2006 WAIRC 03453
WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATE’S COURT

PARTIES CHRISTOPHER WAYNE BILLINGS
CLAIMANT
-V-
BARDINA PTY LTD
RESPONDENT
CORAM INDUSTRIAL MAGISTRATE W.G. TARR
HEARD WEDNESDAY 5 OCTOBER 2005, THURSDAY 6 OCTOBER 2005, WEDNESDAY, 12 OCTOBER 2005, THURSDAY, 1 DECEMBER 2005
DELIVERED THURSDAY, 1 DECEMBER 2005
CLAIM NO. M 100 OF 2004
CITATION NO. 2006 WAIRC 03453

CatchWords Breach of award - alleged failure to pay the wage rate under the award.
Legislation Industrial Relations Act 1979,
Industrial Magistrates’ Court (General Jurisdiction) Regulations 2000,
Minimum Conditions of Employment Act 1993
Cases referred to Australian Shipbuilding Industries (WA) Pty Ltd v Maritime Workers Union of Western Australia
in decision 77 WA1G 458.
Bell-A-Bike Rottnest Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers – WA Branch 82 WA1G 2655
Result Claim allowed in the alternative
Representation
CLAIMANT MRS W BUCKLEY (OF COUNSEL) INSTRUCTED BY CRAGG BRAYE & THORNTON SOLICITORS APPEARED FOR THE CLAIMANTS
RESPONDENT MR G MCCORRY APPEARED AS AGENT FOR THE RESPONDENT

REASONS FOR DECISION
Background
1 The Claimants, Christopher Wayne Billings and Marie Annette Billings have each pursued an action against the Respondent, Bardina Pty Ltd, and it was agreed appropriate for both to be heard together.
2 The Claimants are husband and wife. They were both employed by the Respondent on a casual basis from about mid April until about mid October each year from 1998 until 2003 inclusive.
3 The Respondent operates what has been described as an Aboriginal owned wilderness camp know as Kooljaman at Cape Leveque. Cape Leveque is located north of Broome at the tip of the Dampier Peninsula. A brief history of Kooljaman is set out on its website an extract of which was tendered as exhibit B and is as follows:
Kooljaman is the Bardi aboriginal name for Cape Leveque, 214 km north of Broome at the tip of the Dampier Peninsular. The Federal Department of Transport previously controlled the land for the purposes of operating a lighthouse. In 1986 the lighthouse was automated and demanned, the land was purchased by the Aboriginal Development Commission for the benefit of Aboriginal people. As a result the A.D.C., along with other Government Departments and the Bardi people chose to develop the area into a tourist complex, linking up traditional ways with the fast encroaching 21st century and all that it represents. The emphasis from the beginning has been to develop a low key, low impact project of a type and structure that can be controlled by local people and of a size and extent that minimises the impact of the environment. A place where Aboriginal people can link in with the operation of a tourism venture, where visitors are able to experience the beauty of the local area and participate in unique experiences and activities available through this business enterprise.
The communities of Djarindjin and One Arm Point proudly own Kooljaman. The view for the future is for the complex to be wholly aboriginal run and provide employment opportunities for community members. Currently the complex is managed by non-Aboriginal staff, under the guidance of a board of directors.
4 There are a number of different types of accommodation available at Kooljaman ranging from Safari Tents to Beach Shelters. The former are set up for either families with a queen size bed and 2 single beds, or couples where just a queen size bed is provided. The web site describes each tent as having “its own large balcony, a private bathroom, quality fixtures and fittings, fullsize fridge/freezer, all cooking equipment, linen and a gourmet gas barbecue on the veranda” and the Beach Shelters as“located on the beach front close to the waters edge and are made from bush poles with palm frond roof and walls and a sand floor. Each shelter has a picnic table, open fresh water shower and a wood barbecue. Shared ablution facilities are located nearby”.
5 Kooljaman has a restaurant and a small general store. Neither is licensed to sell alcoholic drinks.
6 The Claimants claim that the Motel, Hostel, Service Flats and Boarding House Workers’ Award No 29 of 1974 (the Award) has application to them and their employment by the Respondent. They claim to have been employed in callings described in the Award.
7 The Award was consolidated by the Registrar pursuant to Section 93(6a) of the Industrial Relations Act 1979 on the 5 June 2003.
8 As a starting point in any claim alleging non-compliance with a provision of an award pursuant to section 83 of the Industrial Relations Act 1979 (the Act), it is incumbent upon the Claimant to firstly prove the existence of an award. Then that the award binds the employer and that the person in relation to whom the claim was made was employed in one of the callings described in the award.
9 The scope clause in the 1976 Award provides at clause 4 the following:
4. Scope
This award shall apply to all workers employed in the callings described in clause 21 of this award, in any establishment or place where boarders and/or lodgers are catered for, either permanently or otherwise, or where furnished or unfurnished apartments are sublet to tenants and where there is service as to the provision of meals and/or cleaning. Provided that this award shall not apply to any establishment licensed as a Hotel, Limited Hotel or Tavern, pursuant to the Liquor Act, 1970.
10 The scope clause in the consolidated Award is substantially the same. Unlike many scope clauses, the scope clause in the Award in question does not make mention of employers or respondents. It refers to
“workers employed …..in any establishment or place where boarders and/or lodgers are catered for, either permanently or otherwise, or where furnished or unfurnished apartments are sublet to tenants and where there is service as to provision of meals and/or cleaning”.
11 The Award includes a schedule of Respondents as follows:
Belmont Park Motel
Railton Private Hotel
Koala Motor Lodge
Park Lane Apartments
Haywin House Residential
Country Women’s Association Hostel
Girls’ Friendly Society Lodge
YMCA Hostel
YWCA Hostel
Amelia House
Limbless Soldiers’ Association of WA Inc.,
Kings Park Lodge
Bidston Hall
St Clair Hostel
Westhaven House
John Wilson Lodge
Auto. Lodge
Swanview Motel
Southway Service Flats
Town Lodge
Toorak Lodge
Highway Motel
Arkaba Inn
Rose & Crown Hotel
Sunnyside Boarding House
Mt. Lawley Guest House
Hamersley Cottage
Karingal Girls Hostel
Gildercliffe Lodge
Matilda Gard Hostel
Devonia Lodge
Highway Marquis Motel, Bunbury
Transway Motel
Highway Marquis Motel, Albany
Highway Motel, Esperance
Highway Motel, Kalgoorlie
Surrey House Private Hotel
Northam Motel
Hacienda Motel
Highway Motel Carnarvon
Highway Motel, Port Hedland

