had the effect of varying awards with respect to entitlements of terminated employees — Furthermore Commission erred in making a order on a case by case basis without proper regard for principle enunciated in State Termination and Redundancy case, and in ordering payment to employees in eligible to be enrolled as members of union — Full Bench from submissions and cases cited found Commission had the jurisdiction and power as claim was an "industrial matter" — Further Full Bench found Commission Order was made to settle dispute between parties as to terms and conditions upon which redundancies were effected, and it did not vary norwas it inconsistent with award, and finally absence of award provision should not provided in did not become a substitute fora provision in an award, prevent Commission from its duty under section 44 of IR Act — Dismissed — McLeans Consolidated Pty Ltd and United Timber Yards, Sawmills and Woodworkers Employees Union — Appeal No. 917 of 1990 — Sharkey P., Coleman C.C., Gregor C. — 25/10/90 — Timber ...

"Application for inquiry into Union elections — Instant determination result of submission that Commission, as constituted, had no jurisdiction to hear application herein — President having considered submissions, authorities on jurisdiction, and Union rules found that Commission as constituted had jurisdiction to hear applications based on section 27(1) and section 66(2) of IR Act — Ordered Accordingly — E.F. Fry, S.P. Fee and G.R. Burgess v. Baxter W.T. and Others and W.A. Electoral Commission — No. 71 of 1990 — Sharkey P. — 18/5/90

Application to vary award pursuant to Structural Efficiency Principle — Applicant union argued agreement between respondent and its employees did not reflect co-operation between the parties to the award and did not accord with the State Wage Principles, particularly in the area of training and career paths, as did the variations it sought — Respondent argued that as the agreement with wage increases already paid, was such that the Commission had no power to deal with the application — Commission reviewed IR Act and authorities and found it had power and an obligation to arbitrate, taking into account that such an agreement be accepted as persuasive, in submissions, as it had the support of the workforce — Commission concluded the agreement once subject to exposure in arbitration was one capable of ratification pursuant to the principles — Commission further provided a one month period for negotiations with CMEU and in view of the parties difficulties the Standard Award Modernisation and Structural Efficiency clauses — Commission further found it necessary to give warning to respondents advocate that he would not be heard before the Commission constituted again — Award Varied — ETU and Others and Western Mining Corporation — No. 1752 of 1989 — Gregor C. — 1/8/90 — Nickel Refining

LONG SERVICE LEAVE — Application for Long Service Leave entitlements — Majority of Board of Reference found that as Applicant had not been terminated

by one employer and, in the circumstances of changed contractors forthe rubbish disposal, his services had been transmitted to a new employer, that the current employer was liable to grant Long Service Leave — Granted — Ryan R.J. and Carnarvon Rubbish Disposal — Carrigg Registrar, Beech, Jones — 23/4/90 — Rubbish Disposal

Application for first Structural Efficiency Wage increase — Parties had set about inter alia rationalising, salary scales for classifications and compacting long service leave — Commission noted Award applied to a small organisation with perhaps not the scope for radical changes and with tortuous path of Second Tier adjustments, it is not surprising that the parties had not been able to do more to date — Granted — HSOA and Paraplegic-Quadriplegic Association of WA — Fielding C. — No. 2107 of 1990(R) — Health Services

'Appeal against decision of Special Board of Reference at (70 WAIG 1929) re long service leave entitlements — Appellant argued Board of Reference had placed too much emphasis on the act of physical control rather than the entitlement to control and placed too much emphasis of the absence of notices of termination in determining the employer for the material times — Commission in Court Session reviewed authorities. Long Service Leave Act and Industrial Relations Act and found the appeal against a Board of Reference was limited to the memorandum of facts found by the Board — The Commission in Court Session should be slow to interfere with determinations of such a Board except where it is satisfied that they were not reasonably open to find — Commission in Court Session reviewed "unfortunate" history of the claims, further authorities and found that control was more often than not exercised by employees of the Appellant — Further there was ample evidence for the Board of Reference to conclude that the Respondents were employed by the Appellant rather than another Company — Verbatim Reporters (1980) and Purvis L. and Others — No. 966 of 1990 — Fielding C, Kennedy C, Parks C — 14/8/90 — Court Reporting

'Appeal against decision of Board of Reference re company not required to register with Construction Industry Long Service Leave Payments Board — Commission in Court Session reviewed Construction Industry Long Service Leave Portable Paid Act 1985, definitions of. inter alia, employee, construction industry and prescribed Award and classification, to find that the Board of Reference had erred in its substantial findings and the Respondent engaged persons as employees in the construction industry within the terms of that Act—Upheld — Construction Industry Long Service Leave Payments Board and Positron Pty Limited — No. 759 of 1990 — Martin C, Kennedy C.. Parks C. — 9/8/90 — Construction

Claim re registration with Construction Industry Long Service Leave Payments Board — BOR examined work performed, definitions of construction industry and found definition of construction industry did not include brickpaving in and around private homes, hence the applicant was not required to register — Granted — Doug Ritchie Paving and the Construction Industry Long Service Leave Payments Board — Carrigg Registrar, Latter, Jones — 29/8/90 — Brickpaving

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WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 70 W.A.LG.

CUMULATIVE DIGEST—continued

LONG SERVICE LEAVE —continued Application for pro rata Long Service Leave entitlements — Respondent argued there had been no transmission of business — BOR

found on evidence of the sale of the workplace that the Respondent was the transmitter of the business in question and the Applicant had entitlements under the Long Service Leave Standard Provisions — Granted — Moffat J. and Tip Top Abattoir — Carrigg Registrar, Beech, Uphill — 21/9/90 — Meat

Application for Long Service Leave Entitlements — BOR found on evidence employment was not terminated to avoid liability for Long Service Leave, recommencement of employment was after expiration of maximum period under section 6 of Long Service Leave Act for previous employment to be deemed continuous and neither periods of employment provided any entitlement to Long Service Leave — Dismissed — Bruce M. and Roland Smith and Company (Nell Gray Fashions)—Carrigg Registrar, Latter, Uphill — 4/10/90 - Clothing

Claim re contractual entitlements by seconded employee — Applicant claimed payment for superannuation and pro rata long service leave — Respondent gave commitment to enquire into superannuation entitlements but denied that applicant's length of service was sufficient to entitle long service leave payment pursuant to contract — Commission found that applicant had not established a contract breach with regard to superannuation but determined that pursuant to the contract the respondent, to whom the applicant was seconded, was obliged to have account for the different rates of long service leave entitlement between the employers to ensure the applicant would not be disadvantaged — Commission directed parties to confer to determine amount to apply — Ordered Accordingly — J. Harrison v. SSTU (WA) — No. 904 of 1990 — Kennedy C. — 31/8/90 — Trade Union

Conference referred re claim for pro rata Long Service Leave payment on behalf of two employees, one resigned, one made redunda nt — Respondent argued Commission had no power as what was sought was compensation and also redundancy payments had the effect of varying an award — Commission found on the authority of McLean's case Pepler's case was on authority in relations to unfair dismissal matters — Commission found circumstances of termination for both workers were not on all fours with the substratum of case law which derived Wages Case — On evidence the employee had disqualified herself as by resigning due to ill health rather than accepting to respondents offer of a rehabilitation programme and continued employment — Commission further found even if it could be found that the second worker was forced to retire on the basis of redundancy, on Ingle's case he had been adequately compensated by voluntary payment — Dismissed — FMWU and Bicton Private Hospital — No. CR519 of 1990 — Gregor C. — 25/10/90 — Health

Application for a first Award to cover a single enterprise — Objections of other Unions met in negotiations — Commission found as Award contained existing conditions of employment it complied with State Wage Fixing Principles and it had regard to the Structural Efficiency Principle — Commission further made particular comments as to Rates of Pay, Long Service Leave. Hours and Meal Money — Granted — HSOA v. GSI — No. AS of 1989 — Fielding C. — 25/9/90 — Supported Employees Industry

MANAGERIAL PREROGATIVE - Claim re unfair dismissal seeking reinstatement — Applicant argued dismissal was unlawful as it was effected summarily without

proper notice — Respondent argued parting was mutual, however if applicant was dismissed then two weeks' pay in lieu of notice was given — Commission found from evidence that applicant was dismissed, however reinstatement was not an alternative as employment would be for a short term and because of time lag in Applicant instituting these proceedings — Dismissed — Dissidomino V.A. v. Bactate Pty Ltd — No. 599 of 1990 — Fielding C. — 25/5/90 — Accounting

Employee terminated due to deficiencies in work performed — Applicant claimed unfair dismissal as alleged failings were not brought to his attention nor counselling to rectify such failings — Respondent argued supervisor had brought to applicant's attention dissatisfaction with performance, furthermore applicant had been paid all benefits due pursuant to award — Commission found respondent had acted fairly within legal rights — Dismissed — Baker K.R. and Ocean Fast Motor Yacht —No. 68 of 1990 — Parks C. — 19/3/90 — Marine/Constructions

Conference referred for hearing and determination re refusal of Trades Assistants to clean ablution and lunchroom facilities — Applicant argued cleaning duties were within the scope of the Tradesmen's Assistants duties and that in irregularly used facilities hygiene was maintained on a "user cleans" basis — Respondent Unions argued cleaning duties of those employees were those associated with work directly performed by the Tradesman or Ancillary to the maintenance of the work area and the insistence of the Applicant may give rise to demarcation disputes — Respondents further argued on the grounds of safety and hygiene — Commission found no reason why Tradesman Assistants could not perform such cleaning duties, that cleaning was required on a daily basis to meet DOHSWA standards, but there needed to be some central authority within Applicant's operations to co- ordinate resources to ensure required standards of hygiene were maintained — Reasons issued only — SEC and ETU and Others — CR114 of 1987 — Coleman C.C. — 16/9/87 — Electricity Supply

Conference referred re unfair dismissal seeking reinstatement — Applicant Union claimed "last on, first off principle should have been exercised in case of redundancy, that alternatives to dismissal were not considered and that redundance was a guise for terminating the contract for actions taken by employee as shop steward — Respondent argued that dismissal was a matter of managerial prerogative in which Commission should not interfere, that it was lawful and that there was no alternative work available — Commission found on evidence and with reference to authorities cited that there had not been "a fairgo all round" — Granted — ABLF v. Southdown Construction Company Pty Ltd — No. CR1136 of 1989 — Beech C. — 13/2/90 — Building Construction

Employee dismissed due to managerial incompetency — Applicant claimed dismissal too harsh a penalty — Respondent argued dismissal justified in the circumstances — Commission applied principles stated by Industrial Appeal Court in the Undercliffe Case and determined the dismissal not unfair— Dismissed — S.G. Akers v. Riverton Hotel — No. 661 of 1990 — Halliwell S.C. — 31/7/90 — Hospitality

Conference referred for hearing and determination re claim of unfair treatment in the transfer of a worker—Applicant Union sought employee be given work similar to that of his original shift and an allowance equivalent to the diminution of his earnings — Commission applied principles it had distilled from authorities in another matter and found on evidence no grounds to support the application, therefore it unnecessary to address questions of law raised by Respondent — Dismissed — AWU and RRIA — No. CR572 of 1990 — Gregor C. — 15/10/90 — Mining (Iron Ore)

Employee terminated as result of verbal altercation with superior — Applicant claimed dismissal was unfair and sought reinstatement — Respondent argued.dismissal was with notice and not unfair in the circumstances — Commission found on evidence and authorities cited that termination was a right of the employer and not unfair in this instance — Dismissed — S. Rauwendaal v. Town and Country (WA) Building Society — No. 517 of 1989 — Parks C. — 11/9/90 — Finance

Conference referred re dismissal — Union claimed dismissal of employee was unfair and sought reinstatement with no loss of entitlements — Employer argued that regardless oftrainingand counselling the employee failed to meet the required standards — Commission found on evidence that dismissal was not summary and had not been unfair in the circumstances — Dismissed — Burswood Management Ltd v. FLAIEU — No. CR545 of 1990 — Parks C. — 3/9/90 — Hospitality

2Appeal against decision of Commission (70 WAIG 2928) re warning issued to worker — Appellant sought quashing of decision and argued Commission had erred in law and exceeded jurisdiction in holding which supervisor had power to issue lawful and reasonable instruction as such matters were one of managerial prerogative — Furthermore appellant submitted Commission had erred in fact that shift supervisor made a mere request and as such did not constitute a lawful and reasonable direction — Full Bench found direction given to employee, although expressed in the form of a request, was a lawful and reasonable direction and that the Commission at first instance was in error in purporting to quash it — Upheld — Burswood Management Ltd and FLAIEU — Appeal No. 1224 of 1990 — Sharkey P., Coleman C.C.. Fielding C. — 14/7/90 — Hotel/Gaming

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

CUMULATIVE DIGEST—continued

MANAGERIAL PREROGATIVE —continued Claim recontractual entitlement — Applicant claimed dismissal was effected before completion of probation which is alleged to be a

fixed term and sought payment for uncompleted portion of probationary period — Respondent argued probationary period did not limit either party from terminating contract — Commission from evidence found that probationary period was to determine whether work was performed in a satisfactory manner and was not of itself employment for a fixed term Dismissed Drayton J. and Aboriginal Child Care Agency of WA — No. 56 of 1990 — Beech C. — 17/8/90 — Welfare

Employee terminated for failing to follow safety procedures — Applicant claimed dismissal unfair and sought reinstatement — Respondent argued that failure to comply with policies of the Company could legally result in termination under terms of contract — Commission found on evidence and authorities cited that respondent had not exercised its right to terminate the contract harshly or unreasonably — Dismissed ■— PJ. Collins v. Mawson Pacific Ltd No. 726 of 1990 Gregor C. 3/10/90 Mining 2Appeal against decision of Commission (70 WA1G 247) re transfer and redundancies of employees — Appellant argued that Commission had erred in fact and in law in determining that there was no obligation to offer redundancy pay — Respondent argued there was no redundancy — Full Bench found questions was not one of unreasonableness but whether the charges in classification constituted the creation of a redundancy and whether refusal to take alternative employment made such redundancy voluntary — Full Bench reviewed authorites and found that though redundancies occurred, any obligation on the part of the employer was met by the offer of transfer — Full Bench found Commission erred only in so far as statements to the reasonableness of the being required to accept the transfer and of not doing so were concerned and varied the decision accordingly — Upheld in Part — FMWU v. Anglican Homes (Inc) — Appeal No. 2803 of 1989 — Sharkey P., Halliwell S.C., Parks C. — 21/9/90 — Nursing Homes 2Appeal against decision ofCommission (70 WAIG 180)reunfair dismissal — Full Bench noted distinction between unfair dismissal and summary dismissal and its evidentiary onus on parties — Full Bench cited case for test re competence/unsatisfactory performance — Full Bench found claim for unfair dismissal could not be substantial as contract provided for termination by payment in lieu of notice and noted on this there was a palpable error in findings in first instance, appeal tribunals should not interefer with findings — Dismissed — Ismael S.A. and Turk Ellis Pty Ltd of Elverston Nominees — Appeal No. 2798 of 1989 — Sharkey P.. Halliwell S.C.. Parks C. — 12/9/90 — Accounting Practice 2Appeal against decision ofCommission (70 WAIG 2475)reorderofemployment —Appellant appealed on a numberofgroundsand argued Commission had failed to heed principle adopted by IA Court and Full Bench in that the Commission should not seek to take over the role of an employer to determine who should be employed and failed to have regard for the fact that services of employee were terminated on notice pursuant to clause because of overall unsatisfactory nature of employment Full Bench noted fundamental task was for union to establish that dismissal was unfair and from submissions and evidence found Commission had not given due weight to employees overall record of employment, thus Commission's discretionary judgment at first instance miscarried — Upheld — RRIAand AWU — Appeal No. 728 of 1990 — Sharkey P., FieldingC, Kennedy C. — 26/9/ 90 — Mining

MATERNITY LEAVE - 'Application for a General Order re New Standard Maternity Leave Provisions for Awards and Agreements — Applicant (TLC)

argued that some awards did not contain maternity leave provisions should be corrected by a General Order and the current standard was discriminatory and contrary to the Equal Opportunity Act 1984 — Interveners submitted their various positions with respect to the nature of such a General Order — CWAI argued question of law was for the EEO Commission and on medical grounds — C1CS found Test Case of Federal Commission, nor EEO Act were bars to Commission dealing on industrial matter— C1CS found applicant had not established that previous CICS conclusions over 52 week leave limit were unfounded or that the existing compulsory leave provision were unfair or unreasonable and that there had been no ruling made by the Equal Opportunity Tribunal — Furthermore the granting of an order for the Public Sector would not remove distinctions within the public sectors in maternity leave entitlements and that it was only for want of application that any award did not contain the existing standard — Dismissed — TLC and CWAI and Others — No. 62 of 1989 — Coleman C.C., Gregor, Kennedy C. — 13/7/90 — All Industries

MEAL BREAKS - Conference referred for hearing and determination re claim for provision of fly screen doors and insert controls for amenities sheds —

Commission expressed the view that the matter would not have normally required the attention of the Commission and that the issue may have been exaggerated in the unions submissions — However, because matters had been raised in Safety Minutes and other measures of the Respondent had not addressed the issue of flies the claim should be granted to address the problem raised — Granted — BTA and Others and MBA on behalf of Sabemo and Another — No. CR734(1) of 1990 — Beech C. — 25/9/90 — Building/Construction

MEAL MONEY - Application to vary Award re Meal Allowance — Dispute restricted to quantum of increase — Applicant Union argued allowance was

a reimbursable expense and sought an amount to account for the cost increase of purchase of a meal since last review in line with CPI for the appropriate category — Respondent argued automatic payment of allowance when overtime was worked meant it was not a reimbursable expense and therefore adjustment should reflect National Wage Increases — Commission reviewed authorities and found, how the Australian Tax Office viewed the allowance was irrelevant and in favour of Respondent — Award Varied — AMIEU and Australian Casing Company — No. 131 of 1989 — Parks C. — 13/8/90 — Meat 3248

2Appeal against decision ofCommission at (70 WAIG 87) re Award variation of meal allowance — Appellant sought quashing of Order or matter being remitted back, arguing Commission had erred in fact and law by applying particular sub-part of Principles, in finding taxation laws were irrelevant and that allowance does not consistitute a reimbursable expense — Furthermore Commission had failed to attach sufficient weight to the fact that meal allowance was clearly distinguished from other allowances the natural meaning of the term, comparisons between movements in CPI and percentage wage increases, changes in meal allowance in other Awards and changes in employers attitude — Full Bench found Commission had calculated allowance on evidence before it and within the principles of case cited, would not interefere with the discretion as exercised at first instance — Dismissed — FCU and Myer WA Stores Ltd and Others — Appeal No. 2833 of 1989 — Sharkey P., Salmon C, Kennedy C. — 13/7/90 —Clerical/Retail 2555

Application for a first Award to cover a single enterprise — Objections of other Unions met in negotiations — Commission found as Award contained existing conditions of employment it complied with State Wage Fixing Principles and it had regard to the Structural Efficiency Principle — Commission further made particular comments as to Rates of Pay, Long Service Leave, Hours and Meal Money — Granted — HSOA v. GSI — No. A8 of 1989 — Fielding C. — 25/9/90 — Supported Employees Industry 2997

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CUMULATIVE DIGEST—continued

MISCONDUCT — Conference referred for hearing and determination re claim for re-employment of workers on the grounds of unfair dismissal —

Commission found on evidence that employees had not completed required work, had spent more than usual amount of time at smoko and had indulged in horseplay — However Commission found inaction of an off duty supervisor led to the view that responsibility forthe events must be shared by the employees and the Respondent — Commission further found in viewofgreater maturity and experience of one employee and a previous final warning given, that his dismissal was not unfair—Granted in Part — BLF and Jardan Holdings Pty Ltd trading as G. 8c R. Constructions — No. CR293 of 1990 — Martin C. 22/5/90 — Building

Employee summarily dismissed for allegedly taking part in a fight on company premises — Applicant Union claimed dismissal unfair and sought re-instatement — Commission found Operation Managerial Instruction (a code of conduct) formed a proper attachment to the contract of service — Commission reviewed authorities and found on evidence once investigations, including those of the Police, had taken place and it was concluded that the Applicant was a participant in the fight, ratherthan a victim of an unprovoked assault, then it would be wrong for the Commission to interfere with the legal right of the employer to terminate the contract of service — Dismissed — AWA and AMC Mineral Sands — No. CR58 of 1990 — Gregor C. — 15/3/90 — Mining

Employee summarily dismissed for allegedly refusing to carry out lawful command — Applicant argued command to train subordinate in use of particular apparatus was dangerous and claimed unfair dismissal seeking payment in lieu of four weeks' notice — Respondent argued it had acted within its rights as applicant's assertion of danger in training was not a satisfactory explanation — Commission found in applicant's favour as refusal was due to concern for safety — Granted — Le Hoa Ma and Milne Feeds Pty Ltd — No. 569 of 1990 — Salmon C. — 21/5/90

Employee terminated for alleged criminal activities — Applicant claimed unfair dismissal seeking reinstatment — Respondent argued members of staff* and customers had complained re applicant's work attitude and added to this was the relationshp applicant had established with a patron — Commission did not accept respondent's testimony re complaints raised by staff or patrons, and found that termination of contract relying on rumours and innuendo was unjustified — Commission however found relief sought by applicant unacceptable in view of distrust and lack of mutual respect between parties — Ordered Accordingly — Harding D.A. and Cattach F. — No. 821 of 1990 — Coleman C.C. — 7/6/90 — Hospitality

Claim for reinstatement on the grounds of unfair dismissal — Respondent argued employee's performance and non-reliability were irredeemable and that even if dismissal was found unfairCommission should not order re-employment — Commission found on evidence that the employee had had incidents of poor performance but they had been judged by the Respondent on the basis of, inter alia, a "severe disciplinary warning" and were not of such seriousness to warrant dismissal — Furthermore, there had been elements of procedural unfairness and that reinstatement at the level of classification just prior to dismissal would not cause difficulties or inconvenience forthe Respondent — Granted — AWU and RRIA — No. CR175 of 1990 — Salmon C. — 10/4/90 — Mining (Iron Ore)

Employees summarily dismissed for alleged misconduct — Applicants claimed resignations were tendered with one month's notice and sought benefits entitled pursuant to contracts of employment — Respondent argued applicants had solicited its customers which was detrimental to business — Commission from evidence found in favour of applicants, with exception to claim for commission — Ordered Accordingly — Graham M. & Carr R. and Mavor Holdings trading as Decision Management — Nos 2386 and 2387 of 1989 — Halliwell S.C. 30/4/90 — Computing Sales

Employee terminated due to altercation with another employee — Applicant Union claimed dismissal unfair and sought the same — Applicant argued reinstatement was not a problem as second employee no longer sought reinstatement — Respondent argued dismissal was necessary to maintain discipline in the workplace — Commission found Acosta's case did not read to say that any threat of violence no matter what the circumstances justified dismissal — Commission found as employee had gained employment at a higher level of remuneration than with the Respondent, it was equitable that he not recover remuneration lost, if any, duringhis period of unemployment — Granted in Part — UFTU and Pay-Co Products — No. CR192 of 1990—FieldingC. — 19/4/90 Furniture Manufacture

Employee summarily dismissed for alleged misconduct — Applicant claimed unfair dismissal and sought reinstatement — Respondent outlined events and conduct of applicant which resulted in action taken — Commission from evidence found applicants behaviour inconsistent with the relationship that was expected and that termination of contract was justified — Dismissed — Eu-Huang Chung and Hon Minister for Education — No. 798 of 1990 — Martin C. — 29/6/90 — Education ....

Claim re unfair dismissal seeking reinstatement and contractual entitlements — Applicant believed his services were terminated unfairly for taking sick leave to which he was entitled — Respondent argued that the Applicant had abondoned his employment and in any event had pre-empted dismissal for misconduct — Commission found that Applicant was summarily dismissed which was unfair in the circumstances, reinstatement was not a viable proposition and due to Award coverage Applicant should proceed before Industrial Magistrate for moneys in lieu of notice and annual leave — Ordered Accordingly — Ferguson P.N. v. Southside Autos (1981) Pty Ltd as trustee for Southside Unit Trust tradingas "Southside Mitsubishi" — No. 762 of 1990—Martin C.—• 3/7/90 — Motor Vehicle (Retail and Service)

Claim re unfair dismissal seeking reinstatement without loss of entitlements — Applicant claimed dismissal was unlawful and unfair — Respondent made allegations relating to Applicant's integrity and work performance in justifying dismissal — Commission found that the termination was unlawful, not being pursuant to the contract of service and unfair, and ordered reinstatement with no loss of contractual entitlements — Ordered Accordingly— DuffT. v. SurfriderPtyLtd — No. 544of 1988 — Parks C. — 25/5/90 — Watersport Promotion and Sales

Employee summarily dismissed for misconduct seeking reinstatement — Applicant claimed dismissal resulted from refusal to operate company aircraft in breach of safety and legal regulations and sought payment in lieu of notice failing reinstatement — Respondent argued summary dismissal was justified for serious and wilful misconduct — Commission found that the applicant was in fundamental breach of his contract by refusing to work as directed during his notice period and thus summary dismissal was not unfair — Dismissed — Smith BJ. v. Ross Atkins Mining — No. 15 of 1990 — Gregor C. — 10/5/90 — Mining

Employee dismissed summarily for misconduct — Applicant Union claimed dismissal unfair and sought reinstatement without loss of entitlements — Respondent argued dismissal was justified for withholding and falsifying information relating to medical condition — Commission found that Applicant had been dismissed for reasons other than that stated, dismissal on those grounds was unfair and ordered reinstatement without loss of entitlements — Granted — FMWU v. Hospital Laundry and Linen Service — No. CR525 of 1990 — Gregor C. — 20/7/90 — Laundry

Conference re written warning issued to employee for non compliance of request — Commission from submissions found due to "legal technicality" instruction to confer with respondents management was not a lawful order but simply a request — Ordered Accordingly — FLAIEU and Burswood Management Ltd — CR238 of 1990 — Halliwell S.C. — 21/5/90

Employee terminated as result of verbal altercation with superior — Applicant claimed dismissal was unfair and sought reinstatement — Respondent argued dismissal was with notice and not unfair in the circumstances — Commission found on evidence and authorities cited that termination was a right of the employer and not unfair in this instance — Dismissed — S. Rauwendaal v. Town and Country (WA) Building Society — No. 517 of 1989 — Parks C. — 11/9/90 — Finance

2AppeaJ against decision of Commission (70 WAIG 2928) re warning issued to worker — Appellant sought quashing of decision and argued Commission had erred in law and exceeded jurisdiction in holding which supervisor had power to issue lawful and reasonable instruction as such matters were one of managerial prerogative — Furthermore appellant submitted Commission had erred in fact that shift supervisor made a mere request and as such did not constitute a lawful and reasonable direction — Full Bench found direction given to employee, although expressed in the form of a request, was a lawful and reasonable direction and that the Commission at first instance was in error in purporting to quash it — Upheld — Burswood Management Ltd and FLAIEU — Appeal No. 1224 of 1990 — Sharkey P., Coleman C.C.. Fielding C. — 14/7/90 — Hotel/Gaming

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

CUMULATIVE DIGEST—continued

MISCONDUCT —continued Conference referred re dismissal — Applicant Union claimed employee's conduct did not justify summary dismissal and sought

reinstatement with no loss of entitlements — Respondent argued that acceptance of gifts from residents was against policy and viewed very seriously — Commission found on evidence that employee did not wilfully disregard the policy and ordered in her favour — Granted — FMWU v. Board of Management, Braemar Lodge — N. CR641 of 1990 — Salmon C. — 22/10/90 — Hostels

Conference referred re dismissal — Applicant Union sought reinstatement of employee with no loss of entitlements — Respondent claimed summary dismissal was warranted on groundsof insubordination and refusal to obey a lawful command — Commission found, with regard to principles of Undercliffe case and other authorities sighted and on evidence, in favour of respondent — Dismissed — PKIU v. Western Australian Newspapers — No. CR607 of 1990 — Halliwell SC. — 27/9/90 — Printing

MIXED FUNCTIONS - 'Application to vary Award re extension of New Allowance to be paid to linespersons outside metropolitan area — Applicant Union argued on the basis of the Anomalies and Inequities Principle — Respondent argued allowed was paid to compensate for different responsibilities — CICS reviewed establishment of allowance and found an inequity in that linespersons were paid differently when they were performing the same work by an allowance which would have usually been part of the wage or higher duties payment — CICS found however it would be unfair to alternatively deprive persons of a payment received, so dismissed the unions claim while ordering the continued payment to those already in receipt at an amount not to be increased for any reason — Ordered Accordingly — ASEMFWU and Others and SEC — No. 2237 of 1989 — Salmon C., Gregor C, Kennedy C. — 7/8/90 — Electricity Supply

NATURAL JUSTICE - 'Appeal against decision of Commission at (69 WAIG 3106) re dismissed claim of unfair dismissal — Appellant argued Commission

had failed to give sufficient weight to various matters of evidence, had erred in not making findings on the separate grounds of dismissal and sought Order that the matter be remitted for further hearing and determination — Full Bench reviewed Authorities and found there was a requirement for procedural fairness on the part of the employer, which had been met in the events surrounding the dismissal and by the Respondent's reliance upon the investigations of the Commissioner of Health in the act of dismissal — Respondent had conducted no inquiry of its own relating to the allegations against the Appellant as required by Authorities and had acted unjustly in not referring the allegations to the Appellant for answer — Full Bench found Commissioner of Health had power to remove Appellant from office of Health Surveyor but not dismiss him from employment and that the Commission had erred in its construction of the Health Act — Full Bench found it was unable to admit a letter as fresh evidence and as a matter of public interest, after considering the Evidence Act, that the Commission was unable to compel a witness to give evidence that may be self-incriminating — Full Bench further found Commission had erred in not making a finding as to whether dismissal was justified on fraud allegations, that a finding of unfairness could not be made without it and that it was the Commission's duty to make such findings — Commission further erred in failing to meet evidentiary burden re further and better particulars, the manner in which it attached weight to evidence and in the exercise of its discretion — Full Bench found there had been a harsh and oppressive act of dismissal in line with Ong's case, that it had power to vary Commission's decision, though not that of the Commissioner for Health and there were no real barriers to re-instatement — Upheld — Mouritz P.M. and Shire of Esperance — Appeal No. 2384 of 1989 — Sharkey P., Coleman C.C., George C. — 6/4/90 — Meat 2130

'Appeal against decision of Commission at (70 WAIG 1339) re new Award — Appellant argued denial of natural justice in that they had no opportunity to be heard on certain matters and sought matter to be referred back to Commission — Full Bench found in favour of appellant and varied Scope Clause of Award — Upheld — Airlite Cleaning Pty Ltd and Others and FMWU — Appeal No. 539 of 1990 — Sharkey P., Martin C. Parks C. — 10/7/90 — Cleaning 2562

'Two Appeals by opposing parties against decision of Full Bench (70 WAIG 1659) to suspend decision of Commission and remit case to Commission for further hearing and determination due to procedural unfairness — Industrial Appeal Court found procedural unfairness was a failure of natural justice and that the balance of authority takes the view that a decision reached contrary to the provisions of natural justice is void — If the decision is void it is a nullity and can't be suspended as there is nothing to suspend — Section 49(5) of the Industrial Relations Act 1979, therefore, only allows quashing of the decision — Further, as the decision of the Commission has been quashed it means a decision has not been made at all and the Commission is notfunctus officio as far as the matters concerning the original application were purported to be determined — The Commission may, therefore, take up these matters again — Upheld — Robe River Iron Associates and AMWSU and Others v. AMWSU and Others and Robe River Iron Associates — IAC Appeals 3 and 4 of 1990 — Brinsden, Roland and Nicholson JJJ. — 13/6/90 — Iron Ore 2083

'Appeal against decision of Commission at (70 WAIG 250) re demarcation dispute — Appellant argued, inter alia. Commission's order was beyond power, was contrary to a finding of the Commission concerning the same demarcation, that it was managerial prerogative as to what calling of employee was employed to do what work and that the Commission had used powers that were specifically granted to the Full Bench — Respondent argued section 44 of Industrial Relations Act necessarily limited the order to binding only the parties in relation to whom the matter was not settled and raised a question of bias in the Full Bench — Full Bench extensively reviewed authorities. Industrial Relations Act and evidence before the Commission at first instance to find matter before it an industrial matter which the Commission had jurisdiction to deal with at first instance — However, Full Bench found plain words of order extended its effect to all persons in the industry, which was beyond power under section 44and a denial of Natural Justice — Full Bench further found existence of a provision similar to section 118 of the Commonwealth Industrial Relations Act, however useful it might be was not a sine qua non to the exercise of jurisdiction in demarcation matters by the Commission — Full Bench found Commission had power to demark work and determine coverage but not alter Union Rules — Full Bench found insufficient evidence to find that the dispute occurred in the Building Construction Industry, hence the scope of the Building Trades (Construction) Award, Commission gave too much weight to the effects of differences in pay between the callings and failed to account for the uncontroverted evidence of unilateral action of the Respondent to impose a practice and its Industrial Record — Full Bench stated it was the right of a party to submit bias to a Tribunal, it was aware of its duty to disqualify itself in a case of actual or apparent bias, but that it was not assisted by gratituitous remarks which might have the effect of colouring the record of proceeding before it — Upheld and Remitted — UFTU and CMEU and Others — Appeal No. 2723 of 1989 — Sharkey P., Negus C, George C. — 15/6/90 — Building Construction 2108

'Application for Award variation based on nexus via Special Case Mechanism of Principles — Applicant sought to express loadings payable for shift and weekend work as per hour, in lieu of per shift or time and one-half, thus resulting in increases in the additional remuneration paid to employees performing their ordinary hours of work in a shift work mode — Respondent supported application — CICS noted from analysis of the history of instant Award that nexus claimed could not be established and "Special Case" was to be considered in accordance with the Structural Efficiency and other relevant Principles — Furthermore CICS found question of merit must be established before it could deal with "special case", there must be no likelihood of flow-on and that the increase must be a once only matter — CICS proposed new order consistent with Principles — Supplementary Decision — Parties sought to have application withdrawn, dismissed or adjourned, as administrative increase of shift allowance to retain parity was greater than the order proposed by CICS — CICS having regard to new facts, found appropriate action was an order of dismissal — Dismissed — FMWU and Activ Foundation — No. 799 of 1989 — Halliwell S.C., Martin C., Gregor C. — 23/5/90 — Health/Welfare 2324

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CUMULATIVE DIGEST—continued

NATURAL JUSTICE —continued Entitlement of union membership — Applicant was refused membership of an organisation, union application and sought ruling on

matter — President found from unions rule that the respondent union had no option but to admit applicant to its membership — Furthermore President found applicant had established on the balance of probabilities that he was and is employed as a crane driver — Granted — Leavey W.A. and CMEWU — No. 877 of 1990 — Sharkey P. — 1/8/90 — Union

Appeal against decision of Commission (70 WAIG 2218) re award variation pursuant to Structural Efficiency — Appellant argued Commission at first instance erred in failing to allow respondent the opportunity to call evidence, failed to make any independent assessment of the merits of the case by adopting reasons applicable to other industries and awards, failed to have sufficient regard for new community attitudes and finally erred in acting contrary to Wage Fixing Principles — Full Bench found, principle ofaudi alterant partem was breached. Commission had prevented itself from properly considering merits of case and failed to make an independent assessment and confirmed allegation that Commission at first instance erred in acting contrary to Wage Fixation Principles — Full Bench found decision ofCommission at first instance was void and on authority cited, be quashed — Upheld — Bread Manufacturers' (Perth and Suburbs) Industrial Union of Employers and Bakers, Pastrycooks and Confestioners Union — Appeal No. 916 of 1990 — Sharkey P., Coleman C.C., Fielding C. — 17/7/90 — Bakery

"Nomination for Union election delcared ineligible due to postal delays through no fault of the applicant — Applicant sought order from Commission directing Returning Officer to accept nomination and include name on ballot papers — President found delay through no fault of anyone including applicant, and matter required an order to remedy the situation — Granted — DwyerT.F. and President and Returning Officer SSTU — No. 1521A of 1990 — Sharkey P. — 26/8/90 — Union

NEXUS — Application to vary Award re Second Structural Efficiency Wage Adjustment — Public Service Arbitrator reviewed parties efforts in

Structural Efficiency, including previous Award changes and broadbanding, changes to the ordinary hours of work, shift work and overtime and was satisfied that the parties had done sufficient under the Wage Adjustments Principle — PSA in granting $15.00 or three per cent increase to all classifications, distinguished the Award from private sector Awards and referred to nexus with Public Service Salaries Agreement — Allowances also varied — Granted — FCU and WA Coastal Shipping Commission and Others — No. P10 of 1990(R2) — Fielding C. — 4/7/90 — Public Administration

Application for first Structural Efficiency Wage increase — Parties had set about inter alia rationalising, salary scales for classifications and compacting long service leave — Commission noted Award applied to a small organisation with perhaps not the scope for radical changes and with tortuous path of Second Tier adjustments, it is not surprising that the parties had not been able to do more to date — Granted — HSOA and Paraplegic-Quadriplegic Association of WA — Fielding C. — No. 2107 of 199(XR) — Health Services

Applications to vary Awards re Second Tier and Structural Efficiency Wage Increases — Commission granted three per cent wage increase for same reasons as a related application and then gave reasons for decision to examine matters of hours of work and income maintenance — Applicant Union argued tradeoffs sought by employers were outrageous, beyond the scope of what was appropriate in arbitral proceedings for second tier wage increases and that an agreement reached in the Bakers" (Metropolitan) Award was unconscionable — Respondents argued changes to hours and penalty rates agreed in the Bakers' (Metropolitan) Award should be flowed to the subject Awards and that the differences between the Awards had a deteriorating effect on business competition — Commission reviewed reasons for decision in the other application and was not prepared to "inflict" by arbitration the consent reached in another Award on a strongly dissenting party — Granted — Bakers Union and Bakewell Foods Pty Ltd and Others — Nos. 2294 and 2295 of 1989(R) — Halliwell S.C. — 6/4/90 and 21/5/90 — Bakeries

