2018 WAIRC 00886
WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT


CITATION : 2018 WAIRC 00886

CORAM
: INDUSTRIAL MAGISTRATE M. FLYNN

HEARD
:
WEDNESDAY, 18 APRIL 2018, THURSDAY, 19 APRIL 2018, ON THE PAPERS

DELIVERED : WEDNESDAY, 12 DECEMBER 2018

FILE NO. : M 111 OF 2016

BETWEEN
:
ANTONINO STAGNITTA
CLAIMANT

AND

BECHTEL CONSTRUCTION (AUSTRALIA) PTY LTD
RESPONDENT

CatchWords : INDUSTRIAL LAW – Construction of enterprise agreement - Entitlement to 'tradespersons allowance' – Jurisdiction of Industrial Magistrates Court to determine contractual claim for a tradespersons allowance and to apply equitable doctrine of rectification in a contractual claim – Meaning of 'under the Act' as it appears in section 545(3) of the Fair Work Act 2009 (Cth) - ‘Safety net contractual entitlement’
Legislation : Fair Work Act 2009 (Cth)
Electricity Licensing Regulations 1991 (WA)
Industrial Relations Act 1979 (WA)
Evidence Act 1906 (WA)
Fair Work Act 1994 (SA)
Industrial Magistrates Courts (General Jurisdiction) Regulations 2005 (WA)
Judiciary Act 1903 (Cth)
Instrument : Bechtel Construction (Australia) Pty Ltd Wheatstone Project Agreement 2013
John Holland Pty Ltd Wheatstone Project Agreement 2012
CBI Constructors Pty Ltd – AMWU – Gorgon Project – Barrow Island Greenfields Agreement 2010
Case(s) referred to
in reasons : Sharrock v Downer EDI Mining Pty Ltd [2018] WAIRC 377
Qube Ports Pty Ltd v Maritime Union of Australia [2018] FCAFC 72
Re Harrison; Ex Parte Hames [2015] WASC 247
RCR Tomlinson Ltd v Russell [2015] WASCA 154
Gayle Balding, Workplace Ombudsman v Liquid Engineering 2003 Pty Ltd [2008] WAIRComm 350
Cuzzin Pty Ltd v Grnja [2014] SAIRC 36
Jones v Dunkel (1959) 101 CLR 298
Australian Education Union v State of Victoria (Department of Education and Early Childhood Development) (2015) 255 IR 341
BHP Billiton Iron Ore v The National Competition Council [2007] FCAFC 157
Nezovic & Anor v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1263
Association of Professional Engineers, Scientists and Managers, Australia v Wollongong Coal Limited [2014] FCA 878
Perera v Playkidz Enterprises Pty Ltd [2016] FCCA 2478
Ultrarad Pty Ltd v Health Insurance Commission [2005] FCA 816
Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52
Taylor v Johnson [1983] HCA 5
Result : Judgment for the respondent
REPRESENTATION:

CLAIMANT : MS K. PEDERSEN OF QUAYSIDE CHAMBERS AS INSTRUCTED BY FOGLIANI LAWYER
RESPONDENT : MR R. WADE AS INSTRUCTED BY ASHURST AUSTRALIA