12 A breakdown of the respondents by their descriptions produces the following:
Motels
12
Lodges
9
Hostels
6
Houses
4
Hotels
3
Apartments
1
Associations
1
Halls
1
Flats
1
Inns
1
Cottages
1
13 Section 37 of the Act provides:
An award has effect according to its terms, but unless and to the extent that those terms expressly provide otherwise it shall, subject to this section –
(a) extend to and bind –
(i) all employees employed in any calling mentioned therein in the industry or industries to which the award applies; and
(ii) all employers employing those employees; and
(b) operate throughout the State, other than in the areas to which section 3(1) applies.
14 There is a requirement therefore to determine the “industry or industries to which the award applies”.
15 It is not appropriate to determine award applicability from the calling description above. As Burt C J stated in Australian Shipbuilding Industries (WA) Pty Ltd v Maritime Workers Union of Western Australia 77 WA16 458:
One cannot have a vocational award in gross. Every award must relate to an industry either in terms or by reference to the industry in which the employers’ parties to it are engaged. Every award must state the “callings” of the workers bound by it and expressly or by implication the industry in the sense of the business of the employer to which it relates.
16 As a starting point it is not unusual to get some indication of the industry to which an award applies from its title. In this case clause 1 provides:
Title
This award shall be known as the “Motel, Hostel, Service Flats and Boarding House Workers’ Award. 1976” and replaces award numbered 44 of 1968, as amended.
17 While I have heard little evidence of the activities of the named respondents it is not difficult to conclude that most of them could be described as either a motel, hostel, service flat or boarding house.
18 The scope clause refers to establishments or places where boarders and/or lodgers are catered for either permanently or otherwise. It must follow that the boarders and lodgers referred to are those that seek accommodation normally provided by the named respondents and others in the industry of providing similar accommodation.
19 I have heard evidence that at one time Kooljaman was referred to as a resort but that description raised too high of an expectation for those who visited the site. Kooljaman is now described more appropriately as a wilderness camp. It is described on its web site as “A place where aboriginal people can link in with the operation of a tourist venture”. Kooljaman has twice won the National Tourism Award for Aboriginal and Torres Strait Island tourism.
20 The web site makes mention of the land being purchased by the Aboriginal Development Commission and the joint decision to develop the area into a tourist complex.
21 Nowhere on the web site, or in any other publication presented during the hearing, is there mention of Kooljaman accommodating boarders or lodgers. There is reference to tourists, guests and visitors. Many of the visitors are day trippers who use the restaurant, shop and other facilities including the airstrip which is maintained by the Respondent.
22 Kooljaman is a unique development providing a wilderness camp with a varied choice of accommodation, the most upmarket being Safari Tents.
23 Although there may be evidence supporting the Claimants’ contention that they were employed in callings described in clause 21 of the Award it was made clear in Bell-A-Bike Rottnest Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers – WA Branch 82 WA1G 2655 that it is wrong to determine the industry of the Respondent by reference to the Claimants’ occupation.
24 There must be many employees in many industries who could claim to be employed in the callings described in this Award but not have the Award apply to them.
25 It is my view that Kooljaman is not in the same industry as the respondents named in the Award and therefore the Claimants have failed to establish that they are entitled to the provisions of the Award.
26 As an alternative the Claimants claim that they were at all relevant times covered by the Minimum Conditions of Employment Act 1993. As I have found there was no award coverage, the Claimants are entitled to any shortfall in their remuneration and conditions under that Act and I would allow the amounts claimed in that regard.
27 It is not appropriate in my view for there to be any “set off” where the hourly rate exceeded the minimum statutory hourly rate as the amount paid was by agreement.
28 It is argued that those CDEP payments made where the Claimants were travelling should be “set off”. Mrs Veltman gave evidence that those payments were made to the Claimants to “assist them with travel”. In view of that evidence the amounts paid should not be taken into account when assessing liability under the Minimum Conditions legislation.
29 The claims in relation to superannuation contribution payments and location allowance were abandoned at the beginning of the trial.
30 Interest has been claimed generally and I believe it is appropriate for me to make an order in that regard based on the Supreme Court Act 1935 rate.
31 I am hoping the quantum on which interest is to be paid will be agreed.
32 The issue of costs was raised during closing submissions. In light of my decision in this matter I could not be of the opinion that the proceedings have been frivolously or vexatiously instituted or defended as required by section 83C of the Act and I therefore make no order as to costs.
W G Tarr
Industrial Magistrate