WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES STEPHEN DARROW STACEY

APPLICANT

-v-

CIVIL SERVICE ASSOCIATION OF WESTERN AUSTRALIA INCORPORATED

RESPONDENT

CORAM COMMISSIONER S J KENNER

HEARD MONDAY, 24 OCTOBER 2005

DELIVERED FRIDAY, 20 JANUARY 2006

FILE NO. APPL 1215 OF 2004

CITATION NO. 2006 WAIRC 03501

Catchwords Industrial law - Contractual benefits claim - Entitlements under contract of employment - Whether appliant entitled to the payment of overtime for work performed outside of ordinary hours - Principles applied - Commission not persuaded that such an entitlement exists under applicant's contact of employment - Application dismissed  - Industrial Relations Act 1979 (WA) s 7; s 29(1)(b)(ii)

Result Order issued

Representation 

Applicant Mr D Howlett of counsel instructed by the applicant

Respondent Mr B Cusack of the Civil Service Association of Western Australia

Reasons for Decision

1 This application is made pursuant to s 29(1)(b)(ii) of the Industrial Relations Act 1979 (“the Act”) in relation to which the applicant claims that he has been denied a contractual benefit by way of payment for overtime pursuant to his contract of employment.  The benefit claimed is said not to arise pursuant to any award, industrial agreement or order of this Commission.  The applicant claims the sum of $9,850.29 or alternatively, the sum of money based upon the hours worked by him outside of ordinary hours at time and one half of normal time  or further alternatively, that the applicant be permitted to take time off in lieu of overtime hours worked.  The applicant also seeks a declaration and orders that he has been and remains entitled to the use of a car bay at the respondent’s premises without cost to him.

2 The respondent denies that it is indebted to the applicant for payment of any overtime or the provision of time in lieu.  There is no issue taken by the respondent with the provision to the applicant of a car bay at no cost to him.  The respondent in its defence to the claim says that the car bay was a term and condition of the applicant's contract of employment, in recognition of his out of hours work commitments, without further entitlement to the payment of overtime or time in lieu thereof.

Contentions of the Parties

3 Mr Howlett of counsel represented the applicant.  Mr Cusack the respondent's senior industrial officer, appeared for the respondent.

4  Mr Howlett made a number of submissions in support of the application.  Counsel submitted that at all times the respondent has conceded that the applicant was entitled to be paid for work performed outside of ordinary hours at overtime rates. Further, the applicant denies that as at the time of his employment he was ever informed about or agreed to the provision of car parking in substitution for the payment of overtime.  Furthermore, and in any event, the applicant submitted that by the terms of the Rules of the respondent, specifically Rule 12(l)(v), all employees of the respondent are entitled to terms and conditions of employment the same as conditions for an officer appointed in the public service.  It followed according to this submission, that the terms of the Public Service Award 1992 (“the Award”) had application and entitled the applicant to overtime payments.  A further submission was put that alternatively again, in accordance with the general conditions of service applicable to the respondent contained in a motion of the respondent's governing council, the applicant had an entitlement to payment of overtime or approved time off in lieu because the circumstances of his employment were “extraordinary or unusual”, consistent with the policy.

5 Mr Cusack on behalf of the respondent made a number of submissions.  He said that the applicant's employment was not covered by any award or industrial agreement of this Commission and his terms and conditions of employment were governed by the letter of offer of employment; representations made by the respondent to the applicant at the time of the appointment; and various unregistered agreements.  As to the applicant's letter of appointment, Mr Cusack submitted that this letter only refers to the provision of a car parking bay and no reference is made to overtime payments.  Secondly, representations were made by the then Secretary of the respondent who interviewed the applicant for the position, to the effect that the provision of a car parking bay was in recognition of and compensation for any additional out of hours work required to be performed.  Thirdly, he submitted that staff agreements applicable to the employees of the respondent and adopted by the parties, specify that generally the respondent does not pay overtime unless there is an exceptional circumstance, which did not apply to the applicant.  Finally, it was submitted that Rule 12(l)(v) of the respondent's rules does not have the meaning contended for by the applicant.  It was submitted that the applicant's construction of the Rule would be unworkable, given the proliferation of industrial instruments applying to public sector employees.