REASONS FOR DECISION
Introduction
1 The claimant (Mr Stagnitta) is a qualified fitter and turner.1 He worked for the respondent (the Company) as a pipe fitter on a remote site (known as ‘the Wheatstone Project’) between 11 June 2015 and 9 October 2016. His employment was subject to a contract of employment (the Employment Contract). There is a dispute about the terms of the Employment Contract. Mr Stagnitta says that the terms are found in one or other of identical written offers of employment from the Company and signed by him, respectively, on 27 May 2015 (First Offer Letter) and 29 May 2015 (Second Offer Letter). Those letters provide for Mr Stagnitta to be paid a tradespersons allowance of $1.97 per hour. The Company says that the terms are found in a written offer of employment from the Company and alleged to have been signed by Mr Stagnitta on 11 June 2015 (Third Offer Letter). This letter states that a tradesperson allowance was not applicable to Mr Stagnitta. Alternatively (and following Mr Stagnitta denying that he signed the Third Offer Letter), the Company says that the terms are found in the Second Offer Letter subject to the equitable remedy of rectification, resulting in an employment contract that does not provide for payment of a tradesperson allowance. Mr Stagnitta’s employment was also regulated by an enterprise agreement made under the Fair Work Act 2009 (Cth) (FW Act), namely the Bechtel Construction (Australia) Pty Ltd Wheatstone Project Agreement 2013 (the Agreement). The Agreement makes provision for a tradesperson’s allowance of $1.97 per hour payable to an employee who is engaged at ‘Tradesperson level’ and who has a trade qualification and who is required to perform the full range of duties of a tradesperson.2 Mr Stagnitta was not paid a tradespersons allowance. The Company view, expressed in a letter to Mr Stagnitta dated 31 August 2015, was that a pipe fitter was not entitled to a tradesperson’s allowance under the Agreement and that the Employment Contract did not provide for him to be paid a tradespersons allowance. Two issues arise for my determination.
2 First, it will be necessary determine whether, on the proper construction of the Agreement, Mr Stagnitta was entitled to the tradesperson allowance.3 For the reasons set out below under the heading, ‘Issue 1: Enterprise Agreement Claim: Entitlement to a Tradespersons Allowance’, I conclude that the failure of the Company to pay the tradesperson allowance to Mr Stagnitta was not a contravention of cl 10 of Appendix 2 of the Agreement.
3 Secondly (and alternatively), it will be necessary to resolve the dispute about the content of the terms of the Employment Contract. It will also be necessary to address jurisdictional objections raised by each party regarding the Employment Contract. The Company, relying upon observations in Sharrock v Downer EDI Mining Pty Ltd [2018] WAIRC 377 on the proper construction of s 323(1) of the FW Act, contends that this court does not have jurisdiction to order payment of any amount owed to Mr Stagnitta by reason only of a breach of the Employment Contract. Mr Stagnitta maintains that this court has jurisdiction to make the orders sought. However, he disputes that this court has jurisdiction to entertain the equitable doctrine of rectification raised by the Company. For the reasons set out below under the headings, ‘Issue 2(a) Employment Contract Claim: Jurisdictional Issues’ and ‘Issue 2(b) Employment Contract Claim: the Merits’, I conclude that this court has jurisdiction to determine the claim by Mr Stagnitta based upon the Employment Contract. However, I also conclude that the Company has satisfied me that the doctrine of rectification is to be applied with the result that Mr Stagnitta is not entitled to payment of a tradesperson allowance under the Employment Contract.
4 My findings of fact relevant to determining the issues in this claim is undertaken below.
The Facts
5 The basis for my findings of fact are:
(1) The statement of agreed facts (exhibit 1);
(2) The contents of the ‘Consolidated Exhibit Book’ relating to the claim (exhibit 2);
(3) The affidavit of Mr Stagnitta sworn 19 June 2017 (exhibit 4) and his evidence at trial4;
(4) The affidavit of Ms Tracy Quick, an administrative officer employed by the Company, sworn 11 August 2017 (exhibit 9) and her evidence at trial; 5
(5) The affidavit of Mr Leigh Cocks, (at the relevant time) a piping superintendent employed by the Company, sworn 5 August 2017 (exhibit 13) and his evidence at trial; 6
(6) The affidavits of Mr Daniel Lee sworn 21 November 20177 (exhibit 11) and Mr Warren Edwards sworn 21 November 20178 (exhibit 7).
6 In a schedule to these reasons I address the issue of the application of rules of evidence to these proceedings and give my rulings on objections made to the admissibility of certain evidence of Mr Stagnitta, Ms Quick and Mr Cocks.
7 In the construction industry the term ‘tradesperson’ is applied to a list of occupations for which there exist uniformly recognised qualifications, including completion of an apprenticeship (a Recognised Tradesperson). Examples of Recognised Tradespersons include: plumbers, carpenters, boilermakers, fitters, machinists, fitter/machinists, fitter & turners and mechanical fitters.9 Mr Stagnitta, a qualified fitter and turner, is a Recognised Tradesperson.
8 In the period 2014 to 2016, Ms Quick was one of a small team of three-four staff who was involved in recruiting construction employees to work for the Company on the Wheatstone Project. Her duties included administering the employment of pipe fitters. Ms Quick gave evidence, not contradicted and which I accept, of her beliefs of the Company’s position on the entitlement of a pipe fitter to a tradesperson allowance under the Agreement. The Company position, until the middle of 2014, was that a pipe fitter was not entitled to a tradespersons allowance. In the second half of 2014, the Company position changed with the result that a tradespersons allowance was paid if (and only if) a pipe fitter held a qualification of the level, ‘Certificate III in Engineering-Fabrication Trade’. Mr Stagnitta has never held this particular qualification.
