WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

PARTIES DANNY MICHAEL PAGODA

CLAIMANT

-v-

Wesley College

RESPONDENT

CORAM INDUSTRIAL MAGISTRATE W.G. TARR

HEARD Friday, 20 October 2006, Wednesday, 24 January 2007, Wednesday, 20 December 2006, Thursday, 25 January 2007, Wednesday, 21 February 2007

DELIVERED Wednesday, 28 February 2007

CLAIM NO. M 89 OF 2006

CITATION NO. 2007 WAIRC 00175

CatchWords Breach of award; scope of award; Resident Master; whether an employee or volunteer; section 114 of the Industrial Relations Act, 1979.

Legislation Industrial Relations Act 1979.

 Independent Schools (Boarding House) Supervisory Staff Award No. A9 of 1990.

Result The Claimant is an employee and the Respondent is in breach of the Award.

Representation  

Claimant Mr M Holler, instructed by WL & KJ Everett, Barristers & Solicitors, appeared for the Claimant.

Respondent Mr M Jenson, instructed by Lavan Legal, Lawyers appeared for the Respondent.

REASONS FOR DECISION

1         The Claimant in these proceedings has brought an action against the Respondent as provided for by section 83(1) of the Industrial Relations Act 1979 (“the Act”).  The allegation is that the Respondent has contravened the provisions of the Independent Schools (Boarding House) Supervisory Staff Award No A9 of 1990 (“the Award”) by not paying the Claimant remuneration.

2         The Respondent is a private independent school which at all material times carried on the business of providing educational services to children of both primary and high school age as either day students or boarders.  The boarding students resided in the boarding house at the Respondent’s school. 

3         It is the Claimant’s evidence that he applied for a position with the Respondent which had been advertised in the West Australian newspaper.  A copy of the advertisement (exhibit A) is set out hereunder:

4         Although the Claimant was not successful with his application he was later offered another position of the same nature and commenced as a Resident Master on 25th January 2001.  From that day he resided in accommodation provided in the boarding house and performed the duties required of him until ceasing his employment with the Respondent on 8 December 2005, after a period of almost 5 years.  The Claimant accepted that he would not receive remuneration but would be provided with his accommodation, meals and laundry services.

5         Soon after commencing with the Respondent the Claimant was provided with a Staff Procedures Handbook (exhibit E), a 25 page document setting out guidelines, policies, protocols, procedures and other information required of a Master on Duty (MOD), as the Resident Master was referred when on duty.  He was also provided with a “MOD Duty Statement, Formal Duty Requirements” (exhibit F1) and a document headed Specific Duty Requirements (exhibit F2).  Both set out, in detail, what was required of an MOD and confirmed or added to the requirements in the handbook.

6         In its response to the claim the Respondent’s reason for opposing the claim is that “the Claimant’s employment does not come within the scope and classification of” the Award.  The Respondent argues that the Claimant was a volunteer not an employee and that an amendment to the Award in 2003 specifically provided that the Award “shall not apply to volunteer tutors and volunteer residential assistants whose role it is to provide management support and to oversee students whilst under supervision, in return for which free board and lodging is provided.”

7         The Scope clauses in the 1991 and 2003 awards are otherwise identical and are as follows:

4. – Scope

This award applies to Independent Schools with boarding houses and their employees who directly supervise or who are responsible for the supervision of, the educational, recreational and personal general welfare of students in or about a boarding house and shall include those supervisory duties outside a boarding house that are from time to time directed by the employer, but shall not include those persons employed as cleaners, caretakers, kitchen and canteen staff, laundry staff, nursing staff, grounds staff, and those employees primarily employed as teachers or to a member of a religious order unless it is so stated in a written contract of employment between that person and the employer.

8         In my view there is no doubt, on the evidence, that the Claimant was employed by the Respondent to directly supervise the educational, recreational and personal general welfare of its students in or about its boarding house and that he performed those duties when directed and required.  He provided a service for reward.

9         The evidence before me is that he generally complied with the Staff Procedures Handbook and carried out the duties in the MOD Duty Statement Formal Duty Requirements and the Specific Duty Requirements.

10      The Respondent in these proceedings is a named Respondent in the Award and an Independent School with a Boarding House.  It is bound by the Award.

11      The Claimant was an employee who carried out the duties of a supervisor as described in the scope clause of the Award and as such is entitled to the benefits and conditions set out in the Award.

12      Section 114 of the Act prohibits the contracting out of any obligations of any award however from the evidence before me there is no suggestion that the parties turned their minds to any contracting out, nor is there evidence before me that the Claimant’s status was changed after the amendment to the scope clause in the 2003 Award, or that he was formally reclassified to the status of volunteer.

13      Although I always have some difficulty with actions of this type where a party accepts the arrangements of their employment for a long time, in this case 5 years, then at the end of the relationship makes a claim for a breach of an award, in this case I must find that the Claimant herein was an employee and the Respondent is in breach of the Award.

14      While I have expressed some concerns in this case the Respondent, as a responsible employer, has an obligation to look after its own interests and ensure that relationships with employees are quite clear and if an award has application it should ensure compliance.

15      I will now hear from the parties on the orders I should make.

W G TARR

Industrial Magistrate