WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES Kevin Higgins

APPLICANT

-v-

Gateway Printing

RESPONDENT

CORAM Commissioner J L Harrison

WRITTEN

SUBMISSIONS TUeSday, 9 march 2010, tuesday, 23 march 2010

DELIVERED friday, 21 may 2010

FILE NO. U 184 OF 2009, B 184 OF 2009

CITATION NO. 2010 WAIRC 00296

Catchwords Industrial Law (WA) - Supplementary Reasons for Decision - Further information and evidence provided - Termination of employment - Harsh, oppressive or unfair dismissal - Commission satisfied respondent is a trading corporation - Claim alleging unfair dismissal beyond Commission's jursidiction - Application alleging unfair dismissal dismissed - Contractual benefits claim - Whether jurisdiction to deal with claim for a national system employee - Impact of National Employment Standards - Claims arise before application date of National Employment Standards - Commission has jurisdiction to deal with a claim for denied contractual benefits against a national system employer - Declaration issued - Industrial Relations Act 1979 s 7, s 27(1)(m) and s 29(1)(b)(ii); Fair Work Act 2009 s 12, s 13, s 14(1)(a), s 26, s 26(1), s 26(2), s 26(2)(e), s 26(3), s 27, s 27(1A), s 27(1)(c), s 27(2) and s 27(2)(o); Commonwealth of Australia Constitution Act s 109

Result Application alleging unfair dismissal dismissed; Contractual benefits claim jurisdiction found

Representation 

Applicant Mr K Higgins on his own behalf by way of written submissions

Respondent Ms J Kruger (as agent) by way of written submissions

Supplementary Reasons for Decision

1         On 23 February 2010 the Commission issued Reasons for Decision in relation to this matter.  The Commission was unable to conclude at the time whether the respondent was a trading corporation for the purposes of the Fair Work Act 2009 (“FW Act”) on the information and evidence submitted by the parties and a further opportunity was given to the respondent to provide certified documentation confirming its contention that Gateway Printing Pty Ltd is the trustee for the R & M Wood Family Trust trading as Gateway Printing and information about the respondent’s trading activities by way of Statutory Declaration.  The Commission also requested that the respondent make submissions about the Commission’s jurisdiction to deal with the denied contractual benefits being claimed by the applicant in application B 184 of 2009 given the terms of s 27 of the FW Act as well as the potential impact of the existence of the National Employment Standards (“the Standards”) on the applicant’s denied contractual benefit claims if the applicant was employed by a national system employer as defined in the FW Act.  After the respondent provided its further submissions and evidence the applicant made a further brief submission in response.

Respondent’s further submissions

2         In its further submissions the respondent reiterated its claim that Gateway Printing Pty Ltd is the trustee of the R & M Wood Family Trust trading as Gateway Printing and this entity was the applicant’s employer.  The respondent provided evidence by way of a Statutory Declaration declared by Rodney Leonard Wood on 5 March 2010 that the R & M Wood Family Trust (ABN 91 510 375 957) (“the Trust”) was created pursuant to a Deed of Settlement (“the Deed”) dated 1 July 1994 and a copy of the Deed was annexed to this Statutory Declaration.  Documentation tendered by the respondent confirms that the initial trustees of the Trust were Rodney Leonard Wood and Mandy Wood (see Clause 1.4 of the Deed) and the Deed was varied on 22 June 2001 whereby Rodney Leonard Wood and Mandy Wood were removed as the trustees of the Trust and replaced by Gateway Printing Pty Ltd as the sole trustee of the Trust pursuant to the terms of a Deed of Variation (see Annexure D to the Statutory Declaration of Rodney Leonard Wood).  Mr Wood also declared that Gateway Printing is registered with the Western Australian Department of Consumer and Employment Protection and Attachment E to his Statutory Declaration is an extract for the trading name “Gateway Printing” recording that the Trust trades as Gateway Printing.  Mr Wood also declared that the Australian Business Number (“ABN”) on the applicant’s group certificate, 91 510 375 957, is the ABN for the trading name Gateway Printing which is owned and operated by Gateway Printing Pty Ltd as trustee for the R & M Wood Family Trust.  The respondent submits that on this basis, the applicant’s employer is Gateway Printing Pty Ltd as trustee for the R & M Wood Family Trust which trades as Gateway Printing.

3         The respondent also submits that Gateway Printing Pty Ltd as trustee for the Trust, which trades as Gateway Printing is a trading corporation as its sole purpose is engaging in the production of printed related material to generate profit.  On this basis the respondent is a constitutional corporation and as a result, a national system employer and its employees, including the applicant, are regulated by the provisions of the FW Act.  The Commission therefore does not have jurisdiction to determine the applicant’s claim of unfair dismissal.

