Industrial Magistrates Court of Western Australia

Pre-trial conferences (PTC) are compulsory, private meetings between parties, facilitated by a Clerk of the Court. They give parties an opportunity to discuss and settle the case. The respondents allege that, on 20 June 2024 they reached a binding settlement agreement (BSA) with the claimant and sought to enforce it. The claimant denied a binding agreement between the parties was reached, and the following was put to the Industrial Magistrate as a preliminary issue:

(a) On 20 June 2024 at a PTC, did the parties reach a BSA with immediate effect?

(b) If a BSA with immediate effect was reached, what were the terms of the BSA? 

(c) If a BSA with immediate effect was reached, was it enforceable or void? 

(d) What is the effect of the determinations or outcomes of the issues in (a), (b) and (c) above on the claimant’s claim?

The preliminary issue was heard in June 2025. The respondents bore the burden of proving the preliminary issue on the balance of probabilities. Each named party at the time of the PTC, and the claimant’s lawyer at the time, gave evidence about what occurred during, and after the PTC.  

The Industrial Magistrate adopted principles approved by the Victorian Court of Appeal in Sully v Englisch [2022] VSCA 184. Whether a BSA exists is determined objectively, having regard to the parties’ intentions. Whether parties intend to form an agreement is a question of fact, determined in light of all the surrounding circumstances.

After recounting each witness’s evidence, the Industrial Magistrate found that the that a BSA was reached at the PTC. 

The PTC lasted over three hours. First, the Clerk addressed the parties in a joint session on the purposes of PTCs, and there was an exchange between each party’s lawyers about the claim and response. After this, the parties split into private sessions and the Clerk shuttled between each room to convey settlement offers and counteroffers. The claimant’s evidence of what occurred during the private sessions differed from his former lawyer’s, and the respondents’. While the claimant argued that his lawyer did not leave their private session room, each respondent and the claimant’s former lawyer gave consistent evidence that the lawyer entered the respondents’ private session room and conveyed the claimant’s acceptance of their offer. There was no evidence that the claimant’s lawyer did not have authority, or acted outside their instructions, when conveying the claimant’s acceptance. The evidence given by the claimant’s former lawyer was not challenged and they were not cross-examined at the hearing.  

The BSA’s terms required the respondent to make a monetary payment to the claimant. After which, the claimant was required to discontinue the claim. This and other ancillary terms (which were also discussed at the PTC) would then be reduced to a written deed of settlement to be produced by the respondent’s lawyers and provided to the claimant’s representative to be confirmed and executed. Based on the evidence, these ancillary terms were uncontroversial, and included such terms like full and final settlement, non-disparagement and confidentiality. 

The Industrial Magistrate held that a reasonable person observing the PTC would have concluded that the parties entered into a binding agreement. As the claimant accepted the respondents’ offer, the BSA remained enforceable. Having determined the first three parts of the preliminary issue, the Industrial Magistrate held that the claimant was precluded from prosecuting the claim. 

The full decision can be read here.  

The claimant, who worked as a Chef de Partie at Fiona Stanley Hospital (FSH) for just under 10 years, brought a claim to the Industrial Magistrates Court (Court) alleging a contravention of the Long Service Leave Act 1958 (WA) (LSL Act). The claimant claimed that at the end of her employment she was entitled to a payment for untaken long service leave in the amount of $14,171.45. The claimant also sought interest on judgment, an order for a pecuniary penalty, and costs.

Initially, the claimant was employed by Serco Australia Pty Ltd (Serco) for approximately seven years commencing in September 2014, then from August 2021 she was employed by the respondent, South Metropolitan Health Service as Agent for the State of Western Australia (SMHS) until she resigned in May 2024. Her role with FSH was the same under both employers, and both parties agreed that the WA Health System – HSUWA – PACTS Industrial Agreement 2022 (HSUWA Pacts Agreement 2022) applied to the claimant’s employment. 

The claimant argued that, as provided under the LSL Act, she was entitled to a pro-rata payment on termination of her employment in lieu of taking long service leave as she claimed she had performed at least 7 years of continuous service. From the claimant’s perspective, her employment with Serco and the SMHS was continuous service for the purposes of the LSL Act and its transmission of business provisions. 

The respondent denied this claim, asserting that, by operation of section 4A(4) of the LSL Act, the claimant is not entitled to long service leave under the LSL Act because the HSUWA Pacts Agreement 2022 provided for her long service leave entitlement. Under the HSUWA Pacts Agreement 2022, accrued and untaken long service leave is payable after 10 years of continuous service.  Further, the respondent held the position that even if the LSL Act applied when her employment ended, the claimant’s service to FSH did not meet the continuous service and transmission of business provisions of the LSL Act and her employment period with SMHS was less than 7 years.

