Details 

Created: 12 December 2019

The Industrial Magistrate has dismissed a geoscientist's claim for the payment of an incentive bonus for the period of 2001 to the first quarter of 2005 pursuant to the Industrial Relations Act 1979 (WA) (the IR Act) or common law, and, for the payment of overtime hours worked from 4 January 2011 to 3 January 2017 pursuant to the Professional Employees Award 2010 (Cth) (the Cth Award) or the Western Australian Professional Engineers (General Industries) Award 2004 (WA) (the State Award).

Industrial Magistrate Scaddan considered when the cause of action accrued for the incentive bonus and overtime claims. Her Honour found that the incentive bonus was paid when it fell due and that the last date that the payment would have been paid but was not was in 2005. As this claim was lodged 13 years after the last date of non-payment of the bonus and a six year limitation period applied under the IR Act, Fair Work Act 2009 (Cth) (the Cth Act) and Minimum Conditions of Employment Act 1993 (WA) (MCE Act) the claim was barred by statute and consequently dismissed by Scaddan IM. Her Honour added that the Industrial Magistrate's Court does not have jurisdiction to consider the claimant's common law claim.

Turning to the alleged non-payment or underpayment of overtime claim, Scaddan IM found that each instance of the alleged failure to pay overtime was its own separate cause of action. As the claimant's salary was paid on the 15^th of each month, the first offence was on the 15^th of January 2011, being the first month that the claimant alleged that they had been underpaid for, and then the 15^th of each month thereafter. Scaddan IM also held that the same limitation period that applied for the incentive bonus payment would apply to the claimant's claim for overtime and consequently dismissed the part of the claim that related to the payment of overtime prior to 19 December 2012.

As for the remaining part of the claim, for overtime for hours worked in excess of 38 hours per week, Scaddan IM noted that she was only required to consider the terms of the Federal Professional Employees Award 2010 (Cth) (the Cth Award) as this was all that claimant had relied on in evidence and submissions. Her Honour found that the respondent could not have contravened the Cth Award as the claimant's claim had not referred to any clause within the Cth Award, and, the Cth Award does not contain any provision for the payment of an hourly rate for hours worked over 38 hours a week. In the alternative, the claimant had not proven to the requisite standard that he had not been paid the appropriate amount of overtime because he only provided salary estimates and that these estimates were well in excess of the 2019 minimum wage contained in the Cth Award.

Scaddan IM considered that as the claimant's claim related to the Cth Award, and no other industrial instrument or order exists that would enable the IR Act or MCE Act to apply, any claim under the IR Act or MCE Act could not be enforced by the Industrial Magistrate. Further, as the claim for overtime it is not considered a minimum condition of employment the MCE Act does not apply.

The decision can be read here.