4         The respondent submits that the applicant’s denied contractual benefits claims fall outside the Commission’s jurisdiction as s 26(2) of the FW Act identifies the Industrial Relations Act 1979 (“the IR Act”) as a general State industrial law which is excluded by virtue of s 26(1) of the FW Act and the applicant’s claims do not fall within the definition of a non-excluded matter as provided in s 27(2)(o) of the FW Act because they do not arise under one of the named Acts specified in s 27(1A) of the FW Act.

Applicant’s further submissions

5         The applicant maintains that the respondent’s further submissions fail to provide any evidence that Gateway Printing Pty Ltd as trustee for the Trust, which trades as Gateway Printing was his employer and he stated that he had nothing further to add to his previous submissions.

Findings and conclusions

6         I am satisfied and I find on the basis of the documentation submitted by the respondent by way of the Statutory Declaration made by Mr Wood on 5 March 2010 and the annexures contained therein that Gateway Printing Pty Ltd is the trustee of the R & M Wood Family Trust which trades as Gateway Printing and that Gateway Printing Pty Ltd as trustee for the R & M Wood Family Trust trading as Gateway Printing is therefore the correct name of the applicant’s employer.

7         Pursuant to the Commission’s powers under s 27(1)(m) of the IR Act, which allows the Commission to correct, amend or waive any error, defect or irregularity whether in substance or in form, I will amend the name of the respondent in the Notices of Application with respect to both applications to reflect the correct name of the respondent and I will issue orders that Gateway Printing be deleted as the named respondent in both applications and be substituted with Gateway Printing Pty Ltd as trustee for the R & M Wood Family Trust trading as Gateway Printing (see Rai v Dogrin Pty Ltd [2000] 80 WAIG 1375 and Bridge Shipping Pty Ltd v Grand Shipping SA and Anor [1991] 173 CLR 231).

8         Even though the respondent has not provided detailed evidence about the respondent’s trading activities, on the undisputed information before me I find that the respondent’s main purpose is to trade.  I accept that the respondent engages in the production of printed related material to generate a profit arising out of the activity of commercial printing whereby the respondent employs approximately 11 employees in production, sales and other administrative related areas.

9         When taking into account the terms of s 12, s 13 and s 14(1)(a) of the FW Act I find that the respondent is a trading corporation and the applicant is therefore an employee of a national system employer pursuant to the FW Act and the Commission’s jurisdiction to deal with the applicant’s claim for unfair dismissal is excluded by the terms of s 26 of the FW Act and s 109 of the Commonwealth Constitution.  An order will therefore issue dismissing the applicant’s unfair dismissal application for want of jurisdiction.

Denied contractual benefits

10      The applicant is seeking the following benefits under his contract of employment with the respondent as at 1 September 2009, which was the date the applicant was terminated: one week’s pay in lieu of notice, the balance of 70 hours of accrued annual leave entitlements which was paid to the applicant at termination at the incorrect rate, the balance of 15.20 hours of wages which was paid to the applicant at termination at the incorrect rate and superannuation entitlements with respect to the amounts he is claiming.

11      Section 27 of the FW Act reads as follows:

“27  State and Territory laws that are not excluded by section 26

(1A) Section 26 does not apply to any of the following laws:

(a) the Anti‑Discrimination Act 1977 of New South Wales;

(b) the Equal Opportunity Act 1995 of Victoria;

(c) the Anti‑Discrimination Act 1991 of Queensland;

(d) the Equal Opportunity Act 1984 of Western Australia;

(e) the Equal Opportunity Act 1984 of South Australia;

(f) the Anti‑Discrimination Act 1998 of Tasmania;

(g) the Discrimination Act 1991 of the Australian Capital Territory;

(h) the Anti‑Discrimination Act of the Northern Territory.

(1) Section 26 does not apply to a law of a State or Territory so far as:

(b) the law is prescribed by the regulations as a law to which section 26 does not apply; or

(c) the law deals with any non‑excluded matters; or

(d) the law deals with rights or remedies incidental to:

(i) any law referred to in subsection (1A); or

(ii) any matter dealt with by a law to which paragraph (b) applies; or

(iii) any non‑excluded matters.

Note: Examples of incidental matters covered by paragraph (d) are entry to premises for a purpose connected with workers compensation, occupational health and safety or outworkers.