Application for award variation based on nexus via a Special Case Mechanism of Principles — Applicant sought to express loading payable for shift and weekend work as per hour, in lieu of per shift or time and one-half, thus resulting in increases in the additional remuneration pay to employees performing their ordinary hours of work in a shift work mode — Respondent supported application — CICS noted from analysis of the history of instant Award that nexus claimed could not be established and "Special Case" was to be considered in accordance with the structural efficiency and other relevant Principles — Furthermore CICS found question of merit must be established before it deal with "Special Case", there must be no likelihood of flow-on and that the increase must be a once only matter — CICS proposed new order consistent with Principles — Supplementary Decision — Parties sought to have application withdrawn, dismissed or adjourned, as administrative increase of shift allowance to retain parity was greater than the order proposed by CICS — CICS having regard to new facts found appropriate action was an order of dismissal — Dismissed — FMWU and Activ Foundation — No. 799 of 1989 — Halliwell S.C., Martin C, Gregor C. - 23/5/90 — Health/Welfare

Applications to vary award to include termination, change and redundancy provisions — Union relied on Australian ConciliatioApplications to vary award to include termination, change and redundancy provisions — Union relied on Australian Conciliation and Arbitration Commission Full Bench decision and Commission in Court Session decision inserting termination, change and redundancy provisions into Federal and State Metal Trades Awards — For reasons support argument — Claim represents sensible workable improvements insuring fairness — Clear nexus between Federal and State Awards — Recent developments in job security in other states — Inequity exists between states in job protection — Respondents claimed no case to answer — Merit finding not an argument — Claim should be dismissed — Movement in other states and Commission in Court Session decision reinforces view held that equity should exist in conditions of employment — Granted — AMWSU and Boltons Pty Ltd and Others — No. 860 of 1986 — Halliwell S.C. — 29/6/88 — Metal Trades

'Application for a General Order re New Standard Maternity Leave Provisions for Awards and Agreements — Applicant (TLC) argued that some awards did not contain maternity leave provisions should be corrected by a General Order and the current standard was discriminatory and contrary to the Equal Opportunity Act 1984 — Interveners submitted their various positions with respect to the nature of such a General Order—CWAI argued question of law was for the EEO Commission and on medical grounds — CICS found Test Case of Federal Commission, nor EEO Act were bars to Commission dealing on industrial matter— CICS found applicant had not established that previous CICS conclusions over 52 week leave limit were unfounded or that the existing compulsory leave provision were unfair or unreasonable and that there had been no ruling made by the Equal Opportunity Tribunal — Furthermore the granting of an order for the Public Sector would not remove distinctions within the public sectors in maternity leave entitlements and that it was only for want of application that any award did not contain the existing standard — Dismissed — TLC and CWAI and Others — No. 62 of 1989 — Coleman C.C., Gregor, Kennedy C. — 13/7/90 — All Industries (

'Application to vary Award re extension New Allowance to be paid to linespersons outside metropolitan area — Applicant Union argued on the basis of the Anomalies and Inequities Principle — Respondent argued allowance was paid to compensate for different responsiblities — CICS reviewed establishment of allowance and found an inequity in that linesperson were paid differently when they were performing the same work by an allowance which would have been usually part of the wage or higher duties payments — CICS found however it would be unfair to alternatively deprive persons of a payment received, so dismissed the Union's claim while ordering the continued payment to those already in receipt at an amount not to be increased for any reason — Ordered Accordingly — ASEMFWU and Others and SEC — No. 2237 of 1989 — Salmon C, Gregor C, Kennedy C. — 7/8/90 — Electricity Supply

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70 W.A.LG. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE

CUMULATIVE DIGEST—continued Page

NEXUS —continued Applications to vary Awards by consent re shift loadings and weekend penalties on an interim basis — CWAI intervener sought

application be adjourned pending Appeal Court decision — Commission found it should not comment on the competency of Appeals before the IAC and to adjourn would be to suspend to Commission's function to hear special cases in disregard to section 26( 1) of the IR Act — Applicants argued for a Special Case, on the basis of "like with like" with the Government Health Sector and that there was probably an anomaly under the Anomalies and Inequities Principle — CICS reviewed another Special Case in industry. Structural Efficiency Principle and found claim satisfied special criteria — CICS further found issue would be finalised in final review of Award, and that costs were acceptable with the efforts to achieve Structural Efficiency, with little possibility of fiow-on — Granted — FMWU and Anglican Homes (Inc) and Others — Nos. 772-774 of 1989,798 of 1989,1679-1680 of 1989,2646 of 1989 and 906 of 1987 — Coleman C.C., Martin C, Salmon C. — 24/1/90 — Health 3073

3 Application to vary Award by consent re Wage rate of two classifications as a Special Case — CICS found on evidence all tests ofWork Value Principle met, new duties and responsibilities constituting a net addition to work requirements, for which recompense was sought were the same as those experienced and recognised in the determination of rates for the Victorian Counterparts — CICS further found no double counting of factors recognised under Structural Efficiency exercises — Majority of CICS found no special circumstances to warrant a retrospective operative date, with each Commissioner issuing his/her own reasons for decision — Granted in Part — FMWU and St John Ambulance Association — No. 724of 1989 — Coleman C.C.. Kennedy C, George C. — 4/9/90 — Emergency Services 3574

NIGHT AND WEEKEND WORK — Application to vary Award re wages — Applicant Union sought additional loading on wage rate as it had been in existence in the

preceeding Award — Respondent argued application should be joined to another application as it would be inappropriate to prescribe a loading when the Applicant was seeking to replace the concept in the near future or that the loading should be 44 per cent not 60 per cent of the hourly base rate of pay — Commission was not prepared to adjourn and join the application properly before it as there was no good reason to do so and due to a deficiency in the Award under review — Commission reviewed history of loading and State Wage Principles which lead the Commission to consider the establishment of any new loading by reference to the value of any similar loadings that have already been assessed within the Award — Commission found as a matter of valued judgment, taking into account that the employees concerned did not receive, inter alia, annual leave, a loading of 46 per cent to be appropriate — Granted in Part — FCU and WA Turf Club and Others — No. 868 of 1989 — Parks C. — 20/8/90 — Racing and Gaming

Appeal against decision of Commission at (70 WAIG 846) re availability and on-call allowance — Appellant argued on the basis of an Industrial Appeal Court decision, that the Commission erred in determining the basis for assessment and had applied the wrong Wage Fixing Principle — Full Bench found real argument on Appeal concerned quantum of allowance and its applicability on weekends — Full Bench found in the sense that the workers were susceptible to disciplinary action, the duty was not voluntary and the Commission was entitled to find that there were entitlements that should have been met under the overtime clause of the Award — Full Bench further found no arguments as to why $11.00 was preferable to $22.00, sufficient reason to justify the quantum awarded and that the discretion ofthe Commission had not miscarried — Dismissed — SEC and ASEMWU and Others — Appeal No. 454 of 1990 — Sharkey P., Martin C., Gregor C. — 9/8/90 — Electricity Supply

Application for a General Order re New Standard Maternity Leave Provisions for Awards and Agreements — Applicant (TLC) argued that some awards did not contain maternity leave provisions should be corrected by a General Order and the current standard was discriminatory and contrary to the Equal Opportunity Act 1984 — Interveners submitted their various positions with respect to the nature of such a General Order—CWAI argued question of law was for the EEO Commission and on medical grounds — CICS found Test Case of Federal Commission, nor EEO Act were bars to Commission dealing on industrial matter— CICS found applicant had not established that previous CICS conclusions over 52 week leave limit were unfounded or that the existing compulsory leave provision were unfair or unreasonable and that there had been no ruling made by the Equal Opportunity Tribunal — Furthermore the granting of an order for the Public Sector would not remove distinctions within the public sectors in maternity leave entitlements and that it was only for want of application that any award did not contain the existing standard — Dismissed — TLC and CWAI and Others — No. 62 of 1989 — Coleman C.C., Gregor, Kennedy C. — 13/7/90 — All Industries

Applications to vary Awards by consent re shift loadings and weekend penalties on an interim basis — CWAI intervener sought application be adjourned pending Appeal Court decision — Commission found it should not comment on the competency of Appeals before the IAC and to adjourn would be to suspend to Commission's function to hear special cases in disregard to section 26{ 1) of the IR Act — Applicants argued for a Special Case, on the basis of "like with like" with the Government Health Sector and that there was probably an anomaly under the Anomalies and Inequities Principle — CICS reviewed another Special Case in industry. Structural Efficiency Principle and found claim satisfied special criteria — CICS further found issue would be finalised in final review of Award, and that costs were acceptable with the efforts to achieve Structural Efficiency, with little possibility of flow-on — Granted — FMWU and Anglican Homes (Inc) and Others — Nos. 772-774 of 1989,798 of 1989,1679-1680 of 1989,2646 of 1989 and 906 of 1987 — Coleman C.C., Martin C., Salmon C. — 24/1/90 — Health

ON CALL — Appeal against decision of Commission at (70 WAIG 846) re availability and on-call allowance — Appellant argued on the basis ofan

Industrial Appeal Court decision, that the Commission erred in determining the basis for assessment and had applied the wrong Wage Fixing Principle — Full Bench found real argument on Appeal concerned quantum of allowance and its applicability on weekends — Full Bench found in the sense that the workers were susceptible to disciplinary action, the duty was not voluntary and the Commission was entitled to find that there were entitlements that should have been met under the overtime clause of the Award — Full Bench further found no arguments as to why $11.00 was preferable to $22.00, sufficient reason to justify the quantum awarded and that the discretion ofthe Commission had not miscarried — Dismissed — SEC and ASEMWU and Others — Appeal No. 454 of 1990 — Sharkey P., Martin C, Gregor C. — 9/8/90 — Electricity Supply 3015

ORDER - Conference re summary dismissal of a worker—Commission found it necessary to prevent a deterioration in industrial relations and

equitable to re-employ worker pending hearing and determination of claim for reinstatement — Ordered Accordingly — Multiplex Constructions Pty Ltd and BLF — No. C211 of 1990 — Beech C. — 15/3/% — Building Construction 2468

Application for order by consent re enterprise agreement reflecting interim arrangements for implementation of Structural Efficiency Principle — Commission found with some reservation the proposed order, subject to adjustment in some rates to properly reflect agreed relativities and no change in rates for non-trades classification, could be notified under the Structural Efficiency Principle — Commission's reservations went to matters beyond the control of the parties to unfinalised developments under the Federal and State Metal Trades Awards — However, Commission further determined issued of those classifications and the Second' Structural Efficiency Wage Adjustment in Supplementary Reasons — Granted in Part — Readymix Group (WA) Ltd and Another and AMWSU and Another — No. 2397 of 1989 — George C. — 22/3/90 — Quarrying Industry 3260

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CUMULATIVE DIGEST—continued

ORDER —continued application for enforcement of Act — Applicant union alleged that Respondent Union had breached an orderof the Commission re

demarcation an eligibility to enrol members — Respondent argued Full Bench reviewed authorities. Industrial Relations Act and found the "Order" to be an "Order" as its meaning read in section 66(2) of the Industrial Relations Act and that such an Order may be "a declaration of Interpretation" — Full Bench found that there was a "defence of mistake" on honest and reasonable belief, metisrea, but that the Respondent had not discharged the evidential burden and that there was various liability on the Respondent for the acts of its servants or agents — In Supplementary Reasons Full Bench found that no mitigating circumstances, a serious failure to comply and also given a lack of undertakings as to future conduct that the maximum penalty, short of deregistration proceedings should apply — Further that costs ought be awarded — Full Bench also found Industrial Appeal Court regulations deliberately used the words judgment or order because it would create an intolerable situation if every time there was a finding the whole proceedings had to be stayed pending the Appeal to the Industrial Appeal Court — Full Bench found right to submit bias was waived, noted that the submission was made after the breach was established, that the Full Bench was contrained in its constitution by the legislation and was aware of its duty to disqualify itself — Full Bench found it had a duty to continue to hear the matter and did not grant adjournment sought by Respondents — Proven — UFTU and CMEWU — No. 2633 of 1989 — Sharkey P., Coleman C.C., Salmon C. — 5/4/90 — Building Construction/Furniture Manufacture

2Appeal against decision of Commission (70 WAIG 2928) re warning issued to worker — Appellant sought quashing of decision and argued Commission had erred in law and exceeded jurisdiction in holding which supervisor had power to issue lawful and reasonable instruction as such matters were one of managerial prerogative — Furthermore appellant submitted Commission had erred in fact that shift supervisor made a mere request and as such did not constitute a lawful and reasonable direction — Full Bench found direction given to employee, although expressed in the form of a request, was a lawful and reasonable direction and that the Commission at first instance was in error in purporting to quash it — Upheld — Burswood Management Ltd and FLAIEU — Appeal No. 1224 of 1990 — Sharkey P., Coleman C.C., Fielding C. — 14/7/90 — Hotel/Gaming

4Application to have union's rules (Amendments, Meeting and Quorum) disallowed — Applicant submitted rules in question was oppressive and inconsistent with the democratic control of the organisation by its members and impossible to comply with, therefore relief from this duty is sought by way of direction or order of the President — President noted it was only an assertion that there was an unlikelihood of alterations to the rules being approved because quorum would not be achieved, and, no material was put forward that this was not achievable in the past — President found membership had a right, to object or not to such alterations, and to facilitate this, suspended operation of rule in so far as quorum and declared meeting would be valid if it attracted a quorum of 100 members — Ordered Accordingly — J. Sharp-Collett and AMWSU — No. 1387 of 19% — Sharkey P. — 7/9/% — Unions

2Appeal against decision of Commission (70 WAIG 2917) re order issued to prevent deterioration of industrial relations pending determination of substantive issues — Appellant argued decision was contrary to section 26 and section 44IR Act — Full Bench found order purported to vary previous conciliation order in one respect, that the interim nature of both, such that the order appealed was a finding, did not finally dispose of the matter and was not of such importance that in the public interest an appeal should lie under section 49 — Dismissed — WA Newspapers Ltd and PKIU — No. 1154 of 19%—Sharkey P., George C, Beech C. — 5/11/% — Newspapers

Speaking to Minutes in Appeal against decision of Commission (70 WAIG 3561) — Respondent submitted that a broadbanding payment agreed between the parties should have been exempted from Full Bench Order — Full Bench determined that appeal and the decision of the Full Bench related to the whole of the decision at first instance and it would not be appropriate to amend the orderupon a Speaking to Minutes — Ordered Accordingly — Central Districts Bakery and Others v. TWU—Nos. 922 and 924 of 19% — Sharkey P., Halliwell S.C, Salmon C. - 29/10/% — Transport

2Appeal decision of Industrial Magistrate following further hearing and determination after remittal (70 WAIG 1570) re pursuance of severance payment claim contrary to award and State Wage Principles — Majority Full Bench reviewed principles applying to appeals against decision of, admissability of evidence and standard of proof before an Industrial Magistrate — Majority of Full Bench found the prescription that the Justice Act apply to section 83 of the IR Act matters was an an unnecessary complication to practices and procedures and a contradiction by regulation — Majority of Full Bench found on evidence rather than there being no case to answer, there were evidence and asssertions to support the finding of a breach of Award/Wage Fixing Principles — Dissenting Commissioner reviewed authorities as to the nature of the union as a principle party and concluded there was no evidence of palpable erroron the part of the Industrial Magistrate — Upheld — Registrarv. AMWSU — Appeal No.600of 19% — Sharkey P., Fielding C, Beech C. — 25/9/% — Construction

OVER AWARD PAYMENT — Application to vary award re Second Stage Structural Efficiency Wage Adjustment by consent save date of operation — Commission

considered matters such as changes to the classification structure, including broadbanding, in line with Metal Trades (General) Award, the changes in Wage Structure, including minimum rates adjustment, supplementary payments and difficulties in applying second instalment of wage increases — Though Commission was in agreement with Australians Commissions expressed views on the matters it was prepared to accept the submissions of both parties in the circumstances of the industry — Commission found no special circumstances to justify a date of operation earlier than when the matter was before the Commission in hearing — Granted in Part — AMWSU v. J.W. Bolton Pty Ltd and Others — No. 482 of 1990(R2) — George C. — 30/7/90 — Vehicle Building

OVERTIME — Application to vary Award by increasing wages pursuant to Structural Efficiency Principle — Respondent argued agreed proposed

changes did not satisfy the Structural Efficiency Principle so as to warrant ratification of $15.00 wage increase — Commission reviewed authorities and found it was not obligated to follow what had occurred in a Victorian Decision — Commission determined matters of increase in spread of hours of work and provision for time of in lieu of overtime — Commission split application so as to deal with matters of disagreement at a later stage — Granted in Part and Adjourned — FCU and HPC Pty Ltd and Others — No. 1583A and B of 1989(R) — Parks C. — 13/6/% — Clerical

Application for new award to replace previous award and agreement in respect to named respondents — Matter came before Commission by consent — Commission found new award significantly restructured employment in the industry and complied with State Wage Fixing Principles and in particular with Structural Efficiency Principle — Granted — FLAIEU v. Amalgamated Food and Poultry Pty Ltd trading as Red Rooster Foods and Others — No. A14/% — Fielding C. — 22/8/% — Fast Food

Claim re contractual entitlement—Applicant claimed balance of pay in lieu of leave accrued as compensation for overtime worked — Respondent claimed that applicant had been paid, on an earlier date, a sum in lieu of leave accumulated to that date and on termination had been paid for leave accrued since — Respondent submitted further that in any event the contract had changed in course of employment such that applicant was no longer entitled to take accumulated overtime as leave — Commission found that the contract did provide for leave to be granted for overtime worked and that contract was not varied but that there was no provision for payment in lieu thereof — Commission found further that previous payments were ex gratia — Carter K. — Dismissed — Carter K. v. WA Cricket Association (Inc) — No. 838 of 19% — Parks C. — 25/9/% — Entertainment

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

CUMULATIVE DIGEST—continued Page

OVERTIME —continued Complaint re Breach of Overtime provisions of two different awards — Separate consideration given by Industrial Magistrate as

awards differed — Respondent argued employee was not eligible for overtime as he was not subject to close supervision under either award and that the overtime was subject to agreement that the first 50 hours were to be taken as time in lieu — Industrial Magistrate distinguished instant case from one before the Commission and found close supervision did not require some one watching him and further that any agreement between employee and employer in breach of award conditions was null and void — Proven — CSAand Hon. Minister for Agriculture — Complaints'Nos. 209,210 and 229 of 1990 — Brown S.M. — 22/10/90 — Public Administration 4"®

Complaint re failure to pay overtime in accordance with an award and related 38 hour week agreement — Industrial Magistrate reviewed shift work clause of award, agreement and the decision of the Commission to find the purpose of the award provision was to discourage management requiring a shift worker to work parts of a week on afternoon or night shift rather than a straight five day shift — Industrial Magistrate, though not agreeing with all respondents submissions, found it would be a perverse result if the provision was held to mean the employee was entitled to overtime rates for all afternoon shifts worked prior to his rostered day off — Industrial Magistrate found on balance of probabilities complainant had failed to prove a breach — Dismissed — ETU v. Hon. Minister for Health — Complaint No. 48 of 1990 — Brown S.M. — 2/11/90 — Laundry and Linen Services 4113

PENALTY RATES — Applications to vary Awards re Second Tier and Structural Efficiency Wage Increases — Commission granted three per cent wage

increase for same reasons as a related application and then gave reasons for decision to examine matters of hours of work and income maintenance — Applicant Union argued tradeoffs sought by employers were outrageous, beyond the scope of what was appropriate in arbitral proceedings for second tier wage increases and that an agreement reached in the Bakers' (Metropolitan) Award was unconscionable — Respondents argued changes to hours and penalty rates agreed in the Bakers' (Metropolitan) Award should be flowed to the subject Awards and that the differences between the Awards had a deteriorating effect on business competition — Commission reviewed reasons for decision in the other application and was not prepared to "inflict" by arbitration the consent reached in another Award on a strongly dissenting party — Granted — Bakers Union and Bakewell Foods Pty Ltd and Others — Nos. 2294 and 2295 of 1989(R) — Halliwell S.C. — 6/4/90 and 21/5/90 — Bakeries

Conference referred re dispute over payment for processing of goats — Applicant Union sought Order that slaughtermen be paid as if goats processed at other times had been processed at end of normal kill: Award unit rate for goats plus any over-tally payment due — Respondent argued that as goats had usually been slaughtered at end of kills for practicality and health reasons, over-tally rates usually applied to their processing, however over-tally rates was not a negotiated element in the setting of the unit rates for goats — Further, there was no agreement that goats would always be processed at end of kill — Commission found, that the time at which goats were usually processed resulted in over-tally payments did not influence the unit rate agreed upon for processing goats — Dismissed — Australasian Meat Industry Union v. Metro Meat Katanning Limited — No. CR1071 of 1989 — Halliwell S.C. — 18/6/90 — Meat

Conference referred re dispute over which circumstances should lead to payment of "dirt money" pursuant to Award — Applicant Union claimed tasks additional to those recognised by Respondent should attract payment — Respondent argued, such tasks should only attract penalty in unusual circumstances and that rate ofpay encompassed and envisaged disabilities relating to dirty conditions in offset printing process — Commission noted that whilst Respondent's argument could underpin an application for the abolition of the disability allowance that was not the task at hand — Commission made finding of which tasks should attract the allowance and directed that in exceptional circumstances other duties could be authorised for payment by Pressroom Manager — Delcaration — PKIU and WA Newspaper Ltd — No. CR308 of 1990 — Negus C. — 6/7/90 — Printing (Newspaper)

'Applications to vary Awards by consent re shift loadings and weekend penalties on an interim basis — CWAI intervener sought application be adjourned pending Appeal Court decision — Commission found it should not comment on the competency of Appeals before the IAC and to adjourn would be to suspend to Commission's function to hear special cases in disregard to section 26( 1) of the IR Act — Applicants argued for a Special Case, on the basis of "like with like" with the Government Health Sector and that there was probably an anomaly under the Anomalies and Inequities Principle — CICS reviewed another Special Case in industry. Structural Efficiency Principle and found claim satisfied special criteria — CICS further found issue would be finalised in final review of Award, and that costs were acceptable with the efforts to achieve Structural Efficiency, with little possibility of flow-on — Granted — FMWU and Anglican Homes (Inc) and Others — Nos. 772-774 of 1989,798 of 1989,1679-1680of 1989,2646 of 1989 and 906 of 1987 — Coleman C.C., Martin C, Salmon C. — 24/1/90 — Health

Applications to vary Awards by consent re Shift Penalties, New Definition and other Allowances as an interim measure pending issue of New Award — Public Service Arbitrator found various amendments either reflected existing practise, arose out of Structural Efficiency negotiations in the case of new "recruit in training" definition/rate of pay, had been earlier determined, related to increased costs or rationalisation of Allowances or corrected errors and ommissions — Granted — Hon. Minister for Police and WAPQW — Nos. 1558-1560 of 1990 — Fielding C. — 15/10/90 — Police

Application for new award to replace previous award and agreement in respect to named respondents — Matter came before Commission by consent — Commission found new award significantly restructured employment in the industry and complied with State Wage Fixing Principles and in particular with Structural Efficiency Principle — Granted — FLAIEU v. Amalgamated Food and Poultry Pty Ltd trading as Red Rooster Foods and Others — No. A14/90 — Fielding C. — 22/8/90 — Fast Food ......

Application to vary shift work clauses common to two awards — Applicant union argued it was unfair that relieving shift workers receive a higher remuneration than workers who are permanently on shift and sought to have shift work on weekends and public holidays paid for at overtime rates for all workers — Respondent opposed claim arguing cost increase would be significant, that it was not part of structural efficiency, rates prescribed by award are no different from those found within four significant awards of the Commission — Furthermore respondent regarded matter as an "extra claim" to unions "no extra claim" commitment — Commission appreciated dissatisfaction among shift workers, however found insufficient detail before it to appreciate full nature of the problem — Dismissed — Brick, Tile and Pottery Union and Midland Brick and Others — No. 976(2) and 977(2) of 1990 — Beech C. — 17/8/90 — Brick Manufacturing

PREFERENCE - ■•Application to restrain union from admitting as members, persons who are not employed as builders labourer—Applicant sought to

have their memberships with Respondent union cancelled and all union dues paid refunded — Respondent union argued applicants were eligible for membership as they were employed as ship form technicians and not carpenters — President found from evidence and findings of fact that fundamental requirement under the Respondent Union rule is that a person must be a labourer and at no such time were the applicants employed as labourers — Granted — Dropulich B. and Others v. BLF — Nos. 1066-1069 of 1990 - Sharkey P. — 3/8/90 — Union 3100

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WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 70 W.A.I.G.

CUMULATIVE DIGEST—continued

PRINCIPLES — Application to vary Award pursuant to Structural Efficiency Principle — Applicant Union sought three per cent wage increase on

basis of proposals and commitments under the Principles — Respondent opposed claim and argued all Award clauses were open for discussion — Commission found Applicant had satisfied Principles in line with pattern set in Federal and State Metal Trades and Building Trades Awards and Agreements — Commission further stated Respondent's counterproposals may have extreme relevance when the Applicant sought the second Structural Efficiency increase — Granted — WA Bakers, Pastrycooks' and Confectioners Union and Bread Manufacturing (Perth and Suburbs) Union of Employers of WA — No. 2296 of 1989(R) — Halliwell SC. — 5/4/90 — Bread Manufacturing

Application to vary Award by increasing wages pursuant to Structural Efficiency Principle — Respondent argued agreed proposed changes did not satisfy the Structural Efficiency Principle so as to warrant ratification of $15.00 wage increase — Commission reviewed authorities and found it was not obligated to follow what had occurred in a Victorian Decision — Commission determined matters of increase in spread of hours of work and provision for time of in lieu of overtime — Commission split application so as to deal with matters of disagreement at a later stage — Granted in Part and Adjourned — FCU and HPC Pty Ltd and Others — No. 1583A and B of 1989(R) — Parks C. — 13/6/90 — Clerical

Application to vary Award pursuant to Structural Efficiency Principle by consent — Applicant Unions sought first Structural Efficiency Wage Adjustment and increase in allowances — Commission found variations proposed in accordance with the Principles and referred to Reasons for Decision in other Government Engineering Award Cases — Commission further reviewed agreement for Structural Efficiency in Public Sector Engineering, including a proposed new Award to replace existing Awards — Commission specifically dealt with submissions of parties to maintain wages and classification structures links with a related Award and its history so as to assist the parties on their deliberations for the second Structural Efficiency adjustment — Granted — AMWSU and Another v. WAFBB — No. 175 of 1989(R) — George C. — 24/4/90 — Emergency Services

Application for new award — Amalgamation of two awards, to give effect to first stage of Structural Efficiency Principle — Commission noted rationalisation of a number of conditions and found parties committed to restructuring and efficiency — Ordered Accordingly — Operative Plasterers and Plaster Workers Federation and HB Brady and Co and Others — No. A29 of 1989 — Beech C. — 24/4/90

Application for award variation pursuant to Structural Efficiency Principle — Amendments sought include increases in wage and the insertion of new clauses specifying terms of commitments — Parties were in agreement except on increase sought in allowance — Commission found application conformed with requirements of Structural Efficiency Principle, however with regard to dispute in quantum for allowances, granted three per cent increase pursuant to Allowances Principle — Granted in Part — WA Clothing and Allied Trades Industrial Union and Sno Kleen Dry Cleaners and Others — No. 2181 of 1989(R) — Kennedy C. — 27/4/90 — Cleaning/Laundry

2Appeal against decision of Commission at (70 WAIG 358) re variation of an Award pursuant to Structural Efficiency Principle — Applicant Union argued that Commission erred in not following decision of the Full Bench of the Victorian Commission in setting wage rate increases and not approving the FCU's National classification structure — Appellant argued that not to follow the Victorian Commission was not to follow the Commission in Court Session — Full Bench found only real question in issue was whether the $12.50 variation to wages was sustainable — Full Bench found that the Commission was not bound to follow the Victorian decision and that there were not grounds made out to persuade it that it should substitute its decision for that of the Commission at first instance within the principles of an appeal against a discretionary judgment — FCU and Swan Brewery Co Ltd — No. 2688 of 1989 — Sharkey P., Coleman C.C.. Gregor C. 23/5/90 — Clerical

Application for Award variation pursuant to Structural Efficiency Principle, Second Stage — Implementation of Structural Efficiency Principle in instant Awards have primarily been handled nationally via the appropriate counterpart Award — Commission noted final form of amendment to the Federal Award was unavailable, but preferred to finalise matters at hand — Commission further outlined means to address any difference of substance between State and Federal Award should it occur — Granted — CMEU and Civil and Civic Pty Ltd and Archibald and Thorpe and Others — Nos. 437 and 559 of 1990 — Beech C. — 7/6/90 — Construction

Application for Award variation pursuant to Structural Efficiency Principle — Parties were in agreement to variation sought — Commission found parties have detailed new arrangements which increased the opportunity for employees to acquire and maintain relevant skills with consequent progress — Furthermore Commission noted the development of the operator/ maintainer role and its ramifications in terms of the Structural Efficiency Principle — Granted — AWU and Hamersley Iron Pty Ltd and Others — No. 555 of 1990 — Kennedy C. — 11/4/90 — Iron Ore

Application for Award variation pursuant to Structural Efficiency Principle — Applicant Union proposed wage structures modelled on the provisions that have been determined by the AIRC in the Federal Award, giving effect to the first step in strategy of aligning wage rales — Respondents support the proposed wage structures with respect to the classifications, however did not accept the rates ascribed to the various levels, arguing, any movement in relativities should be conditional upon an extensive work value assessmentof each particularclassification — Commission noted andcommented on issues raised by parties and found in favour of applicant union except that wage rates be expressed in terms of base rates and supplementary payments — Ordered Accordingly — TWU and Central Districts Bakery and Others — Nos. 1612 and 1614 of 1989 — Coleman C.C. — 21/3/90 — Transport/Bakery

Application for new Award — Parties were in agreement on Award being issued — Application opposed by objecting union re classification of "keyboard operators" — Commission from submissions of all parties found definition of above classification in Award provided protection fortheobjectingunion and made itclear that there was no intention to upsetstotuj^ruo — Commission noted First Awards Principle had been followed and approved application subject to redrafting of offending clause and an adjustment to wage rate — Granted — PKIU v. Community Newspaper Group — No. A21 of 1989 — Negus C. — 26/3/90 — Print Media

Application for Award variation pursuant to Structural Efficiency Principle — Second Stage — Parties submitted progress report on review of Awards and implementation measures to improve efficiency such as Permanent Part-Time Employment policy; amalgamation of Awards and Agreements dealing with Allowances; delegation of authority to Chief Executive Officers; streamlining arrangements for Promotion and Reclassification Appeals; On call provision; flexibility in Overtime; Property Allowance; and the Skills Resource Management System — Commission from evidence found second salary adjustment now sought was justified and approved date,of increase as at conclusion of hearing — Granted — CSA and Commissioner, Public Service Commission — No. P2-P9 of 1990(R2) — Negus C. — 18/4/90 — Pubic Sector

Application for Award variation pursuant to Structural Efficiency — Parties were in agreement on changes to Award relating to Hours; Overtime; Shift Work; Annual Leave; Absence Through Sickness; Introduction of Casual Workers and other administrative changes — Commission approved most changes, however noted reservation on some amendments due to lack of submission from parties in relation to them and rejected variations sought on Definition of Misconduct; Long Service Leave and provision of "National Standard of Code for the National Occupational Health and Safety Commission"—Ordered Accordingly — Federated Brick Tile and Pottery Industrial Union and Midland Brick and Others — No. 1960 of 1989—Beech C. — 12/12/89— Brick Manufacturing

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70 W.A.LG. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE

CUMULATIVE mGEST—continued

PRINCIPLES —continued Appeal against decision of Commission at (70 WAIG 89) re Second Structural Efriciency Wage Increase — Appellant argued

Commission had failed to exercise independent judgment and simply applied a decision of the Victorian Industrial Relations Commission in amending the wage rates and other provisions of the Award — Furthermore that the application had not been properly before the Commission — Full Bench reviewed principles relating to appeals against a discretionary decision and considered the question "What weight should the Commission at first instance given to the General Order and the views of the Commission in the Court Session in the State Wage Decision" — Full Bench found, there was a miscarriage of the Commission's discretion in the terms set out in House v. the King in that it did not assess or give sufficient weight to a number of factors before reach ing its decision, and gave undue weight to the Victorian decision, nor did it sufficiently exercise independent judgment, save that the Award Modernisation clause was properly inserted in the Award — Upheld and Remitted — Coles New World Supermarkets and Others and FCU — No. 2783 of 1989 — Sharkey P., Coleman C.C., Martin C. — 18/5/90 — Retail and Wholesale (Clerks)

Application to vary Award re first Structural Efficiency Wage Increase — Applicants presented new classification structure as first interim step in restructuring process and noted that the Award was subject also to a whole Government approach — ETU gave agreement to proposal with provisors relating to further restructuring and the relationship of another Award, in the development of the final position — Commission reviewed agreement concerning inter alia, a proposed new Award, training education process, job security and demarcation and specific Award variations — Commission approved agreement subject to "safeguards" on issues such as service increments and the inclusion of a paragraph, relating to reclassification claims, in the wages clause — Allowances varied by three percent — Granted — AMWSU and Others and Transperth — No. 1736 of 1989(R) — George C. — 2/ 4/90 — Public Transport

Application for variation to Award re increase in "Additional Allowances" — Parties were in agreement to variations sought of which increases varied in accordance to last CPI amendment and were for provisions such as uniform, clothing, boot allowance and conditions of work in relation to gaining information from informants — Commission from evidence found in favour of application — Granted — WA Police Union and Hon Minister for Police — No. 749 of 1989 — Fielding C. — 30/4/90 — Police Service

Application for variation to Award pursuant to Structural Efficiency Principle, second stage — Parties have addressed more than that which was committed to be undertaken at the first stage, most notably the system of merit based promotion and radical changes to hours ofduty — Question of under which "Principle" should shift penalties be granted — Commission having answered question of "Principle" found in favour of amendments proposed by parties — Granted — WA Police Union and Hon Minister for Police — Nos P25, P26 and P27 of 1990 — Fielding C. — 17/5/90 — Police Services

Claim for special travel allowance payments — Applicant Unions argued allowances prescribed in Award are inadequate and sought a reassessment of travelling allowance pursuant to new allowances principle — Respondent opposed claim, arguing, provision in Award is based on proper principles, noting that unions sought to reconstruct arrangement by making, the site the centre of radial bands rather than GPO — Commission having regard to the various decisions cited found that there were no inadequacies or injustices as prescribed by Award and that Applicant Unions had not discharged the onus that lies upon them — Dismissed — AMWSU and Others v. Barclay Mowlem Constructions Ltd —• No. CR335(1) of 1990 — Salmon C. — 31/5/90 — Building/ Construction

Applications to vary Awards re Second Tier and Structural Efficiency Wage Increases — Commission granted three per cent wage increase for same reasons as a related application and then gave reasons for decision to examine matters of hours of work and income maintenance — Applicant Union argued tradeoffs sought by employers were outrageous, beyond the scope of what was appropriate in arbitral proceedings for second tier wage increases and that an agreement reached in the Bakers' (Metropolitan) Award was unconscionable — Respondents argued changes to hours and penalty rates agreed in the Bakers* (Metropolitan) Award should be flowed to the subject Awards and that the differences between the Awards had a deteriorating effect on business competition — Commission reviewed reasons for decision in the other application and was not prepared to "inflict" by arbitration the consent reached in another Award on a strongly dissenting party — Granted — Bakers Union and Bakewell Foods Pty Ltd and Others - Nos. 2294 and 2295 of 1989(R) - Halliwell SC. — 6/4/90 and 21/5/90 — Bakeries

Application to vary Award by consent re redundancy benefits — Claims sought to apply the standard Termination Change and Redundancy provisions of Part I of Metal Trades General Award — Parties submitted, provisions would ensure fairer treatment of employees at minimal cost and enhance industrial relations in the industry — Commission found that the merit of the claims had been demonstrated and proposed amendments were within the Structural Efficiency Principle — Granted — AMWSU and Others v. Alma Engineering Pty Limited and Others — Nos. 489,490 and 2626 of 1989 — Coleman C.C., George C, Beech C. — 16/7/90 — Building and Construction

Application to vary Award re Meal Allowance — Dispute restricted to quantum of increase — Applicant Union argued allowance was a reimbursable expense and sought an amount to account for the cost increase of purchase of a meal since last review in line with CPI for the appropriate category — Respondent argued automatic payment ofallowance when overtime was worked meant it was not a reimbursable expense and therefore adjustment should reflect National Wage Increases — Commission reviewed authorities and found, how the Australian Tax Office viewed the allowance was irrelevant and in favour of Respondent — Award Varied — AMIEU and Australian Casing Company — No. 131 of 1989 — Parks C. — 13/8/90 — Meat

application to vary Award re Travelling Allowance — Applicant Union sought increased Allowance to maintain real value against a new tax ruling and provision of a bus service to shift employees in lieu of the allowance — Respondent argued there was no anomaly or inequity and against the bus service on economic grounds — The Minister and CWAI intervened in opposition to the claim — CICS found tax import was not a consideration the Commission could entertain under the Anomalies and Inequities Principle — Moreover CICS found Applicant had not demonstrated the extent of the inequity or identified the relevant factors in determining the appropriate allowance which would then form the basis upon which the allowance would be adjusted to ensure the inequity did not re-emerge — Dismissed—CMEU and SECWA—No. CR243 of 1990—Coleman C.C., Salmon, C., George C. — 2/8/90 — Electricity Supply

Applications to vary Awards pursuant to Structural Efficiency Principle on the basis of a Memorandum Agreement with the Awards' Respondents — Commission found Award amendments submitted and commitments given by parties were in toto sufficient to approve payment of the first Structural Efficiency Wage Increase — Commission further dealt with issues where parties had not reached complete accord, including demarcation, part-time employees, casual and temporary employees, hours, relieving and higher duties, whether to insert a clause into the Agreement re-stating part of the National Wage Decision, and performance appraisal — Granted — ANF and Alfred Carson Hospital and Others — Nos. 2708-2711 of 1989 — Negus C. — 2/7/90 — Health .....^

Application to vary Award re wages — Applicant Union sought additional loading on wage rate as it had been in existence in the preceeding Award — Respondent argued application should be joined to another application as it would be inappropriate to prescribe a loading when the Applicant was seeking to replace the concept in the near future or that the loading should be 44 per cent not 60 per cent of the hourly base rate of pay — Commission was not prepared to adjourn and join the application properly before it as there was no good reason to do so and due to a deficiency in the Award under review—Commission reviewed history of loading and State Wage Principles which lead the Commission to consider the establishment of any new loading by reference to the value of any similar loadings that have already been assessed within the Award — Commission found as a matter of valued judgment, taking into account that the employees concerned did not receive, inter alia, annual leave, a loading of46 percent to be appropriate — Granted in Part — FCU and WA Turf Club and Others — No. 868 of 1989 — Parks C. — 20/8/90 — Racing and Gaming

CUMULATIVE DIGEST—continued

PRINCIPLES—continued 2Appea! against decision of Commission at (70 WAIG 1597) re site allowance — Appellant argued that there had been no new

conditions to warrant a new allowance under the Allowances Principle, the Commission erred in its consideration of evidence and not finding that the Award did not adequately provide for such conditions — Full Bench reviewed evidence and on majority found Commission had not erred in its discretion in, inter alia, admitting predated evidence — Majority of Full Bench found Commission had erred in making an order operating after the work had ceased and in the limits given to allow for the duration of particular conditions — Dissenting opinion was in part non-acceptance that the nuisance caused by flies was outside the contemplation of the Award — Upheld and remitted — SEC and ETU and Others — Appeal No. 292 of 1990 — Sharkey P., Fielding C, Kennedy C. — 15/6/90 — Electricity Supply

2Appeai against decision of Commission at (70 WAIG 87) re Award variation of meal allowance — Appellant sought quashing of Order or matterbeing remitted back, arguing Commission had erred in fact and law by applying particular sub-part of Principles, in finding taxation laws were irrelevant and that allowance does not consistitute a reimbursable expense — Furthermore Commission had failed to attach sufficient weight to the fact that meal allowance was clearly distinguished from other allowances the natural meaning of the term, comparisons between movements in CPI and percentage wage increases, changes in meal allowance in other Awards and changes in employers attitude — Full Bench found Commission had calculated allowance on evidence before it and within the principles of case cited, would not interfere with the discretion as exercised at first instance — Dismissed — FCU and Myer WA Stores Ltd and Others — Appeal No. 2833 of 1989 — Sharkey P., Salmon C, Kennedy C. — 13/7/90 — Clerical/Retail

2Appeal against decision of Commission at (70 WAIG 1060) re Award variation pursuant to Structural Efficiency Principle — Appellant argued Commission had erred in fact and in law on six grounds and sought order prescribing higher wage rate (i.e. $15.00 or three percent) with operative date of order being made retrospective — Full Bench found no error in the exercise of the discretion of the Commission at first instance and noted that parties must address a proper audit ofthe relativitiesofthe respective classification in the minimum rates classification — Dismissed — FCU and CBH Ltd — No. 675 of 1990 — Sharkey P., Martin C., George C. — 8/8/90 - Clerical

Applications to vary Awards re Second Structural Efficiency Wage Adjustments — AMMA intervened and argued against variation on the basis that the Structural Efficiency Principle was not satisfied — Commission reviewed negotiations, parties agreement and addressed concerns regarding various matters such as, trainingclause, contract of service clause, and construction of the wage and supplementary payments clause — Parties were directed to realign (base) classification rates and proposed minimum rates adjustments before presenting draft for final orders — Ordered Accordingly — AMWSU and Others and Anodisers WA and Others — Nos. 478,479 and 483 of 1990(R2) — George C. — 24/5/90 — Metal and Building Trades

2 Appeal against decision of Commission at (70 WAIG 846) re availability and on-call allowance — Appellant argued on the basis of an Industrial Appeal Court decision, that the Commission erred in determining the basis for assessment and had applied the wrong Wage Fixing Principle — Full Bench found real argument on Appeal concerned quantum of allowance and its applicability on weekends — Full Bench found in the sense that the workers were susceptible to disciplinary action, the duty was not voluntary and the Commission was entitled to find that there were entitlements that should have been met under the overtime clause of the Award — Full Bench further found no arguments as to why $11.00 was preferable to $22.00, sufficient reason to justify the quantum awarded and that the discretion oftheCommission had not miscarried — Dismissed — SEC and ASEMWU and Others — Appeal No. 454 of 1990 — Sharkey P., Martin C., Gregor C. — 9/8/90 — Electricity Supply

3 Application for Award variation based on nexus via Special Case Mechanism of Principles — Applicant sought to express loadings payable for shift and weekend work as per hour, in lieu of per shift or time and one-half, thus resulting in increases in the additional remuneration paid to employees performing their ordinary hours of work in a shift work mode — Respondent supported application — CICS noted from analysis of the history of instant Award that nexus claimed could not be established and "Special Case" was to be considered in accordance with the Structural Efficiency and other relevant Principles — Furthermore CICS found question of merit must be established before it could deal with "special case", there must be no likelihood of flow-on and that the increase must be a once only matter — CICS proposed new order consistent with Principles — Supplementary Decision — Parties sought to have application withdrawn, dismissed or adjourned, as administrative increase of shift allowance to retain parity was greater than the order proposed by CICS — CICS having regard to new facts, found appropriate action was an order of dismissal — Dismissed — FMWU and Activ Foundation — No. 799 of 1989 — Halliwell S.C., Martin C., Gregor C. — 23/5/90 — Health/Welfare

Application by consent to vary award pursuant to Second Tier Restructing and Efficiency Principle — Parties were in agreement to restructure or make more efficient a number of work practices — Commission found measures undertaken by the parties were designed to improve efficiency and to enhance productivity in a real sense — Granted — HSOA and Attadale Hospital and Others — Nos. 994,998-1000, 1002 and 1003 of 1987 — Fielding C. - 22/9/88 — Health and Welfare Services

Application to vary award pursuant to Structural Efficiency Principle — Parties were in agreement, respondents from tertiary institutions sought prospect date due to supplementary finding from Commonwealth — Applicant opposed claim for institutions as they had not demonstrated an incapacity to pay — Commission found in favour of tertiary institutions and prescribed prospective date — Ordered Accordingly — TWU and Hon Premier of WA and Others — No. 936 of 1988 — Martin C. — 21/9/88 — Government

Application to vary Award re new classifications and wage rates, qualifications and work functions allowances — Applicant union argued changes in quality control had to led to changes in dutiesand responsibilities of some employees — Respondents opposed application with Respondent supermarkets concerned that general wage relativities would not be upset — Commission reviewed Work Value Principles and found no party had addressed whether existing classifications covered the work wholly or partly — Commission conducted inspections and on evidence found to inert in the Award function specific classification agreed appropriate, but not the calculation of wage relativities with reference to the Government Meat Industry Awards — Commission refused remainder of claim as not justified by what was submitted — Granted in Part — AMIEU v. Action Food Barns and Others — No. 1082 of 1988 — Parks C. — 1/8/89 — Meat

Application to vary award re Structural Efficiency Wage Adjustment — Applicant employers sought changes to Hours ofWork, Allowances, Penalty Rates and Second Tier Wage Adjustment on the basis of uniformity within the industry — Further, the joinder of an employer organisation to the Award — Respondent union argued employees were part of the clerical industry and that there should be consistency with a decision on the Commercial Clerks Award in Victoria — Further that the Second Tier Wage negotiations should be left the subject of another application lodged by the union — Commission was not prepared to accede to Second Tierclaims as procedures, e.g. advertising had not been met — Commission found parties differing viewson the industry were both correct and not incompatible and the Victorian Decision was to be considered, not necessarily adhered to — Commission determined matters of, inter alia, changes to flexible arrangements of Hours ofWork, Time of in Lieu of Overtime Pay, Penalty Rates, Annual Leave Spliting, Wages and Classifications — Commission finalised matter of Record Clause in Supplementary Reasons — Granted in Part — Booragoon Motor Hotel and Others v. FCU—No. 2176 of 1989(R) — Parks C. — 2/ 8/90 — Hospitality (Clerks)

Application to vary award by consent — Parties sought to implement broadbanding of salary tables and work related allowances, and work value increases — Government School Teacher s Tribunal found on the evidence and with regard to the Special Case, Work Value, Allowances and Structural Efficiency Principles that the proposed variations ought to be ratified with amendents to remuneration in two classifications — Ordered Accordingly — SSTUWA v. Hon Minister for Education — Tl(2) of 1989(R2) — Government School Teachers Tribunal — 18/7/90 — Education

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

CUMULATIVE continued

PRINCIPLES —continued Conference referredretravellingallowance — Applicant union submitted a basis on which it claimed a travelling allowance sought to

be paid under the new Allowances Principle — Respondent rejected claim — Commission found that proposed allowance was within the State Wage Principles and having regard for the evidence and previous travelling allowance orders determined the terms of the allowance — Ordered Accordingly — AMWSU and Others v. Barclay Mowlem and Others — No. CR562 of 1990 — Halliwell S.C. — 20/8/90 — Construction

Application for order by consentreenterprise agreement reflecting interim arrangements for implementation of Structural Efficiency Principle — Commission found with some reservation the proposed order, subject to adjustment in some rates to properly reflect agreed relativities and no change in rates for non-trades classification, could be notified under the Structural Efficiency Principle — Commission's reservations went to matters beyond the control of the parties to unfinalised developments under the Federal and State Metal Trades Awards — However, Commission further determined issued of those classifications and the Second Structural Efficiency Wage Adjustment in Supplementary Reasons — Granted in Part — Readymix Group (WA) Ltd and Another and AMWSU and Another — No. 2397 of 1989 — George C. — 22/3/90 — Quarrying Industry

'Applications to vary Awards by consent re shift loadings and weekend penalties on an interim basis — CWAI intervener sought application be adjourned pending Appeal Court decision — Commission found it should not comment on the competency of Appeals before the IAC and to adjourn would be to suspend to Commission's function to hear special cases in disregard to section 26( 1) of the IR Act — Applicants argued for a Special Case, on the basis of "like with like" with the Government Health Sector and that there was probably an anomaly under the Anomalies and Inequities Principle — CICS reviewed another Special Case in industry. Structural Efficiency Principle and found claim satisfied special criteria — CICS further found issue would be finalised in final review of Award, and that costs were acceptable with the efforts to achieve Structural Efficiency, with little possibility of flow-on — Granted — FMWU and Anglican Homes (Inc) and Others — Nos. 772-774 of 1989,798 of 1989,1679-1680 of 1989,2646 of 1989 and 906 of 1987 — Coleman C.C., Martin C., Salmon C. — 24/1/90 — Health

Application to vary Award pursuant to Structural Efficiency Principle — Commission reviewed Unions attempts to notify and negotiate with Respondent employers — Commission found second schedule of proposed variations were within the State Wage Principles and ratified them by consent — Granted — MUAv. Sheraton Hotel and Others — No. 2342 of 1989(R) — Kennedy C. — 24/9/90 — Entertainment

Application for new award to replace previous award and agreement in respect to named respondents — Matter came before Commission by consent — Commission found new award significantly restructured employment in the industry and complied with State Wage Fixing Principles and in particular with Structural Efficiency Principle — Granted — FLAIEU v. Amalgamated Food and Poultry Pty Ltd trading as Red Rooster Foods and Others — No. A14/90 — Fielding C. — 22/8/90 — Fast Food

Application for Second Stage Structural Efficiency award amendments — Matter came before Commission by consent at a previous hearing and was stood aside pending compliance with procedural requirements under Act — Commission found previously that variations were within the Principles and thus with procedural requirements satisfied ordered the variations to be operative from date of first hearing — Ordered Accordingly — WAGHSOA v. CBH Limited — No. 965 of 1990(R2) — Fielding C. — 7/9/90 — Grain Handling

Conference referred — Applicant union claimed allowance for lifting of solid core doors in construction — Respondent argued the granting of such allowance would have flow-on implications for other workers handling the doors — Confederation of WA Industry, intervening, submitted manufacture of such doors in private sector was encompassed in wage rate — Parties addressed State Wage Principles — Commission found that circumstances did not provide a significant net addition to work requirements to warrant a new allowance under the Allowances or Work Value Principles — Commission found further that difficulties associated with lifting the doors ought be addressed further rather than compensated and that additional manufacturing costs could be to employees' detriment if competitiveness with the private sector could not be maintained — Dismissed — CMEU v. Hon. Minister for Works — CR570/90 — Beech C. — 25/9/90 — Construction

Application for new award — Matter came before Commission by consent with the exception of the commuted overtime allowance — Applicant based claim for and general allowance of 22 per cent of gross annual salary on a survey of field work which showed increased incidence of overtime — Respondent questioned validity of survey based on time in the field rather than work in the field and asserted further that the additional cost would impair research projects specific funding — Commission found little justification for any change to the existing agreement except in regard to the allowance for extensive field work where the respondent's proposal to substitute a single allowance for the previous additional loading ought be adopted — Commission found further that the applicant's claim did not meet the Work Value Change Principle — Ordered Accordingly — CSA v. PSA — No. A5 of 1986 — Fielding C. — 6/9/90 — Public Service

Application for new Award — Parties presented submissions and evidence regarding the proposed coverage of hydrographic surveyors, wage rates and a 38 hour week— Commission found that hydrographic surveying is within the surveying industry and should be included in scope of award, that the wage rates claimed by consent were warranted and should receive the three percent structural efficiency adjustment and that a 38 hour week was a Commission standard — Parties were directed to prepare final draft award — ADSTE v. Association of Consulting Surveyors and Others — No. A2 of 1988 — Halliwell S.C. — 27/3/90 — Surveying

Application to vary two awards pursuant to Structural Efficiency Principle — Second Stage — Parties reviewed awards as per Memorandum of Agreement and sought second increase in view of proposed changes — Commission noted parties had "addressed" matters and although there were no dramatic changes, accepted the submission of parties that matters were progressing satisfactorily and in time would produce constructive results — Commission found on matter of operative date that salary adjustments should operate with effect from the first pay period on or after today's date — Ordered Accordingly — AMA WA Branch and Royal Perth Hospital and Others — Nos P22 and P23 of 1990 — Fielding C. — 24/7/90 — Health

Application to vary award pursuant to Structural Efficiency Principle — Second Stage — Parties were in agreement to variation except with regard to operative date and whether new metal trades classification should be inserted into award — Commission noted concerns re non participation in negotiation by other unions party to the award and found operative date should be first pay period on or after date of hearing — Furthermore Commission found on issue of new classifications the matter would be arbitrated — Ordered Accordingly — ARU v. WAGRC and Others — No. 264A of 1990(R2) — Kennedy C. — 21/6/90—Railways/ Transport

'Appeal against decision of Commission (70 WAIG 2218) re award variation pursuant to Structural Efficiency — Appellant argued Commission at first instance erred in failing to allow respondent the opportunity to call evidence, failed to make any independent assessment of the merits of the case by adopting reasons applicable to other industries and awards, failed to have sufficient regard for new community attitudes and finally erred in acting contrary to Wage Fixing Principles — Full Bench found, principle oiaudi alterant partem was breached. Commission had prevented itself from properly considering merits of case and failed to make an independent assessment and confirmed allegation that Commission at first instance erred in acting contrary to Wage Fixation Principles — Full Bench found decision of Commission at first instance was void and on authority cited, be quashed — Upheld — Bread Manufacturers" (Perth and Suburbs) Industrial Union of Employers and Bakers, Pastrycooks and Confestioners Union — Appeal No. 916 of 1990 — Sharkey P., Coleman C.C., Fielding C. — 17/7/90 — Bakery

Application to vary shift work clauses common to two awards — Applicant union argued it was unfair that relieving shift workers receive a higher remuneration than workers who are permanently on shift and sought to have shift work on weekends and public holidays paid for at overtime rates for all workers — Respondent opposed claim arguing cost increase would be significant, that it was not part of structural efficiency, rates prescribed by award are no different from those found within four significant awards of the Commission — Furthermore respondent regarded matter as an "extra claim" to unions "no extra claim" commitment — Commission appreciated dissatisfaction among shift workers, however found insufficient detail before it to appreciate full nature of the problem — Dismissed — Brick, Tile and Pottery Union and Midland Brick and Others — No. 976(2) and 977(2) of 1990 — Beech C. — 17/8/90 — Brick Manufacturing

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WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 70 W.A.LG.

CUMULATIVE DIGEST—continued

PRINCIPLES —continued App]icationtovaryaward"CommonRule"pursuanttoStructual Efficiency Principle — Second Stage parties sought insertion of new

clause "Enterprise Agreements" — Commission cautioned parties as to wording within new clause and noted clause proposed allowed for any number of agreements to be reached without notification or endorsement of the Commission, thus contrary to intent of IR Act — Furthermore Commission noted overtime and depending on degree to which the clause is used, it may render the award document meaningless in some areas — Commission found after deliberation and further submission that clause should be inserted as per redraft which includes a number of safeguards which address the issues outlined — Ordered Accordingly — WA Timber Industry Union and Runnings Limited and Others — No. 900 of 1990(R2) — Beech C. — 12/7/90 — Timber 2Appeal against decision of Commission (70 WAIG 322) re registration oflndustrial Agreement — Appellant argued Commission had erred in finding award did not apply to businesses of respondent, in registering an agreement when its terms were in conflict with an award that applied by common rule, in failing to remove inconsistency between agreement and award in exercise of discretion by excluding from operation of agreement some employees who did identical work, and in registering agreement which had the effect of retrospectively affecting the right of employers and employees — Full Bench from evidence and submissions found Commission in registering agreement had not exercised its power as it was mandatorily required to under sectin 41 (2)of IR Act and that there was no provision pursuant to section 41 of IR Act for retrospectivity — Furthermore Full Bench noted pursuant to section 114ofIR Act insofar as agreement was in conflict with award then agreement is null and void and could not be registered — Full Bench found agreement was contrary to Act and Wage Fixing Principles — Upheld — Hon. Minister for Labour v. Como Investments and Others — Appeal No. 120 of 1990 — Sharkey P., Negus C, Kennedy C. — 27/8/90 — Fast Food/Catering

Consent application to vary award pursuant to Structural Efficiency Principle — Second Stage — Application sought to amend Special Rates, Casual Employees. Leading Hand, Meal Money and Wages clauses — Parties proposed six month implementation and trial period — Commission satisfied by terms of proposed amendments subject to provisos and directives relating to scope, application of wage increases and one classification still under negotiation — Ordered Accordingly — FMWU v. Brownes Dairy Pty Ltd and Others — No. 149 of 1990(R2) — George C. — 20/8/90 — Dairy Food

Application to vary award by abolition of Yardman classification — Parties sought variation to overcome demarcation disputes and streamline maintenance operations — Commission satisfied that the amendments were within State Wage Principles — Granted — Hamersley Pty Ltd and CMEWU v AMWSU and Others — No. 1481 of 1990 — Fielding C. — 16/10/90 — Mining 2Appeal decision oflndustrial Magistrate following further hearing and determination after remittal (70 WAIG 1570)re pursuance of severance payment claim contrary to award and State Wage Principles — Majority Full Bench reviewed principles applying to appeals against decision of, admissability of evidence and standard of proof before an Industrial Magistrate — Majority of Full Bench found the prescription that the Justice Act apply to section 83 of the IR Act matters was an an unnecessary complication to practices and procedures and a contradiction by regulation — Majority of Full Bench found on evidence rather than there being no case to answer, there were evidence and asssertions to support the finding of a breach of Award/Wage Fixing Principles — Dissenting Commissioner reviewed authorities as to the nature of the union as a principle party and concluded there was no evidence of palpable erroron the part of the Industrial Magistrate — Upheld — Registrar*. AMWSU — Appeal No. 600 of 1990 — Sharkey P., Fielding C., Beech C. — 25/9/90 — Construction

Application to vary awards pursuant to Structural Efficiency Principle — Second Stage — Matter came before Commission by consent — Parties sought to vary hours clauses to meet exingencies of particular enterprises — Commission satisfied that parties had made substantial amendments to awards and in allowing claim took into account agreement reached on a new award to replaced the named awards once statutory formalities were met — Granted — FPU *. Edgells Birdseye and Others — Nos. 978, 979. 980, 981 and 982 of 1990(R2) — Fielding C. — 3/10/90 — Food Processing and Retailing

Application to vary award pursuant to Structural Efficiency Principle — Matter came before Commission by consent — Parties sought to broadband existing classifications which would result in increased wage rates, establishment ofcareer paths and greater flexibility for the company — Commission was satisfied that claim complied with the principles and that variations would help overcome restrictive work practices and established careerpaths through multiskilling — Granted — AWU and Hamersley Iron*. AMWSU and Others — No. 1353 of 1990 — Fielding C. — 18/9/90 — Mining

Application to vary award to increase district allowance in line with General Order — Application sought further to amend memorandum of agreement, a schedule to award relating to superannuation as a formula for which included district allowance — Commission satisfied that application complied with State Wage Principles — Granted — Hamersley Iron Pty Ltd v. AWU and Others — No. 1454 of 1990 — Fielding C. — 16/10/90 — Mining

Application for new award to replace existing agreement — Parties claimed proposed award contained existing conditions and commission standards for the public service — Commission satisfied application complied with Principles — Granted — CSA*. Hon. Minister for Health — No. PSA A20 of 1985 — Fielding C. — 29/11/90 — Health

Application to replace order with a new Order to implement Second Stage Structural Efficiency Principle — Commission reviewed what was submitted as an improvement on the first Order, new classification structure and found them with the principles — Commission found discrepancy between paid rates and base rate and supplementary payments to be dealt with reference to State Wage Decision and Metal Trades (General) Award though change might occur as the question received further clarification and compression of relativities now fixed was an issue forNatural and State Wage Benches — Commission furtherfound variations to award and special circumstances to cause it to exercise its discretion to grant retrospectivity — Granted — AMWSU and Another *. Coca Cola Bottlers Perth — No. 533 of 1990(R2) — George C. — 17/9/90 — Carbonated Drinks

2Appeal against decision of Commission (70 WAIG 2220) re award variations — Appellant argued retrospective operative dates were contrary to Wage Principle and that there were no special circumstances put forward forvariation to operate from that date — Full Bench noted onus was on union to show special circumstances existed for award to be varied retrospectively and fund such onus had not been discharged — Further Full Bench found miscarriage of Commissions discretion had been established and that requirements mentioned in section 39(3) of IR Act had not been satisfied — Halliwell SC. dissented noting to deny employees benefits ofagreed wage increases due to clarificationofone point, which subsequently was as submitted, wascontrary to section 26 of Act and that operative date in question was prospective insofar as initial date of hearing occurred — Upheld — Central Districts Bakery and Others and Bread Manufacturers Association of WA v. TWU — Appeal Nos. 922 and 924 of 1990 — Sharkey P., Halliwell SC., Salmon C. — 25/9/90 — Transport

'Appeal against decision of Commission (70 WAIG 1909) re award variations pursuant to Structural Efficiency Principles — Appellant argued Commission had erred in concluding broadbanding of classifications, insertion of Award Modernisation clause and award commitment clause were of sufficient value to justify first stage of wage increase — Furthermore appellant argued Commission had erred in concluding that there was insufficient material to allow part-time worker clause and stand- down clause would amount to trade-off batgaining and erred in concluding that there were special circumstances to justify retrospective payment — Full Bench noted decision at first instance was a discretionary decision and therefore appellant to establish that the exercise of discretion had miscarried — Full Bench from submission and within principles of cases cited found in favour of appellant — Supplementary Reasons — Respondent sought proposed order of Full Bench to issue differently so as to the decision appealed against in tact until remitted matter was determined — Full Bench found failure to suspend appealed decision and allowing it to remain in tact would be a nullification of its own decision and outside power under section 49(5Xc) of IR Act — Upheld — Australian Glass Manufacturers Co Pty Ltd and Others *. TWU — Appeal No. 691 of 1990 — Sharkey P., Halliwell S.C., Martin C. — 8/8/90 — Transport

Claim re award variation pursuant to Structural Efficiency Principle arising from conference application — Parties sought to implement extensive changes in classification structures and job requirements and a productivity bonus scheme — Commission reviewed authorities and submissions and found that amendments sought complied with the principles — Granted — Mt. Newman Mining Pty Limited *. AMWSU and Others — No. C131 of 1990 — Gregor C. — 20/3/90

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

CUMULATIVE DIGEST—continued Page

PRINCIPLES —continued Application to vary award pursuant to Structural Efficiency Principle — Applicant union argued agreement between respondent and

its employees did not reflect co-operation between the parties to the award and did not accord with the State Wage Principles, particularly in the area of training and career paths, as did the variations it sought — Respondent argued that as the agreement with wage increases already paid, was such that the Commission had no power to deal with the application — Commission reviewed IR Act and authorities and found it had power and an obligation to arbitrate, taking into account that such an agreement be accepted as persuasive, in submissions, as it had the support of the workforce — Commission concluded the agreement once subject to exposure in arbitration was one capable of ratification pursuant to the principles—Commission further provided a one month period for negotiations with CMEU and in view of the parties difficulties the Standard Award Modernisation and Structural Efficiency clauses — Commission further found it necessary to give warning to respondents advocate that he would not be heard before the Commission constituted again — Award Varied — ETU and Others and Western Mining Corporation — No. 1752 of 1989 — Gregor C. — 1/8/90 — Nickel Refining 3671

Application to vary award re Second Stage Structural Efficiency Principle by consent saved date of operation — Applicant argued date of operation should be six months after first instalment due to the provocative nature of the respondent's response to negotiations and that it was unfair that a small number of employees in a large workplace had had to face a different process to their colleagues — Respondent argued the employer had had the right to consider its position, therefore there had been no undue delay and the operative date should be that of the Commission's approval — Commission reviewed authorities. State Wage Principles and Industrial Relations Act and found at the end of six months following the first instalment to no impediment granting retrospectivity in accordance with the provisions of section 39(3) of the IR Act — Commission found special circumstances existed and it was a matter of equity and good conscience to accede the applicants claim — FMWU and Perth Dental Hospital - No. 162 of 1990(R2) — Gregor C. — 29/8/90 — Health 3702

PROCEDURAL MATTERS - Application for denied contractual entitlements — Applicant sought payment for cumulative leave, leave loadings and

reimbursement of telephone expenses — Respondent did not appear — Commission found Respondent to have due notice and found on evidence in favour of Applicant — Granted — Clarke A.V. and City Model and Talent Management — No. 2164 of 1989 — Kennedy C. 7/5/90 — Modelling and Talent Agencies

Appeal against decision of Commission at (70 WAIG 2437)re contractual entitlements — Respondent claimed it had not been present at the hearing at first instance due to differing dates on notices ofhearing and sought the right to state its case — Full Bench found it could deal with matter of notices ofhearing, because they had been a part of and formed part of the record of the matter before the Commission at first instance — Full Bench did not attach culpability to anyone for the error in the notices ofhearing, found decision should be suspended and remitted matter to Commission at first instance — Upheld — Heyford Holdings Pty Ltd trading as Nashua Karratha and Lane A. — No. 93 of 1990 — Sharkey P./Negus C./Beech C. — 26/4/90 — Retail

Application for denied contractual entitlements — Applicants sought payment of wages on the arguments that they had been assured employment as Managers was for a period of not less than five years and that the work performed was more consistent with them being managers than caretakers — Respondent argued employment was on a casual basis as caretakers — Commission found on fact employment had not commenced until the property in question was purchased and that acts performed prior to that time by the Applicants were not done in furtherance of any employer/employee relationship — Cmmission further was not satisfied even on balance that there was an express or implied term that the Applicants should be employed forat least five years — Commission gave further reasons for decision on order issued for some of the costs claimed by the Respondents — Dismissed and Ordered Accordingly — Conza F. & J. and Watson C. & J. — No. 1811 of 1989 — Fielding C. — 31/5/90 — Farming

Claim re contractual entitlement — Applicant claimed base salary negotiated was nett per annum rather than gross per annum including commission agreed and soughtcontractual benefit allegedly withheld— Respondentrefutedclaim andarguedsuchan agreement would be totally at odds with custom and practice — Commission from evidence found in favour of Respondent — Dismissed — Fogarty M.K. and Key Master Holdings — No. 255 of 1990 — Negus C. — 19/6/90

Claim re contractual entitlement — Applicant claimed verbal agreement and sought payment of wages — Standard of evidence — Applicant's preferred — Commission found in favour of Applicant — Granted — McFayden J. and Constantine Boulazeris — No. 561 of 1989 - Halliwel! S.C. - 25/5/90

2Appeal against decision of Commission at (69 WAIG 3106) re dismissed claim of unfair dismissal — Appellant argued Commission had failed to give sufficient weight to various matters of evidence, had erred in not making findings on the separate grounds of dismissal and sought Order that the matter be remitted for further hearing and determination — Full Bench reviewed Authorities and found there was a requirement for procedural fairness on the part of the employer, which had been met in the events surrounding the dismissal and by the Respondent's reliance upon the investigations of the Commissioner of Health in the act of dismissal — Respondent had conducted no inquiry of its own relating to the allegations against the Appellant as required by Authorities and had acted unjustly in not referring the allegations to the Appella nt for answer — Full Bench found Commissioner of Health had power to remove Appellant from office of Health Surveyor but not dismiss him from employment and that the Commission had erred in its construction of the Health Act — Full Bench found it was unable to admit a letter as fresh evidence and as a matter of public interest, after considering the Evidence Act, that the Commission was unable to compel a witness to give evidence that may be self-incriminating—Full Bench further found Commission had erred in not making a finding as to whether dismissal was justified on fraud allegations, that a finding of unfairness could not be made without it and that it was the Commission's duty to make such findings — Commission further erred in failing to meet evidentiary burden re further and better particulars, the manner in which it attached weight to evidence and in the exercise of its discretion — Full Bench found there had been a harsh and oppressive act of dismissal in line with Ong's case, that it had power to vary Commission's decision, though not that of the Commissioner for Health and there were no real barriers to re-instatement — Upheld — Mouritz P.M. and Shire of Esperance — Appeal No. 2384 of 1989 — Sharkey P., Coleman C.C., George C. — 6/4/90 — Meat

Application for Commission to refrain from determining a claim of unfair dismissal — Commission found power to dismiss under section27( 1 Xa) of Industrial Relations Act was limited and could only be exercised by the Commission in relation to and prior to finalisation of a matter allocated to it — Dismissed — RRIA and AWU — No. 2412 of 1989 — Kennedy C. — 4/4/90 — Mining (Iron Ore)

Application to vary Award re scope — Applicant sought to expand definition of construction industry to cover award free areas — BLF objected on the grounds of incorrect advertising of application — Employers/Respondents argued wording may encompass activity beyond the stated intention — Commission found it in public interest and consistent with the State Wage principles to grant application — Commission, however, inserted provision that award would not apply to employees covered by existing awards — Granted — CMEU and Adsigns Pty Ltd and Others — No. 2651 of 1989 — Beech C. — 6/6/90 — Construction

Claim re contractual entitlement — Applicant claimed underpayment of wages and sought payment for outstanding proportion — Respondent argued applicant was an independent contractor and alleged invoices tendered for payment for services rendered were paid — Commission found applicant to be an employee and accepted evidence that invoices were signed by applicant under extreme duress as a desperate means of obtaining funds — Granted — Wills S. and Fire Power Holdings Pty Ltd trading as Perth Social Times — No. 105 of 1990 — Fielding C. — 18/6/90 — Print Media

Application to vary Award re exemption from superannuation provision — Applicant failed to appear despite due notice given — Commission accepted that there was no provision regarding superannuation in the Award — Dismissed — Young Toyota and TWU — No. 1255 of 1989 — Parks C. — 15/6/90 — Transport (Vehicle Sales)

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CUMULATIVE DIGEST—continued

PROCEDURAL MATTERS —continued Application for joinder to Award — Psychiatric Nurses Association objected on the grounds of specific constitutional and industrial

coverage, the creation of unnecessary competition and an agreement with the Government to amalgamate Awards — PNF intervened on similargrounds — Commission carefuly considered principles outlined by the President in relation to intervention and found on evidence that the ANA and ANF (Federal) relationship provided sufficient interest to allow intervention on a limited basis, but not the ANF (State) — Commission at request of parties continued hearing submissions to application, rather than allowing time for appeals, at the request of the parties for expediency — Commission examined evidence of disenchantment with existing union representation and preference towards Applicant Union — Commission examined eligibility rule, in particular, reference to "in hospitals", and found on the authorities a restrictive interpretation was not appropriate and that the Applicant had constitutional coverage — Commission however found on the merits of the claim that the application would not meet the objects of the Act, would only complicate processes such as Structural Efficiency and that the highly likely outcome of "healthy competition" would be industrial disputation — Dismissed — FMWU and Hon Minister for Health and Another—No. 2596 of 1989 — Negus C, — 8/5/90 — Mental Health Services

"Complaint re failure of Union to comply with its rules — Applicant claimed Respondent had neglected its membership in that agreement to modify an Award was without proper consultation with its members and resulted in gross discrimination — Applicant sought orders to redress situation — President reviewed rules, authorities and Industrial Relations Act and found on evidence that the onus of proof upon the Applicant was not made out according to the civil standard — Alternatively that no breach of rules had been established to an extent that the discretionary powers under section 66 should be exercised — Dismissed — Ion V. and FMWU - No. 290 of 1990 — Sharkey P. - 12/4/90 - Unions

Claim for redundancy payments remitted to Commission by Full Bench for further hearing and determination — Commission reviewed majority decision of Full Bench, submissions of parties thereof and found redundancy payments to be limited to our particular persons only — Commission while noting a particular standard of redundancy provisions in the public sector as a factor in considering the claim, in a case by case approach, was not persuaded that the standard of44 weeks required-variation — Ordered Accordingly — FCU and Tip Top Bakeries — No. CR638 of 1989 — Halliwell S.C. — 30/4/90 — Bread Manufacture (Clerks)

Conference referred re whether a dispute settlement procedure should be inserted in an Award — RCB reviewed history of establishing an agreed Dispute Settlement Procedure for the whole of the State's rail industry — RCB found on the particular application that as the parties had not taken action to proceed for a long period and the general history of the parties was that disputes were usually resolved through proper avenues, the application and Interim Order should lapse — Furthermore that it was not necessary forthe RCB to force such a course of action on the parties — Ordered Accordingly — ROU and WAG RC — No. CR694 of 1989 — Kennedy C, Phillips, Thompson — 22/6/90 — Railways

Application to vary Award re wages — Applicant Union sought additional loading on wage rate as it had been in existence in the preceeding Award — Respondent argued application should be joined to another application as it would be inappropriate to prescribe a loading when the Applicant was seeking to replace the concept in the near future or that the loading should be 44 per cent not 60 per cent of the hourly base rate of pay — Commission was not prepared to adjourn and join the application properly before it as there was no good reason to do so and due to a deficiency in the Award under review—Commission reviewed history of loading and State Wage Principles which lead the Commission to consider the establishment of any new loading by reference to the value of any similar loadings that have already been assessed within the Award — Commission found as a matter of valued judgment, taking into account that the employees concerned did not receive, inter alia, annual leave, a loading of 46 per cent to be appropriate — Granted in Part — FCU and WA Turf Club and Others — No. 868 of 1989 — Parks C. — 20/8/90 — Racing and Gaming

'Two Appeals by opposing parties against decision of Full Bench (70 WAIG 1659) to suspend decision ofCommission and remit case to Commission for further hearing and determination due to procedural unfairness — Industrial Appeal Court found procedural unfairness was a failure of natural justice and that the balance of authority takes the view that a decision reached contrary to the provisions of natural justice is void — If the decision is void it is a nullity and can't be suspended as there is nothing to suspend — Section 49(5) of the I ndustrial Relations Act 1979, therefore, only allows quashing of the decision — Further, as the decision of the Commission has been quashed it means a decision has not been made at all and the Commission is notJunctusofficio as far as the matters concerning the original application were purported to be determined — The Commission may, therefore, take up these matters again — Upheld — Robe River Iron Associates and AMWSU and Others v. AMWSU and Others and Robe River Iron Associates — IAC Appeals 3 and 4 of 1990 — Brinsden, Roland and Nicholson JJJ. — 13/6/90 — Iron Ore

Application to registerorganisation by amalgamatingtwoorganisations —Objector argued amalgamation would cause competition between unions in the industry and destroy the traditional industrial harmony created by the objector and one of the amalgamating unions—Full Bench reviewed Rules, Industrial Relations Act and authorities to and found as there was no change in the scope of eligibility by amalgamating the two unions then section 55(5) of the Act did not apply and there was no mandatory requirement .to refuse an application in a case of overlapping or potential overlapping — Full Bench further found to hold null and void any acts done in error in the discharge of the duty pertaining to advertising the application cost upon the Registrar would work serious general inconvenience or injustice to or upon persons who had no control over those entrusted with the duty under the Act — Granted — FMWU and Another — No. 212 of 1990 — Sharkey P., Coleman C.C., Negus C. — 20/7/90 — Unions

Application to vary award re Structural Efficiency Wage Adjustment — Applicant employers sought changes to Hours of Work, Allowances, Penalty Rates and Second Tier Wage Adjustment on the basis of uniformity within the industry — Further, the joinder of an employer organisation to the Award — Respondent union argued employees were part of the clerical industry and that there should be consistency with a decision on the Commercial Clerks Award in Victoria — Further that the Second Tier Wage negotiations should be left the subject of another application lodged by the union — Commission was not prepared to accede to SecondTierclaims as procedures, e.g. advertising had not been met — Commission found parties differing views on the industry were both correct and not incompatible and the Victorian Decision was to be considered, not necessarily adhered to — Commission determined matters of, inter alia, changes to flexible arrangements of Hours of Work, Time of in Lieu of Overtime Pay, Penalty Rates, Annual Leave Spliting, Wages and Classifications — Commission finalised matter of Record Clause in Supplementary Reasons — Granted in Part — Booragoon Motor Hotel and Others v. FCU — No. 2176 of 1989(R)— Parks C. — 2/8/90 — Hospitality (Clerks)

Application for enforcement of Act — Applicant union alleged that Respondent Union had breached an order of the Commission re demarcation an eligibility to enrol members — Respondent argued Full Bench reviewed authorities. Industrial Relations Act and found the "Order" to be an "Order" as its meaning read in section 66(2) of the Industrial Relations Act and that such an Order may be "a declaration of Interpretation" — Full Bench found that there was a "defence of mistake" on honest and reasonable belief, mensrea, but that the Respondent had not discharged the evidential burden and that there was various liability on the Respondent for the acts of its servants or agents — In Supplementary Reasons Full Bench found that no mitigating circumstances, a serious failure to comply and also given a lack of undertakings as to future conduct that the maximum penalty, short of deregistration proceedings should apply — Further that costs ought be awarded — Full Bench also found Industrial Appeal Court regulations deliberately used the words judgment or order because it would create an intolerable situation if every time there was a finding the whole proceedings had to be stayed pending the Appeal to the Industrial Appeal Court — Full Bench found right to submit bias was waived, noted that the submission was made after the breach was established, that the Full Bench was contrained in its constitution by the legislation and was aware of its duty to disqualify itself — Full Bench found it had a duty to continue to hear the matter and did not grant adjournment sought by Respondents — Proven — UFTU and CMEWU — No. 2633 of 1989 — Sharkey

' P.,"CoIeman"tX7,l>aImbn C: - WW - BuiHIhg Cohstrucffon/Fumiture MariuTactufe (Ixxxiv)

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

CUMULATIVE DIGEST—continued

PROCEDURAL MATTERS —continued 2 Appeal against decision ofCommision at (70 WAIG 238)re unfair dismissal — Appellant sought leave toamend grounds of appeal in

that reinstatement was no longer sought should appeal be successful and provide "fresh evidence" on an incorrect fact, that, Commission in first instance placed weight on in making its decision — Question re matters being introduced contrary to section 49(4) of Industrial Relations Act — Parties made submission and cited cases re whether hearingof an appeal should be restricted to "evidence and matters raised before the Commission" — Full Bench found from submissions cases cited that the discretion to admit fresh evidence on appeal is not specifically excluded — Granted — FCU and George Moss Limited — Appeal No. 2834 of 1990 — Sharkey P., Martin C., Beech C. — 3/8/90 — Clerical

Application for dismissal of another application re claim for reinstatement on the grounds of unfair dismissal Applicant claimed a lack of expedition by respondent in prosecuting the application decreased the quality of evidence and the jurisdiction of the Commission to order reinstatement — Respondent claimed it was in the public interest that the matter be heard — Commission found no substantial reason to deny the respondent the right to have his application heard — Dismissed — Mt Newman Mining Co Pty Ltd v. Anthony Francis Stokes — No. 1180 of 1990 — Gregor C. — 4/9/90 — Mining

Application for Second Stage Structural Efficiency award amendments — Matter came before Commission by consent at a previous hearing and was stood aside pending compliance with procedural requirements under Act — Commission found previously that variations were within the Principles and thus with procedural requirements satisfied ordered the variations to be operative from date of first hearing — Ordered Accordingly — WAGHSOA v. CBH Limited — No. 965 of 1990(R2) — Fielding C. — 7/9/90 — Grain Handling

Application for alteration of Union Rules re change of name and coverage — Objecting unions withdrew after application amended to exclude their members from eligibility of Applicant by leave of Full Bench — On re-gazettal of application due to objections, SSTU lodged an objection to application on grounds that proposed application would include areas where the SSTU had sole coverage of members — SSTU withdrew objection after further amendments to application — Full Bench after hearing submissions Applicant as to lack of relevance of an Industrial Appeal Court Decision was satisfied the Industrial Relations Act and the Applicant's rules had been complied with. In Supplementary Reasons, Full Bench found proposed alteration to name offended section 59(2) of the Act and could not be made under the slip rule thus avoiding the Full Bench being/uncms officio — Granted in Part —Union of College Academics — No. 474 of 1989 — Sharkey P., Martin C, Fielding C. — Unions

Appeal against decision of Commission (70 WAIG 2218) re award variation pursuant to Structural Efficiency — Appellant argued Commission at first instance erred in failing to allow respondent the opportunity to call evidence, failed to make any independent assessment of the merits of the case by adopting reasons applicable to other industries and awards, failed to have sufficient regard for new community attitudes and finally erred in acting contrary to Wage Fixing Principles — Full Bench found, principle ofaudi aheram partem was breached. Commission had prevented itself from properly considering merits of case and failed to make an independent assessment and confirmed allegation that Commission at first instance erred in acting contrary to Wage Fixation Principles — Full Bench found decision ofCommission at first instance was void and on authority cited, be quashed — Upheld — Bread Manufacturers'(Perth and Suburbs) Industrial Union ofEmployers and Bakers, Pastrycooks and Confestioners Union — Appeal No. 916 of 1990 — Sharkey P.. Coleman C.C., Fielding C. — 17/7/90 — Bakery

Appeal against decision ofCommission (70 WAIG 3393) re payment of outstanding commission pursuant to contract of employment — Appellant argued contract of sale which attracts commission had been effected by respondent as finance had not been approved — Full Bench adopted judgment in Hall v. Berkus trading as MBM Marketing Consultants and found Commission had not erred in finding the respondent the effective cause of contract of sale — Full Bench held further evidence the appellant sought to be adduced was not admissable fresh evidence — Dismissed — Hi Point Homes and Paine CJ. — Appeal No. 1320 of 1990 — Sharkey P., Halliwell S.C., Beech C. — 2/11/90 — Building

Appeal decision of Industrial Magistrate following further hearing and determination after remittal (70 WAIG 1570) re pursuance of severance payment claim contrary to award and State Wage Principles — Majority Full Bench reviewed principles applying to appeals against decision of, admissability of evidence and standard of proof before an Industrial Magistrate — Majority of Full Bench found the prescription that the Justice Act apply to section 83 of the IR Act matters was an an unnecessary complication to practices and procedures and a contradiction by regulation — Majority of Full Bench found on evidence rather than there being no case to answer, there were evidence and asssertions to support the finding of a breach of Award/Wage Fixing Principles — Dissenting Commissioner reviewed authorities as to the nature of the union as a principle party and concluded there was no evidence of palpable error on the part of the Industrial Magistrate — Upheld — Registrar v. AMWSU—Appeal No. 600 of 1990 — Sharkey P., Fielding C., Beech C. — 25/9/90 — Construction

Appeal against a "finding" of the Full Bench (70 WAIG 3044) that an application to it for enforcement for proceedings under section 84A have improved — Question to be answered was whether that finding amounted to a "decision" capable of being appealed to the Industrial Appeal Court under section 90 of the IR Act — IAC found section 34(1) makes it mandatory that the decisions of Commission shall be in form of award, order or declaration and shall be signed and delivered by Commission — Section 36 requires decisions of the Commission to be sealed, deposited in the office of the Registrar and made open for inspection — As a finding in this case is not processed in the manner provided by sections 34 and 36 IAC found that it was not a decision subject to appeal under section 90 and this appeal was therefore incompetent — Dismissed — CMEWU and IFTIU — IAC Appeal No. 5 of 1990 — Roland J. (DP), Nicholson and Walsh JJ. — 22/8/W — Unions

Application for an order for production of documents in relation to reclassification appeals — Hon Minister for Productivity and Labour Relations intervene on behalf of the State — Public Service Arbitrator extensively reviewed the procedures in history of the appeals and found that there was a question as to whether any of the appeals had been proceeded upon a condition prerequisite to the making of the instant application — Moreover, Public Service Arbitrator found that as the applicant in this instant matter was not a principle in the appeals, in order issued would confer on the agent in the appeals a right of discovery exclusive of the principals represented in the substantive matter and it was insurmountable that the applicant was not authorised to appear on behalf of all principals — Dismissed — CSA and Commissioner, Public Service Commission — No. P43 of 1990 — Kennedy P.SA. — 11/10/90 — Public Service

Appeal against decision of Commission (70 WAIG 2495) re unchanged decision over redundancies payments following remittance from Full Bench — First appellant argued inter alia Commission had no jurisdiction, failed to give sufficient reasoning and inappropriately applied the Government Employees Consent General Order — Furthermore that the Commission had demonstrated judicial bias — TWU argued it had sufficient interest in the matter not be struck out as a party to the application at first instance — Respondent union to first appeal argued much of the grounds of the first appellant had been canvassed in the original appeal to Full Bench and that Commission never adopted the General Order — Full Bench found question of jurisdiction had been dealt with in the original appeal, that it was quite clear that the standards of Government Employees Consent General Order were of importance in the Commission's deliberations and there was a failure to make sufficient findings of fact on which a sound discretionary judgment could be based, hence the discretion miscarried — Full Bench found on authority in not submitting has at first instance the appellant waived its right to do so — Full Bench further found Commission had not erred in striking out TWU from the application at first instance and in any event it was a finding as defined by section 7 of the IR Act — Upheld and Dismissed — Tip Top Bakeries (Canning Vale) v. FCU and Others, TWU and Tip Top Bakeries (Canning Vale) — Appeal Nos. 870 of 1990 and 954 of 1990 — Sharkey P., Coleman C.C., Salmon C. — 2/11/90 — Bread Manufacturing

(Inxxv)

70 W.A.I.G.

CUMULATIVE DIGEST—continued

PROCEDURAL MATTERS —continued Application to vary award pursuant to Structural Efficiency Principle — Applicant union argued agreement between respondent and

its employees did not reflect co-operation between the parties to the award and did not accord with the State Wage Principles, particularly in the area of training and career paths, as did the variations it sought — Respondent argued that as the agreement with wage increases already paid, was such that the Commission had no power to deal with the application — Commission reviewed IR Act and authoritiesand found it had power and an obligation to arbitrate, taking into account that such an agreement be accepted as persuasive, in submissions, as it had the support of the workforce — Commission concluded the agreement once subject to exposure in arbitration was one capable of ratification pursuant to the principles — Commission further provided a one month period for negotiations with CMEU and in view of the parties difficulties the Standard Award Modernisation and Structural Efficiency clauses — Commission further found it necessary to give warningto respondents advocate that he would not be heard before the Commission constituted again — Award Varied — ETU and Others and Western Mining Corporation — No. 1752 of 1989 — Gregor C. — 1/8/90 — Nickel Refining 3671

PROMOTION APPEAL - 2Appeal against decision of Government School Teachers Tribunal re dismissed promotion appeals — Appellants argued

Commission had restrictively interpreted section 78(2Xb) of the Act and they had been denied natural justice — Respondent argued Full Bench did not have power to hear appeal and that the appellants were using the wrong section of the Act in attempting to show injustice — Full Bench reviewed authorities and Industrial Relations Act and found the Tribunal was a constituent authority, but not the Commission constituted by a single Commissioner and therefore a decision against the decision of the Tribunal could not be appealed against — Dismissed — Hampson P. and Ritchie N. v. Ministry of Education — Nos. 2684 and 2685 of 1989 — Sharkey P./Salmon C./Kennedy C. — 17/5/90 — Education 2121

Application to vary Award pursuant to Structural Efficiency Principle by consent save question of Operative Date — Applicant Union sought second Structural Efficiency Wage Adjustment on basis of agreed Award amendments including changes to work practice, part-time and casual employment provisions — Railways Classification Board found changes sought should be ratified, however addressed matters of concern such as the establishment of 21 year rate as a reference point for skilled employees and, noting the legislative demarcation for the parties before it, the functioning of Promotion Appeal Boards — Majority of RCB found insufficient reason to depart from the usual awarding of an Operative Date — Granted in Part — ROU v. WAGRC — No. R3 of 1990(R2) — Kennedy C, Phillips, Thompson — 25/5/90 — Railways 2355

PUBLIC INTEREST — Claim re unfair dismissal/contractual entitlement — Applicant initially sought reinstatement, however amended claim to "monetary

compensation" i.e. redundancy payments based on length of service — Respondent objected to matter proceeding claiming abuse of process and due to elapsed time since dismissal occurred — Commission having regard for time delay, exercised discretionary powers pursuant to IR Act and dismissed matter without deciding on question of jurisdiction — Dismissed — Johnston M.C. and Wesfarmers Ltd — No.2828 of 1989 — Fielding C. — 23/4/90 — Farm Produce

2Appeal against decision of Commission at (69 WAIG 3106) re dismissed claim of unfair dismissal — Appellant argued Commission had failed to give sufficient weight to various matters of evidence, had erred in not making findings on the separate grounds of dismissal and sought Order that the matter be remitted for further hearing and determination — Full Bench reviewed Authorities and found there was a requirement for procedural fairness on the part of the employer, which had been met in the events surrounding the dismissal and by the Respondent's reliance upon the investigations of the Commissioner of Health in the act of dismissal — Respondent had conducted no inquiry of its own relating to the allegations against the Appellant as required by Authorities and had acted unjustly in not referring the allegations to the Appellant for answer—Full Bench found Commissioner of Health had power to remove Appellant from office of Health Surveyor but not dismiss him from employment and that the Commission had erred in its construction of the Health Act — Full Bench found it was unable to admit a letter as fresh evidence and as a matter of public interest, after considering the Evidence Act, that the Commission was unable to compel a witness to give evidence that may be self-incriminating — Full Bench further found Commission had erred in not making a finding as to whether dismissal was justified on fraud allegations, that a finding of unfairness could not be made without it and that it was the Commission's duty to make such findings — Commission further erred in failing to meet evidentiary burdenre further and better particulars, the manner in which it attached weight to evidence and in the exercise of its discretion — Full Bench found there had been a harsh and oppressive act of dismissal in line with Ong's case, that it had power to vary Commission's decision, though not that of the Commissioner for Health and there were no real barriers to re-instatement — Upheld — Mouritz P.M. and Shire of Esperance — No. 2384 of 1989 — Sharkey P., Coleman C.C., George C. — 6/4/90 — Meat

2Appeal against decision of Commission at (70 WAIG 1597) re site allowance — Appellant argued that there had been no no new conditions to warrant a new allowance under the Allowances Principle, the Commission erred in its consideration of evidence and not finding that the award did not adequately provide for such conditions — Full Bench reviewed evidence and on majority found Commission had not erred in its discretion, inter alia, admitting pre-dated evidence — Majority of Full Bench found Commission had erred in making an order operating after the work had ceased and that the limits given to allow for the duration of particular conditions — Dissenting opinion was in part non-acceptance that the nuisance caused by flies was outside the contemplation of the award — Upheld and Remitted — SEC and ETU and Other — Appeal No. 292 of 1990 — Sharkey P.. Fielding C., Kennedy C. — 15/6/90 — Electricity Supply

Application for dismissal of another application re claim for reinstatement on the grounds of unfair dismissal — Applicant claimed a lack of expedition by respondent in prosecuting the application decreased the quality of evidence and the jurisdiction of the Commission to order reinstatement — Respondent claimed it was in the public interest that the matter be heard — Commission found no substantial reason to deny the respondent the right to have his application heard — Dismissed — Mt Newman Mining Co Pty Ltd v. Anthony Francis Stokes — No. 1180 of 1990 — Gregor C. — 4/9/90 — Mining

2Appeal against decision of Commission (70 WAIG 2917) re order issued to prevent deterioration of industrial relations pending determination of substantive issues — Appellant argued decision was contrary to section 26 and section 44 IR Act — Full Bench found order purported to vary previous conciliation order in one respect, that the interim nature of both, such that the order appealed was a finding, did not finally dispose of the matter and was not of such importance that in the public interest an appeal should fie under section 49—Dismissed — WA Newspapers Ltd and PKIU—No. 1154of 1990—Sharkey P., George C, Beech C. — 5/11/90 — Newspapers

Claim re contractual entitlements — Respondent claimed matter ought be dismissed pursuant to section 27 of Act due to delay in pursuit of claim — Commission heard prelimenary point — Commission found, with regard to authorities sited that respondent was entitled to expect a claim for such a substantial sum to be dealt with promptly — Dismissed — G. Lewicki, A. Szymenderski and M. Spychalski v. H.B. Brady Co Pty Ltd — Nos. 224, 225 and 226 of 1990 — Beech C. — 5/10/90 — Construction

(Ixxxvi)

CUMULATIVE DIGEST—continued

REDUNDANCY/RETRENCHMENT — Employee terminated due to closure of business — Applicant sought payment of wages — No appearance on behalfof respondent —

Commission from evidence found in favour of applicant — Granted — Wilkins J. and West Coast Publishing and Media — No. 223 of 1990 — Gregor C. — 19/4/90 — Print/Advertising

Claim re unfair dismissal/contractual entitlement — Applicant initially sought reinstatement, however amended claim to "monetary compensation" i.e. redundancy payments based on length of service — Respondent objected to matter proceeding claiming abuse of process and due to elapsed time since dismissal occurred — Commission having regard for time delay, exercised discretionary powers pursuant to IR Act and dismissed matter without deciding on question of jurisdiction — Dismissed — Johnston M.C. and Wesfarmers Ltd — No.2828 of 1989 — Fielding C. — 23/4/90 — Farm Produce

Claim for redundancy payment for employee terminated due to rationalisation of workforce — Applicant Union argued payment should be calculated over a period of employment with two companies as they were related and the employee had been told that his move to the Respondent would not affect his redundancy payments — Respondent argued inter alia Commission did not have jurisdiction to entertain claim due to Pepler Case — Commission reviewed Industrial Relations Act and Authorities and found that the points raised by the Respondent that the Commission was without jurisdiction to consider the matter lacked substance — Commission found on evidence that though the legal distinction between the two companies was clear, for the purposes of the matter they were one and the same and that the service was continuous — Commission found it equitable to apply the redundancy provisions of the Metal Trades (General) Award — Granted in Part — WA Timber Industry Union and Adelaide Timber Company Pty Ltd — No. CR395 of 1989 - Beech C. — 6/4/90 — Timber

Employee terminated contract seeking contractual entitlements — Applicant claimed pay in lieu of notice, redundancy payment, interest on money borrowed for relocating and expenses incurred on credit card — Respondent "confirmed" applicant's resignation and agreed in answers filed to pay some of the claimed amount — Commission from evidence noted if applicant resigned as alleged, then it could only properly be seen as a constructive dismissal and found in favour of applicant except amountof redundancy claimed — Granted in Part — Mackay-ScollayR.A. and Signplus International Pty Ltd —No. 2615 011989 — Fielding C. — 12/4/90 — Advertising

Claim re contractual entitlements — Applicant claimed entitlement to vehicle allowance being a denied part of redundancy payment and annual leave paid in lieu and as an accrued entitlement; salary in lieu of notice; and employer superannuation contributions on redundancy and notice — Respondent argued that redundancy and vehicle allowance payments were not benefits under the terms of the contract, that there was no contractual arrangement for notice or payment lieu thereof and that superannuation payments were limited by trust deed to matching employee contributions — Commission found that redundancy payment had been ex gratia, applicant failed to establish right to vehicle allowance or superannuation contributions and the contract did not prescribe notice or payment in lieu thereof— Dismissed — Bettel M J.C. v. Bell Group Press Pty Ltd — No. 72 of 1990 Parks C. — 6/7/90 — Publishing

Claim for redundancy payments remitted to Commission by Full Bench for further hearing and determination — Commission reviewed majority decision of Full Bench, submissions of parties thereof and found redundancy payments to be limited to our particular persons only — Commission while noting a particular standard of redundancy provisions in the public sector as a factor in considering the claim, in a case by case approach, was not persuaded that the standard of 44 weeks required variation — Ordered Accordingly — FCU and Tip Top Bakeries — No. CR638 of 1989 — Halliwell S.C. — 30/4/90 — Bread Manufacture (Clerks)

Claim for redundancy payments—Respondent argued Commission did not have jurisdiction to grant claim on the basis of the Pepler Case — Commission adjourned matter pending a decision of the Full Bench and then heard further submissions — Commission found that although the matter was distinguished in fact from the Tip Top Case, it was a matter referred from a conference notified to the Commission prior to any termination of employees, and on reviewing authorities, that in any event the jurisdiction of the Commission did not depend on such prior notification — Commission further found such an order would not have the effect of varying the Award and that in the absence of general provisions the consideration of redundancy in a case by case manner was permissible — Commission found on the basis of fairness that only employees not compensated for loss of pro rata long service leave entitlements warranted further payments than offered by the Respondent—Granted in Part — United Timber Yards Union and McLeans Consolidated Pty Ltd — No. CR305 of 1989 — Beech C. — 6/4/90 — Timber

Claim re contractual entitlements — Applicant sought ex gratia payment and claimed entitlement to moneys due to termination outside the terms of her contract — Respondent argued the Applicant was not eligible for ex gratia payment and was not denied entitlement to sick leave nor was the termination invalidly effected as such leave was dependent on contituation of the contract of service — Commission found from evidence and the balance of probabilities that the Applicant could not qualify for the ex gratia payment and that sick leave was granted for a period of up to three months on review — Dismissed — Cassar C. v. Peko Gold Limited — No. 2725 of 1989 — Gregor C. — 25/5/90 — Mining (Gold)

Employee retrenched due to end of site work — Applicant union claimed dismissal unfair on basis that employee, being the Occupational Health and Safety Representative, should have been exempt from the "first on, last off rule and sought reinstatement — Respondent argued that with the job nearing completion, the site steward being qualified to take up health and safety issues and management having lost confidence in the employee, reinstatement should not be ordered — Commission found that the employee had been unfairly dimsissed in light of his role and experience in that position — However, on evidence reinstatement was impractical — Dismissed — ABLFv. Jaxon Construction Pty Limited — No. CR334011990 — Halliwell S.C. — 25/5/90 — Building Construction

Application to vary Award by consent re redundancy benefits — Claims sought to apply the standard Termination Change and Redundancy provisions of Part I of Metal Trades General Award — Parties submitted, provisions would ensure fairer treatment of employees at minimal cost and enhance industrial relations in the industry — Commission found that the merit of the claims had been demonstrated and proposed amendments were within the Structural Efficiency Principle — Granted — AMWSU and Others v. Alma Engineering Pty Limited and Others — Nos. 489,490 and 2626 of 1989 — Coleman C.C., George C., Beech C. — 16/7/90 — Building and Construction

Conference referred re unfair dismissal seeking reinstatement — Applicant Union claimed "last on, first ofT principle should have been exercised in case of redundancy, that alternatives to dismissal were not considered and that redundance was a guise for terminating the contract for actions taken by employee as shop steward — Respondent argued that dismissal was a matter of managerial prerogative in which Commission should not interfere, that it was lawful and that there was no alternative work available — Commission found on evidence and with reference to authorities cited that there had not been "a fair go all round" — Granted — ABLF v. Southdown Construction Company Pty Ltd — No. CR1136 of 1989 — Beech C. — 13/2/90 — Building Construction

Applications to vary award to include termination, change and redundancy provisions — Union relied on Australian Conciliation and Arbitration Commission Full Bench decision and Commission in Court Session decision inserting termination, change and redundancy provisions into Federal and State Metal Trades Awards — For reasons support argument — Claim represents sensible workable improvements insuring fairness — Clear nexus between Federal and State Awards — Recent developments in job security in other states — Inequity exists between states in job protection — Respondents claimed no case to answer — Merit finding not an argument — Claim should be dismissed — Movement in other states and Commission in Court Session decision reinforces view held that equity should exist in conditions of employment—Granted—AMWSU and Boltons Pty Ltd and Others — No. 860 of 1986 — Halliwell S.C. — 29/6/88 — Metal Trades

(Ixxxvii)

WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 70 W.A.I.G.

CUMULATIVE DIGEST—con tinned

REDUNDANCY/RETRENCHMENT—continued Conference re redundancy agreements — Applicant claimed attempts to negotiate level oflump sum payments failed as offers were

refused and sought determination — Respondent unions argued Applicant s offers inadequate — Commission found that only Applicant had conducted a valid exercise to determine redundancy payments and ordered a reflection of such calculations — Commission determined further however that in the event parties reached consent within 14 days of Decision it would consider the revised position — Ordered Accordingly — Kalgoorlie Consolidated Gold Mines Pty Ltd v. AWU and Others — No. CR923 of 1989 — Gregor C. — 13/3/90 — Mining

Claim re unfair dismissal and contractual entitlement — applicant claimed dismissal resulting from absence from work due to pressing domestic circumstances was unfair — applicant further claimed retrenchment pay as implied term of the contract — respondent argued applicant disregarded requirements of his position — Commission found insufficient regard was given to applicant's good service and domestic pressure imposed upon him and declared dismissal unfair—Commission however found that applicant failed to show that retrenchment pay as an implied term was necessary to give efficacy to the contract — Declaration/Dismissed — C.D. Blogg v. T.R. Services Pty Ltd — No. 671 of 1990 — Salmon C. — 8/6/90, 15/10/90 — Manufacturing

Con ference referred re claim for pro rata Long Service Leave payment on behalf of two employees, one resigned, one made redundant — Respondent argued Commission had no power as what was sought was compensation and also redundancy payments had the effect of varying an award — Commission found on the authority of McLean's case Pepler's case was on authority in relations to unfair dismissal matters — Commission found circumstances of termination for both workers were not on all fours with the substratum of case law which derived Wages Case — On evidence the employee had disqualified herself as by resigning due to ill health rather than accepting to respondents offer of a rehabilitation programme and continued employment — Commission further found even if it could be found that the second worker was forced to retire on the basis of redundancy, on Ingle's case he had been adequately compensated by voluntary payment — Dismissed — FMWU and Bicton Private Hospital — No. CR519 of 1990 — Gregor C. - 25/10/90 — Health

2Appeal against decision of Commission (70 WAIG 247) re transfer and redundancies of employees — Appellant argued that Commission had erred in fact and in law in determining that there was no obligation to offer redundancy pay — Respondent argued there was no redundancy — Full Bench found questions was not one of unreasonableness but whether the charges in classification constituted the creation of a redundancy and whether refusal to take alternative employment made such redundancy voluntary — Full Bench reviewed authorites and found that though redundancies occurred, any obligation on the part of the employer was met by the offer of transfer — Full Bench found Commission erred only in so far as statements to the reasonableness of the being required to accept the transfer and of not doing so were concerned and varied the decision accordingly — Upheld in Part — FMWU v. Anglican Homes (Inc) — Appeal No. 2803 of 3 989 — Sharkey P., Halliwel! SC., Parks C. — 21/9/90 — Nursing Homes 2Appcal against decision of Commission (70 WAIG 2495) re unchanged decision over redundancies payments following remittance from Full Bench — First appellant argued inter alia Commission had no jurisdiction, failed to give sufficient reasoning and inappropriately applied the Government Employees Consent General Order — Furthermore that the Commission had demonstrated judicial bias — TWU argued it had sufficient interest in the matter not be struck out as a party to the application at first instance — Respondent union to first appeal argued much of the grounds of the first appellant had been canvassed in the original appeal to Full Bench and that Commission never adopted the General Order — Full Bench found question of jurisdiction had been dealt with in the original appeal, that it was quite clear that the standards of Government Employees Consent General Order were of importance in the Commission's deliberations and there was a failure to make sufficient findings of fact on which a sound discretionary judgment could be based, hence the discretion miscarried — Full Bench found on authority in not submitting has at first instance the appellant waived its right to do so — Full Bench further found Commission had not erred in striking out TWU from the application at first instance and in any event it was a finding as defined by section 7 of the IR Act — Upheld and Dismissed — Tip Top Bakeries (Canning Vale) v. FCU and Others, TWU and Tip Top Bakeries (Canning Vale) — Appeal Nos. 870 of 1990 and 954 of 1990 — Sharkey P., Coleman C.C., Salmon C. — 2/11/90 — Bread Manufacturing

2Appeal against decision of Commission (70 WAIG 2512) re redundancy payments ordered — Appellant submitted Commission had erred in law, in finding it used powerto order payments for dismissed employees without an order for reinstatement and in making an order pursuant to section 44(9) of IR Act that had the effect of varying awards with respect to entitlements of terminated employees — Furthermore Commission erred in making a order on a case by case basis without proper regard for principle enunciated in State Termination and Redundancy case, and in ordering payment to employees in eligible to be enrolled as members of union — Full Bench from submissions and cases cited found Commission had the jurisdiction and power as claim was an "industrial matter" — Further Full Bench found Commission Order was made to settle dispute between parties as to terms and conditions upon which redundancies were effected, and it did not vary nor was it inconsistent with award, and finally absence of award provision should not provided in did not become a substitute for a provision in an award, prevent Commission from its duty under section 44 of IR Act — Dismissed — McLeans Consolidated Pty Ltd and United Timber Yards, Sawmills and Woodworkers Employees Union — Appeal No. 917 of 1990 — Sharkey P., Coleman C.C., Gregor C. — 25/10/90 — Timber ...

REGISTRATION - Preliminary submissions and applications, for organisation to show cause why its registration should not be cancelled or suspended

— Party submitted that as person who initiated the summons. Registrar should be joined as a party to proceedings because there was no one else to prosecute the summons — Furthermore it would be a breach of natural justice if Full Bench took on the role of prosecutor — Full Bench found Registrar should not be joined as he had no interest in the matter "litigated"or "to be determined" and noted that Registrar's appearance in person or through Counsel is to assist Commission in manner of amieuscuriae — Full Bench further found mere absence of a party does not make it (Full Bench) the prosecutor and it was clear the nature of these proceedings lie squarely on the organisation summonsed to show cause — Full Bench on matter of adjournment found valid submission re orders subject to appeal and adjourned matter pending hearing and determination of appeal — Proceedings resumed — Party submitted Industrial Relations Act 1979 did not empower Commission to cancel or suspend its registration — Full Bench on reading of Industrial Relations Act found that it had jurisdiction to deal with application — Ordered Accordingly — State School Teachers Union — No. 24 of 1989 —■ 22/11/89 and 25/5/90 — Sharkey P., Halliwell S.C., Martin C. — Unions

application for extension of time to lodge objection — Extension opposed and it was submitted that same result would have been achieved by way of intervention — Full Bench found no real prejudice against respondent — Martin C, dissented — Granted — MBA and Australian Federation ofConstruction Contractors (WA) — Appeal No. 262 of 1989 — Sharkey P., Martin C., Beech C. — 13/3/90 — Building Construction/Organisation

application for registration of new organisation — Applicants sought pursuant to IR Act amalgamation of the two unions — Question re number of matters being satisfied under section 72 of IR Act — Full Bench found section of IR Act had not been complied with, as resonable steps had not been taken to adequately inform members ofproposed rules and stated that it could not effect amendments to the rules, except in accordance with section 58(3) of IR Act by virtue of Industrial Appeal Court decision cited — Dismissed — ASEMFW and ETU — No. 790 of 1990 - Sharkey P., Coleman C.C., George C. — 17/9/90 — Unions

Application for registration as an organisation of employers — Applicant submitted affidavit that provisions of IR Act had been complied with by Association, as had the rules of Association — Full Bench from evidence tendered found in favour of application — Granted — Association of Independent Schools of WA (Inc.) — No. 1282 of 1990 — Sharkey P., Coleman C.C., Kennedy C. - 29/10/90 - Union

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70 W.A.LG. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE

CUMULATIVE DIGEST—continued

REINSTATEMENT - Conference referred for hearing and determination re claim for re-employment of workers on the grounds of unfair dismissal —

Commission found on evidence that employees had not completed required work, had spent more than usual amount of time at smoko and had indulged in horseplay — However Commission found inaction of an off duty supervisor led to the view that responsibility for the events must be shared by the employees and the Respondent — Commission further found in viewof greater maturity and experience of one employee and a previous final warning given, that his dismissal was not unfair— Granted in Part — BLF and Jardan Holdings Pty Ltd trading as G. & R. Constructions — No. CR293 of 1990 — Martin C. 22/5/90 — Building

Claim re unfair dismissal seeking reinstatement — Applicant argued dismissal was unlawful as it was effected summarily without proper notice — Respondent argued parting was mutual, however if applicant was dismissed then two weeks* pay in lieu of notice was given — Commission found from evidence that applicant was dismissed, however reinstatement was not an alternative as employment would be for a short term and because of time lag in Applicant instituting these proceedings — Dismissed — Dissidomino V.A. v. Bactate Pty Ltd — No. 599 of 1990 — Fielding C. — 25/5/90 — Accounting

Employee terminated for alleged criminal activities — Applicant claimed unfair dismissal seeking reinstatment — Respondent argued members of staff and customers had complained re applicant's work attitude and added to this was the relationshp applicant had established with a patron — Commission did not accept respondent's testimony re complaints raised by staffer patrons, and found that termination of contract relyingon rumours and innuendo was unjustified — Commission however found relief sought by applicant unacceptable in view of distrust and lack of mutual respect between parties — Ordered Accordingly — Harding D.A. and Cattach F. — No. 821 of 1990 — Coleman C.C. — 7/6/90 — Hospitality

Claim re unfair dismissal seeking reinstatement — Matter brought to Commission by way of conference previously — Respondent argued previous proceedings entitled it to regard the matter was closed, furthermore time lag in instituting these proceedings contrary to public interest — Commission from history of matter i.e. the various avenues where the matter had been addressed and delay in instituting proceedings found in favour of respondent — Dismissed — Gravelle J. and Hillside Nursing Home — No. 2797 of 1989 — Fielding C. — 2/5/90 — Health/Welfare

Employee terminated due to deficiencies in work performed — Applicant claimed unfair dismissal as alleged failings were not brought to his attention nor counselling to rectify such failings — Respondent argued supervisor had brought to applicant's attention dissatisfaction with performance, furthermore applicant had been paid all benefits due pursuant to award — Commission found respondent had acted fairly within legal rights — Dismissed — Baker K.R. and Ocean Fast Motor Yacht — No. 68 of 1990 — Parks C. — 19/3/90 — Marine/Constructions

Claim re unfair dismissal seeking re-employment — Applicant argued she had sought to withdra wletterof resignation — Respondent denied claim — Question of fact — Commission found no grounds for construing that respondent had forced applicant to resign, therefore there was no dismissal — Dismissed — Beardman D.P. and NZI Insurance Ltd — No. 2729 of 1989 — Kennedy C. — 28/ 6/90 — Clerical/Insurance

Claim for reinstatement on the grounds of unfair dismissal — Respondent argued employee's performance and non-reliability were irredeemable and that even if dismissal was found unfairCommission should not order re-employment—Commission found on evidence that the employee had had incidents of poor performance but they had been judged by the Respondent on the basis of, inter alia, a "severe disciplinary warning" and were not of such seriousness to warrant dismissal — Furthermore, there had been elements of procedural unfairness and that reinstatement at the level of classification just prior to dismissal would not cause difficulties or inconvenience for the Respondent — Granted — AWU and RRIA — No.CR175of 1990 — Salmon C. —■ 10/4/90 — Mining (Iron Ore)

Claim re unfair dismissal/contractual entitlement — Applicant initially sought reinstatement, however amended claim to "monetary compensation" i.e. redundancy payments based on length of service — Respondent objected to matter proceeding claiming abuse of process and due to elapsed time since dismissal occurred — Commission having regard fortime delay, exercised discretionary powers pursuant to IR Act and dismissed matter without deciding on question of jurisdiction — Dismissed — Johnston M.C. and Wesfarmers Ltd — No.2828 of 1989 — Fielding C. — 23/4/90 — Farm Produce

Con fere nee re summary dismissal of a worker—Commission found it necessary to prevent a deterioration in industrial relations and equitable to re-employ worker pending hearing and determination of claim for reinstatement — Ordered Accordingly — Multiplex Constructions Pty Ltd and BLF — No. C211 of 1990 — Beech C. — 15/3/90 — Building Construction

Employee terminated due to altercation with another employee — Applicant Union claimed dismissal unfair and sought the same — Applicant argued reinstatement was not a problem as second employee no longer sought reinstatement — Respondent argued dismissal was necessary to maintain discipline in the workplace — Commission found Acosta's case did not read to say that any threat of violence no matter what the circumstances justified dismissal — Commission found as employee had gained employment at a higher level of remuneration than with the Respondent, it was equitable that he not recover remuneration lost, if any, during his period of unemployment — Granted in Part — UFTU and Pay-Co Products — No. CR192 of 1990—Fielding C. — 19/4/90 — Furniture Manufacture

Employee summarily dismissed for alleged misconduct — Applicant claimed unfair dismissal and sought reinstatement — Respondent outlined events and conduct of applicant which resulted in action taken — Commission from evidence found applicants behaviour inconsistent with the relationship that was expected and that termination of contract was justified — Dismissed — Eu-Huang Chung and Hon Minister for Education — No. 798 of 1990 — Martin C. — 29/6/90 — Education ....

Claim re unfair dismissal seeking reinstatement and contractual entitlements — Applicant believed his services were terminated unfairly for taking sick leave to which he was entitled — Respondent argued that the Applicant had abondoned his employment and in any event had pre-empted dismissal for misconduct — Commission found that Applicant was summarily dismissed which was unfair in the circumstances, reinstatement was not a viable proposition and due to Award coverage Applicant should proceed before Industrial Magistrate for moneys in lieu of notice and annual leave — Ordered Accordingly — Ferguson P.N. v. Southside Autos( 1981) Pty Ltd as trustee for Southside UnitTrust trading as"Southside Mitsubishi" — No. 762 of 1990 — Martin C. — 3/7/90 — Motor Vehicle (Retail and Service)

Claim re unfair dismissal seeking reinstatement without loss of entitlements — Applicant claimed dismissal was unlawful and unfair — Respondent made allegations relating to Applicant's integrity and work performance in justifying dismissal — Commission found that the termination was unlawful, not being pursuant to the contract of service and unfair, and ordered reinstatement with no loss of contractual entitlements — Ordered Accordingly — DuffT. v. Surfrider Pty Ltd — No. 544of 1988 — Parks C. — 25/5/90 — Watersport Promotion and Sales

Employee summarily dismissed for misconduct seeking reinstatement — Applicant claimed dismissal resulted from refusal to operate company aircraft in breach of safety and legal regulations and sought payment in lieu of notice failing reinstatement — Respondent argued summary dismissal was justified for serious and wilful misconduct — Commission found that the applicant was in fundamental breach of his contract by refusing to work as directed during his notice period and thus summary dismissal was not unfair — Dismissed — Smith B.J. v. Ross Atkins Mining — No. 15 of 1990 — Gregor C. — 10/5/90 — Mining

Employee retrenched due to end of site work — Applicant union claimed dismissal unfair on basis that employee, being the Occupational Health and Safety Representative, should have been exempt from the "first on. last off rule and sought reinstatement — Respondent argued that with the job nearing completion, the site steward being qualified to take up health and safety issues and management having lost confidence in the employee, reinstatement should not be ordered — Commission found that the employee had been unfairly dimsissed in light of his role and experience in that position — However, on evidence reinstatement was impractical — Dismissed — ABLF v. Jaxon Construction Pty Limited — No. CR334of 1990 — Halliwell S.C. — 25/5/90 — Building Construction

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WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 70W.A.I.G.

CUMULATIVE DIGEST—continued

REINSTATEMENT —continued Appeal against decision of Commission at (69 WAIG 3135) re claim for reinstatement on the grounds of unfair dismissal — Appellant

argued Commission erred in finding employee had terminated her employment, left children unsupervised and in not giving due weight to all the circumstances — Applicant Union furtherargued Commission failed toconsiderthe meritsof the matter and that to "inquire into and deal with any industrial matter"" by a combination of sections 7 and 23 of the Act was a phrase of very broad SCOpe _ full Bench noted important distinction between a 29b(i) matter and a section 44 matter — Full Bench reviewed authorities, evidence and found that although the employee terminated her own services, the refusal to re-employ was an industrial matter and that the Commission therefore had jurisdiction and was bound to deal with the matter—Full Bench further found that what had occurred was not merely a gratuitous abandonment of the contract and, in the absence of a request for a re- employment order, a declaration as to the unfairness of the refusal to re-employ should issue — Upheld — FMWU and Anna Pineiratradingas Aunty Joan's Child Care Centre — No. 2487 of 1989—Sharkey P., ColemanC.C., Salmon C — 26/4/90—Child Care

Employee dismissed summarily for misconduct — Applicant Union claimed dismissal unfair and sought reinstatement without loss of entitlements — Respondent argued dismissal was justified for withholding and falsifying information relating to medical condition — Commission found that Applicant had been dismissed for reasons other than that stated, dismissal on those grounds was unfair and ordered reinstatement without loss of entitlements — Granted — FMWU v. Hospital Laundry and Linen Service — No. CR525 of 1990 — Gregor C. — 20/7/90 — Laundry

Employee dismissed as result of conflict with superior — Applicant claimed dismissal unfair and sought reinstatement — Respondent argued only option had been to dismiss one of the employees concerned — Commission found that a misunderstanding between Applicant and Manageress had triggered the dismissal and ordered reinstatement without loss of entitlements — Granted — Hutchinson V.A. v. WA Flick and Co Pty Ltd — No. 814of 1990 — Halliwell S.C. — 6/7/90 — Sanitary Disposal

Conference referred re unfair dismissal seeking reinstatement — Applicant Union claimed "last on, first off" principle should have been exercised in case of redundancy, that alternatives to dismissal were not considered and that redundance was a guise for terminating the contract for actions taken by employee as shop steward — Respondent argued that dismissal was a matter of managerial prerogative in which Commission should not interfere, that it was lawful and that there was no alternative work available — Commission found on evidence and with reference to authorities cited that there had not been "a fair go all round" — Granted — ABLF v. Southdown Construction Company Pty Ltd — No. CR1136 of 1989 — Beech C. — 13/2/90 — Building Construction

2Appeal against decision of Commission at (70 WAIG 2493) re unfair dismissal claim — Appellant Union argued Commission had erred in law and fact in determining no constructive dismissal occurred — Full Bench noted Commission had considered correct principle, however found Commission having inferred that there was no alternative for employee other than resignation, erred in retreating from that finding, and remitted matter for further hearing and determination — Upheld — FCU and Cargill Australia Ltd, Leslie Salt Division — Appeal No. 810 of 1990 — Sharkey P.. Negus C, Gregor C. — 23/7/90 — Clerical

Claim re unfair dismissal seeking reinstatement — respondent sought to have question of jurisdiction termed as preliminary point — respondent claimed provisions of the Federal Award of which the parties were bound provided superior legislation to that under which the Commission operates and thus in accordance with section 109 of the Australian Constitution the Commission had no jurisdiction to hear the matter—Commission found on authorities cited that Commission was without jurisdiction — Dismissed — S.E. Needham v. Western Atlas International — No. 540 of 1990 — Gregor C. — 19/5/90 — Surveying

Claim re unfair dismissal seeking reinstatement and contractual entitlements — Applicant withdrew reinstatement claim but sought additional moneys in lieu of notice, vehicle and fuel expenses pursuant to contract—Respondent argued length of notice justified due to Applicant's probationary status but admitted liability for vehicle expenses—Commission found no vision for extension of probation hence additional required — Commission determined further that Respondent's liability for expenses be offset against previous unauthorised expense — Ordered Accordingly — D.G. Carlson v. CSA Credit Union Limited No. 582 of 1990 Martin C. — 5/9/90 — Finance

Application for extension of time to lodge objection — Extension opposed and it was submitted that same result would have been achieved by way of intervention — Full Bench found no real prejudice against respondent — Martin C, Dissented — Granted — MBA and Australian Federation of Construction Contractors (WA) — Appeal No. 262 of 1989 — Sharkey P., Martin C., Beech C. — 13/3/89 — Building Construction/Organisation

Claim re unfair dismissal seeking reinstatement — Applicant submitted problems he incurred leading to dismissal were unfairly attributed to him — Respondent argued Applicant an ineffective manager — Commission found that demands on Applicant were unreasonable and thus dismissal unfair but reinstatement impractical — Ordered Accordingly — A.C. Hutchings v. M.R. Ahern and Others ("the Partners") and Newton Property Pty Ltd — No. 865 of 1990 — Martin C. — 30/7/90 — Tourism/ Accommodation

Claim re unfair dismissal seeking reinstatement — Applicant claimed to receive no warning about performance — No appearance by oron behalfof Respondent — Commission found that due to lack of supervision and warnings dismissal was unfair but at request of applicant reinstatement was not ordered — Ordered Accordingly — J. Green v. Stockdale Furniture — No. 929of 1990— Beech C. — 9/7/90 — Furniture

Claim for reinstatement on the grounds of unfair dismissal without loss of entitlements — Respondent argued employees work performance was unsatisfactory and absence from duty was the final transgression — Commission found on evidence that the employee had not been warned — Had returned to duty being absent on union business when directed to and that the termination, though lawfufl, was unfair — Commission found positions existed which the employee was competent to perform and ordered a sum on compensation for loss of entitlements — Granted — AMIEU and Aylesbury Holdings Pty Ltd trading as Preston River Abattoir — No. CR982 of 1989 — Parks C. — 1/6/90 — Meat

Conference referred re dismissal — Applicant union claimed dismissal unfair as incident resulting in dismissal was not work related and sought reinstatement of contract with no loss of entitlements — Respondent argued that the incident in question had serious ramifications for work place relations — Commission found on evidence that dismissal was unfair and required Respondent to offer employment to Applica nt — Ordered Accordingly — AWU v. Robe River Iron Associates — No. CR442 of 1990 — Kennedy C. — 30/4/90 — Mining

Claim re unfair dismissal seeking reinstatement — Applicant claimed her replacement whilst absent on sick leave was unfair — Respondent argued that due to restructuring of the business and production downturn a position no longer existed for applicant — Commission found Respondent's explanation bonafide thus dismissal not unfair — H.M. Leaf v. Gothic Enterprises (WA) Pty Ltd — No. 1019 of 1990 - Martin C. - 27/7/90

Claim re unfair dismissal seeking reinstatement — Applicant claimed dismissal due to criminal record unfair — Respondent argued dismissal necessitated by concern about impact of applicant's presence on business and staff — Commission found on authorities cited that in the circumstances dismissal was unfair and reinstatement was ordered by consent of the parties — A.G. Stocks v. Narribri Nominees Pty Ltd trading as Tyre Mart Bunbury — No. 1122 of 1990 — Fielding C. — 16/8/90 — Retail

Appeal against determination re misrepresentation in job applications of employment of a Public Servant — Appellant sought order for re-employment with a penalty — Appellant argued she had not resigned and there were lesserand more appropriate penalties for the misconduct committed — PSAB reviewed Public Service Act and found that although the Appellant was in breach of that Act for not resigning when required to, the Respondent had not authority to deem a resignation, nor effect a retrospective date of termination — the Act was of dismissal with payments in lieu of notice — majority PSAB then considered whether the Respondents' discretion was fettered in practice and if so was it unfair — Majority of PSAB found on evidence Respondents application of a penalty and its corollary was fundamentally flawed and should be adjusted — Upheld — Robertson D.M. and Public Service Commissioner — No. PSAB 1 of 1990 — Kennedy C.. Carrington, McDonald 1/8/90 Public Service

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70 W.A.I.G. liiiMi nil

CUMULATIVE DIGEST—continued

REINSTATEMENT —continued Claim re unfair constructive dismissed seeking reinstatement — Applicant claimed change in roster from permanent night shift to a

rotating shift amounted to constructive dismissal — Respondent argued injury sustained by applicant resulted in applicant being able to do light duties available only in the day shifts — Furthermore due to changes in the hospital work was only available on a rotating roster — Commission found from evidence provided in favour of respondent and noted event though case law cited by Counsel was relevant, each unfair dismissal case has to be treated in accordance with its own facts — Dismissed — McDowell E. and Swan Cottage Home Inc — No. 830 of 1989 — Gregor C. — 17/11/89 — Nursing

Application for dismissal of another application re claim for reinstatement on the grounds of unfair dismissal — Applicant claimed a lack of expedition by respondent in prosecuting the application decreased the quality of evidence and the jurisdiction of the Commission to order reinstatement — Respondent claimed it was in the public interest that the matter be heard — Commission found no substantial reason to deny the respondent the rightto have his application heard — Dismissed — Mt Newman Mining Co Pty Ltd v. Anthony Francis Stokes —No. 1180 of 1990 — Gregor C. — 4/9/90 — Mining

Employee dismissed for poor driving record — Applicant claimed dismissal was unfair and sought reinstatement — Respondent argued applicant had been counselled with regard to driving company vehicles — Commission found that respondent had constructed a case against the applicant because of applicant's display of personal dislike for the leading hand — Commission determined that dismissal was unfair and ordered reinstatement — Granted — Scott T.W. v. Windscreens O'Brien — No. 1233 of 1990 — Salmon C. — 13/9/90 — Motor Service

Conference referred re dismissal — Applicant union claimed dismissal of employee was harsh and unjust and sought reinstatement — No appearance by or on behalf of respondent — Commission determined matter pursuant to section 27(l)(d) in absence of respondent — Commission found on evidence and authorities cited that the employer's right to terminate employment had been exercised harshly, no counselling or reasons having been ofTered — Commission found in favour of reinstatement with no loss of entitlements — Granted — ABLFv. Barry Shardlow trading as High Quality Bricklayers — No. CR617 of 1990—Beech C. — 4/9/ 90 — Construction

Employee terminated as result of verbal altercation with superior — Applicant claimed dismissal was unfair and sought reinstatement — Respondent argued dismissal was with notice and not unfair in the circumstances — Commission found on evidence and authorities cited that termination was a right of the employer and not unfair in this instance — Dismissed — S. Rauwendaal v. Town and Country (WA) Building Society — No. 517 of 1989 — Parks C. — 11/9/90 — Finance

Application re unfair dismissal — Applicant claimed dismissal was unfair, as no reasons were given and as he was asked to leave the site immediately, and sought reinstatement — Respondent argued applicant had been counselled with regard to his performance — Commission found that dismissal was not unfair and in any event would not order reinstatement due to the time lapse between the dismissal and filing of application — Dismissed — MJ. Reid v. Cyprus Gold Australia Corporation — No. 868 of 1990 — Gregor C. — 16/8/90 — Mining

Conference referred re dismissal — Applicant union claimed dismissal was harsh and sought reinstatement with no loss of entitlements — Respondent argued employee's work was not satisfactory and that he was a disruptive influence on the workforce — Commission found on evidence that dismissal was unfair as no reasons were given — Commission ordered employee be reinstated with no loss ofentitlements — Granted — ABLF v. Barry Shardlow trading as High Quality Bricklayers — No. CR581 of 1990 — Beech C. — 4/9/90 —Construction

Employee terminated due to alleged negligence in duty — Applicant union claimed unfair dismissal and sought reinstatement arguing conclusion reached by the inquiry into the accident was not available to it on facts — Commission from evidence found dismissal was unfair and ordered reinstatement — Granted — AMWSU and BHP-Utah Minerals International — No. CR494of 1990 — Gregor C. — 3/7/90 — Mining

Conference referred re dismissal — Applicant Union claimed employee dismissed for diligence as Occupational Health Representative, which caused embarrassment for the Respondent and sought reinstatement with no loss of entitlements — Respondent argued dismissal was justified due to unsatisfactory monetary losses incurred by employee — Commission found on evidence in favour of Applicant and that Respondent had engineered employee's wastage figures — Granted — TWU v. Portius Pty Ltd trading as Flash Foods Canteen — CR585 of 1990 — Salmon C. — 24/9/90 — Retail Food

Conference referred re dismissal — Applicant Union claimed employee dismissed for diligence as shop steward — Respondent argued dismissal resulted from poor performance and that employee had received prior warnings — Commission found on evidence that employee used position as shop steward improperly - Dismissed — CMEWU v. Barry Shardlow trading as High Quality Brickwork — CR590 of 1990 — Salmon C. — 3/10/90 — Construction

Claim re unfair dismissal — Applicant claimed he had not been informed of his alleged inefficiency and sought reinstatement — Respondent argued warnings had been given prior to dismissal — Commission found that no warnings were issued and with regard to tests from authorities cited determined dismissal unfair — Commission ordered reinstatement with no loss of entitlements — Granted — J. Allbeury v. Boddington Shire Council — 1289 of 1990 — Fielding C. — 2/10/90 — Local Government

Claim reunfair dismissal seeking re-employment — Applicant claimed dismissal was too great a penalty for poorhandlingofa matter involving a subordinate — Respondent emphasized applicant's poor record in handling staff and failure to improve managerial skills — Commission found on evidence that applicant's record had not been faulted in 12 months prior to dismissal and that the incident resulted from frustration and communication problems — Commission found in favour of applicant however due to a chance in ownership in business re-employment was not ordered — Granted in Part — P. Gately v. Burswood Management Ltd — No. 1056 of 1990 — Kennedy C. — 17/9/90 — Entertainment

Conference referred re dismisal — Applicant Union claimed dismissal resulted from employee's complaints about safety and conditions and sought reinstatement with no loss of entitlements — Respondent argued employee was dismissed due to agressive behaviour at company accommodation which had potential to spill over to the work place — Commission rejected employee's evidence as untruthful and found in favour of the Respondent — Dismissed — No. CR663 of 1990 — Gregor C. — 15/10/90 — Mining

Conference referred re dismissal — Applicant Union claimed employee's conduct did not justify summary dismissal and sought reinstatement with no loss of entitlements — Respondent argued that acceptance of gifts from residents was against policy and viewed very seriously — Commission found on evidence that employee did not wilfully disregard the policy and ordered in her favour — Granted — FMWU v. Board of Management Braemar Lodge — No. CR641 of 1990 — Salmon C. — 22/10/90 — Hostels

Claim re unfair dismissal seeking reinstatement — Applicant's claimed no warnings were given of his alleged shortcomings — Respondent argued applicant's commitment did not meet its high standards — Commission found on evidence in favour of the applicant — Granted — G.P. Henderson v. Budget Rent A Car Pty Ltd — No. 1389 of 1990 — Fielding C. — 5/10/90 — Car Rental 2Appeal against decision of Commission (70 WAIG 2398) re claim for unfair dismissal seeking reinstatement — Extension of time — Full Bench noted Commission at first instance found that there was an abandonment of the contract, however contract continued until terminated by mutual agreement — Full Bench found question of constructive dismissal could not be substantiated as appellant had not recanted from postion taken in the period of time between abandonment and date of termination by mutual agreement, thus no relief available under section 29of IR Act — Dismissed — Beardmand P.D. and NZ Insurance — Appeal No. 1354 of 1990 - Sharkey P.. Coleman C.C., Halliwell S.C. - 12/9/90 — Insurance/Clerical 2Appeal against decision ofCommission (70 WAIG 2475) re order of employment — Appellant appealed on a number of grounds and argued Commission had failed to heed principle adopted by IA Court and Full Bench in that the Commission should not seek to take over the role of an employer to determine who should be employed and failed to have regard for the fact that services of employee were terminated on notice pursuant to clause because of overall unsatisfactory nature of employment — Full Bench noted fundamental task was for union to establish that dismissal was unfair and from submissions and evidence found Commission had not given due weight to employees overall record of employment, thus Commission's discretionary judgment at first instance miscarried — Upheld — RRIA and AWU — Appeal No. 728 of 1990 — Sharkey P.. Fielding C, Kennedy C. — 26/9/ 90 — Mining -

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WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 70 W.A.I.G.

CUMULATIVE VXGUST—continued

SAFETY — 2 Appeal against decision of Industrial Magistrate at (70 WAIG 170)re breach of award — Appellant argued that Magistrate had erred in law, fact and acted in excess of jurisdiction — Full Bench found complaint was not relevant to clause directed to and noted, justification for stopping work, if it was not connected to OHSW Act, would relate to the "no work no pay" concept — Upheld — WA Government Railways Commission and ARU—Appeal Nos. 2733 and 2734 of 1989—SharkeyP., ColemanC.C., Fielding C. — Railways

Conference referred re claim for wages for lost time over health and safety issues — Applicant Union claimed that stoppages on two construction projects were justifiable and did not relieve the respective employers of the obligation to pay for time lost and drew on decisions of the Commission as precedent for its claims — Respondents relied on guidelines contained within the Occupational Health, Safety and Welfare Act 1984 to support their opposing position — Commission noted that the matter was not referred under the Safety Act and was thus to be treated as an industrial matter — Furthermore Commission found payment was not due where reasonable alternative work had been offered and refused, or where another issue was under the guise of a safety issue — Payment allowed for one bonafide claim — Ordered Accordingly — CMEU v. Southdown Construction Co Pty Ltd and Others — No. CR139 of 1990 — Martin C. — 17/5/90 — Building Construction

Conference referred for hearing and determination re refusal of Trades Assistants to clean ablution and lunchroom facilities — Applicant argued cleaning duties were within the scope of the Tradesmen's Assistants duties and that in irregularly used facilities hygiene was maintained on a "user cleans" basis — Respondent Unions argued cleaning duties of those employees were those associated with work directly performed by the Tradesman or Ancillary to the maintenance of the work area and the insistence of the Applicant may give rise to demarcation disputes — Respondents further argued on the grounds of safety and hygiene — Commission found no reason why Tradesman Assistants could not perform such cleaning duties, that cleaning was required on a daily basis to meet DOHSWA standards, but there needed to be some central authority within Applicant's operations to co- ordinate resources to ensure required standards ofhygiene were maintained — Reasons issued only — SEC and ETU and Others — CR114 of 1987 — Coleman C.C. — 16/9/87 — Electricity Supply 2Question of law re validity of Prohibition Notice issued pursuant to OHSW Act — Two parts to question referred, however it was submitted that only second part could be answered by stating legal preconditions for the valid issuance of prohibition notice — Full Bench found question could not be answered without further findings of fact and remitted matter back to the Commission — Ordered Accordingly — Multiplex Constructions Pty Ltd and OHSW Commission — No. OHSW17 of 1989 — Sharkey P., George C., Gregor C. — 6/8/90

Conference referred re repayment for lost time — Applicant union claimed payment relating of three stoppages over health and safety issues — Respondent claimed union did not follow safety procedures — Commission found the manner in which Respondent dealt with to the issues had contributed to deterioration of industrial relations thus, and with regard to authorities cited, payment wasordered for lost time on those occasions — Granted in Part — ABLF v. Geraldton Building Company — No. CR225 of 1990 — Beech C. — 13/7/90 — Construction

Conference referred for hearing and determination re for lost time — Applicant union argued strike was justified on safety grounds and was a last resort following failure of management to address braking problems on/or trains — Respondent argued was not extremely over safety issue but a standard response of the Applicant to the standdown of a member — Commission found on evidence strike occurred because ofgenuine and reasonably held concerns over safety, the future of the Respondent to ensure that its policy was effected consistently and the consequent deterioration and trust — However, Commission strike so far as it concerned compliance with an order of the Commission was not over a safety issue — Granted in Part—CMEWU and HI Pty Ltd — No. CR798 of 1989 — Kennedy C. — 9/8/90 — Iron Ore

2 Appeal against decision of Commission at (70 WAIG 553) re payment for lost time over safety issue — Appellant argued Commission erred in applying test rather than provisions ofOccupational Health Safety and Welfare Act and that Commissionhad no basison the facts to exercise power — Full Bench reviewed IR and Occupational Health Safety and Welfare Acts and evidence at first instance — Full Bench found that by virtue of section 26(1) of the OHSW Act and the criteria of prohibition and improvement notices the employees must have had reasonable grounds to believe that to continue work would expose them to the risk of imminent and serious injury — Furthermore Full Bench found there was clearly sufficient notification under the OHSW Act whether by union officials or not — No reasonable alternative work available — Full Bench reviewed authorities and found powers of Commission to settle a dispute were unrestricted and not fettered by the OHSW Act — OHSW Act was not a code and that the Commission had not erred in its discretion — Dismissed — Transfield Pty Ltd and BTA and Others — Appeal No. 230 of 1990 — 10/8/90 — Sharkey P., George C, Beech C. — Construction

Conference referred for hearing and determination reclaim for lost timere industrial action due to safety issue i.e. infestation offiies — Commission found on evidence neither resolution of safety grievance procedures, nor resolution of grievance procedures were followed in accordance with Site Agreement and that the industrial action was unnecessary — Dismissed — BTA and Others v. MBA on behalf of Sabemo (WA) Pty Ltd and Another — No. CR734{2) of 1990 — Beech C. — Construction

Conference referred for hearing and determination reclaim for provision of fly screen doors and insert controls for amenities sheds — Commission expressed the view that the matter would not have normally required the attention of the Commission and that the issue may have been exaggerated in the unions submissions — However, because matters had been raised in Safety Minutes and other measuresofthe Respondent had not addressed the issue offiies the claim should be granted toaddress the problem raised — Granted — BTA and Others and MBA on behalf of Sabemo and Another — No. CR734(1) of 1990 — Beech C. — 25/9/90 — Building/Construction

Conference referred — Applicant union claimed allowance for lifting of solid core doors in construction — Respondent argued the granting of such allowance would have flow-on implications for other workers handling the doors — Confederation of WA Industry, intervening, submitted manufacture of such doors in private sector was encompassed in wage rate — Parties addressed State Wage Principles — Commission found that circumstances did not provide a significant net addition to work requirements to warrant a new allowance under the Allowances or Work Value Principles — Commission found further that difficulties associated with lifting the doors ought be addressed further rather than compensated and that additional manufacturing costs could be to employees' detriment if competitiveness with the private sector could not be maintained — Dismissed — CMEU v. Hon. Minister for Works — CR570/90 — Beech C. — 25/9/90 — Construction

Employee terminated for failing to follow safety procedures — Applicant claimed dismissal unfair and sought reinstatement — Respondent argued that failure to comply with policiesofthe Company could legally result in termination undertermsofcontract — Commission found on evidence and authorities cited that respondent had not exercised its right to terminate the contract harshly or unreasonably — Dismissed — PJ. Collins v. Mawson Pacific Ltd — No. 726 of 1990 — Gregor C. — 3/10/90 — Mining

2Appeal against decision of Commission (70 WAIG 230) re payment for lost time — Appellant argued Commission erred in concluding that employees had a reasonable concern or apprehension re safety and that insufficient weight wasgiven to evidence of company's concern and of the clean up at the site — Furthermore, it was argued Commission misinterpreted the company's acknowledgment of concern re employees safety — Question of permission of Counsel to appear — Full Bench found no substance in submission that Commission at first instance had erred asa real test was whether employees were reasonably entitled to believe that a hazard existed so as to justify action, to which the answer was yes — Dismissed — Western Mining Corporation Ltd v. AWU and Others — Appeal No. 2794 of 1989 — Sharkey P., Beech C, Parks C. — Mining (Nickel)

2Appeal against decision of Commission (70 WAIG 1940) re dismissal of site allowance claim — Appellant argued Commission's decision was against the weight of evidence and Commission had erred in failing to give consideration to previous decision with respect to similar sites — Full Bench found Commission was bound to consider the claim in accordance with Sapre's case, the award in section 26 of the IR Act and had not made a palpable error in assessing the evidence — Dismissed — BLF and G. and R. Constructions — Appeal No. 914 of 1990 — Sharkey P., Halliwell S.C.. George C. — 16/11/90 — Building Construction

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70 W.A.LG. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE

CUMULATIVE DIGEST—continued Page

SAFETY —continued Conference referred re demarcation dispute over rigging work — Commission found it had power to deal with issue under both IR Act

and Occupational Health Safety and Welfare Regulations 1988 and it more appropriate to interpret the regulations — Commission reviewed definition of "construction site" and "workplace" and found that work should be carried out by fitters where "construction work" was not being carried out — Ordered and delcared accordingly — SEC and AMWSU and others — No. CR666 of 1990 — Salmon C. — 16/10/90 — Electricity Supply 4162

SHIFT WORK - Application for interpretation of an Award re whether payment for annual leave was based on actual shift hours or 38 hours only —

Commission found on examination of Award that the amounts which may be included in the calculation all referred to rates in ordinary time, which hours averaged 38 per week and did not include overtime hours — Dismissed — Brick Tile and Pottery Union and Bristile Limited — No. 1570 of 1989 — Beech C. — 11/5/90 — Brick and Tile Manufacture

application for Award variation based on nexus via Special Case Mechanism of Principles — Applicant sought to express loadings payable for shift and weekend work as per hour, in lieu of per shift or time and one-half, thus resulting in increases in the additional remuneration paid to employees performing their ordinary hours of work in a shift work mode — Respondent supported application — CICS noted from analysis of the history of instant Award that nexus claimed could not be established and "Special Case" was to be considered in accordance with the Structural Efficiency and other relevant Principles — Furthermore CICS found question of merit must be established before it could deal with "special case", there must be no likelihood of flow-on and that the increase must be a once only matter — CICS proposed new order consistent with Principles — Supplementary Decision — Parties sought to have application withdrawn, dismissed or adjourned, as administrative increase of shift allowance to retain parity was greater than the order proposed by CICS — CICS having regard to new facts, found appropriate action was an order of dismissal — Dismissed — FMWU and Activ Foundation — No. 799 of 1989 — Halliwell SC., Martin C, Gregor C. — 23/5/90 — Health/Welfare

Applications to vary Awards by consent re shift loadings and weekend penalties on an interim basis — CWAI intervener sought application be adjourned pending Appeal Court decision — Commission found it should not comment on the competency of Appeals before the IAC and to adjourn would be to suspend toCommission s function to hear special cases in disregard to section 26( 1) of the IR Act —■ Applicants argued for a Special Case, on the basis of "like with like" with the Government Health Sector and that there was probably an anomaly under the Anomalies and Inequities Principle — CICS reviewed another Special Case in industry. Structural Efficiency Principle and found claim satisfied special criteria — CICS further found issue would be finalised in final review of Award, and that costs were acceptable with the efforts to achieve Structural Efficiency, with little possibility of fiow-on — Granted — FMWU and Anglican Homes (Inc) and Others — Nos. 772-774 of 1989,798 of 1989,1679-1680 of 1989,2646 of 1989 and 9% of 1987 — Coleman C.C., Martin C., Salmon C. — 24/1/90 — Health

Applications to vary Awards by consent re Shift Penalties, New Definition and other Allowances as an interim measure pending issue of New Award — Public Service Arbitrator found various amendments either reflected existing practise, arose out of Structural Efficiency negotiations in the case of new "recruit in training" definition/rate of pay, had been earlier determined, related to increased costs or rationalisation of Allowances or corrected errors and ommissions — Granted — Hon. Minister for Police and WAPOU — Nos. 1558-1560 of 1990 — Fielding C. - 15/10/90 - Police

Application to vary shift work clauses common to two awards — Applicant union argued it was unfair that relieving shift workers receive a higher remuneration than workers who are permanently on shift and sought to have shift work on weekends and public holidays paid for at overtime rates for all workers — Respondent opposed claim arguing cost increase would be significant, that it was not part of structural efficiency, rates prescribed by award are no different from those found within four significant awards of the Commission — Furthermore respondent regarded matter as an "extra claim" to unions "no extra claim" commitment — Commission appreciated dissatisfaction among shift workers, however found insufficient detail before it to appreciate full nature of the problem — Dismissed — Brick, Tile and Pottery Union and Midland Brick and Others — No. 976(2) and 977(2) of 1990 — Beech C. — 17/8/90 — Brick Manufacturing

Complaint re failure to pay overtime in accordance with an award and related 38 hour week agreement — Industrial Magistrate reviewed shift work clause of award, agreement and the decision of the Commission to find the purpose of the award provision was to discourage management requiring a shift worker to work parts of a week on afternoon or night shift rather than a straight five day shift — Industrial Magistrate, though not agreeing with all respondents submissions, found it would be a perverse result if the provision was held to mean the employee was entitled to overtime rates for all afternoon shifts worked prior to his rostered day off — Industrial Magistrate found on balance of probabilities complainant had failed to prove a breach — Dismissed — ETU v. Hon. Minister for Health — Complaint No. 48 of 1990 — Brown S.M. — 2/11/90 — Laundry and Linen Services

SICK LEAVE — Claim re unfair dismissal — Applicant sought declaration of unfairness, reference from the Respondent and the opportunity to

"resign with dignity" — Commission found, as Applicant had not requested sick leave in accordance with award. Respondent had not acted unfairly, but noted that the contract of service was terminated in an unfortunate manner for the parties and the Respondent s preparedness to write an appropriate reference — Commission was unable to restore an ended contract to allow resignation —Dismissed — Archibald Y.E. and Lyndon and Trudy Wilson trading as Qcumber Fruit Markets — No. 309 of 1990 — Gregor C. — 4/4/90 — Retail 2394

Claim re contractual entitlements — Applicant sought ex gratia payment and claimed entitlement to moneys due to termination outside the terms of her contract — Respondent argued the Applicant was not eligible for ex gratia payment and was not denied entitlement to sick leave nor was the termination invalidly effected as such leave was dependent on contituation of the contract of service — Commission found from evidence and the balance ofprobabilities that the Applicant could not qualify for the ex gratia payment and that sick leave was granted for a period of up to three months on review — Dismissed — Cassar C. v. Peko Gold Limited — No. 2725 of 1989 — Gregor C. — 25/5/90 — Mining (Gold) 2403

STAND-DOWN — Conference referred re dispute over payment of site allowance for a period during a work stoppage by another Union — Respondent

Union sought payment on the bans that work was available to be performed by member labourers during bricklayer's stoppage — Applicant employers argued that there was insufficient work available and thus were relieved ofthe liability to pay pursuant to the Standowns clause of the Building Trades (Construction) Award — Commission determined that if work was available and could have been performed economically then the payments due were the payments which would have been received had it been carried out — Further Commission found that there was work to be performed and accounting for when labourers were available or not ordered appropriate payments for site allowance — Ordered Accordingly — Jennings Industries and Colgan Industries v. ABLF — No. CR222(1) of 1990 — Gregor C. — 9/4/90 — Building Construction 2482

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CUMULATIVE DIGEST—continued

STAY OF PROCEEDINGS - "•Application for stay of orders re dismissal of applications to vary awards — President found application as framed was incompetent

and was unable to see how the balance of convenience would be served by a stay of the orders constituting the decision within the meaning of section 49( 11) of the Industrial Relations Act — Moreover President was without power to reinstate application at first instance — Dismissed — CWAI and SDA — No. 794 of 1990 — Sharkey P. — 7/6/90 — Retail

"Application for stay of order re outstanding contractural entitlements, pending appeal — Respondent did not object provided moneys were paid into a bank account and held until appeal was determined — Granted — Boulazeris C. and McFayden J. — No. 1005 of 1990 — Sharkey P. — 23/7/90

"Application for stay of order re continuation of normal work and work arrangements for casual employees, pending appeal to Full Bench — President found balance of convenience did not favour Applicant, particularly as order was to prevent industrial action — Furthermore after reviewing authorities that the matter was, the order being made under section 44(6){ba)(i) of the Industrial Relations Act, not of such importance that in the public interest an appeal should lie — Dismissed — WA Newspapers and PKIU — No. 1155 of 1990 — Sharkey P. — Printing (Newspapers)

"Applications to stay operative dates of Order re variations to Awards — Applicant argued, inter alia, that there was nothing in the Industrial Relations Act that allowed specifically for recovery of money and recovery via civil action was not practical in the industries covered by the Awards due to cost — President found a serious issue to be tried — President further found balance of convenience favoured Respondent's members retaining the bulk of the fruits of their judgement, namely a wage increase, which purpose was served by the limited nature of the application and a stay relating to that part of the decision at first instance which covered a particular period — Granted in Part — Nos. 923 and 925 of 1990 — Sharkey P. — 7/6/90 — Transport (Breadcarters)

"Application for stay of order re redundancy payments pending appeal to Full Bench — Respondents did not wish to be heard — President found balance of convenience favoured applicant and it is appropriate to issue order in similar terms on a provisions stay order — Ordered Accordingly — Tip Top Bakeries and FCU and Others — No. 833 of 1990 — Sharkey P. — 25/7/90 — Bread Manufacturing

Application for enforcement of Act — Applicant union alleged that Respondent Union had breached an order of the Commission re demarcation an eligibility to enrol members — Respondent argued Full Bench reviewed authorities. Industrial Relations Act and found the "Order" to be an "Order'as its meaning read in section 66(2) of the Industrial Relations Act and that such an Order may be "a declaration of Interpretation" — Full Bench found that there was a "defence of mistake" on honest and reasonable belief, mensrea, but that the Respondent had not discharged the evidential burden and that there was various liability on the Respondent for the acts of its servants or agents — In Supplementary Reasons Full Bench found that no mitigating circumstances, a serious failure to comply and also given a lack of undertakings as to future conduct that the maximum penalty, short of deregistration proceedings should apply — Further that costs ought be awarded — Full Bench also found Industrial Appeal Court regulations deliberately used the words judgment or order because it would create an intolerable situation if every time there was a finding the whole proceedings had to be stayed pending the Appeal to the Industrial Appeal Court — Full Bench found right to submit bias was waived, noted that the submission was made after the breach was established, that the Full Bench was contrained in its constitution by the legislation and was aware of its duty to disqualify itself— Full Bench found it had a duty to continue to hear the matter and did not grant adjournment sought by Respondents — Proven — UFTU andCMEWU — No. 2633 of 1989 — Sharkey P., Coleman C.C., Salmon C. — 5/4/90 — Building Construction/Furniture Manufacture

"Application for stay of order re contractual entitlements (70 WAIG 2884) pending hearing of appeal by Full Bench — Applicant argued that it would be administratively difficult to recover moneys ordered to be paid by Commission should appeal be successful — Furthermore it was submitted balance of convenience favours Applicant and as Respondent was presently employed, granting of stay would not jeopardise Respondents financial circumstances — President from fact found in favour of Applicant — Ordered Accordingly — Bamboo Creek Management Pty Ltd and Fisher C.A. — No. 1281 of 1990 — Sharkey P. — 17/8/90 —Mining

"Application for stay of execution against decision of Industrial Magistrate — application was opposed on grounds that appeal of a decision from Industrial Magistrate could not be instituted under section 49 of Industrial Relations Act — applicant submitted regulation 29 and section 113 of IR Act empowered President to hear the application for stay — President from submissions as to, powers and the merit of application found serious issue to be tried and balance of convenience favours applicant — however, so as to not deprive employee of the fruits of the Magistrate's order. President found that payment of moneys should be made into an account administered jointly by the parties — Ordered Accordingly — Como Investments Pty Ltd and McCorry G. — OIR — No. 1134 of 1990 — Sharkey P. — 17/8/90

"Application for stay of proceedings in respect of Order No. CR84 of 1990 pending outcome of appeal — Applicant submitted serious issues of law to be tried re applicability of the principle of res judicata and the correct interpretation of section 40 of IR Act — Furthermore it was submitted that application only sought to stay proceedings pending outcome of an appeal on a preliminary point — President found applicant had not established that the balance of convenience lies with it — Dismissed — AMWSU and SECWA — No. 1236 of 1990 — Sharkey P. — 17/8/90 — Power/Energy

"Application for stay of order pending appeal — Applicant claimed serious issue to be tried in that Commission had wrongly interpreted material before it and had failed to take into account the custom within the industry —No appearance by or on behalf of respondent — President found in the interest of both parties payment of money in question to be paid into an interest bearing bank account and issued order staying the operation of the whole of decision at first instance — Granted — Hi Point Homes Pty Ltd and Paine CJ. - No. 1458 of 1990 — Sharkey P. - 26/9/90

SUPERANNUATION - Claim re contractual entitlements — Applicant sought payment of employer superannuation contributions for term of employment

— Commission found no specific contract term and no term adopted by implication from trust deed that would allow the applicant the claimed entitlement upon termination of his services — Dismissed — Jones A. v. EdlynPtyLtd — No.2319of 1989— Parks C. — 26/6/90 — Accountancy

Claim recontractual entitlements — Applicant claimed entitlement to vehicle allowance being a denied part of redundancy payment and annual leave paid in lieu and as an accrued entitlement; salary in lieu of notice; and employer superannuation contributions on redundancy and notice — Respondent argued that redundancy and vehicle allowance payments were not benefits under the terms of the contract, that there was no contractual arrangement for notice or payment lieu thereof and that superannuation payments were limited by trust deed to matching employee contributions — Commission found that redundancy payment had been ex gratia, applicant failed to establish right to vehicle allowance or superannuation contributions and the contract did not prescribe notice or payment in lieu thereof— Dismissed — Bettel MJ.C. v. Bell Group Press Pty Ltd — No. 72 of 1990 — Parks C. — 6/7/90 — Publishing

Application to vary Award re exemption from superannuation provision — Applicant failed to appear despite due notice given — Commission accepted that there was no provision regarding superannuation in the Award — Dismissed — Young Toyota and TWU — No. 1255 of 1989 — Parks C. — 15/6/90 — Transport (Vehicle Sales)

Claim recontractual entitlements by seconded employee — Applicant claimed payment for superannuation and pro rata long service leave — Respondent gave commitment to enquire into superannuation entitlements but denied thai applicant's length of service was sufficient to entitle long service leave payment pursuant to contract — Commission found that applicant had not established a contract breach with regard to superannuation but determined that pursuant to the contract the respondent, to whom the applicant was seconded, was obliged to have account for the different rates of long service leave entitlement between the employers to ensure the applicant would not be disadvantaged — Commission directed parties to confer to determine amount to apply — Ordered Accordingly — J. Harrison v. SSTU (WA) — No. 904 of 1990 — Kennedy C. — 31/8/90 — Trade Union

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

CUMULATIVE DIGEST—continued

SUPERANNUATION —continued Application for exemption from payment to nominated superannuation fund — Applicant submitted basis of application was that it

had a scheme underwritten through another company — Respondent objected and referred Commission to various AIRC decisions — Commission found cases referred to by respondent were not appropriate as this application dealt with provisions of an award which was specifically designed to regulate the area — Commission found application was not competent due to award and could not grant exemption — Furthermore Commission noted that if there still was a dispute re current arrangements it would be a matter for Industrial Magistrate — Dismissed — Narrogin Cottage Home Inc and FMWU — No.502 of 19% — Gregor C. — 29/5/90 - Health/Welfare 2Appeal against decision ofCommission (70^WAIG 1146) re amendment to superannuation clause in award — Appeal based upon the question of whether there is a choice available of superannuation funds — Question re jurisdiction and "Industrial Matter" — Full Bench from submissions found appellant had not established that Commission at first instance erred in the exercise of its discretion and further noted certain points as to why it was within the Commission s power and jurisdiction at First instance to decline to vary order, which without doubt related to an industrial matter — Dismissed — CWAI and SDA — Appeal No. 561 of 1990 — Sharkey P.. Halliwell SC., George C. — 27/9/90 — Wholesale and Retail

Application for exemption from requirements to make payments of employee superannuation contributions to the recommended fund — Commission found no grounds to justify the exemption sought — Dismissed — Ron Smales Jewellers v. SDA — No. 1211 of 1989 — Salmon C. — 4/12/90 — Jeweller

Application to vary award to increase district allowance in line with General Order — Application sought further to amend memorandum of agreement, a schedule to award relating to superannuation as a formula for which included district allowance — Commission satisfied that application complied with State Wage Principles — Granted — Hamersley Iron Pty Ltd v. AWU and Others — No. 1454 of 1990 — Fielding C. — 16/10/90 — Mining

SUPLEMENTARY AND SERVICE PAYMENTS — Application for new award — Amalgamation of two awards, to give effect to first stage of Structural Efficiency Principle —

Commission noted rationalisation of a number of conditions and found parties committed to restructuring and efficiency — Ordered Accordingly — Operative Plasterers and Plaster Workers Federation and HB Brady and Co and Others — No. A29 of 1989 — Beech C. — 24/4/90

Applications to vary Awards re Second Structural Efficiency Wage Adjustments — AMMA intervened and argued against variation on the basis that the Structural Efficiency Principle was not satisfied — Commission reviewed negotiations, parties agreement and addressed concerns regarding various matters such as, training clause, contract of service clause, andconstruction of the wage and supplementary payments clause — Parties were directed to realign (base) classification rates and proposed minimum rates adjustments before presenting draft for final orders — Ordered Accordingly — AMWSU and Others and Anodisers WA and Others — Nos. 478,479 and 483 of 1990(R2) - George C. — 24/5/90 - Metal and Building Trades

Application to vary award re Second Stage Structural Efficiency Wage Adjustment by consent save date of operation — Commission considered matters such as changes to the classification structure, including broadbanding, in line with Metal Trades (General) Award, the changes in Wage Structure, including minimum rates adjustment, supplementary payments and difficulties in applying second instalment of wage increases — Though Commission was in agreement with Australians Commissions expressed views on the matters it was prepared to accept the submissions of both parties in the circumstances of the industry — Commission found no special circumstances to justify a date of operation earlier than when the matter was before the Commission in hearing — Granted in Part — AMWSU v. J.W. Bolton Pty Ltd and Others — No. 482 of 1990(R2) — George C. — 30/7/90 — Vehicle Building

TERMINATION - Employees dismissed for economic reasons i.e. financial hardship — Applicant Unions sought re-instatement on the grounds that

failure to keep the employees informed and dismiss them without warning was unfair — Commission found that although action of the Respondent in keeping the real nature of its difficulties was unfair, the final termination was due to the Respondent being unable to fund the employees employment any longer and was not unfair in context of the authorities at large — Dismissed — Plumbers and Gasfitters Union and Another and Enola Gay Pty Ltd trading as Croydon Painting and Roofing — CR246 and CR260 of 1990 — Martin C. — 25/5/90 — Building

Conference referred for hearing and determination re claim for re-employment of workers on the grounds of unfair dismissal — Commission found on evidence that employees had not completed required work, had spent more than usual amount of time at smoko and had indulged in horseplay — However Commission found inaction of an off duty supervisor led to the view that responsibility for the events must be shared by the employees and the Respondent — Commission further found in viewof greater maturity and experience of one employee and a previous final warning given, that his dismissal was not unfair—Granted in Part — BLF and Jardan Holdings Pty Ltd trading as G. & R. Constructions — No. CR293 of 1990 — Martin C. 22/5/90 — Building

Employee summarily dismissed for allegedly taking part in a fight on company premises — Applicant Union claimed dismissal unfair and sought re-instatement — Commission found Operation Managerial Instruction (a code of conduct) formed a proper attachment to the contract of service — Commission reviewed authorities and found on evidence once investigations, including those of the Police, had taken place and it was concluded that the Applicant was a participant in the fight, rather than a victim of an unprovoked assault, then it would be wrong for the Commission to interfere with the legal right of the employer to terminate the contract of service — Dismissed — AWA and AMC Mineral Sands — No. CR58 of 1990 — Gregor C. — 15/3/90 —Mining ...

Application for reinstatement on the groundsof unfair dismissal — Respondent argued Applicant was employed on a casual and trial basis, of which he did not pass — Commission found on evidence that the Applicant had performed unsatisfactorily, had not requested an alternative job and that the dismissal was fair — Dismissed — Axford E.W. and Bradken Perth — No. 586 of 19% — Fielding C. — 23/5/90 — Manufacturing (Metal Products)

Claim re unfair dismissal — Applicant sought declaration of unfairness, reference from the Respondent and the opportunity to "resign with dignity" — Commission found, as Applicant had not requested sick leave in accordance with award. Respondent had not acted unfairly, but noted that the contract of service was terminated in an unfortunate manner for the parties and the Respondent s preparedness to write an appropriate reference — Commission was unable to restore an ended contract to allow resignation —Dismissed — Archibald Y.E. and Lyndon and Trudy Wilson trading as Qcumber Fruit Markets — No. 309 of 19% — Gregor C. — 4/4/90 — Retail '.

Application for denied contractual entitlements — Applicant sought payment for work done to date of termination, salary in lieu of notice and pro rata holiday pay with loading, on the basis that he had been dismissed — Respondent argued Applicant had abandoned employment — Commission found on evidence that there had been a mutual parting of the ways — Commission found contract was clear that there was no entitlement to annual leave until a year of service had been completed and the Commission did not have jurisdiction to deal with benefits arising under the General Order for annual leave to non-award employees — Commission ordered payment of agreed sum for work done — Granted in Part — Bishop A. and Comfix Computer Maintenance, a division of Otago Pty Limited — No. 26 of 1990 — Fielding C. — 3/5/90 — Computers

Claim for reinstatement on the grounds of unfair dismissal — Applicant Union argued employee had been constructively dismissed — Commission reviewed authorities and found on evidence that the employee's services were terminated by a mutual arrangement after negotiation — Dismissed — FCU and Cargill Australia Ltd, Leslie Salt Division — No. CR810 of 1989 — Parks C. — 12/4/90 — Mining (Clerical)

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WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 70 W.A.I.G.

CUMULATIVE DIGEST—continued

TERMINATION —continued Claim for reinstatement without loss of entitlements and declaration sought on the grounds of unfair dismissal — Applicant Union

argued employee had given good or adequate service and had not been counselled on poor performance or warned that her employment was in jeopardy — Respondent argued to the contrary and that justified complaints from customers on a particular day were "the straw which broke the camel's back" — Commission found on evidence in favour of Respondent — Dismissed — FLAIEU and Raffies Motor Hotel — No. CR219 of 1990 — Kennedy C. — 21/5/90 — Hospitality

Claim re unfair dismissal seeking reinstatement — Applicant argued dismissal was unlawful as it was effected summarily without proper notice — Respondent argued parting was mutual, however if applicant was dismissed then two weeks' pay in lieu of notice was given — Commission found from evidence that applicant was dismissed, however reinstatement was not an alternative as employment would be for a short term and because of time lag in Applicant instituting these proceedings — Dismissed — Dissidomino V.A. v. Bactate Pty Ltd — No. 599 of 1990 — Fielding C. — 25/5/90 — Accounting

Employee summarily dismissed for allegedly refusing to carry out lawful command — Applicant argued command to train subordinate in use of particular apparatus was dangerous and claimed unfair dismissal seeking payment in lieu of four weeks' notice — Respondent argued it had acted within its rights as applicant's assertion of danger in training was not a satisfactory explanation — Commission found in applicant's favour as refusal was due to concern for safety — Granted — Le Hoa Ma and Milne Feeds Pty Ltd — No. 569 of 1990 — Salmon C. — 21/5/90

Employee terminated for alleged criminal activities — Applicant claimed unfair dismissal seeking reinstatment — Respondent argued members of staff and customers had complained re applicant's work attitude and added to this was the relationshp applicant had established with a patron — Commission did not accept respondent's testimony re complaints raised by staff or patrons, and found that termination ofcontract relying on rumours and innuendo was unjustified — Commission however found relief sought by applicant unacceptable in view of distrust and lack of mutual respect between parties — Ordered Accordingly — Harding D.A. and Cattach F. — No. 821 of 1990 — Coleman C.C. — 7/6/90 — Hospitality

Claim re unfair dismissal seeking reinstatement — Matter brought to Commission by way of conference previously — Respondent argued previous proceedings entitled it to regard the matter was closed, furthermore time lag in instituting these proceedings contrary to public interest—Commission from history of matter i.e. the various avenues where the matter had been addressed and delay in instituting proceedings found in favour of respondent — Dismissed — Gravelle J. and Hillside Nursing Home — No. 2797 of 1989 — Fielding C. — 2/5/90 — Health/Welfare

Employee terminated due to deficiencies in work performed — Applicant claimed unfair dismissal as alleged failings were not brought to his attention nor counselling to rectify such failings — Respondent argued supervisor had brought to applicant's attention dissatisfaction with performance, furthermore applicant had been paid all benefits due pursuant to award — Commission found respondent had acted fairly within legal rights — Dismissed — Baker K.R. and Ocean Fast Motor Yacht — No. 68 of 1990 — Parks C. — 19/3/90 — Marine/Constructions

Employee claimed unfairdismissal — Respondent argued applicant lawfully terminated and benefits paid in excess of those required by award — Commission found applicant had not discharged onus of proof that notwithstanding lawful dismissed, respondent had acted unfairly — Dismissed — Wood A. and Chateau Commodore Hotel Pty Ltd — No. 114 of 1990 — Parks C. — 15/5/90 — Hospitality

Claim re unfairdismissal seeking re-employment — Applicant argued she had sought to withdraw letter of resignation — Respondent denied claim — Question of fact — Commission found no grounds for construing that respondent had forced applicant to resign, therefore there was no dismissal — Dismissed — Beardman D.P. andNZI Insurance Ltd — No.2729ofl989— Kennedy C. — 28/ 6/90 — Clerical/Insurance

Claim for reinstatement on the grounds of unfair dismissal — Respondent argued employee's performance and non-reliability were irredeemable and that even if dismissal was found unfairCommission should not order re-employment—Commission found on evidence that the employee had had incidents of poor performance but they had been judged by the Respondent on the basis of. inter alia, a "severe disciplinary warning" and were not of such seriousness to warrant dismissal — Furthermore, there had been elements of procedural unfairness and that reinstatement at the level of classification just prior to dismissal would not cause difficulties or inconvenience for the Respondent — Granted — AWU andRRIA — No. CR175 of 1990 — Salmon C. — 10/4/90' Mining (Iron Ore) ;

Employees summarily dismissed for alleged misconduct — Applicants claimed resignations were tendered with one month s notice and sought benefits entitled pursuant to contracts of employment — Respondent argued applicants had solicited its customers which was detrimental to business — Commission from evidence found in favour of applicants, with exception to claim for commission — Ordered Accordingly — Graham M. & Carr R. and Mavor Holdings trading as Decision Management — Nos 2386 and 2387 of 1989 - Halliwell S.C. 30/4/90 - Computing Sales

Claim re unfair dismissal/contractual entitlement — Applicant initially sought reinstatement, however amended claim to "monetary compensation" i.e. redundancy payments based on length of service — Respondent objected to matter proceeding claiming abuse of process and due to elapsed time since dismissal occurred — Commission having regard for time delay, exercised discretionary powers pursuant to IR Act and dismissed matter without decidingon question of jurisdiction — Dismissed — Joh nston M.C. and Wesfarmers Ltd — No.2828 of 1989 — Fielding C. — 23/4/90 — Farm Produce 2Appeal against decision of Commission at (69 WAIG 3106) re dismissed claim of unfair dismissal — Appellant argued Commission had failed to give sufficient weight to various matters of evidence, had erred in not making findings on the separate grounds of dismissal and sought Order that the matter be remitted for further hearing and determination — Full Bench reviewed Authorities and found there was a requirement for procedural fairness on the part of the employer, which had been met in the events surrounding the dismissal and by the Respondent's reliance upon the investigations of the Commissioner of Health in the act of dismissal — Respondent had conducted no inquiry of its own relating to the allegations against the Appellant as required by Authorities and had acted unjustly in not referring the allegations to the Appellant for answer — Full Bench found Commissioner of Health had power to remove Appellant from office of Health Surveyor but not dismiss him from employment and that the Commission had erred in its construction of the Health Act — Full Bench found it was unable to admit a letter as fresh evidence and as a matter of public interest, after considering the Evidence Act. that the Commission was unable to compel a witness to give evidence that may be self-incriminating — Full Bench further found Commission had erred in not making a findingas to whether dismissal was justified on fraud allegations, that a finding of unfairness could not be made without it and that it was the Commission's duty to make such findings — Commission further erred in failing to meet evidentiary burden re further and better particulars, the manner in which it attached weight to evidence and in the exercise of its discretion — Full Bench found there had been a harsh and oppressive act of dismissal in line with Ong's case, that it had power to vary Commission's decision, though not that of the Commissioner for Health and there were no real barriers to re-instatement — Upheld — Mouritz P.M. and Shire of Esperance — Appeal No..2384 of 1989 — Sharkey P., Coleman C.C., George C. — 6/4/90 — Meat

Claim re contractual entitlement — Applicant claimed six months' salary as agreed by parties on termination — Respondent pleaded inability to pay — Commission found as payment had not been made by stipulated date, applicant was entitled to recover moneys owed by way of a benefit denied under his contract ofemployment — Granted — Meyer K.j. and Capital City Properties Ltd No. 82 of 1990 — Fielding C. — 1/5/90 — Secretary/Financial Controller ..••••

Conferences summary dismissal of a worker — Commission found it necessary to prevent a deterioration in industrial relations and equitable to re-employ worker pending hearing and determination of claim for reinstatement — Ordered Accordingly — Multiplex Constructions Pty Ltd and BLF — No. C211 of 1990 — Beech C. — 15/3/90 — Building Construction

Employee terminated due to altercation with another employee — Applicant Unioi\claimed dismissal unfair and sought the same Applicant argued reinstatement was not a problem as second employee no longer sought reinstatement — Respondent argued dismissal was necessary to maintain discipline in the workplace — Commission found Acosta s case did not read to say that any threat of violence no matter what the circumstances justified dismissal — Commission found as employee had gained employment at a higher level of remuneration than with the Respondent, it was equitable that he not recover remuneration lost, if any, during his period of unemployment — Granted in Part — UFTU and Pay-Co Products — No.CR192 of 1990 Fielding C. 19/4/90 — Furniture Manufacture

(xcvi)

70 W.A.LG. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE

CUMULATIVE DIGEST—continued

TERMINATION —continued Employee summarily dismissed for alleged misconduct — Applicant claimed unfair dismissal and sought reinstatement —

Respondent outlined events and conduct of applicant which resulted in action taken — Commission from evidence found applicants behaviour inconsistent with the relationship that was expected and that termination of contract was justified — Dismissed — Eu-Huang Chung and Hon Minister for Education — No. 798 of 1990 — Martin C. — 29/6/90 — Education ....

Employee terminated contract seeking contractual entitlements — Applicant claimed pay in lieu of notice, redundancy payment, interest on money borrowed for relocating and expenses incurred on credit card — Respondent "confirmed" applicant's resignation and agreed in answers filed to pay some of the claimed amount — Commission from evidence noted if applicant resigned as alleged, then it could only properly be seen as a constructive dismissal and found in favour of applicant except amount of redundancy claimed — Granted in Part—Mackay-ScollayR.A. and Signplus International Pty Ltd — No. 2615 of 1989 — Fielding C. — 12/4/90 — Advertising

Claim re contractual entitlement — Employee claimed employment mutually terminated and sought moneys owing i.e. one week's pay and leave loading for accumulated annual leave — Respondent submitted at conference payment was refused as leave loading did not apply and employee ceased employment without required period of notice — Commission found annual leave loading paid for holiday taken is prima facie evidence that leave loading was a term of the contract — Granted — P. Nowell and Gloria Marshall's Figure Salon — No. 2224 of 1989 — Negus C. — 24/4/90 — Health/Beauty

Claim re contractual entitlements — Applicant claimed wages for portion of fixed term contract following termination by respondent and solicitor's fees — Respondent argued the Applicant ultimately terminated the contract and no payment was warranted — Commission found that an invitation, not accepted by the Applicant, to renew the original contract did not relieve the respondent from liability under the original fixed term contract and that the claim for solicitor's fees wasultra vires section 27( lXc)of the Act — Granted in Part — Fisher C.A. v. Bamboo Creek Management Pty Limited — No. 291 of 1990 — Halliwell S.C. — 7/6/90 — Mining

Claim re unfair dismissal seeking reinstatement and contractual entitlements — Applicant believed his services were terminated unfairly for taking sick leave to which he was entitled — Respondent argued that the Applicant had abondoned his employment and in any event had pre-empted dismissal for misconduct — Commission found that Applicant was summarily dismissed which was unfair in the circumstances, reinstatement was not a viable proposition and due to Award coverage Applicant should proceed before Industrial Magistrate for moneys in lieu of notice and annual leave — Ordered Accordingly — Ferguson P.N. v. Southside Autos (1981) Pty Ltd as trustee for Southside Unit Trust tradmgas"Southside Mitsubishi" — No. 762 of 1990 — Martin C — 3/7/90 — Motor Vehicle (Retail and Servicing)

Claim re unfair dismissal seeking reinstatement — Respondent alleged Commission was without jurisdiction and further that the matter was not an industrial matter but if not so found denied that the dismissal was unfair — Commission found from the evidence and with reference to authorities cited that the Federal Award to which the Applicant had been subject and the provisions of section 29(i) of the State Act are inconsistent and therefore the Commission is without jurisdiction — Dismissed — Eatts W.G. v. General Manager, Aboriginal Hostels Limited — No. 2625 of 1989 — Fielding C. — 22/6/90 — Accommodation (Hostels)

Claim re contractual entitlement — Applicant sought payment of wages for a fixed term contract — Respondent argued, prescribed period of notice given — Parties sought Commission ruling on "implied term" — Commission applying the rules as set out in cases cited found level of recompense i.e. one week's pay for three days worked does not appear to be unreasonable or contrary to industry standards — Dismissed —Francillon P.J. and Quality Pacific Hotels Ltd —No. 2571 of 1989 — GregorC. — 25/5/90 — Hospitality

Claim re unfair dismissal seeking reinstatement without loss of entitlements — Applicant claimed dismissal was unlawful and unfair — Respondent made allegations relating to Applicant s integrity and work performance in justifying dismissal — Commission found that the termination was unlawful, not being pursuant to the contract of service and unfair, and ordered reinstatement with no loss of contractual entitlements — Ordered Accordingly — DuffT.v. SurfriderPtyLtd — No. 544 of 1988 — Parks C. — 25/5/90 — Watersport Promotion and Sales

Claim re unfair dismissal and contractual entitlements — Applicant claimed payment in lieu of notice from an implied term of his contract for reasonable notice but question of reinstatement was not addressed — Respondent argued Applicant was not an employee but an independent contractor and in any event termination ofthe contract was not unfair — Commission found on the evidence and with reference to authorities cited Applicant was an independent contractor thus the Commission was without jurisdiction — Dismissed — Pagoda G.M. v. Snowfresh (Australia) Ltd — No. 2766 of 3989 — Fielding C. — 7/5/90 — Food (Retail)

Claim re unfair dismissal and contractual entitlements — Applicant withdrew dismissal claim and sought salary arrears, payment in lieu of notice, rental subsidy and motor vehicle lease instalments pursuant to oral agreements —■ Respondent disputed Applicant's description of contract, claimed Applicant was a consultant not an employee and that the Applicant had withdrawn from the contractual arrangement — Commission found from evidence and on the balance of probabilities that the parties had a contract for services thus the Applicant was not an employee and the Commission was without jurisdiction — Dismissed — Mohr H.A.U. v. Pacific Dental Corporation — No. 508 of 1989 — Gregor C. — 18/5/90 — Dental Services

Employee summarily dismissed for misconduct seeking reinstatement — Applicant claimed dismissal resulted from refusal to operate company aircraft in breach of safety and legal regulations and sought payment in lieu of notice failing reinstatement — Respondent argued summary dismissal was justified for serious and wilful misconduct — Commission found that the applicant was in fundamental breach of his contract by refusing to work as directed during his notice period and thus summary dismissal was not unfair — Dismissed — Smith B.J. v. Ross Atkins Mining — No. 15 of 1990 — Gregor C. — 10/5/90 — Mining

Employee retrenched due to end of site work — Applicant union claimed dismissal unfair on basis that employee, being the Occupational Health and Safety Representative, should have been exempt from the "first on, last off rule and sought reinstatement — Respondent argued that with the job nearing completion, the site steward being qualified to take up health and safety issues and management having lost confidence in the employee, reinstatement should not be ordered — Commission found that the employee had been unfairly dimsissed in light of his role and experience in that position — However, on evidence reinstatement was impractical — Dismissed — ABLF v. Jaxon Construction Pty Limited — No. CR334of 1990 — Halliwell S.C. — 25/5/90 — Building Construction

Appeal against decision ofCommission at (69 WAIG 3135)reclaim for reinstatement on thegrounds of unfair dismissal — Appellant argued Commission erred in finding employee had terminated her employment, left children unsupervised and in not giving due weight to all the circumstances — Applicant Union further argued Commission failed to consider the merits ofthe matterand that to "inquire into and deal with any industrial matter" by a combination of sections? and 23 ofthe Act was a phrase of very broad scope — Full Bench noted important distinction between a 29b(i) matter and a section 44 matter — Full Bench reviewed authorities, evidence and found that although the employee terminated her own services, the refusal to re-employ was an industrial matterand that the Commission therefore had jurisdiction and was bound to deal with the matter—Full Bench further found that what had occurred was not merely a gratuitous abandonment ofthe contract and. in the absence of a request for a re- employment order, a declaration as to the unfairness of the refusal to re-employ should issue — Upheld — FMWTJ and Anna Pineira trading as Aunty Joan's Child Care Centre — No. 2487 of 1989 — Sharkey P.. Coleman C.C., Salmon C. — 26/4/90—Child Care

Employee dismissed summarily for misconduct — Applicant Union claimed dismissal unfair and sought reinstatement without loss of entitlements — Respondent argued dismissal was justified for withholding and falsifying information relating to medical condition — Commission found that Applicant had been dismissed for reasons otherthan that stated, dismissal on those grounds was unfair and ordered reinstatement without loss of entitlements — Granted — FMWU v. Hospital Laundry and Linen Service — No. CR525 of 1990 - Gregor C. — 20/7/90 - Laundry

06348—4 (xcvii)

WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 70 W.A.LG.

CUMULATIVE DIGEST—continued

TERMINATION —<continued Employee dismissed as result of conOict with superior — Applicant claimed dismissal unfair and sought reinstatement —

Respondent argued only option had been to dismiss one of the employees concerned — Commission found that a misunderstanding between Applicant and Manageress had triggered the dismissal and ordered reinstatement without loss of entitlements — Granted — Hutchinson V.A. v. WA Flick and Co Pty Ltd — No. 814 of 1990 — Halliweil S.C. — 6/7/90 — Sanitary Disposal

Conference referred re unfair dismissal seeking reinstatement — Applicant Union claimed "last on, first off" principle should have been exercised in case of redundancy, that alternatives to dismissal were not considered and that redundance was a guise for terminating the contract for actions taken by employee as shop steward — Respondent argued that dismissal was a matter of managerial prerogative in which Commission should not interfere, that it was lawful and that there was no alternative work available — Commission found on evidence and with reference to authorities cited that there had not been "a fair go all round" — Granted — ABLF v. Southdown Construction Company Pty Ltd — No. CR1136 of 1989 — Beech C. — 13/2/90 — Building Construction

2Appeal against decision of Commission at (70 WAIG 192) re unfair dismissal — Appellant argued Commission erred in not finding dismissal unfair as termination was in breach ofcontract, the Appellant had not repudiated contract and finding was inconsistent with remainder of decision — Full Bench noted that it was for Appellant to pursuade that there was an error at first instance, even though Respondent did not appear or contest appeal — Full Bench reviewed evidence and found Commission had failed to give sufficient or any weight to evidence of performance and that there was insufficient warning given to the employee — Full Bench found dismissal was harsh in all the circumstances under the Undercliffe test and ordered reinstatement — Upheld and varied — J.A. Margio and Fremantle Arts Centre Press — No. 2749 of 1989 — Sharkey P., Negus C., George C. — 21/6/90 — Arts Management

2Appeal against decision of Commission at (70 WAIG 2493) re unfair dismissal claim — Appellant Union argued Commission had erred in law and fact in determining no constructive dismissal occurred — Full Bench noted Commission had considered correct principle, however found Commission having inferred that there was no alternative for employee other than resignation, erred in retreating from that finding, and remitted matter for further hearing and determination — Upheld — FCU and Cargill Australia Ltd, Leslie Salt Division — Appeal No. 810 of 1990 — Sharkey P., Negus C., Gregor C. — 23/7/90 — Clerical

Claim re unfair dismissal seeking reinstatement — respondent sought to have question of jurisdiction termed as preliminary point — respondent claimed provisions of the Federal Award of which the parties were bound provided superior legislation to that under which the Commission operates and thus in accordance with section 109 ofthe Australian Constitution the Commission had no jurisdiction to hear the matter— Commission found on authorities cited that Commission was without jurisdiction — Dismissed — S.E. Needham v. Western Atlas International — No. 540 of 1990 — Gregor C. — 19/5/90 — Surveying

Employee dismissed due to managerial incompetency — Applicant claimed dismissal too harsh a penalty — Respondent argued dismissal justified in the circumstances — Commission applied principles stated by Industrial Appeal Court in the Undercliffe Case and determined the dismissal not unfair— Dismissed — S.G. Akers v. Riverton Hotel — No. 661 of 1990— Halliweil S.C. — 31/7/90 — Hospitality

Claim re unfair dismissal seeking reinstatement and contractual entitlements — Applicant withdrew reinstatement claim but sought additional moneys in lieu of notice, vehicle and fuel expenses pursuant to contract — Respondent argued length of notice justified due to Applicants probationary status but admitted liability for vehicle expenses — Commission found no vision for extension of probation hence additional required — Commission determined further that Respondents liability for expenses be offset against previous unauthorised expense — Ordered Accordingly — D.G. Carlson v. CSA Credit Union Limited — No. 582 of 1990 — Martin C. — 5/9/90 — Finance

Claim re unfair dismissal seeking reinstatement — Applicant submitted problems he incurred leading to dismissal were unfairly attributed to him — Respondent argued Applicant an ineffective manager — Commission found that demands on Applicant were unreasonable and thus dismissal unfair but reinstatement impractical — Ordered Accordingly — AC. Hutchings v. M.R. Ahern and Others ("the Partners") and Newton Property Pty Ltd — No. 865 of 19% — Martin C. — 30/7/90 — Tourism/ Accommodation

Claim re unfair dismissal seeking reinstatement — Applicant claimed to receive no warning about performance — No appearance by oron behalfof Respondent — Commission found that due to lack of supervision and warnings dismissal was unfairbut at request of applicant reinstatement was not ordered — Ordered Accordingly — J. Green v. Stockdale Furniture — No. 929of 1990 — Beech C. — 9/7/90 — Furniture

Claim for reinstatement on the grounds of unfair dismissal without loss of entitlements — Respondent argued employees work performance was unsatisfactory and absence from duty was the final transgression — Commission found on evidence that the employee had not been warned— Had returned to duty being absent on union business when directed to and that the termination, though lawfufl, was unfair — Commission found positions existed which the employee was competent to perform and ordered a sum on compensation for loss of entitlements — Granted — AMIEU and Aylesbury Holdings Pty Ltd trading as Preston River Abattoir - No. CR982 of 1989 — Parks C. - 1/6/90 - Meat

Conference referred re dismissal — Applicant union claimed dismissal unfair as incident resulting in dismissal was not work related and sought reinstatement ofcontract with no loss ofentitlements — Respondent argued that the incident in question had serious ramifications for work place relations — Commission found on evidence that dismissal was unfair and required Respondent to offer employment to Applicant — Ordered Accordingly — AWU v. Robe River Iron Associates — No. CR442 of 1990 — Kennedy C. - 30/4/90 — Mining

Claim re unfair dismissal seeking reinstatement — Applicant claimed her replacement whilst absent on sick leave was unfair — Respondent argued that due to restructuring of the business and production downturn a position no longer existed for applicant — Commission found Respondent's explanation bona fide thus dismissal not unfair — H.M. Leaf v. Gothic Enterprises (WA) Pty Ltd — No. 1019 of 1990 — Martin C. - 27/7/90

Claim re unfair dismissal seeking reinstatement — Applicant claimed dismissal due to criminal record unfair — Respondent argued dismissal necessitated by concern about impact of applicant's presence on business and staff — Commission found on authorities cited that in the circumstances dismissal was unfair and reinstatement was ordered by consent ofthe parties — AG. Stocks v. Narribri Nominees Pty Ltd trading as Tyre Mart Bunbury — No. 1122 of 1990 — Fielding C. — 16/8/90 — Retail

Appeal against determination re misrepresentation in job applications of employment of a Public Servant — Appellant sought order for re-employment with a penalty — Appellant argued she had not resigned and there were lesser and more appropriate penalties for the misconduct committed — PSAB reviewed Public Service Act and found that although the Appellant was in breach of that Act for not resigning when required to. the Respondent had not authority to deem a resignation, nor effect a retrospective date of termination — the Act was of dismissal with payments in lieu of notice — majority PSAB then considered whether the Respondents' discretion was fettered in practice and if so was it unfair — Majority of PSAB found on evidence Respondents application of a penalty and its corollary was fundamentally flawed and should be adjusted — Upheld — Robertson D.M. and Public Service Commissioner — No. PSAB 1 of 1990 — Kennedy C, Carrington, Mcdonald — 1/8/90 — Public Service

Conference referred re dismissal — Applicant union claimed dismissal was harsh and sought reinstatement of employee — Respondent argued poor punctuality and insufficient regard for supervisor's authority warranted dismissal with notice — Commission applied test contained in Undercliffe Nursing Home Case to the facts and found dismissal not unfair— FMWU v. Rosedale Psychiatric Lodge — No. CR573 of 1990 — Halliweil S.C. — 25/9/90 — Hostels

Claim re contractual entitlements — Applicant claimed moneys in lieu of one month's notice — Respondent argued Applicant was dismissed from expiration of probationary period and no moneys were due — Commission found that the probationary period had existed, the Applicant had been paid for the full three months and as it was open to either party to reconsider their position at the end of the period, no deprivation of entitlements existed — M.J Brenner v. Photo Kevron — No. 1003 of 1990— Beech C. — 14/9/90 — Retail

(xcviii)

70 W.A.LG. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE

CUMULATIVE DIGEST—continued

TERMINATION —continued Claim re unfair constructive dismissed seeking reinstatement — Applicant claimed change in roster from permanent night shift to a

rotating shift amounted to constructive dismissal — Respondent argued injury sustained by applicant resulted in applicant being able to do light duties available only in the day shifts — Furthermore due to changes in the hospital work was only available on a rotating roster — Commission found from evidence provided in favour of respondent and noted event though case law cited by Counsel was relevant, each unfair dismissal case has to be treated in accordance with its own facts — Dismissed — McDowell E. and Swan Cottage Home Inc — No. 830 of 1989 — GregorC. — 17/11/89 — Nursing

Application fordismissal of another application re claim for reinstatement on the grounds of unfair dismissal — Applicant claimed a lack of expedition by respondent in prosecuting the application decreased the quality of evidence and the jurisdiction of the Commission to order reinstatement — Respondent claimed it was in the public interest that the matter be heard — Commission found no substantial reason to deny the respondent the right to have his application heard — Dismissed — Mt Newman Mining Co Pty Ltd v. Anthony Francis Stokes — No. 1180 of 1990 — Gregor C. — 4/9/90 — Mining

Claim re contractual entitlements — Applicant claimed wages earned and moneys in lieu of annual leave — Respondent argued right to deduct pay in lieu of notice or alternatively to withhold payment for the final uncompleted weekly contract period — Commission reviewed authorities and found applicant not entitled to payment for incomplete contract period andon evidence no express provision forprrata payment in lieu of annual leave — Commission found further, that payment was due for wages earned during an earlierpay period — Granted in Part — RA.Taylorv. Vipond Pty Ltd trading asThe Relationship Connection — 284 of 1989 — Parks C — 17/9/90 — Introduction Agencies

Employee dismissed for poor driving record — Applicant claimed dismissal was unfair and sought reinstatement — Respondent argued applicant had been counselled with regard to driving company vehicles — Commission found that respondent had constructed a case against the applicant because of applicant's display of personal dislike for the leading hand — Commission determined that dismissal was unfair and ordered reinstatement — Granted — Scott T.W. v. Windscreens O'Brien — No. 1233 of 1990 — Salmon C. — 13/9/90 — Motor Service

Conference referred re dismissal —■ Applicant union claimed dismissal of employee was harsh and unjust and sought reinstatement — No appearance by or on behalfof respondent — Commission determined matter pursuant to section 27(l)(d) in absence of respondent — Commission found on evidence and authorities cited that the employer's right to terminate employment had been exercised harshly, no counselling or reasons having been offered — Commission found in favour of reinstatement with no loss of entitlements — Granted — ABLF v. Barry Shardlow trading as High Quality Bricklayers — No. CR617 of 1990 — Beech C. — 4/9/90 — Construction

Employee terminated as result of verbal altercation with superior — Applicant claimed dismissal was unfair and sought reinstatement — Respondent argued dismissal was with notice and not unfair in the circumstances — Commission found on evidence and authorities cited that termination was a right of the employer and not unfair in this instance — Dismissed — S. Rauwendaal v. Town and Country (WA) Building Society — No. 517 of 1989 — Parks C. — 11/9/90 — Finance

Application re unfair dismissal — Applicant claimed dismissal was unfair, as no reasons were given and as he was asked to leave the site immediately, and sought reinstatement — Respondent argued applicant had been counselled with regard to his performance — Commission found that dismissal was not unfair and in any event would not order reinstatement due to the time lapse between the dismissal and filing of application — Dismissed — MJ. Reid v. Cyprus Gold Australia Corporation — No. 868 of 1990 — Gregor C. — 16/8/90 — Mining

Employee dismissed for usurping authority of management — Applicant claimed dismissal unfair and sought reinstatement — Respondent denied claim and brought evidence of incidents and warnings — Commission applied tests from authorities cited and found dismissal was not unfair — Dismissed — A.E. Spickett v. APD Snack Foods Pty Ltd — No. 955 of 1990 — Halliwell S.C. — 19/9/90 — Food Processing

Conference referred re dismissal — Union claimed dismissal of employee was unfair and sought reinstatement with no loss of entitlements — Employer argued that regardless oftrainingand counsellingthe employee failed to meet the required standards — Commission found on evidence that dismissal was not summary and had not been unfair in the circumstances — Dismissed — Burswood Management Ltd v. FLAIEU — No. CR545 of 1990 — Parks C. — 3/9/90 — Hospitality

Conference referred re dismissal — Applicant union claimed dismissal was harsh and sought reinstatement with no loss of entitlements — Respondent argued employee's work was not satisfactory and that he was a disruptive influence on the workforce — Commission found on evidence that dismissal was unfair as no reasons were given — Commission ordered employee be reinstated with no loss of entitlements — Granted — ABLF v. Barry Shardlow trading as High Quality Bricklayers — No.CR581 of 1990 — Beech C. — 4/9/90 —Construction

Employee terminated due to alleged negligence in duty — Applicant union claimed unfair dismissal and sought reinstatement arguing conclusion reached by the inquiry into the accident was not available to it on facts —Commission from evidence found dismissal was unfair and ordered reinstatement — Granted — AMWSU and BHP-Utah Minerals International — No. CR494 of 1990 — GregorC. — 3/7/90 — Mining

Claim re contractual entitlement — Applicant claimed dismissal was effected before completion of probation which is alleged to be a fixed term and sought payment for uncompleted portion of probationary period — Respondent argued probationary period did not limit either party from terminating contract — Commission from evidence found that probationary period was to determine whether work was performed in a satisfactory manner and was not of itself employment for a fixed term — Dismissed — Drayton J. and Aboriginal Child Care Agency of WA — No. 56 of 1990 — Beech C. — 17/8/90 — Welfare

2Appeal against decision of Commission (70 WAIG 2884) re denied contractual entitlements arising out of a fixed term contract — Appellant argued Commission had erred in finding contract had terminated and had failed to account for offerof re-employment — Full Bench found on evidence that contract was unilaterally varied by the appellant, the respondent had protested and was dismissed by a personal authority to do so — Full Bench reviewed authorities and found respondent was not bound to accept offer of re-employment at a lower status either at law or as a matter of equity and good conscience — Dismissed — Bamboo Creek Management Pty Ltd and Fisher C.A. — No. 1268 of 1990 — Sharkey P., Kennedy C. Parks C. — 29/10/90 — Mining

Conference referred re dismissal — Applicant Union claimed employee dismissed for diligence as Occupational Health Representative, which caused embarrassment for the Respondent and sought reinstatement with no loss of entitlements — Respondent argued dismissal was justified due to unsatisfactory monetary losses incurred by employee — Commission found on evidence in favour of Applicant and that Respondent had engineered employee's wastage figures — Granted — TWU v. Portius Pty Ltd trading as Flash Foods Canteen — CR585 of 1990 — Salmon C. — 24/9/90 — Retail Food

Conference referred re dismissal — Applicant Union claimed employee dismissed for diligence as shop steward — Respondent argued dismissal resulted from poor performance and that employee had received prior warnings — Commission found on evidence that employee used position as shop steward improperly - Dismissed — CMEWU v. Barry Shardlow trading as High Quality Brickwork — CR590 of 1990 — Salmon C. — 3/10/90 — Construction

Claim re unfair dismissal — Applicant claimed he had not been informed of his alleged inefficiency and sought reinstatement — Respondent argued warnings had been given prior to dismissal — Commission found that no warnings were issued and with regard to tests from authorities cited determined dismissal unfair — Commission ordered reinstatement with no loss of entitlements — Granted — J. Allbeury v. Boddington Shire Council — 1289 of 1990 — Fielding C. — 2/10/90 — Local Government

Employee terminated for failing to follow safety procedures — Applicant claimed dismissal unfair and sought reinstatement — Respondent argued that failure to comply with policies of the Company could legally result in termination under termsof contract — Commission found on evidence and authorities cited that respondent had not exercised its right to terminate the contract harshly or unreasonably — Dismissed — PJ. Collins v. Mawson Pacific Ltd — No. 726 of 1990 — Gregor C. — 3/10/90 — Mining

(xcix)

WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 70 W.A.I.G.