The central issue the Industrial Magistrate had to determine was whether the LSL Act applied to the claimant, and specifically how section 4A(4) should be interpreted. Section 4A(4) of the LSL Act provides that the LSL Act does not apply to an employee who has a separate entitlement to take long service leave or be paid on termination that is at least equivalent to the entitlement under the LSL Act. The Industrial Magistrate had to compare the long service leave entitlement provided by the LSL Act against the entitlement provided under the HSUWA Pacts Agreement 2022 to evaluate if the agreement provided at least equivalent long service leave.

The parties held opposing views as to how the Court should approach this comparison of the two instruments and their respective entitlements. The claimant argued that section 4A(4) of the LSL Act compromises two composite parts to be compared, the entitlement to take long service leave and the entitlement to be paid on termination for long service accrued but not taken. The respondent argued that the LSL Act should not be interpreted to provide for two separate entitlements but rather one comprehensive benefit is defined by the LSL Act and that one benefit should be ‘globally’ evaluated against the benefit provided for under the HSUWA Pacts Agreement 2022.

The Industrial Magistrate examined and applied the principles of statutory construction and determined that section 4A(4) of the LSL Act does not require a comparison of the component parts making up a long service leave entitlement.  Ultimately, the Industrial Magistrate found that the HSUWA Pacts Agreement 2022 provides for an entitlement to long service leave that is overall more favourable than the entitlement under the LSL Act. As such, the LSL Act was found not to apply to the claimant and consequently the Industrial Magistrate dismissed the claim. The full reasons for decision can be read here. 

The Industrial Magistrates Court (IMC) found that ARC Holdings (WA) Pty Ltd (first respondent; ARC Holdings) and its sole director (second respondent) deliberately failed to comply with a compliance notice issued by an industrial inspector at the Department of Energy, Mines, Industry Regulation and Safety (the Department). The industrial inspector issued the compliance notice on 8 May 2023 to ARC Holdings (the Compliance Notice) and required ARC Holdings to pay $9,345.21 to a former employee for unpaid pro rata long service leave and provide evidence to the Department of the payment by 6 June 2023. ARC Holdings did not make the payment until September 2024, well after the deadline, and also did not provide evidence of that payment to the Department.

The claimant, another industrial inspector at the Department, brought the claim under sections 83E(1) and 84T(2) of the Industrial Relations Act 1979 (WA) (IR Act) and sought penalties for the following alleged contraventions:

• the first respondent breached section 84T(1) of the IR Act, which requires compliance with a compliance notice; and
• the second respondent was a person knowingly involved in the first respondent’s contravening actions.

ARC Holdings admitted it failed to comply with the Compliance Notice but the respondents maintained that their non-compliance was not deliberate and that they had engaged with the Compliance Notice by seeking a review pursuant to section 84U(1)(a) of the IR Act at the IMC (see [2023 WAIRC 00991]) and then appealing that decision to the Full Bench of the Western Australian Industrial Relations Commission (see [2024 WAIRC 00247]). Ultimately, both of these matters were dismissed and the Compliance Notice was confirmed. 

The respondents also sought to engage the ‘reasonable excuse’ provision set out in section 84T(3) of the IR Act and submitted that while the IR Act does not define the term ‘reasonable excuse’, it is intended to be a potential defence for a non-complying employer. The respondents contended they had a reasonable excuse for not complying with the Compliance Notice. In addition to the period of time impacted by the review and appeal matters, during June to August of 2024, the claimant did not respond to the respondents’ requests to confirm electronic funds transfer details and as such, the respondents could not make the payment. The claimant argued that the obligation to comply with the Compliance Notice arose on 6 June 2023 and the respondents' evidence of events since that date could not serve as a reasonable excuse as the reasonable excuse must have existed at that time to be a valid defence.

The Industrial Magistrate found that the respondents were aware of the need to obtain a stay of the Compliance Notice's operation but did not produce any evidence to explain why they had not complied with the Compliance Notice or pursued a stay of its operation following the review decision being delivered on 22 December 2023 and then following the dismissal of the Full Bench appeal on 28 May 2024. The Industrial Magistrate noted that the Compliance Notice clearly stated the bank details for the payment, and the respondents did not provide any evidence of their inability to make the payment to the specified bank account. Further, the respondents did not provide any evidence that ARC Holdings had complied with the second step in the process, that is to provide evidence of the required payment to the Department. The Industrial Magistrate found that the respondents did not establish a reasonable excuse for not complying with the Compliance Notice.

The Industrial Magistrate determined that ARC Holdings' non-compliance was deliberate and that the second respondent was involved in the contravention. As a result, the Industrial Magistrate imposed penalties of $15,000 on ARC Holdings and $3,000 on the second respondent, citing the need for both specific and general deterrence to ensure compliance with industrial laws, to reinforce the significance of adhering to compliance notices and to deter similar conduct by others in the future. The full decision can be read here.