The Evidence

6 Helpfully the parties filed an agreed statement of facts in these proceedings.  The agreed facts are as follows:

“1. Mr Stacey is employed by the Civil Service Association of Western Australia Incorporated. (“the CSA”)

2. Mr Stacey is employed in the position of Executive Officer.

3. The position of Executive Officer was advertised in the West Australian Newspaper on 10 July 1999.

4. Mr Stacey was interviewed on Monday 23 August 1999.

5. Present at the interview were Mr Stacey, Mr David Robinson (then General Secretary), Ms Diane Robertson (then President) and Ms Toni Walkington (then Assistant General Secretary).

6. Mr Robinson telephoned Mr Stacey in early September 1999 to inform him that the CSA wanted to offer him the position of Executive Officer.

7. During the telephone conversation with Mr Robinson (referred to above) Mr Stacey confirmed that he would accept the offer of employment.

8. By letter dated 10 September 1999 the CSA formally offered Mr Stacey the position of Executive Officer on the terms and conditions set out in that letter.

9. Mr Stacey’s employment contract was formed either during the telephone conversation with Mr Robinson, referred to above or alternatively on 14 September 1999 by letter dated the same date in which Mr Stacey accepted employment on the terms and conditions contained in the CSA’s letter of offer dated 10 September 1999.

10. Mr Stacey commenced work as Executive Officer for the CSA on Monday 20 September 1999.

11. No award applies or applied (by force of the award as opposed to contract) to Mr Stacey’s employment.

12. From the commencement of Mr Stacey’s employment he has been provided with the use of a car parking space by the CSA.

13. A dispute has arisen between Mr Stacey and the CSA regarding his entitlement to be paid at overtime rates for work performed outside of his prescribed hours of duty.”

Evidence

7 A central issue in this matter is the terms and conditions of employment of the applicant.  Mr Stacey gave evidence about how he came to be employed in his position as Executive Officer with the respondent.  He testified that he had been a member of the respondent since in or about June 1994.  He said that he saw an advertisement in the “West Australian” newspaper for the position. The advertisement for the position noted that “some after hours work is required”.  Mr Stacey applied for the position and was interviewed on 23 August 1999.  At the interview were the then Secretary of the respondent Mr Robinson, the then President of the respondent Ms Robertson and the then Assistant Secretary of the respondent Ms Walkington.  Mr Stacey testified that he was informed about the requirements for the position and there was no discussion about working hours or overtime that he could recall. 

          He said that in early September 1999, following the interview, he received a telephone call from Mr Robinson offering him the position.  Matters such as salary and availability to start were discussed and Mr Stacey said he would accept the position offered.  There followed a letter of offer dated 10 September 1999 setting out the offer and general conditions.  A copy of this letter was annexure SS2 to Mr Stacey's witness statement and it says in part “A car parking bay will be provided for your use”.  The letter refers to other matters such as salary, probationary employment and other benefits but there is no mention of overtime. There is however reference in the letter to “CSA Conditions of Service will apply...”.  Mr Stacey said he never saw any documents setting out what those conditions were.  Mr Stacey said there was no mention at any time that he would be provided with a car bay instead of being paid for overtime.

8 Mr Stacey commenced employment as the respondent's Executive Officer on 20 September 1999.  He underwent a formal induction with the respondent's Human Resources Officer Ms Brewer.  He said he recalled some discussion with Ms Brewer, during the induction, about working hours and she said words to the effect at some point “we do not usually pay overtime but we do take time off in lieu”.  There is no contest on the evidence that the applicant did work out of hours and the record of hours claimed in these proceedings was accepted to be broadly accurate.

9 It would seem that the issue of payment of overtime to the applicant was not formally raised with the respondent until about April 2004.  It was not entirely clear from the applicant's evidence as to why such a period of time elapsed before he made such claim, although it seems that he only became aware that he may have some entitlement at about that time.

10 The applicant gave evidence about discussions between himself and Ms Walkington and others concerning his claim and various communications that passed between them.  The applicant also gave evidence about payments of overtime he had received from about April 2004 which in his view was confirmation that he had such an entitlement.  I will comment further on this below but the evidence of the respondent was that this was part of a without prejudice arrangement, pending determination of the applicant's claim by the Commission.