9 On 1 April 2015, some months after Mr Stagnitta used the web site of the Company to submit a registration of interest in working for the Company, Ms Quick and Mr Stagnitta had a telephone conversation about the prospects of Mr Stagnitta working for the Company as a pipe fitter.10 There is a dispute about the content of the conversation. Ms Quick gave evidence that this conversation included a discussion about whether Mr Stagnitta would be paid a tradesperson allowance. Her evidence was that she made it clear to Mr Stagnitta that, notwithstanding his qualifications as a fitter and turner, the Company’s position was that he was not entitled to a tradespersons allowance when working as a pipefitter because he did not possess a Certificate III in Engineering-Fabrication Trade.11 Mr Stagnitta’s evidence was that he was never informed of the Company’s position on the payment of a tradesperson allowance to a pipefitter, either in this conversation or any subsequent conversation.12 For reasons set out below in the last paragraph of this section, I am satisfied that Ms Quick’s evidence on the content of this conversation is accurate and is to be preferred over the evidence of Mr Stagnitta.
10 Mr Stagnitta forwarded to the Company, immediately after his conversation with Ms Quick on 1 April 2015, copies of documents relevant to his application to work for the Company. Under cover of an email from Mr Stagnitta stating that he ‘would like to apply for the position as a Mechanical Fitter, Pipefitter, or Hydrotester for any upcoming work’, he included including a copy of a trade course certificate stating he had completed a fitting and turning trade course in 1979.13 Under cover of another email on the same day, Mr Stagnitta stated, ‘Here is a list of my references for my pipefitting application’.
11 On 22 April 2015, Mr Stagnitta was interviewed for a position as a pipe fitter with the Company. The interview was by way of a three-way telephone conversation between Ms Quick, Mr Corey Van Wyngaarden (a piping superintendent of the Company at the Wheatstone Project) and Mr Stagnitta. There is a dispute about the content of the conversation. Ms Quick states that she heard Mr Van Wyngaarden explain to Mr Stagnitta that the Company’s view was that he was not entitled to a tradespersons allowance because he did not possess a Certificate III in Engineering-Fabrication Trade and that she heard Mr Stagnitta indicate that he understood and agreed to abide by the Company’s position.14 Mr Stagnitta’s evidence was there was no discussion of entitlements.15 Ms Quick kept notes of the conversation by completion of a template ‘Workforce Interview Guide’. However, the document does not make reference to any conversation about the tradesperson allowance. The Company did not call Mr Van Wyngaarden to give evidence. This omission was not explained. I infer that his evidence would not have assisted the case for the Company.16 I am unable to make a finding that Ms Quick’s evidence on the content of the conversation is to be preferred over the evidence of Mr Stagnitta. To be clear, I am also not positively satisfied as to the account of Mr Stagnitta. It is implausible that a job interview would not include some mention of remuneration. I am unable to make a finding on what, if anything, was said during this telephone conversation about payment of tradespersons allowance.
12 In mid May 2015, Mr Stagnitta successfully completed a pre-employment medical assessment and ‘verification of competency test’ to verify that he possessed the skills necessary for the position of pipe fitter.
13 On 27 May 2015, Ms Quick telephoned Mr Stagnitta to inform him that his application to work for the Company was successful and to offer a position as a pipe fitter.17 Ms Quick does not recall the conversation other than to state her usual practice was to ‘run through a script’ document in front of her, including making reference to eligibility (or not) of the new employee to a tradespersons allowance.18 Mr Stagnitta does not refer to this telephone call in his evidence.19 The ‘offer script’ is in evidence and does not identify who is entitled to a tradespersons allowance other than re-state the relevant words of the Agreement, i.e. engaged at ‘Tradesperson level’ and who has a trade qualification and who is required to perform the full range of duties of a tradesperson.20 I accept that Ms Quick understood the Company position to be that this clause would result in Mr Stagnitta not being paid the allowance. However, given the equivocal content of her ‘script’, I cannot be satisfied of anything specific being said to Mr Stagnitta as to his entitlement to a tradesperson’s allowance during this conversation.
14 On 28 May 2015, Ms Quick sent the First Offer Letter by email to Mr Stagnitta. The First Offer Letter:
· contained an offer of employment to Mr Stagnitta as a ‘Fulltime Pipefitter Trade Qualified’;
· stated that ‘employment conditions will be in accordance with the’ Agreement;
· stated that wages and allowances applicable to Mr Stagnitta’s classification were to be paid in accordance with the Agreement; and
· stated that wages and allowances applicable to Mr Stagnitta’s classification were to be paid in accordance with the Agreement.
15 The letter included a table with rows for each payment type and an adjacent column of an amount payable ‘Upon Commencement’. For example, the payment type of ‘Wage payment per hour’ appears in a row with the amount $47.27 in the adjacent column. Relevantly, the payment type of ‘Tradespersons Allowance per hour’ appears in the fourth row with the amount $1.97 in the adjacent column. Mr Stagnitta signed the First Offer Letter, indicating his acceptance of that offer.
16 On 29 May 2015, Ms Quick initiated a telephone call to Mr Stagnitta. I am satisfied that the motivation for her telephone call was the discovery by Ms Quick that the content of the First Letter Offer sent on the previous day did not reflect the position of the Company that a tradespersons allowance was not payable to a pipe fitter. She was resilient in cross-examination on the reliability of her evidence on this issue. There is a dispute about the content of the conversation. Ms Quick gave evidence of informing Mr Stagnitta that the First Offer Letter incorrectly stated that a tradespersons allowance would be paid to him and that a revised offer would be sent to him.21 Ms Quick stated that Mr Stagnitta responded with words to the effect that he accepted that there had been an error and that he would accept the Company offer of employment without the tradesperson allowance being paid. Mr Stagnitta gave evidence of Ms Quick, without explanation, telling him to ignore the First Offer Letter; she was going to send an amended offer.22 For reasons set out below in the last paragraph of this section, I am satisfied that Ms Quick’s evidence on the content of this conversation is accurate and is to be preferred over the evidence of Mr Stagnitta.
17 After her telephone conversation, Ms Quick attached the Second Offer Letter to an email to Mr Stagnitta. The email of 29 May 2015 stated, ‘Revised Letter of Offer attached as discussed.’ Ms Quick intended the Second Offer Letter to be an amended version of the First Offer Letter, omitting reference to a pipefitter being a ