Western Australian Industrial Relations Commission

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The Commission has granted applications by four employees for denied contractual benefits and an unfair dismissal claim against the same respondent. The applicants had named their employers on the applications as either “M4 Unit Trust / M4 Marketing” or “The Trustee for M4 Unit Trust”. However, Commissioner Matthews determined that the applicants' true employer was Richard Trainer and amended the respondent's name for each application. The respondent did not put in an appearance for any of the matters.

Matthews C considered each denied contractual benefits claim and the applicants' evidence separately, including their contracts of employment, time worked, rate of pay, and holiday and leave entitlements. The Commissioner ordered that the respondent pay to each applicant the determined sum of money owed to them for outstanding entitlements.

Turning to the unfair dismissal claim, the Commissioner concluded that the applicant's dismissal was unfair because she was not made aware of any shortcomings in her work, warned about possible implications for any alleged shortcomings or given any chance to improve. The Commission determined that reinstatement or re‑employment would be impracticable remedies. Matthews C considered that if the applicant was not unfairly dismissed, she would have continued in her employment into the indeterminate future. Therefore, Matthews C ordered that the respondent pay the applicant six months' of salary, which is the maximum amount of compensation allowed under the Industrial Relations Act 1979 (WA).

The decisions can be read here: U 69 of 2019, B 69 of 2019, B 95 of 2019, B 80 of 2019 and B 45 of 2019.

The Industrial Magistrate's Court has issued supplementary reasons for decision in relation to an application made by the claimant that sought orders for a pecuniary penalty and an award for costs. This application follows a determination that the first respondent had engaged in contraventions that arose from a dispute concerning the applicability of the Banking, Finance and Insurance Award 2010 (the Award) to the claimant's employment (the substantive decision can be found here). The first respondent is the company that had employed the claimant. The second respondent is a company director of the first respondent the first instance claim against them was not found to be proven.

In order to assess pecuniary penalties, Industrial Magistrate Scaddan considered that the first respondent's contraventions in failing to pay ordinary pay, overtime and penalty rates, annual leave and annual leave loading and associated superannuation will be treated as a single contravention. This was because they were committed by the same person and arose out of a course of conduct by that person in accordance with section 557(1) of the Fair Work Act 2009 (Cth) (the Act).

Scaddan IM then treated the other two contraventions, for failing to provide copies of the National Employment Standards and the Award and failing to keep and maintain employment records, as two separate single contraventions.

Scaddan IM found that in all of the circumstances the first respondent's conduct is properly categorised as low range. The circumstances that were considered by Scaddan IM were that:

  1. The determination of the claim required consideration and construction of the Award and its applicability to the claimant,
  2. The first respondent's failure to pay entitlements was not a gross failure and did not deprive an employee of an entitlement often seen by the court,
  3. No evidence was raised about the size of the company and the claimant did not satisfy the court of the second respondent's involvement in the contraventions,
  4. The emails between the claimant and second respondent do not suggest that the second respondent is taking advantage of the claimant or being oppressive or threatening,
  5. The claimant had overstated his evidence about the impact of the first respondent's actions,
  6. The claimant was not found to be in a position of particular vulnerability,
  7. A lack contrition is not an aggravating circumstance that can increase a penalty,
  8. There was no evidence that the first respondent had exploited or profited from exploiting the claimant,
  9. The first respondent has not previously contravened the Act, and
  10. The first respondent did not attempt to hide any of its contraventions.

The primary purpose of a civil remedy is to promote the public interest in compliance with the law and not as an additional award of compensation for financial or emotional stress, hurt feelings, inconvenience or legal fees. Scaddan IM awarded the claimant a pecuniary sum for the contraventions that was proportionate to the gravity of the contravening conduct.

Scaddan IM next dismissed the application for costs because the parties had conducted the litigation in an efficient manner and her Honour was not satisfied that there was no substantial prospect of success that would warrant an award for costs.

The decision can be read here.

The Commission has dismissed a denied contractual benefits claim made by a Procurement Specialist who alleged that the labour hire company that employed her owed her monies under her contract of employment. The parties had a written contract of employment that also contained an arrangement for the applicant to be assigned to work for a third party (Assignment Agreement).

Senior Commissioner Kenner considered the respondent's claim that the daily rates included in the applicant's original Assignment Agreement were incorrect and had been included in error. The Senior Commissioner noted that after the respondent had recognised and corrected the error on 23 June 2014, the applicant did not sign the amended Assignment Agreement. The applicant requested to receive her pay earlier because she said she had budgeted according to the higher daily rate in the original Assignment Agreement, however she did not raise any objection then or in the future in relation to her daily pay rate. The applicant continued to work under a second Assignment Agreement for another 12 months, at the same daily rate as the first Assignment Agreement.

Furthermore, the Senior Commissioner considered that the correspondence between the parties, prior to signing the contract of employment and Assignment Agreement, constituted an agreement about the applicant's rate of pay. This agreed rate of pay made commercial sense, however the rate specified in the original Assignment Agreement did not. The Senior Commissioner was satisfied that the respondent was not involved in the negotiation of the applicant's daily rates of pay and would simply add to the final rate their margin for services. For these reasons, the Senior Commissioner concluded that the doctrine of unilateral mistake applied because the respondent had mistakenly believed that the Assignment Agreement was accurate, and the applicant had been made aware of this mistake.

In the alternative, the Senior Commissioner found that section 26(1)(a) of the Industrial Relations Act would apply as it would be unfair and plainly inequitable to hold the respondent to a document that was clearly executed in error and did not truly reflect what pay rates had been agreed by the parties.

The decision can be read here.

The Industrial Magistrate's Court has issued a decision about a claimant's claim for a pecuniary penalty and an amount for underpayments following a determination by the Court that the employer had contravened the Fair Work Act 2009 (Cth) (the Act) and did not pay the claimant the amount owed under the Long Service Leave Act 1958 (WA) (the substantive decision can be found here). The claimant had been unsuccessful in his claim against a second respondent who is a company director of the employer.

The parties reached an agreement on the quantum of the underpayment claim and Scaddan IM made orders that the first respondent pay the total agreed amount within 28 days.

As to the penalties to be paid, Scaddan IM considered that section 557(1) of the Act would apply to several of the first respondent's contraventions and cause them to be treated as a single contravention because there was either a commonality in the conduct or the contravention flowed from a course of conduct.

Her Honour found that punishment and specific deterrence are less important than the need to deter employers from generally contravening the Act. Scaddan IM held that, in all the circumstances, the conduct was properly categorised as low range and ordered that a pecuniary penalty be paid to the claimant for each contravention.

Scaddan IM considered the first respondent's application for costs and found that the claimant had held out for the payment of a civil penalty in circumstances where the first respondent had previously made a reasonable offer. Her Honour determined that not accepting this offer was unreasonable. This caused the respondent to incur further costs. Scaddan IM concluded that the claimant should pay 50% of the respondents' costs on a solicitor/client basis, which were incurred from the date that the reasonable offer was rejected until the date that the Court facilitated the claimant's reconsideration of the offer to settle, because the claimant was partly successful in his claim.

The decision can be read here.

The Industrial Magistrate's Court has upheld, in part, claims made by the Australian Workers' Union (the AWU) which alleged that the respondent had contravened sections of the Fair Work Act 2009 (Cth) (the FWA). The AWU claimed that its member was not paid the required amount for overtime hours worked; did not establish a system to determine any payment shortfalls and did not pay the full amount that the Enterprise Agreement entitled him to.

To determine the AWU member's agreed hours of work, Scaddan IM considered that the Court can only have regard to the terms contained in the member's Enterprise Agreement (including the undertakings) and the employment contract.

The relevant terms contained in the member's employment contract included 'that he was to work a minimum of 20 hours per week, and reasonable additional hours as determined by the roster that was made available weekly'. Her Honour determined that a 'minimum of 20 hours per week' meant the least possible number of hours that the member worked would be 20 hours per week with reasonable and variable additional hours as determined by a roster published on the Wednesday before the week commencing Monday.

Her Honour then found that overtime rates would apply if the member worked more than the published weekly agreed hours and for any hours worked more than 38 hours per week.

Scaddan IM determined the amount owed for overtime and reduced this sum by what the respondent had already paid. This resulted in her Honour's conclusion that the AWU's member had been underpaid and that the respondent had consequently contravened the FWA.

The decision can be read here.

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