11 As I have mentioned there were representatives of the respondent present at the applicant's employment interview.  Mr Robinson is now the Secretary of Unions WA and he has occupied that office since 1 January 2005.  From December 1993 to April 2003 Mr Robinson was the General Secretary of the respondent.  He chaired the selection panel that interviewed applicants for the position of Executive Officer.  Mr Robinson testified that he has a very good recollection of the events surrounding the appointment of the applicant because he knew the applicant as he had assisted him on a workers compensation matter in the past.  He also testified that the applicant was very keen to work for the respondent.  Mr Robinson said that in July 1999, the applicant contacted him by telephone inquiring about the Executive Officer position.  According to Mr Robinson, the applicant was anxious to work for the respondent as it was his own union.  Mr Robinson said he generally outlined the position but made the point of telling the applicant that there was no additional payment for out of hours work in this case.  He said that he always informed applicants for positions with the respondent of this.  Mr Robinson said that he told the applicant about the availability of the car bay as compensation for out of hours work and that the applicant replied to the effect that terms and conditions of employment were not important as he just wanted to work for the respondent.

12 The selection interview was held and at the conclusion of it, Mr Robinson informed the applicant that he would not be paid overtime for the out of hours work but would receive the benefit of a car bay.  Mr Robinson testified that he did have a further telephone discussion sometime after the interview to tell the applicant he was successful in obtaining the position.  According to Mr Robinson, the applicant was very enthusiastic about commencing work at the respondent.  The applicant testified that whilst he could not specifically recall this telephone conversation, he did not deny that it may have taken place.  Furthermore, during Mr Robinson's period as the General Secretary, the applicant never raised any issue with him as to an entitlement to payment of overtime for out of hours work.

13 Mr Robinson also said that the applicant was the only administration level person within the respondent who was provided with a car bay and it was specifically because of the additional hours requirement to attend council meetings and the like.  He also testified that the incumbent in the applicant's position prior to him, also did not receive overtime payments for additional hours worked.

14 Ms Walkington, the present General Secretary of the respondent, attended the applicant's interview for the appointment in August 1999.  She testified that towards the end of the interview there was some discussion about terms and conditions of appointment for the Executive Officer position.  Ms Walkington said that she recalled Mr Robinson telling the applicant that there would not be overtime payable for out of hours work but however, there would be a car bay allocated to the position without cost, in recognition of this extra work.  Ms Walkington recalled all interviewees being told of this at the time.

15 Some years later, in about 2003 according to Ms Walkington, the applicant approached her and informally queried whether he should be paid overtime for his out of hours duties.  Ms Walkington told the applicant that there was no overtime payable because the car park had been provided instead.  According to Ms Walkington, she requested the applicant to calculate the value of any overtime that would be payable for his additional hours, and compare it to the value of the car bay.  If there was an excess of monetary value of overtime, she would consider whether a variation to the applicant's contract of employment could be made to compensate him further.  The applicant had a further discussion with Ms Walkington and she said he informed her that his employment contract provides for the car park and he wanted in addition his overtime payments.  Ms Walkington testified that in April 2004 following discussions with the applicant about this matter, she agreed to prospectively pay the applicant overtime for out of hours work on an interim basis until his claim was resolved.  She said that she made it clear that this was to be on a without prejudice basis.  Ms Walkington denied that she had by this conduct, conceded the applicant's claim for overtime payments.  She considered that as the Secretary of the union, she should properly investigate the applicant’s claims and what she proposed was a part of maintaining good workplace relations.

16 Ms Walkington also referred to the various policies and agreements applicable to staff of the respondent.  She said that as a general rule, all employees of the respondent are told that overtime is not generally payable for out of hours work but employees may be able to take time off in lieu.  Furthermore, the most recent policy document dealing with overtime and time off in lieu endorsed by the respondent's council, was annexure TW 5 to Ms Walkington's witness statement.  This document refers to the current practice that the respondent does not generally pay overtime or approve time off in lieu, except in extraordinary or unusual circumstances.

17 Ms Walkington also said that when the applicant was on approved leave his replacement is able to use a car parking bay but is not paid for overtime in respect of any work outside of ordinary hours.  Whilst Ms Walkington testified that as the Secretary of the respondent she has a broad discretion to approve such payments, that is the exception to the rule and it would only apply generally where the employee is not otherwise compensated.