(2) The non‑excluded matters are as follows:

(a) superannuation;

(b) workers compensation;

(c) occupational health and safety;

(d) matters relating to outworkers (within the ordinary meaning of the term);

(e) child labour;

(f) training arrangements, except in relation to terms and conditions of employment to the extent that those terms and conditions are provided for by the National Employment Standards or may be included in a modern award;

(g) long service leave, except in relation to an employee who is entitled under Division 9 of Part 2‑2 to long service leave;

(h) leave for victims of crime;

(i) attendance for service on a jury, or for emergency service duties;

Note: See also section 112 for employee entitlements in relation to engaging in eligible community service activities.

(j) declaration, prescription or substitution of public holidays, except in relation to the rights and obligations of an employee or employer in relation to public holidays;

(k) the following matters relating to provision of essential services or to situations of emergency:

(i) directions to perform work (including to perform work at a particular time or place, or in a particular way);

(ii) directions not to perform work (including not to perform work at a particular time or place, or in a particular way);

(l) regulation of any of the following:

(i) employee associations;

(ii) employer associations;

(iii) members of employee associations or of employer associations;

(m) workplace surveillance;

(n) business trading hours;

(o) claims for enforcement of contracts of employment, except so far as the law in question provides for a matter to which paragraph 26(2)(e) applies;

(p) any other matters prescribed by the regulations.”

12      I reject the respondent’s submission that the applicant’s claims for denied contractual benefits do not fall within the definition of a non-excluded matter as provided in s 27(2)(o) of the FW Act on the basis that the claims do not fall within one of the Acts contained in s 27(1A) of the FW Act.  It is my view that on a proper reading of s 27 of the FW Act, non-excluded matters set out in s 27(2) are not restricted to the enforcement of a claim under the Acts contained in s 27(1A) as claimed by the respondent.

13      Section 26 of the FW Act sets out a number of State or Territory industrial laws which are excluded by the operation of the FW Act, including at s 26(3) the IR Act which at s 29(1)(b)(ii) allows an employee to lodge an application in the Commission with respect to a claim for denied contractual benefits.

14      Section 27 of the FW Act, which is headed State and Territory laws that are not excluded by s 26, sets out a number of laws and matters that are not excluded by the terms of s 26 of the FW Act.  Section 27(1A) includes eight pieces of legislation relating to equal opportunity and anti discrimination laws in each State and Territory within Australia.  Section 27(1) refers to s 26 of the FW Act not applying to a law of a State or Territory so far as the law deals with any non-excluded matters and s 27(2) describes non-excluded matters, including at s 27(2)(o) claims for enforcement of contracts of employment except for a matter to which s 26(2)(e) of the FW Act applies, which relates to varying or setting aside rights and obligations arising out of a contract of employment that a court or tribunal finds unfair.

15      In my opinion on a proper reading of s 27 of the FW Act as a whole it does not require non-excluded matters to only relate to entitlements relevant to the eight Acts contained in s 27(1A).  Section 26 of the FW Act sets out State laws which do not apply to a national system employer and employee and s 27(1)(c) of the FW Act provides that s 26 does not apply to a law of a State or Territory so far as the law deals with any non-excluded matters and these matters are set out in s 27(2).  I find that given the terms of s 27(1)(c) of the FW Act, combined with s 27(2)(o), and as the Commission is empowered to deal with an employees claim of a denied contractual benefit pursuant to s 29(1)(b)(ii) of the IR Act, that the Commission has jurisdiction to deal with a national system employee’s claim for denied contractual benefits against a national system employer if what is being sought is a claim for enforcement of a contract of employment which does not relate to varying or setting aside rights and obligations arising out of a contract of employment that a court or tribunal finds unfair.

16      For an applicant to be successful in a denied contractual benefit claim in the Commission a number of elements must be established.  The claim must relate to an industrial matter pursuant to s 7 of the IR 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 David Saab (2001) 81 WAIG 2704; Ahern v Australian Federation of Totally and Permanently Incapacitated Ex-Service Men and Women (WA Branch Inc) (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.

17      I find that the Commission is not precluded from dealing with all of the entitlements being claimed by the applicant.  There is no issue in this matter and I find that at all material times the applicant was an employee of the respondent and was employed under a contract of service.  I find that these claims are also industrial matters for the purposes of s 7 of the IR Act as they relate to payments the applicant claims are due to him arising out of his employment with the respondent.  On the information currently before me I am unable to conclude that the benefits the applicant is claiming arise under an award or order of this Commission.

18      As the Standards were operative from 1 January 2010 and the applicant’s denied contractual benefits arose as at 1 September 2009 their existence does not preclude the Commission from dealing with the applicant’s claims.

19      I will therefore issue a declaration that the Commission has jurisdiction to deal with the applicant’s claims for denied contractual benefits.