CUMULATIVE DIGEST—continued

TERMINATION—continued daimreunfairdismissal seeking re-employment — Applicant claimed dismissal was too great a penalty for poor handlingof a matter

involving a subordinate — Respondent emphasized applicant's poor record in handling staff and failure to improve managerial skills — Commission found on evidence that applicant's record had not been faulted in 12 months prior to dismissal and that the incident resulted from frustration and communication problems — Commission found in favour of applicant however due to a chance in ownership in business re-employment was not ordered — Granted in Part—P. Gately v. Burswood Management Ltd — No. 1056 of 1990 — Kennedy C. — 17/9/90 — Entertainment

Claim re unfair dismissal and contractual entitlement — applicant claimed dismissal resulting from absence from work due to pressing domestic circumstances was unfair — applicant further claimed retrenchment pay as implied term of the contract — respondent argued applicant disregarded requirements of his position — Commission found insufficient regard was given to applicant's good service and domestic pressure imposed upon him and declared dismissal unfair — Commission however found that applicant failed to show that retrenchment pay as an implied term was necessary to give efficacy to the contract — Declaration/Dismissed — C.D. Blogg v. T.R. Services Pty Ltd — No. 671 of 1990 — Salmon C. — 8/6/90. 15/10/90 — Manufacturing

Claim re unfair dismissal seeking reinstatement—Applicant claimed dismissal resulted from refusal to to work overtime beyond that regularly worked, for fear of not being paid — Respondent denied dismissal was unfair — Commission found that applicant had regularly worked reasonable overtime, a term of the contract, and that applicant had legitimate concern overpayment—Commission found in applicant's favour and requested parties to confer on payment of lost wages between dismissal and reinstatement — Discontinued — L. Dimitrijevic v. Cater King Pty Limited — No. 2635 of 1989 — Beech C. — 25/1/90 — Catering Claim re unfair dismissal seeking reinstatement or in the alternative contractual entitlements — Commission heard as preliminary

point question of whether there was a contract of service or a contract for services — Commission examined indicia from authorities cited and the evidence and determined that contract was for services thus applicant was not an employee and Commission was without jurisdiction — Dismissed — P. Inglis v. Nor-West Seafoods Pty Ltd — No. 997 of 1990 — Halliwell S.C. — 25/10/90 — Fishing

Conference referred re dismisal — Applicant Union claimed dismissal resulted from employee's complaints about safety and conditions and sought reinstatement with no loss of entitlements — Respondent argued employee was dismissed due to agressive behaviour at company accommodation which had potential to spill over to the work place — Commission rejected employee's evidence as untruthful and found in favour of the Respondent — Dismissed — No. CR663 of 1990 — Gregor C. — 15/10/90 — Mining

Conference referred re dismissal — Applicant Union claimed employee's conduct did not justify summary dismissal and sought reinstatement with no loss of entitlements — Respondent argued that acceptance of gifts from residents was against policy and viewed very seriously — Commission found on evidence that employee did not wilfully disregard the policy and ordered in her favour — Granted — FMWU v. Board of Management, Braemar Lodge — No. CR641 of 1990 — Salmon C. — 22/10/90 — Hostels

Claim re unfair dismissal seelcing reinstatement — Applicant's claimed no warnings were given of his alleged shortcomings — Respondent argued applicant's commitment did not meet its high standards — Commission found on evidence in favour of the applicant — Granted — G.P. Henderson v. Budget Rent A Car Pty Ltd — No. 1389 of 1990 — Fielding C. — 5/10/90 — Car Rental

Conference referred re dismissal — Applicant Union sought reinstatement of employee with no loss of entitlements — Respondent claimed summary dismissal was warranted on grounds of insubordination and refusal to obey a lawful command — Commission found, with regard to principles of Undercliffe case and other authorities sighted and on evidence, in favour of respondent — Dismissed — PKIU v. Western Australian Newspapers — No. CR607 of 1990 — Halliwell S.C. — 27/9/90 — Printing

2Appeal against decision of Commission (70 WA1G180) re unfair dismissal — Full Bench noted distinction between unfair dismissal and summary dismissal and its evidentiary onus on parties — Full Bench cited case for test re competence/unsatisfactory performance — Full Bench found claim for unfair dismissal could not be substantial as contract provided for termination by payment in lieu of notice and noted on this there was a palpable error in findings in first instance, appeal tribunals should not interefer with findings — Dismissed — Ismael S. A and Turk Ellis Pty Ltd of Elverston Nominees — Appeal No. 2798 of 1989 — Sharkey P., Halliwell S.C., Parks C. — 12/9/90 — Accounting Practice

2Appeal against decision of Commission (70 WAIG 2398) re claim for unfair dismissal seeking reinstatement — Extension of time — Full Bench noted Commission at first instance found that there was an abandonment of the contract, however contract continued until terminated by mutual agreement — Full Bench found question of constructive dismissal could not be substantiated as appellant had not recanted from postion taken in the period of time between abandonment and date of termination by mutual agreement, thus no relief available under section 29 of IR Act — Dismissed — Beardmand P.D. and NZ Insurance — Appeal No. 1354 of 1990 — Sharkey P., Coleman C.C., Halliwell S.C. — 12/9/90 — Insurance/Clerical

2Appeal against decision ofCommission(70WAlG 2475)reorder ofemployment — Appellant appealedon a numberofgrounds and argued Commission had failed to heed principle adopted by IA Court and Full Bench in that the Commission should not seek to take over the role of an employer to determine who should be employed and failed to have regard for the fact that services of employee were terminated on notice pursuant to clause because of overall unsatisfactory nature of employment — Full Bench noted fundamental task was for union to establish that dismissal was unfair and from submissions and evidence found Commission had not given due weight to employees overall record of employment, thus Commission's discretionary judgment at first instance miscarried — Upheld — RRIAandAWU— Appeal No. 728 of 1990— Sharkey P., Fielding C, Kennedy C. — 26/9/ 90 — Mining

TRAINING — Applications to vary Award by consent re First Phase Structural Efficiency Wage Increase — Parties submitted that rather than pursue

a single award to cover private and government sectors, it was more appropriate to remodel existing awards with particular emphasis on training — Commission noted due consideration of rates and relativities for second phase increase — Granted — HSOA and Another v. J. Arnold and Others — Nos. 1062 and 1063 of 1990(R) — Kennedy C. — 18/9/90 — Health (Dental)

Application to vary award pursuant to Structural Efficiency Principle — Applicant union argued agreement between respondent and its employees did not reflect co-operation between the parties to the award and did not accord with the State Wage Principles, particularly in the area of training and career paths, as did the variations it sought — Respondent argued that as the agreement with wage increases already paid, was such that the Commission had no power to deal with the application — Commission reviewed IR Act and authorities and found it had power and an obligation to arbitrate, taking into account that such an agreement be accepted as persuasive, in submissions, as it had the support of the workforce — Commission concluded the agreement once subject to exposure in arbitration was one capable of ratification pursuant to the principles — Commission further provided a one month period for negotiations with CMEO and in view of the parties difficulties the Standard Award Modernisation and Structural Efficiency clauses—Commission further found it necessary to give warning to respondents advocate that he would not be heard before the Commission constituted again — Award Varied — ETU and Others and Western Mining Corporation — No. 1752 of 1989 — Gregor C. — 1/8/90 — Nickel Refining

Application to vary award re Second Structural Efficiency Wage Adjustment — Although parties had not reached agreement on all areas intended as of the first instalment Commission was satisfied that they had complied with the spirit and intent of the principles and made furthercomment as to the need for modernisation within the Industry — Commission found no good reason to award retrospectivity and depart from the Commissions norm — Granted in Part — LEDFCU and WAGRC — No. 620 of 1990 — Fielding C. — 6/9/90 — Railways

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

CUMULATIVE DIGEST—continued

TRANSFER Conference referred for hearing and determination re claim of unfair treatment in the transfer of a worker — Applicant Union sought

employee be given work similar to that of his original shift and an allowance equivalent to the diminution of his earnings — Commission applied principles it had distilled from authorities in another matter and found on evidence no grounds to support the application, therefore it unnecessary to address questions of law raised by Respondent — Dismissed — AWU and RRIA —No. CR572 of 1990 — Gregor C. — 15/10/90 — Mining (Iron Ore) 2Appeal against decision of Commission (70 WAIG 247) re transfer and redundancies of employees — Appellant argued that Commission had erred in fact and in law in determining that there was no obligation to offer redundancy pay — Respondent argued there was no redundancy — Full Bench found questions was not one of unreasonableness but whether the charges in classification constituted the creation of a redundancy and whether refusal to take alternative employment made such redundancy voluntary — Full Bench reviewed authorites and found that though redundancies occurred, any obligation on the part of the employer was met by the offer of transfer — Full Bench found Commission erred only in so far as statements to the reasonableness of the being required to accept the transfer and of not doing so were concerned and varied the decision accordingly — Upheld in Part — FMWU v. Anglican Homes (Inc) — Appeal No. 2803 of 1989 — Sharkey P., Halliwell S.C., Parks C. — 21/9/90 — Nursing Homes

TRAVELLING — Claim forspecial travel allowance payments — Applicant Unions argued allowances prescribed in Award are inadequate and sought

a reassessment of travelling allowance pursuant to new allowances principle — Respondent opposed claim, arguing, provision in Award is based on proper principles, noting that unions sought to reconstruct arrangement by making, the site the centre of radial bands rather than GPO — Commission having regard to the various decisions cited found that there were no inadequacies or injustices as prescribed by Award and that Applicant Unions had not discharged the onus that lies upon them — Dismissed — AMWSU and Others v. Barclay Mowlem Constructions Ltd — No. CR335(1) of 1990 — Salmon C. — 31/5/90 — Building/ Construction 3 Application to vary Award re Travelling Allowance — Applicant Union sought increased Allowance to maintain real value against a new tax ruling and provision of a bus service to shift employees in lieu of the allowance — Respondent argued there was no anomaly or inequity and against the bus service on economic grounds — The Minister and CWAI intervened in opposition to the claim — CICS found tax import was not a consideration the Commission could entertain under the Anomalies and Inequities Principle — Moreover CICS found Applicant had not demonstrated the extent of the inequity or identified the relevant factors in determining the appropriate allowance which would then form the basis upon which the allowance would be adjusted to ensure the inequity did not re-emerge — Dismissed — CMEU and SECWA—No. CR243 of 1990—Coleman C.C., Salmon, C., George C. — 2/8/90 — Electricity Supply

Dispute re where employees (crane drivers) should report for duties — Declaration sought from Commission — Applicant argued second tier agreement provided for employees to start and finish at job site — Union argued second tier agreement was never implemented for crane drivers as a rule, rather it was selective, furthermore new arrangements have replaced second tier agreement — Commission from evidence found applicants interpretation incorrect — Dismissed/Ordered Accordingly — Fremantle Port Authority and CMEU — No. CR103 of 1990 — Beech C. — 11/5/90 — Construction

Board of Reference re travelling costs for recuperative leave —■ Applicant claimed on basis of Custom and Practice that all employees irrespective of where they spent their recuperative leave be reimbursed as though they had travelled to Perth — Respondent submitted the purpose of Travelling and Transportation Costs Clause was to reimburse employees for actual cost of travel — Board of Reference found on interpretation of clause and on submissions relating to Custom and Practice Applicant's contention unfounded — Trades and Labor Council of WA v. Naval Communication Station — Harold Holt — No. 2 of 1990 — Board of Reference — 27/7/90 — Naval Communication

Conference referred re travelling allowance — Applicant union submitted a basis on which it claimed a travelling allowance sought to be paid under the new Allowances Principle — Respondent rejected claim — Commission found that proposed allowance was within the State Wage Principles and having regard for the evidence and previous travelling allowance orders determined the terms of the allowance — Ordered Accordingly — AMWSU and Others v. Barclay Mowlem and Others — No. CR562 of 1990 — Halliwell SC. — 20/8/90 — Construction

UNIONS - Application for joinder to Award — Psychiatric Nurses Association objected on the grounds of specific constitutional and industrial

coverage, the creation of unnecessary competition and an agreement with the Government to amalgamate Awards — PNF intervened on similargrounds — Commission carefuly considered principles outlined by the President in relation to intervention and found on evidence that the ANA and ANF (Federal) relationship provided sufficient interest to allow intervention on a limited basis, but not the ANF (State) — Commission at request of parties continued hearing submissions to application, rather than allowing time for appeals, at the request of the parties for expediency — Commission examined evidence of disenchantment with existing union representation and preference towards Applicant Union — Commission examined eligibility rule, in particular, reference to "in hospitals", and found on the authorities a restrictive interpretation was not appropriate and that the Applicant had constitutional coverage — Commission however found on the merits of the claim that the application would not meet the objects of the Act, would only complicate processes such as Structural Efficiency and that the highly likely outcome of "healthy competition" would be industrial disputation — Dismissed — FMWU and Hon Minister for Health and Another—No. 2596 of 1989 — Negus C. — 8/5/90 — Mental Health Services

"Complaint re failure of Union to comply with its rules — Applicant claimed Respondent had neglected its membership in that agreement to modify an Award was without proper consultation with its members and resulted in gross discrimination — Applicant sought orders to redress situation — President reviewed rules, authorities and Industrial Relations Act and found on evidence that the onus of proof upon the Applicant was not made out according to the civil standard — Alternatively that no breach of rules had been established to an extent that the discretionary powers under section 66 should be exercised — Dismissed — Ion V. and FMWU — No. 290 of 1990 — Sharkey P. — 12/4/90 — Unions

Complaint re Unions refusal to renew membership — Applicant argued that he was eligible to be a member of the Respondent by virtue ofbeing a financial member of the "equivalent" Federal Union — President found it not properto join the Federal Union to the application — President reviewed Union rules. Industrial Relations Act and found on evidence that the Applicant had only been a member of, applied for and refused membership by the Federal Union and that hence there was no breach of rules on the part of the organisation for the purposes of section 66 of the Act — Dismissed — Bellamy R.T. and WA Municipal Road Boards, and Racecourses Employees' Union of Workers — No. 508 of 1990 — Sharkey P. — 23/3/90 — Unions

"Application for an order declaring a Union's committee decision a nullity and that the Union permit the transfer of the Applicant's membership between branches in accordance with Union Rules — President examined Union's Rules, definitions of "Branch" and "Locality" and found that the Applicant was ineligible to be a memberof the branch he sought to transfer—President further found Administrative Committee was an advisory body and its resolution a nullity — Pratt R.D.R. and SSTU — No. 942 of 1990— Sharkey P. — 4/7/90 — Unions

"Application re breach ofunionrules — Applicant claimed reasons provided for refusal to grant "Sprinkler Fitters Endorsement" by respondent union was beyond what it was entitled to do — Furthermore respondents oppressive and restrictive behaviour had prevented him from obtainingemploymentas a sprinkler fitter— Respondent union refuted claim and asserted Commission had no jurisdiction or power to make orders under implied section of Act — President in absence of evidence that a sprinkler fitter is the same as a pipefitter, was not persuaded that state union has the right to deal with persons who are not eligible to be members of the union, thus no jurisdiction, as no breach of rules has been proven — Dismissed — D. Roberts and Plumbers and Gasfitters Employees Union — No. 419 of 1990 — Sharkey P. — 20/6/90 — Plumbing

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WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 70 W.A.I.G.

CUMULATIVE DIGEST—continued

UNIONS —continued ^Preliminary submissions and applications, for organisation to show cause why its registration should not be cancelled or suspended

— Party submitted that as person who initiated the summons. Registrar should be joined as a party to proceedings because there was no one else to prosecute the summons — Furthermore it would be a breach of natural justice if Full Bench took on the role of prosecutor — Full Bench found Registrar should not be joined as he had no interest in the matter "litigated" or "to be determined" and noted that Registrar's appearance in person or through Counsel is to assist Commission in manner oiamieus curiae — Full Bench further found mere absence of a party does not make it (Full Bench) the prosecutor and it was clear the nature of these proceedings lie squarely on the organisation summonsed to show cause — Full Bench on matter of adjournment found valid submission re orders subject to appeal and adjourned matter pending hearing and determination of appeal — Proceedings resumed — Party submitted Industrial Relations Act 1979 did not empower Commission to cancel or suspend its registration — Full Bench on reading of Industrial Relations Act found that it had jurisdiction to deal with application — Ordered Accordingly — State School Teachers Union — No. 24 of 1989 - 22/11/89 and 25/5/90 — Sharkey P., Halliwell S.C., Martin C. - Unions

"Application for directions that a union cease to enforce a rule requiring three months" dues to be paid upon resignation of certain members — Applicants argued rules was vindicative, tyrannical and oppressive as provident fund was going financially, only some of the resigned members had received notices demanding dues that the industries' standard notice was one month as offered — Moreover, Applicants' argued union had failed over a long period of time to properly represent Community Mental Health Nurses and worse — President accepted reasons for resignations — However, President reviewed rules and the requirement to pay three months' dues on resignation was mandatory and that there was insufficient evidence to say that the discretionary act to enforce a rule was not bonafide — Dismissed — Collison L. and Another and WAPNA—No. 926 of 1990 — Sharkey P. — 20/8/90 — Union

Application to registerorganisation by amalgamatingtwoorganisations — Objector argued amalgamation would cause competition between unions in the industry and destroy the traditional industrial harmony created by the Objector and one of the amalgamating unions — Full Bench reviewed Rules, Industrial Relations Act and authorities to and found as there was no change in the scope of eligibility by a malga mating the two unions then section 55(5) of the Act did not apply when there was no mandatory requirement to refuse an application in a case of overlapping or potential overlapping — Full Bench further found to hold null and void any acts done in error in the discharge of the duty pertaining to advertising the application cost upon the Registrar would work serious general inconvenience or injustice to or upon persons who had no control over those entrusted with the duty under the Act — Granted — FMWU and Another — No. 212 of 1990 — Sharkey P., Coleman C.C., Negus C. — 20/7/90 — Unions

Application for enforcement of Act — Applicant union alleged that Respondent Union had breached an order ofthe Commission re demarcation an eligibility to enrol members — Respondent argued Full Bench reviewed authorities. Industrial Relations Act and found the "Order" to be an "Order" as its meaning read in section 66(2) ofthe Industrial Relations Act and that such an Order may be "a declaration of Interpretation" — Full Bench found that there was a "defence of mistake" on honest and reasonable belief, mens rea, but that the Respondent had not discharged the evidential burden and that there was various liability on the Respondent for the acts of its servants or agents — In Supplementary Reasons Full Bench found that no mitigating circumstances, a serious failure to comply and also given a lack of undertakings as to future conduct that the maximum penalty, short of deregistration proceedings should apply — Further that costs ought be awarded — Full Bench also found Industrial Appeal Court regulations deliberately used the words judgment or order because it would create an intolerable situation if every time there was a finding the whole proceedings had to be stayed pending the Appeal to the Industrial Appeal Court — Full Bench found right to submit bias was waived, noted that the submission was made after the breach was established, that the Full Bench was contrained in its constitution by the legislation and was aware of its duty to disqualify itself— Full Bench found it had a duty to continue to hear the matter and did not grant adjournment sought by Respondents — Proven — UFTUandCMEWU— No. 2633 of 1989— Sharkey P., Coleman C.C., Salmon C. — 5/4/90 — Building Construction/Furniture Manufacture

Application to vary award by consent re Second Structural Efficiency Wage increase — Applicant submitted agreement followed closely those in the Metal Industry Awards and inter-Union concemshad been largely overcome — Commission found inclusion of BMA and Government Hospitals appropriate as they were subject to separate proceedings before the Commission, but found no grounds to do likewise with the Water Authority — Commission reviewed issues such as broadbanded wage and classification structure and found the inclusion of two new classifications would possibly change the scope of the award, hence could be subject to separate application, if the need was established in the implementation/transition process, such that the IR Act could be complied with — Granted in Part — AMWSU and Others and Hon Minister for Works and Others — No. 513 of 1990(R2) — George C. — 24/5/90 — Government (Engineering Trades)

"Application to restrain union from admitting as members, persons who are not employed as builders labourer— Applicant sought to have their memberships with Respondent union cancelled and all union dues paid refunded — Respondent union argued applicants were eligible for membership as they were employed as ship form technicians and not carpenters — President found from evidence and findings of fact that fundamental requirement under the Respondent Union rule is that a person must be a labourer and at no such time were the applicants employed as labourers — Granted — Dropulich B. and Others v. BLF — Nos. 1066-1069 of 1990 — Sharkey P. — 3/8/90 — Union

Entitlement ofunion membership — Applicant was refused membership of an organisation, union application and sought ruling on matter — President found from unions rule that the respondent union had no option but to admit applicant to its membership — Furthermore President found applicant had established on the balance of probabilities that he was and is employed as a crane driver — Granted - Leavey W.A. and CMEWU — No. 877 of 1990 — Sharkey P. - 1/8/90 - Union

Application for alteration ofUnion Rules re change of name and coverage — Objecting unions withdrew after application amended to exclude their members from eligibility of Applicant by leave of Full Bench — On re-gazettal of application due to objections, SSTU lodged an objection to application on grounds that proposed application would include areas where the SSTU had sole coverage of members — SSTU withdrew objection after further amendments to application — Full Bench after hearing submissions Applicant as to lack of relevance of an Industrial Appeal Court Decision was satisfied the Industrial Relations Act and the Applicant's rules had been complied with. In Supplementary Reasons. Full Bench found proposed alteration to name offended section 59(2) of the Act and could not be made under the slip rule thus avoiding the Full Bench being/wnrtus qfficio — Granted in Part —Union of College Academics — No. 474 of 1989 — Sharkey P., Martin C, Fielding C. — Unions

Application for registration of new organisation — Applicants sought pursuant to IR Act amalgamation of the two unions — Question re number of matters being satisfied under section 72 of IR Act — Full Bench found section of IR Act had not been complied with, as resonable steps had not been taken to adequately inform members of proposed rules and stated that it could not effect amendments to the rules, except in accordance with section 58(3) of IR Act by virtue of Industrial Appeal Court decision cited — Dismissed — ASEMFW and ETU — No. 790 of 1990 — Sharkey P., Coleman C.C.. George C. - 17/9/90 - Unions

"Application to have union's rules (Amendments, Meeting and Quorum) disallowed — Applicant submitted rules in question was oppressive and inconsistent with the democratic control of the organisation by its members and impossible to comply with, therefore relief from this duty is sought by way of direction ororder of the President — President noted it was only an assertion that there was an unlikelihood ofalterations to the rules being approved because quorum would not be achieved, and, no material was put forward that this was not achievable in the past — President found membership had a right, to object or not to such alterations, and to facilitate this, suspended operation of rule in so far as quorum and declared meeting would be valid if it attracted a quorum of 100 members — Ordered Accordingly — J. Sharp-Collett and AMWSU — No. 1387 of 1990 — Sharkey P. — 7/9/90 — Unions

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CUMULATIVE DIGEST—continued

UNIONS —continued 2Appeal decision of Industrial Magistrate following further hearing and determination after remittal (70 WAIG 1570) re pursuance of

severance payment claim contrary to award and State Wage Principles — Majority Full Bench reviewed principles applying to appeals against decision of, admissability of evidence and standard of proof before an Industrial Magistrate — Majority of Full Bench found the prescription that the Justice Act apply to section 83 of the IR Act matters was an an unnecessary complication to practices and procedures and a contradiction by regulation — Majority of Full Bench found on evidence rather than there being no case to answer, there were evidence and asssertions to support the finding of a breach of AwardAVage Fixing Principles — Dissenting Commissioner reviewed authorities as to the nature of the union as a principle party and concluded there was no evidence of palpable error on the part of the Industrial Magistrate — Uphel8 — Registrar v. AMWSU — Appeal No. 600 of 1990 — Sharkey P., Fielding C., Beech C. — 25/9/90 — Construction

'Appeal against decision of Full Bench (70 WAIG 2563) re preliminary that it had jurisdiction to hear application re cancellation or suspension of appellant pursuant to section 73 of IR Act — Appellant argued amongst other things that it was not an "organisation" as meant by section 73, it had not registration to which section 73 can apply and the Full Bench did not have power to cancel its registration while section 73A(2) remained in force — Industrial Appeal Court found Full Bench was correct in its interpretation that section 73A(2) "deemed" appellant to be an organisation under the Act — Consequently the appellant is treated as if it had been registered under the Industrial Arbitration Act and it then became, within the meaning of the IR Act, an organisation which was at all times liable to have its registration cancelled pursuant to section 73 — Dismissed — SSTUWA — IAC Appeal No. 8 of 1990 — Kennedy J. (P), Seaman and Nicholson JJ. — 24/9/90 — Education

"■Application for inter alia order declaring Union elections void — Applicants claimed there had been an irregularity as the elected person (Respondent) was ineligible to be a member of the Union — President established that the onus was on the Applicants to deny the validity ofthe appointment and that it had jurisdiction — President found question was were the parties at the time of the election eligible to stand for office dependant on their eligibility for membership — President examined evidence, definition of office and Union rules to find the Respondent was not eligible at the material time — President therefore found one of the applications made out but the other two contrary to equity good conscience and the substantial merits of the case — In Supplementary Reasons President gave reasons why not to deem elected the successful Applicant to office but to hold fresh elections — Ordered Accordingly — Fry E.L. and Others v. Baxter W.T. — No. 71 of 1990 — Sharkey P. — 28/8/90 — Unions

"Applications to object to application to register a new organisation by the amalgamation of two registered organistions — Objecting unions sought to be heard and that the question before the Full Bench was a matter of discretion — Full Bench reviewed Hansard, IR Act and Interpretations Act and found power to grant application was discretionary but where the eligibility rules ofthe new union had no greater scope than the separate unions, unless an objection lies under section 72(1) of the IR Act and only by member "applicant" unions, no objection should be permitted — Furthermore there was not sufficient interest — One Commissioner expressed opinion that matters raised by objecting unions were of practical concern to the community as a whole, but did not dissent from the decision — Ordered Accordingly — Forrest Products, Furnishings and Allied Industries Union —No. 820 of 1990 — Sharkey P., Coleman C.C., Beech C. — 18/10/90 — Unions

"Application to alter Union Rule — Applicant submitted, amendment was sought in order to clarify the term "loader" and that it has had unchallenged and uncontested industrial coverage of workers under the above definition — Full Bench found application to have complied with requirements of IR Act and were satisfied that the alterations should be made as sought — Granted — Transport Workers Union — No. 1207 of 1990 — Sharkey P., Halliwell S.C., Parks C. — 24/10/90 — Union "Nomination for Union election delcared ineligible due to postal delays through no fault of the applicant — Applicant sought order

from Commission directing Returning Officer to accept nomination and include name on ballot papers — President found delay through no fault of anyone including applicant, and matter required an order to remedy the situation — Granted — Dwyer T.F. and President and Returning Officer SSTU — No. 1521A of 1990 — Sharkey P. — 26/8/90 — Union

"Application for registration as an organisation of employers — Applicant submitted affidavit that provisions of IR Act had been complied with by Association, as had the rules of Association — Full Bench from evidence tendered found in favour of application — Granted — Association of Independent Schools of WA (Inc.) — No. 1282 of 1990 — Sharkey P., Coleman C.C., Kennedy C. — 29/10/90 — Union

"Application for inquiry into Union elections — Instant determination result of submission that Commission, as constituted, had no jurisdiction to hear application herein — President having considered submissions, authorities on jurisdiction, and Union rules found that Commission as constituted had jurisdiction to hear applications based on section 27(1) and section 66(2) of IR Act — Ordered Accordingly — E.F. Fry, S.P. Fee and G.R. Burgess v. Baxter W.T. and Others and W.A. Electoral Commission — No. 71 of 1990 — Sharkey P. — 18/5/90

"Matter remitted on Appeal (70 WAIG 1653) to Commission in Court Session for further hearing and determination re demarcation dispute — Appeal Court directed CICS to determine as a matter of fact which operators of which plant operated that plant as their usual employment as a builders labourer — CMEU argued BLF coverage should be confirmed to builders labourers who operate Bobcats occasionally and incidentally to their substantial labouring duties — MBA intervened in support of BLF — CICS found on evidence Builders Labourers often spent a large proportion of time operating equipment as a usual incident of their employment, as tools of the trade, but did not do nothing but operate such plant — Ordered Accordingly — ABLF and Another and Civil and Civic Pty Ltd and Others — No. CR1511 of 1988 — Coleman C.C., Fielding C., Beech C. — 6/9/90 — Building Construction

VICTIMISATION — Employee terminated for alleged criminal activities — Applicant claimed unfair dismissal seeking reinstatment — Respondent

argued members of staff and customers had complained re applicant's work attitude and added to this was the relationshp applicant had established with a patron — Commission did not accept respondent's testimony re complaints raised by staffer patrons, and found that termination of contract relying on rumours and innuendo was unjustified — Commission however found relief sought by applicant unacceptable in view of distrust and lack of mutual respect between parties — Ordered Accordingly — Harding D.A. and Cattach F. — No. 821 of 1990 — Coleman C.C. — 7/6/90 — Hospitality

Claim for reinstatement on the grounds of unfair dismissal — Respondent argued employee's performance and non-reliability were irredeemable and that even if dismissal was found unfairCommission should not order re-employment — Commission found on evidence that the employee had had incidents of poor performance but they had been judged by the Respondent on the basis of, inter alia, a "severe disciplinary warning" and were not of such seriousness to warrant dismissal — Furthermore, there had been elements of procedural unfairness and that reinstatement at the level of classification just prior to dismissal would not cause difficulties or inconvenience for the Respondent — Granted — AWU and RRIA — No. CR175 of 1990 — Salmon C. — 10/4/90 — Mining (Iron Ore)

Conference referred re dismissal — Applicant union claimed dismissal was harsh and sought reinstatement with no loss of entitlements — Respondent argued employee's work was not satisfactory and that he was a disruptive influence on the workforce — Commission found on evidence that dismissal was unfair as no reasons were given — Commission ordered employee be reinstated with no loss of entitlements — Granted — ABLF v. Barry Shardlow trading as High Quality Bricklayers — No. CR581 of 1990 — Beech C. — 4/9/90 —Construction

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CUMULATIVE 'DIGEST—continued

WAGES — Application to vary Award pursuant to Structural Efficiency Principle — Applicant Union sought three per cent wage increase on

basis of proposals and commitments under the Principles — Respondent opposed claim and argued all Award clauses were open for discussion — Commission found Applicant had satisfied Principles in line with pattern set in Federal and State Metal Trades and Building Trades Awards and Agreements — Commission further stated Respondent's counterproposals may have extreme relevance when the Applicant sought the second Structural Efficiency increase — Granted — WA Bakers, Pastrycooks' and Confectioners Union and Bread Manufacturing (Perth and Suburbs) Union of Employers of WA — No. 2296 of 1989(R) — Halliwell S.C. — 5/4/90 — Bread Manufacturing

Applications to vary Awards re second wage increase under Structural Efficiency Principle — Commission split application to allow different parties to pursue their own agendas — Commission found process of change at Swan Brewery Co had not resulted in substantive Award/Agreement variations but was nonetheless one which by its very thoroughness, degree of co-operation and evident prospects in the shorter term met the test for the second phase under the Structural Efficiency Principle — Particularly an intense exercise in work re design — Commission further split applications to allow for further variations and review in finalisation of applications — Granted and Adjourned — Brewery and Bottleyards Employees Union and Swan Brewery Co Ltd and Others — Nos 443,485,622,670 and 744 of 199Q(R2) — Kennedy C. — 9/5/90 — Brewing and Malting Industries

Claim re contractual entitlement — Applicant sought payment of outstanding wages — Respondent argued work performed had been unsatisfactory — Commission from evidence found in favour of applicant, however no evidence for entitlement to annual leave on pro rata basis — Ordered Accordingly — Jorgensen C.N. and Erepon Pty Ltd — No. 237 of 1990 — Fielding C. — 14/5/90 — Construction

Claim re contractual entitlement — Applicant sought six weeks' wages which parties had agreed to credit as a deposit for a van — Commission found in favour of applicant however as applicant terminated contract without due notice, entitlement was only for five weeks — Granted in Part—Lane A. and Heyford Holdings trading asNashua Karratha — No. 796 of 1989 — Halliwell S.C. — 9/5/90 — Transport

Application to vary Award pursuant to Structural Efficiency Principle by consent — Applicant Unions sought first Structural Efficiency Wage Adjustment and increase in allowances — Commission found variations proposed in accordance with the Principles and referred to Reasons for Decision in other Government Engineering Award Cases — Commission further reviewed agreement for Structural Efficiency in Public Sector Engineering, including a proposed new Award to replace existing Awards — Commission specifically dealt with submissions of parties to maintain wages and classification structures links with a related Award and its history so as to assist the parties on their deliberations for the second Structural Efficiency adjustment — Granted — AMWSU and Another v. WAFBB — No. 175 of 1989(R) — George C. — 24/4/90 — Emergency Services