18 The other attendee at the applicant's interview for employment was Ms Robertson.  At the time she was the President of the respondent.  Ms Robertson testified that at the interview each candidate was informed of the requirements of the position of Executive Officer, and that they would be required to take meetings of minutes and many such meetings would be held out of working hours.  Ms Robertson confirmed that at the interview, each candidate was informed that a car parking bay would be made available but she could not recall any mention of overtime during the interview.  Ms Robertson also testified that as far as she was aware, car parking bays are normally available to senior officers of the respondent.  This was also the evidence of Ms Walkington and Mr Robinson

Consideration

19 The claim before the Commission is one for an alleged denial of a contractual benefit.  The law as to these matters is well settled.  For an applicant to be successful in such a claim a number of elements must be established.  The claim must relate to an industrial matter pursuant to s 7 of the Act and the claimant must be an employee; the claimed benefit must be a contractual benefit that being a benefit to which there is an entitlement under the applicant's contract of service; the relevant contract must be a contract of service; the benefit claimed must not arise under an award or order of this Commission; and the benefit must have been denied by the employer: Hotcopper Australia Ltd v Saab (2001) 81 WAIG 2704; Ahern v AFTPI (1999) 79 WAIG 1867.  The meaning of “benefit” has been interpreted widely in this jurisdiction: Balfour v Travel Strength Ltd (1980) 60 WAIG 1015; Perth Finishing College Pty Ltd v Watts (1989) 69 WAIG 2307.

20 There is no issue in this matter that at all material times the applicant was an employee of the respondent and was employed subject to a relevant contract of service.  The claim is also one that is clearly an industrial matter for the purposes of s 7 of the Act.  It is also common ground that the applicant's employment was not subject to an award or order of this Commission.

21 The issue to be determined therefore is what were the terms of the applicant's contract of employment with the respondent and, specifically for present purposes, whether it was a term of the contract of employment that the applicant be entitled to the payment of overtime for work performed outside of ordinary hours.  It is only if such a finding is made, on the evidence, that any consideration of a trade-off or substitution of one benefit for another arises.

22 It is also common ground and not in issue that the applicant was entitled, as a term and condition of his employment, to the use of a car parking space. I am also satisfied on the evidence that the provision of car parking spaces is usually restricted only to senior officers of the respondent, and would not generally be made available to a person occupying a position such as the applicant's.  The car parking bay was an express term of the applicant's contract of employment evidenced by the letter of 10 September 1999 from Mr Robinson to the applicant.  This letter of appointment is silent as to the issue of overtime save for reference to “CSA Conditions of Service will apply”.  I am satisfied from this reference in the applicant's letter of appointment that the “CSA Conditions of Service”, whatever they were at the material time, were incorporated by reference into the applicant's contract of employment and formed part of the benefits to which he was entitled.

23 As to any oral terms of the applicant's contract of employment, the applicant's case is that there was no discussion at all in relation to overtime, whereas the respondent’s case was that it was specifically mentioned that overtime was not payable but a car parking bay was provided instead.  Thus, on the evidence, taking the applicant's case at its highest, he must establish his claim on the basis of the content of his letter of appointment dated 10 September 1999, or any subsequent variations to his contract of employment established on the evidence.

24               The meaning of “CSA Conditions of Service” is not made clear in the letter of 10 September 1999.  It seemed to be common ground however that these conditions of service have been reflected over the years in various instruments including unregistered agreements and various resolutions of the respondent's council.  Copies of these documents were annexed to Ms Walkington’s witness statement.  At the time of the commencement of the applicant's employment in September 1999, an unregistered agreement known as the CSA Staff Agreement 1998 appeared to be in place.  This agreement was endorsed by the council of the respondent on 25 November 1998.  The terms of the 1998 Staff Agreement are silent as to overtime payments for employees. 

25                At about the time of the employment of the applicant, it appears that negotiations were being concluded for a new staff agreement, also unregistered, which became the CSA Staff Agreement 1999.  This agreement was endorsed by the council of the respondent on 3 November 1999, shortly after the applicant's employment.  The evidence was and I find that the 1999 agreement was endorsed by a majority of the respondent's employees, and there was no suggestion on the evidence that the applicant took any objection to it.  The 1999 agreement is itself silent as to the question of payment of overtime for working outside of ordinary hours.  However, it refers to the “codification” of terms and conditions of employment for staff of the respondent over the duration of the agreement.  Apparently this process took place and annexed to Ms Walkington’s witness statement was material showing the codification of various terms and conditions of employment, as agreed by the joint unions representing employees of the respondent on 12 April 2000 and ratified by the respondent's council on 24 May 2000.  The particular document dealing with overtime and time off in lieu is described as “C 55/00” and was annexure TW 5 to Ms Walkington's witness statement.  As it is material, the terms of this document are set out in full as follows:

“1. In accordance with current practice, the CPSU/CSA does not generally pay overtime or approve time off in lieu of payment of overtime except in extraordinary or unusual circumstances.