2Appeal against decision of Industrial Magistrate at (70 WAIG 170) re breach of award — Appellant argued that Magistrate had erred in law, fact and acted in excess of jurisdiction — Full Bench found complaint was not relevant to clause directed to and noted, justification for stopping work, if it was not connected toOHSW Act, would relate to the "no work no pay" concept — Upheld — WA Government Railways Commission and ARU — Appeal Nos. 2733 and 2734of 1989 — Sharkey P., Coleman C.C., FieldingC. — Railways

Claim re contractual entitlements — Applicant claimed wages for portion of fixed term contract following termination by respondent and solicitor's fees —- Respondent argued the Applicant ultimately terminated the contract and no payment was warranted — Commission found that an invitation, not accepted by the Applicant, to renew the original contract did not relieve the respondent from liability under the original fixed term contract and that theclaim for solicitor's fees was ultra vires section 27(1 )(c) of the Act — Granted in Part — Fisher C.A. v. Bamboo Creek Management Pty Limited — No. 291 of 1990 — Halliwell S.C. — 7/6/90 — Mining

Application to vary Award re Second Structural Efficiency Wage Adjustment — Public Service Arbitrator reviewed parties efforts in Structural Efficiency, including previous Award changes and broadbanding, changes to the ordinary hours of work, shift work and overtime and was satisfied that the parties had done sufficient under the Wage Adjustments Principle — PSA in granting $15.00 or three percent increase to all classifications, distinguished the Award from private sector Awards and referred to nexus with Public Service Salaries Agreement — Allowances also varied — Granted — FCUand WA Coastal Shipping Commission and Others — No. P10 of 1990(R2) — Fielding C. — 4/7/90 — Public Administration

Application to vary Area. Scope. Title and Provisions of the Award to reflect changes of single employer in the industry and incorporate Structural Efficiency Wage increase as relevant to the industry — Granted — Brick Tile and Pottery Union and Heat Containment Industries — No. 586 of 1989 — Beech C. — 12/12/89 — Refractory

Application for first Structural Efficiency Wage increase — Parties had set about inter alia rationalising, salary scales for classifications and compacting long service leave — Commission noted Award applied to a small organisation with perhaps not the scope for radical changes and with tortuous path of Second Tier adjustments, it is not surprising that the parties had not been able to do more to date — Granted — HSOA and Paraplegic-Quadriplegic Association of WA — Fielding C. — No. 2107 of 1990(R) — Health Services

2AppeaI against decision of Commission at (70 WAIG 358) re variation of an Award pursuant to Structural Efficiency Principle — Applicant Union argued that Commission erred in not following decision of the Full Bench of the Victorian Commission in setting wage rate increases and not approving the FCU's National classification structure — Appellant argued that not to follow the Victorian Commission was not to follow the Commission in Court Session — Full Bench found only real question in issue was whether the $12.50 variation to wages was sustainable — Full Bench found that the Commission was not bound to follow the Victorian decision and that there were not grounds made out to persuade it that it should substitute its decision for that of the Commission at first instance within the principles of an appeal against a discretionary judgment — FCUand Swan Brewery Co Lid — No. 2688 of 1989 — Sharkey P., Coleman C.C., Gregor C. 23/5/90 — Clerical

Application to vary Award pursuant to Structural Efficiency Principle by consent save question of Operative Date — Applicant Union sought second Structural Efficiency Wage Adjustment on basis of agreed Award amendments including changes to work practice, part-time and casual employment provisions — Railways Classification Board found changes sought should be ratified, however addressed matters of concern such as the establishment of 21 year rate as a reference point for skilled employees and, noting the legislative demarcation for the parties before it, the functioningof Promotion Appeal Boards — Majority of RCB found insufficient reason to depart from the usual awarding of an Operative Date — Granted in Part — ROU v. WAGRC — No. R3 of 1990(R2) — Kennedy C, Phillips, Thompson — 25/5/90 — Railways

Application for Award variation pursuant to Structural Efficiency Principle — Parties were in agreement to variation sought — Commission found parties have detailed new arrangements which increased the opportunity for employees to acquire and maintain relevant skills with consequent progress — Furthermore Commission noted the development of the operator/ maintainer role and its ramifications in terms of the Structural Efficiency Principle — Granted — AWU and Hamersley Iron Pty Ltd and Others — No. 555 of 1990 — Kennedy C. — 11/4/90 — Iron Ore

Application for Award variation pursuant to Structural Efficiency Principle — Applicant Union proposed wage structures modelled on the provisions that have been determined by the AIRC in the Federal Award, giving effect to the first step in strategy of aligning wage rates — Respondents support the proposed wage structures with respect to the classifications, however did not accept the rates ascribed to the various levels, arguing, any movement in relativities should be conditional upon an extensive work value assessment ofeach particular classification — Commission noted and commented on issues raised by parties and found in favour of applicant union except that wage rates be expressed in terms of base rates and supplementary payments — Ordered Accordingly — TWU and Central Districts Bakery and Others — Nos. 1612 and 1614 of 1989 — Coleman C.C. — 21/3/90 — Transport/Bakery

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

CUMULATIVE DIGEST—continued

WAGES—continued Application for Award variation pursuant to Structural Efficiency Principle — Second Stage — Parties submitted progress report on

review of Awards and implementation measures to improve efficiency such as Permanent Part-Time Employment policy; amalgamation of Awards and Agreements dealing with Allowances: delegation of authority to Chief Executive Officers; streamlining arrangements for Promotion and Reclassification Appeals; On call provision; flexibility in Overtime; Property Allowance; and the Skills Resource Management System — Commission from evidence found second salary adjustment now sought was justified and approved date of increase as at conclusion of hearing — Granted — CSA and Commissioner. Public Service Commission — No. P2-P9 of 1990(R2) — Negus C. — 18/4/90 — Pubic Sector

Appeal against decision of Commission at (70 WAIG 89) re Second Structural Efficiency Wage Increase — Appellant argued Commission had failed to exercise independent judgment and simply applied a decision of the Victorian Industrial Relations Commission in amending the wage rates and other provisions of the Award — Furthermore that the application had not been properly before the Commission — Full Bench reviewed principles relating to appeals against a discretionary decision and considered the question "What weight should the Commission at first instance given to the General Order and the views of the Commission in the Court Session in the State Wage Decision" — Full Bench found, there was a miscarriage of the Commission's discretion in the terms set out in House v. the King in that it did not assess or give sufficient weight to a number of factors before reaching its decision, and gave undue weight to the Victorian decision, nor did it sufficiently exercise independent judgment, save that the Award Modernisation clause was properly inserted in the Award — Upheld and Remitted — Coles New World Supermarkets and Others and FCU — No. 2783 of 1989 — Sharkey P., Coleman C.C., Martin C. — 18/5/90 — Retail and Wholesale (Clerks)

Application to vary Award re first Structural Efficiency Wage Increase — Applicants presented new classification structure as first interim step in restructuring process and noted that the Award was subject also to a whole Government approach — ETU gave agreement to proposal with provisors relating to further restructuring and the relationship of another Award, in the development of the final position — Commission reviewed agreement concerning inter alia, a proposed new Award, training education process, job security and demarcation and specific Award variations — Commission approved agreement subject to "safeguards" on issues such as service increments and the inclusion of a paragraph, relating to reclassification claims, in the wages clause — Allowances varied by three percent — Granted — AMWSU and Others and Transperth — No. 1736 of 1989(R) — George C. — 2/ 4/90 — Public Transport

Application for variation to Award pursuant to Structural Efficiency Principle, second stage — Parties have addressed more than that which was committed to be undertaken at the first stage, most notably the system of merit based promotion and radical changes to hours of duty — Question of under which "Principle should shift penalties be granted — Commission having answered question of Principle found in favour of amendments proposed by parties — Granted — WA Police Union and Hon Minister for Police — Nos P25, P26 and P27 ofl990 — Fielding C. — 17/5/90 — Police Services

'Application to vary Award re classification and wage increases — CICS found Work Value Principle satisfied. Wage Fixing Principles complied with, and no problem of flow on or unfavourable cost increase — Furthermore CICS found no special circumstances to grant retrospectivity — Granted in Part — CMEU and SECWA — No. 678 of 1990 — Salmon C, Kennedy C., Beech C. — 26/6/90 — Electricity Supply

Applications to vary Awards pursuant to Structural Efficiency Principle on the basis of a Memorandum Agreement with the Awards' Respondents — Commission found Award amendments submitted and commitments given by parties were in toto sufficient to approve payment of the first Structural Efficiency Wage Increase — Commission further dealt with issues where parties had not reached complete accord, including demarcation, part-time employees, casual and temporary employees, hours, relieving and higher duties, whether to insert a clause into the Agreement re-stating part of the National Wage Decision, and performance appraisal — Granted — ANF and Alfred Carson Hospital and Others — Nos. 2708-2711 of 1989 — Negus C. — 2/7/90 — Health

Application to vary Award re wages — Applicant Union sought additional loading on wage rate as it had been in existence in the preceeding Award — Respondent argued application should be joined to another application as it would be inappropriate to prescribe a loading when the Applicant was seeking to replace the concept in the near future or that the loading should be 44 per cent not 60 percent of the hourly base rate of pay — Commission was not prepared to adjourn and join the application properly before it as there was no good reason to do so and due to a deficiency in the Award under review — Commission reviewed history of loading and State Wage Principles which lead the Commission to consider the establishment of any new loading by reference to the value of any similar loadings that have already been assessed within the Award — Commission found as a matter of valued judgment, taking into account that the employees concerned did not receive, inter alia, annual leave, a loading of 46 percent to be appropriate — Granted in Part — FCU and WA Turf Club and Others — No. 868 of 1989 — Parks C. — 20/8/90 — Racing and Gaming

'Appeal against decision of Commission at (70 WAIG 1060) re Award variation pursuant to Structural Efficiency Principle — Appellant argued Commission had erred in fact and in law on six grounds and sought order prescribing higher wage rate (i.e. $15.00 or three per cent) with operative date of order being made retrospective — Full Bench found no error in the exercise of the discretion of the Commission at first instance and noted that parties must address a proper audit of the relativities of the respective classification in the minimum rates classification — Dismissed — FCU and CBH Ltd — No. 675 of 1990 — Sharkey P., Martin C. George C. — 8/8/90 — Clerical

Applications to vary Awards re Second Structural Efficiency Wage Adjustments — AMMA intervened and argued against variation on the basis that the Structural Efficiency Principle was not satisfied — Commission reviewed negotiations, parties agreement and addressed concerns regarding various matters such as, training clause, contract of service clause, and construction of the wage and supplementary payments clause — Parties were directed to realign (base) classification rates and proposed minimum rates adjustments before presenting draft for final orders — Ordered Accordingly — AMWSU and Others and Anodisers WA and Others — Nos. 478,479 and 483 of 1990(R2) — George C. — 24/5/90 — Metal and Building Trades

Conference referred re wage rates — Applicant Union submitted that wage provisions of Enrolled Nurses and Nursing Assistants Award should apply to three Ward Assistants pursuant to an agreement with Respondent — Respondent denied claim on basis that a review of the agreement had been overlooked — Commission found it was not open to Respondent to unilaterally vary a contract of employment — Commission found further that two named employees should never have been subject to the agreement — Granted in Part — FMWU v. Board of Management, Stirling Community Hospital — No. CR1171 ofl989 — Martin C. - 17/7/90-Health

Application by consent to vary Award pursuant to Second Tier Restructuring and Efficiency Principle — Parties were in agreement to restructure or make more efficient a number of work practices — Commission found measures undertaken by the parties were designed to improve efficiency and to enhance productivity in a real sense — Granted — HOSA and Attadale Hospital and Others

Nos. 994,998-1000,1002 and 1003 of 1987 — Fielding C. — 22/9/90 — Health and Welfare Services Claim re contractual entitlements — Applicant claimed wages and compensation arising from need to liquidate personal property —

Respondent denied existence of a contract — Commission found that there was no contract and on authorities cited that there were no implied terms of a contract thus Commission was without jurisdiction — Dismissed — R. MacAuley v. Jamac Fishing — No. 2787 of 1989 - Gregor C. - 29/6/90 - Fishing

Application to vary Award re new classifications and wage rates, qualifications and work functions allowances — Applicant Union argued changes in quality control had led to changes in duties and responsibilities of some employees — Respondents opposed application with Respondent supermarkets concerned that general wage relativities would not be upset — Commission reviewed Work Value Principle and found no party had addressed whether existing classifications covered the work wholly or partly — Commission conducted inspections and on evidence found to inert in the award function specific classification agreed appropriate, but not the calculation of wage relativities with reference to the Government Meat Industry Awards — Commission refused remainder of claim as not justified by what was submitted — Granted in Part — AMIEU v. Action Food Bams and Others — No. 1082 of 1988 — Parks C. 1/8/89 — Meat

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WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 70 W.A.I.G.

CUMULATIVE DIGEST—continued

WAGES—continued Conference referred for hearing and determination re for lost time — Applicant union argued strike was justified on safety grounds

and was a last resort following failure of management to address braking problems on/or trains — Respondent argued was not extremely over safety issue but a standard response of the Applicant to the standdown of a member — Commission found on evidence strike occurred because of genuine and reasonably held concerns over safety, the future of the Respondent to ensure that its policy was effected consistently and the consequent deterioration and trust — However, Commission strike so far as it concerned compliance with an order of the Commission was not over a safety issue — Granted in Part — CMEWU and HI Pty Ltd — No. CR798 of 1989 — Kennedy C. — 9/8/90 — Iron Ore

Application to vary award re Structural Efficiency Wage Adjustment — Applicant employers sought changes to Hours of Work, Allowances, Penalty Rates and Second Tier Wage Adjustment on the basis of uniformity within the industry — Further, the joinder of an employer organisation to the Award — Respondent union argued employees were part of the clerical industry and that there should be consistency with a decision on the Commercial Clerks Award in Victoria — Further that the Second Tier Wage negotiations should be left the subject of another application lodged by the union — Commission was not prepared to accede to Second Tier claims as procedures, e.g. advertising had not been met — Commission found parties differing views on the industry were both correct and not incompatible and the Victorian Decision was to be considered, not necessarily adhered to — Commission determined matters of, inter alia, changes to flexible arrangements of Hours of Work, Time of in Lieu of Overtime Pay, Penalty Rates, Annual Leave Spliting, Wages and Classifications — Commission finalised matter of Record Clause in Supplementary Reasons — Granted in Part — Booragoon Motor Hotel and Others v. ECU — No. 2176 of 1989(R)—ParksC. — 2/ 8/90 — Hospitality (Clerks)

Application for orderby consentreenterprise agreement reflecting interim arrangements for implementation of Structural Efficiency Principle — Commission found with some reservation the proposed order, subject to adjustment in some rates to properly reflect agreed relativities and no change in rates for non-trades classification, could be notified under the Structural Efficiency Principle — Commission's reservations went to matters beyond the control of the parties to unfinalised developments under the Federal and State Metal Trades Awards — However, Commission further determined issued of those classifications and the Second Structural Efficiency Wage Adjustment in Supplementary Reasons — Granted in Part — Readymix Group (WA) Ltd and Another and AMWSU and Another — No. 2397 of 1989 — George C. — 22/3/90 — Quarrying Industry

Application to vary award by consent re Second Structural Efficiency Wage increase — Applicant submitted agreement followed closely those in the Metal Industry Awards and inter-Union concerns had been largely overcome — Commission found inclusion of BMA and Government Hospitals appropriate as they were subject to separate proceedings before the Commission, but found no grounds to do likewise with the Water Authority — Commission reviewed issues such as broadbanded wage and classification structure and found the inclusion of two new classifications would possibly change the scope of the award, hence could be subject to separate application, if the need was established in the implementation/transition process, such that the IR Act could be complied with — Granted in Part — AMWSU and Others and Hop Minister for Works and Others — No. 513 of 1990(R2) — George C. — 24/5/90 — Government (Engineering Trades)

Application to vary award re Extension of First Structural Efficiency Increase to employees eligible to be members of the ETU — Commission found notwithstanding respective concerns as to ascertain of rights to parties had an agreed framework approach, underpinned by a healthy mutual respect and there was every reason to believe they would be successful in pursuing further the twin goals of increased productivity and opportunity for employees — Granted — HI and Another and AWU and Others — No. 1146 of 1990(R) — Kennedy C. — 19/7/90 — Iron Ore

Conference referred re payment for lost time — Applicant union claimed payment relating of three stoppages over health and safety issues — Respondent claimed union did not follow safety procedures — Commission found the matter in which respondent dealt with two of the issues had contributed to deterioration of industrial relations thus, and with regard to authorities cited, payment was ordered for time lost on those occasions — Granted in Part — ABLF v. Geraldton Building Company — No.CR225of 1990 — Beech C. — 13/7/90 — Construction

Applications to vary Award by consentre First Phase Structural Efficiency Wage Increase — Parties submitted that rather than pursue a single award to cover private and government sectors, it was more appropriate to remodel existing awards with particular emphasis on training — Commission noted due consideration of rates and relativities for second phase increase — Granted — HSOA and Another v. J. Arnold and Others — Nos. 1062 and 1063 of 1990(R) — Kennedy C. — 18/9/90 — Health (Dental)

Application to vary Award by consent reFirst Structural Efficiency Wage Increase —.Commission found there needed to be provision accommodate the preculiar idiosyncrasies of the various enterprises covered by the Award and that the proposed enterprise agreement clause was an example for others to follow — Commission accepted argument for $15.00 increase 85 per cent of that amount for those on probation — Granted — Sales Representatives and Commercial Travellers Guild and Carborundum Pty Ltd and Others — No. 59 of 1990(R) — Fielding C. — 24/8/90 — Sales ■■.....

Application to vary Award re Second Structural Efficiency Wage Adjustment — Applicants submitted award was modern and re fleeted efficient conditions of employment — Commission found radical changes to Allowances for cleaning toilets and leading hands designed respectively to overcome "administrative nightmares" and truly reflect the work and responsibilities involved where within the Wage Fixing Principles — Granted — FMWU and Ministry of Education — No. 597 of 1990(R2) — Fielding C. — 6/9/90 — Cleaning Services

Claim re contractual entitlements — Applicant claimed wages earned and moneys in lieu of annual leave — Respondent argued right to deduct pay in lieu of notice or alternatively to withhold payment for the final uncompleted weekly contract period — Commission reviewed authorities and found applicant notentitled to payment for incomplete contract period and on evidence no express provision forprrata payment in lieuofannual leave — Commission found further, that payment was due for wages earned duringanearlierpay period — Granted in Part — R.A.Taylorv. Vipond Pty Ltd trading asThe Relationship Connection — 284of 1989 — Parks C. — 17/9/90 — Introduction Agencies 3ApplicationtovaryAwardbyconsentreWagerateoftwoclassifications as a Special Case — CICS found on evidence all testsofWork Value Principle met new duties and responsibilities constituting a net addition to work requirements, for which recompense was sought were the same as those experienced and recognised in the determination of rates for the Victorian Counterparts CICS further found no double counting of factors recognised under Structural Efficiency exercises — Majority of CICS found no special circumstances to warrant a retrospective operative date, with each Commissioner issuing his/her own reasons for decision — Granted in Part — FMWU and St John Ambulance Association — No. 724 of 1989 — Coleman C.C., Kennedy C, George C. — 4/9/90 — Emergency Services

Application to vary Award re Second Structural Efficiency Wage Increase — Applicant argued date of operation should be from when substantive agreement was reached — Respondent argued there was no government approval at that time — Commission found Wages Principles were met and applying the rules specified in another decision concerning operative date in favour of the Applicant — Granted — FMWU and Hospital Laundry and Linen Service — No. 163 of 1990(R2) — Gregor C. 29/8/90 — Laundry and Linen Services

Application for new award to replace previous award and agreement in respect to named respondents — Matter came before Commission by consent — Commission found new award significantly restructured employment in the industry and complied with State Wage Fixing Principles and in particular with Structural Efficiency Principle — Granted — FLAIEU v. Amalgamated Food and Poultry Pty Ltd trading as Red Rooster Foods and Others — No. A14/90 — Fielding C. — 22/8/90 — Fast Food

Conference referred re dismissal — Applicant union claimed dismissal was harsh and sought reinstatement with no loss of entitlements — Respondent argued employee's work was not satisfactory and that he was a disruptive influence on the workforce — Commission found on evidence that dismissal was unfair as no reasons were given — Commission ordered employee be reinstated with no loss of entitlements — Granted — ABLF v. Barry Shardlow trading as High Quality Bricklayers — No. CR581 of 1990 — Beech C. — 4/9/90 —Construction

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70 W.A.LG. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE

CUMULATIVE DIGEST—continued

WAGES —continued Application for new Award — Parties presented submissions and evidence regarding the proposed coverage of hydrographic

surveyors, wage rates and a 38 hour week — Commission found that hydrographic surveying is within the surveying industry and should be included in scope of award, that the wage rates claimed by consent were warranted and should receive the three percent structural efficiency adjustment and that a 38 hour week was a Commission standard —Parties were directed to prepare final draft award — ADSTE v. Association of Consulting Surveyors and Others — No. A2 of 1988 — Halliwell S.C. — 27/3/90 — Surveying

Claim re contractual entitlements — Applicant claimed outstanding wages, motor vehicle and telephone expenses, payment in lieu of annual leave and severance pay — Respondent alleged that applicant was employed under terms of an award, the respondent having received a subsidy for the applicant's employment under the Commonwealth Job Start Scheme, and thus Commission was without jurisdiction — Commission determined that issues raised by applicant related more to the business relationship than the employment relationship between the parties through the applicant's part owner status and exercised its discretion under section 27(l)(a)ofthe Act to dismiss the application — J.R.Clohessy v. New Product Development Pty Ltd — No. 1181 of 1990 — Fielding C — 21/9/90 — Chemical Manufacturing

Claim recontractual entitlements — Appellant claimed wages earned and sustenance allowance — Respondent argued applicant had been paid some moneys but the outstanding amount was the liability of another company which had taken over applicant's employment. Commission found on evidence applicant had not received the sum indicated by respondent and that liability lay with respondent for all moneys earned as the applicant was not made aware of and not had not agreed to change of employer — Granted — TICF Vass v. Trafalgar Mining Co — No. 581 of 1990 — Gregor C. — 3/10/90 — Mining

Claim re contractual entitlement — applicant claimed wages — respondent argued applicant attended a Commission hearing, a training course and was otherwise absent without authorisation during the periods for which wages were claimed — Commission found that applicant had not been denied wages earned in regard to attendance at the hearingand training course but wasentitled to payment for the final period when he had performed his duties but failed to report to his supervisor — Granted in Part — K. Luck v. the MBA Group Apprenticeship Scheme — No. 730 of 1990 — Beech C. — 4/10/90 — Construction 2Appeal against decision of Commission (70 WAIG 322) re registration of Industrial Agreement — Appellant argued Commission had erred in finding award did not apply to businesses of respondent, in registering an agreement when its terms were in conflict with an award that applied by common rule, in failing to remove inconsistency between agreement and award in exercise of discretion by excluding from operation of agreement some employees who did identical work, and in registering agreement which had the effect of retrospectively affecting the right of employers and employees — Full Bench from evidence and submissions found Commission in registering agreement had not exercised its power as it was mandatorily required toundersectin41(2)ofIR Act and that there was no provision pursuant to section 41 of IR Act for retrospectivity — Furthermore Full Bench noted pursuant to section 114ofIR Act insofar as agreement was in conflict with award then agreement is null and void andcould not be registered — Full Bench found agreement was contrary to Act and Wage Fixing Principles — Upheld — Hon. Minister for Labour v. Como Investments and Others — Appeal No. 120 of 1990 — Sharkey P., Negus C., Kennedy C. — 27/8/90 — Fast Food/Catering

Consent application to vary award pursuant to Structural Efficiency Principle — Second Stage — Application sought to amend Special Rates, Casual Employees, Leading Hand, Meal Money and Wages clauses — Parties proposed six month implementation and trial period — Commission satisfied by terms of proposed amendments subject to provisos and directives relating to scope, application of wage increases and one classification still under negotiation — Ordered Accordingly — FMWU v. Brownes Dairy Pty Ltd and Others - No. 349 of 1990(R2) — George C. — 20/8/90 — Dairy Food .,

Application to replace order with a new Order to implement Second Stage Structural Efficiency Principle — Commission reviewed what was submitted as an improvement on the first Order, new classification structure and found them with the principles — Commission found discrepancy between paid rates and base rate and supplementary payments to be dealt with reference to State Wage Decision and Metal Trades (General) Award though change might occur as the question received further clarification and compression of relativities now fixed was an issue forNatural and State Wage Benches — Commission further found variations to award and special circumstances to cause it to exercise its discretion to grant retrospectivity — Granted — AMWSU and Another v. Coca Cola Bottlers Perth — No. 533 of 1990(R2) — George C. — 17/9/90 — Carbonated Drinks

Application for a first Award to cover a single enterprise — Objections of other Unions met in negotiations — Commission found as Award contained existing conditions of employment it complied with State Wage Fixing Principles and it had regard to the Structural Efficiency Principle — Commission further made particular comments as to Rates of Pay, Long Service Leave, Hours and Meal Money — Granted — HSOA v. GSI — No. A8 of 1989 — Fielding C. — 25/9/90 — Supported Employees Industry

2Appeal against decision of Commission (70 WAIG 2220) re award variations — Appellant argued retrospective operative dates were contrary to Wage Principle and that there were no special circumstances put forward for variation to operate from that date — Full Bench noted onus was on union to show special circumstances existed for award to be varied retrospectively and fund such onus had not been discharged — Further Full Bench found miscarriage of Commissions discretion had been established and that requirements mentioned in section 39(3) of IR Act had not been satisfied — Halliwell S.C. dissented noting to deny employees benefits ofagreed wage increases due to clarification of one point, which subsequently was as submitted, wascontrary to section 26 ofAct and that operative date in question was prospective insofar as initial dateof hearing occurred — Upheld — Central Districts Bakery and Others and Bread Manufacturers Association of WA v. TWU — Appeal Nos. 922 and 924 of 1990 — Sharkey P., Halliwell SC.. Salmon C. — 25/9/90 — Transport

2Appeal against decision of Commission (70 WAIG 1909) re award variations pursuant to Structural Efficiency Principles — Appellant argued Commission had erred in concluding broadbanding of classifications, insertion of Award Modernisation clause and award commitment clause were of sufficient value to justify first stage of wage increase — Furthermore appellant argued Commission had erred in concluding that there was insufficient material to allow part-time worker clause and stand- down clause would amount to trade-off bargaining and erred in concluding that there were special circumstances to justify retrospective payment — Full Bench noted decision at first instance was a discretionary decision and therefore appellant to establish that the exercise of discretion had miscarried — Full Bench from submission and within principles of cases cited found in favour of appellant — Supplementary Reasons — Respondent sought proposed order of Full Bench to issue differently so as to the decision appealed against in tact until remitted matter was determined — Full Bench found failure to suspend appealed decision and allowing it to remain in tact would be a nullification of its own decision and outside power under section 49(5Xc) of IR Act — Upheld — Australian Glass Manufacturers Co Pty Ltd and Others v. TWU — Appeal No. 691 of 1990 — Sharkey P., Halliwell S.C., Martin C. — 8/8/90 — Transport

Application to to one cancelling award and vary another to incorporate coverage of that cancelled as a part of second stage structural efficiency — Only matters to arbitrate were title of a classification, level of rates to be applied and status of a $10.00 allowance — Commission established rates by comparing of the most "like with like" classifications found in the Victorian Rail System, found the designation "senior" was sufficient to cover its supervisory role and no justification for the allowance in the context of the rates set — In Supplementary Reasons Commission dealt with service components of actual rates — Granted in Part — IRU and WAGRC and Others — Nos. 28, 29 and 2600 of 1989 — Kennedy C. — 11/5/90 — Railways

Application to vary av/ard re Second Stage Structural Efficiency Wage Adjustment by consent save date of operation — Commission considered matters such as changes to the classification structure, including broadbanding, in line with Metal Trades (General) Award, the changes in Wage Structure, including minimum rates adjustment, supplementary payments and difficulties in applying second instalment of wage increases — Though Commission was in agreement with Australians Commissions expressed views on the matters it was prepared to accept the submissions of both parties in the circumstances of the industry — Commission found no special circumstances to justify a date of operation earlier than when the matter was before the Commission in hearing — Granted in Part — AMWSU v. J.W. Bolton Pty Ltd and Others — No. 482 of 1990(R2) — George C. — 30/7/90 - Vehicle Building '

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WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 70 W.A.LG.

CUMULATIVE DIGEST—continued Page

WAG ES —continued Claim re award variation pursuant to Structural Efficiency Principle arising from conference application — Parties sought to

implement extensive changes in classification structures and job requirements and a productivity bonus scheme — Commission reviewed authorities and submissions and found that amendments sought complied with the principles — Granted — Ml. Newman Mining Pty Limited v. AMWSU and Others — No. C131 of 1990 — Gregor C. — 20/3/90 4437

Application to vary award pursuant to Structural Efficiency Principle — Applicant union argued agreement between respondent and its employees did not reflect co-operation between the parties to the award and did not accord with the State Wage Principles, particularly in the area of training and career paths, as did the variations it sought — Respondent argued that as the agreement with wage increases already paid, was such that the Commission had no power to deal with the application — Commission reviewed IR Act and authorities and found it had power and an obligation to arbitrate, taking into account that such an agreement be accepted as persuasive, in submissions, as it had the support of the workforce — Commission concluded the agreement once subject to exposure in arbitration wasone capable of ratification pursuant to the principles — Commission furtherprovided a one month period for negotiations with CMEU and in view of the parties difficulties the Standard Award Modernisation and Structural Efficiency clauses — Commission further found it necessary to give warning to respondents advocate that he would not be heard before the Commission constituted again — Award Varied — ETU and Others and Western Mining Corporation — No. 1752 of 1989 — Gregor C. — 1/8/90 — Nickel Refining 3671

Application to vary award re Second Structural Efficiency Wage Adjustment — Although parties had not reached agreement on all areas intended as of the first instalment Commission was satisfied that they had complied with the spirit and intent of the principles and made furthercomment as to the need for modernisation within the Industry — Commission found no good reason to award retrospectivity and depart from the Commissions norm — Granted in Part — LEDFCU and WAGRC — No. 620 of 1990 — Fielding C. — 6/9/90 — Railways 3681

WORK VALUE — Application for Award variation pursuant to Structural Efficiency Principle, Second Stage — Implementation of Structural

Efficiency Principle in instant Awards have primarily been handled nationally via the appropriate counterpart Award — Commission noted final form of amendment to the Federal Award was unavailable, but preferred to finalise matters at hand — Commission further outlined means to address any difference of substance between State and Federal Award should it occur — Granted — CMEU and Civil and Civic Pty Ltd and Archibald and Thorpe and Others — Nos. 437 and 559 of 1990 — Beech C. — 7/6/90 — Construction

Application for Award variation pursuant to Structural Efficiency Principle — Parties were in agreement to variation sought — Commission found parties have detailed new arrangements which increased the opportunity for employees to acquire and maintain relevant skills with consequent progress — Furthermore Commission noted the development of the operator/ maintainer role and its ramifications in terms of the Structural Efficiency Principle — Granted — AWU and Hamersley Iron Pty Ltd and Others — No. 555 of 1990 — Kennedy C. — 11/4/90 — Iron Ore

Application for Award variation pursuant to Structural Efficiency Principle — Second Stage — Parties submitted progress report on review of Awards and implementation measures to improve efficiency such as Permanent Part-Time Employment policy; amalgamation of Awards and Agreements dealing with Allowances; delegation of authority to Chief Executive Officers; streamlining arrangements for Promotion and Reclassification Appeals; On call provision; flexibility in Overtime; Property Allowance; and the Skills Resource Management System — Commission from evidence found second salary adjustment now sought was justified and approved date of increase as at conclusion of hearing — Granted — CSA and Commissioner, Public Service Commission — No. P2-P9 of 1990(R2) — Negus C. — 18/4/90 — Pubic Sector

Application for Award variation pursuant to Structural Efficiency — Parties were in agreement on changes to Award relating to Hours; Overtime; Shift Work; Annual Leave; Absence Through Sickness; Introduction of Casual Workers and other administrative changes — Commission approved most changes, however noted reservation on some amendments due to lack of submission from parties in relation to them and rejected variations sought on Definition of Misconduct; Long Service Leave and provision of "National Standard of Code for the National Occupational Health and Safety Commission"—Ordered Accordingly — Federated Brick Tile and Pottery Industrial Union and Midland Brickand Others — No. 1960011989—Beech C.— 12/12/89 — Brick Manufacturing

Application for variation to Award pursuant to Structural Efficiency Principle, second stage — Parties have addressed more than that which was committed to be undertaken at the first stage, most notably the system of merit based promotion and radical changes to hours of duty—Question of underwhich "Principle" should shift penalties be granted — Commission having answered question of "Principle" found in favour of amendments proposed by parties — Granted — WA Police Union and Hon Minister for Police — Nos P25, P26 and P27 of 1990 - Fielding C. — 17/5/90 — Police Services

'Application to vary Award re classification and wage increases — CICS found Work Value Principle satisfied. Wage Fixing Principles complied with, and no problem of flow on or unfavourable cost increase — Furthermore CICS found no special circumstances to grant retrospectivity — Granted in Part — CMEU and SECWA — No. 678 of 1990 — Salmon C., Kennedy C.. Beech C. — 26/6/90 — Electricity Supply

Application to vary Award re new classifications and wage rates, qualifications and work functions allowances — Applicant union argued changes in quality control had to led to changes in duties and responsibilities of some employees — Respondents opposed application with Respondent supermarkets concerned that general wage relativities would not be upset — Commission reviewed Work Value Principles and found no party had addressed whether existing classifications covered the work wholly or partly — Commission conducted inspections and on evidence found to inert in the Award function specific classification agreed appropriate, but not the calculation of wage relativities with reference to the Government Meat Industry Awards — Commission refused remainder of claim as not justified by what was submitted — Granted in Part — AMIEU v. Action Food Bams and Others — No. 1082 of 1988 — Parks C. — 1/8/89 — Meat

Application to vary award by consent — Parties sought to implement broadbandingof salary tables and work related allowances, and work value increases — Government School Teacher's Tribunal found on the evidence and with regard to the Special Case, Work Value, Allowances and Structural Efficiency Principles that the proposed variations ought to be ratified with amendents to remuneration in two classifications — Ordered Accordingly — SSTUWA v. Hon Minister for Education — Tl(2) of 1989(R2) — Government School Teacher's Tribunal — 18/7/90 — Education

'Application to vary Award re extension New Allowance to be paid to linespersons outside metropolitan area — Applicant Union argued on the basis of the Anomalies and Inequities Principle — Respondent argued allowance was paid to compensate for different responsiblities — CICS reviewed establishment of allowance and found an inequity in that linesperson were paid differently when they were performing the same work by an allowance which would have been usually part of the wage or higher duties payments — CICS found however it would be unfair to alternatively deprive persons of a payment received, so dismissed the Union's claim while ordering the continued payment to those already in receipt at an amount not to be increased for any reason — Ordered Accordingly — ASt/MFWU and Others and SEC — No. 2237 of 1989 — Salmon C., Gregor C., Kennedy C. — 7/8/90 — Electricity Supply

'ApplicationtovaryAwardbyconsentreWagerateoftwoclassificationsasa Special Case — CICS found on evidence all testsofWork Value Principle met, new duties and responsibilities constituting a net addition to work requirements, for which recompense was sought were the same as those experienced and recognised in the determination of rates for the Victorian Counterparts — CICS further found no double counting of factors recognised under Structural Efficiency exercises — Majority of CICS found no special circumstances to warrant a retrospective operative date, with each Commissioner issuing his/her own reasons for decision — Granted in Part — FMWU and St John Ambulance Association — No. 724 of 1989 — Coleman C.C., Kennedy C, George C. — 4/9/90 — Emergency Services

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

CUMULATIVE DIGEST—continued Page

WORK VALUE —continued Conference referred — Applicant union claimed allowance for lifting of solid core doors in construction — Respondent argued the

granting of such allowance would have flow-on implications for other workers handling the doors — Confederation of WA Industry, intervening, submitted manufacture of such doors in private sectorwas encompassed in wage rate — Parties addressed State Wage Principles—Commission found that circumstances did not provide a significant net addition to work requirements to warrant a new allowance under the Allowances or Work Value Principles — Commission found further that difficulties associated with lifting the doors ought be addressed further rather than compensated and that additional manufacturing costs could be to employees' detriment if competitiveness with the private sector could not be maintained — Dismissed — CMEU v. Hon. Minister for Works — CR570/90 — Beech C. — 25/9/90 — Construction 3802

WORKER PARTICIPATION — Applications to vary Awards re second wage increase under Structural Efficiency Principle — Commission split application to allow

different parties to pursue their own agendas — Commission found process of change at Swan Brewery Co had not resulted in substantive Award/Agreement variations but was nonetheless one which by its very thoroughness, degree of co-operation and evident prospects in the shorter term met the test for the second phase under the Structural Efficiency Principle — Particularly an intense exercise in work re design — Commission further split applications to allow for further variations and review in finalisation of applications — Granted and Adjourned — Brewery and Bottleyards Employees Union and Swan Brewery Co Ltd and Others — Nos 443,485, 622,670 and 744 of 1990(R2) — Kennedy C. — 9/5/90 — Brewing and Malting Industries 2226

WORKERS' COMPENSATION — Claim re unfair constructive dismissed seeking reinstatement — Applicant claimed change in roster from permanent night shift to a

rotating shift amounted to constructive dismissal — Respondent argued injury sustained by applicant resulted in applicant being able to do light duties available only in the day shifts — Furthermore due to changes in the hospital work was only available on a rotating roster — Commission found from evidence provided in favour of respondent and noted event though case law cited by Counsel was relevant, each unfair dismissal case has to be treated in accordance with its own facts — Dismissed — McDowell E. and Swan Cottage Home Inc — No. 830 of 1989 — Gregor C. — 17/11/89 — Nursing 3818

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