2. From date of commencement of employment, employees appointed to identified positions within the Union are paid an allowance in addition to salary, in accordance with Schedule A Salaries of the CSA Staff Enterprise Bargaining Agreement.

3. For those employees appointed to identified positions in subclause (2) of this clause, any claim for overtime or time off in lieu would have to be in extraordinary or unusual circumstances.

4. In such extraordinary or unusual circumstances, claims for overtime or time off in lieu of payment of overtime, shall have prior written approval of the General Secretary.

5. An employee who has prior approval to take time off in lieu is required to make arrangements with their supervisor to clear such time off in lieu within two months of the overtime being performed.

6. Provided that there is written agreement between the employee and supervisor, time off in lieu of payment for overtime may be accumulated beyond two months from the time the overtime is performed so as to be taken in conjunction with periods of approved leave.

7. In circumstances where the General Secretary has approved payment of overtime and there is no agreement for time off in lieu to be taken in conjunction with periods of approved leave, the employee shall be paid for the overtime worked.”

26 This document is important in a number of respects.  Firstly, par 1 refers to the respondent, as a general practice, not paying overtime or approving time off in lieu except in extraordinary or unusual circumstances.  I pause to note that this statement of policy, formally adopted by the council of the respondent, is entirely consistent with the testimony of both Ms Walkington and Mr Robinson as to the policy and practice of the respondent not to pay overtime for work outside of normal hours.  This is also consistent with the evidence of both Mr Robinson and Ms Walkington as to statements they said they made at the interview with the applicant prior to him commencing employment, and the respondent's practice historically, in relation to compensation for hours of work.

27 It is also clear from the terms of this resolution of the respondent's council that overtime will be paid only in a circumstance which is extraordinary or unusual and secondly, and in any event, only with the express approval of the General Secretary.  There was no evidence before the Commission that at any material time over the course of the applicant's employment, he had the express approval of the General Secretary to be compensated for work outside of ordinary hours by the provision of overtime payments.  I leave aside for present purposes, the agreement said by Ms Walkington to have been reached, whereby the applicant has been so paid pending the determination of his claim by this Commission.

28 However, what is clear in my view is that the working of hours outside of normal hours could not possibly be said, in the applicant's case, to constitute an extraordinary or unusual circumstance.  This is plainly so by reason of the fact that from the terms of the applicant's appointment, both set out in the initial advertisement for the position and discussions at the interview, and the nature of the position itself, as is common ground between the parties, the applicant was regularly required to work outside of normal hours to attend council meetings to take minutes and the like.  In contrast to the terms of par 1 of annexure TW5, in my view, this obligation, in the context of the applicant's employment, could only be reasonably seen as an ordinary and usual incident of his employment with the respondent.

29 I am not therefore satisfied that the applicant has any contractual entitlement to payment for overtime by reason of the CSA Conditions of Service, as incorporated into his contract of employment.

30 The other basis of the applicant's claim was said to arise by reason of the operation of Rule 12(l)(vi) of the respondent's registered rules.  The terms of Rule 12 – Council deal generally with the composition and powers of the Council of the respondent as its governing body.  Specifically, Rule 12(l)(vi), upon which the applicant relied, provides as follows:

“(vi) To appoint any person whose services may be deemed necessary for the carrying out of the purposes of the Association and at any time to suspend or discharge any such person and to fix the remuneration to be paid for that person’s services.

Such persons shall be appointed subject to the same conditions and restrictions as an Officer appointed under the Public Service Act.”

31 Counsel for the applicant submitted that the effect of this rule at the material time was to require the respondent to employ the applicant on terms and conditions of employment applicable to an officer appointed in the public service in accordance with the “Public Service Act”, which should now be read as the Public Sector Management Act 1994.  The submission was that a person so appointed, would be entitled to payments for overtime in accordance with the terms of the Award.  Therefore, this gave rise to a contractual benefit in favour of the applicant.

32 As to this issue, the respondent argued that the terms of Rule 12(l)(vi) of the respondent's rules is insufficiently certain to confer such a benefit on the applicant because of its generality.  It was said that as there are so many industrial instruments applying to persons employed in the public sector, including the Award, many industrial agreements and other forms of industrial instrument, it would be overly complex and unworkable to ascertain what the terms and conditions of appointment should be.  It was also submitted that even if the applicant’s submissions on this point were sound, then at its highest the respondent may have breached its Rules in engaging the applicant as it did, but that of itself does not confer a contractual benefit as claimed.

33 In my opinion the applicant's arguments on this point cannot be sustained.  What in fact and in law were the terms of the applicant's contract of employment with the respondent at the time he commenced employment, and what may be specified as required in the Rules of the respondent, are two different issues.  Whilst the terms of Rule 12(l)(vi) are less than clear, I am not of the view that such a Rule would support a claim for a contractual benefit for an individual employee of the respondent.  What this Rule appears to be directed towards, is to require the council to engage employees on terms and conditions as those applicable to an officer in the public service.  That provision qualifies the general power of appointment set out in the first part of the sub rule.  However, it seems to me that rather than grounding a specific contractual entitlement between the respondent and the employee concerned, the sub rule provides for a mandatory obligation on the council which if not complied with, would constitute a breach of the Rules.

34 If I am wrong in that conclusion, then it seems to me that the only other basis upon which the applicant's claim could be supported by such a provision, is the implication of a term into the contract of employment for the payment of overtime based upon the existence of this obligation on the council at the material time. Terms may be implied into contracts either as a matter of fact or as a matter of law.  Terms to be applied as a matter of fact are required to satisfy certain criteria: BP Refinery (Western Port) Pty Ltd v Shire of Hastings (1977) 16 ALR 363 at 376; Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337.  Terms may be implied by law in relation to certain types of contract or by statute.

35 For a term to be implied in fact, amongst other requirements, the particular term must be capable of clear expression and certainty in its operation.  Secondly, the term which is sought to be implied must be consistent with other express terms of the contract and must not seek to cover ground already dealt with.  In my view, a term could not be implied in the applicant's case, as to payment of overtime, for at least two reasons.  Firstly, given the terms of the sub rule and the myriad of industrial instruments applicable in the public sector, such a term would be insufficiently certain as to its operation.  Secondly, but equally as importantly, it would fly in the face of the CSA Conditions of Service referred to above, which specifies that overtime is not generally payable unless there exists extraordinary or unusual circumstances and the express approval of the General Secretary is sought and obtained.  For the reasons that I have set out above, to imply such a term in the applicant's favour would be contrary to an express term dealing with this issue.

36 I am therefore not satisfied that the applicant has discharged the onus upon him to establish, on the balance of probabilities, the existence of an entitlement to the payment of overtime for hours worked outside of normal hours of work.  Whilst it is not strictly necessary for me to determine the issue, on balance, as to the conflict in the evidence between the witnesses for the applicant and the respondent in relation to discussions prior to and during the interview process for the applicant's employment, I prefer the version of events as outlined by Mr Robinson and Ms Walkington.  That is, it seems to me, given the clear policy position that the respondent has had over the years in relation to overtime, and the restricted availability of car parking bays, it is more likely than not that these matters would have been raised at the time of the initial interview.  This is also entirely consistent with logic and commonsense, that the applicant be provided with a benefit, by way of a car parking bay that an officer of his level would not normally receive, as compensation for and recognition of the requirement to regularly work out of ordinary hours for which overtime is generally not payable.

37               Finally, I do not accept the arguments advanced by the applicant that there was, in some way, an estoppel created by reason of the stance adopted by the respondent in this matter.  I accept the evidence of Ms Walkington that after the applicant initially raised the issue of the payment for overtime, and in an endeavour to maintain sound workplace relations, she agreed on an interim basis from April 2004 to pay the applicant overtime pending the determination of this matter by the Commission.  No estoppel arises either as a consequence of this act or from any stated position of the respondent, prior to this matter being heard and determined by the Commission.  

38 As to the seeking of a declaration by the applicant that he is entitled to a car bay     from the respondent, I am not persuaded that such a declaration should be made. There is no dispute as to this matter and declarations should not be made in these circumstances.

39 Accordingly for the foregoing reasons the application must be dismissed.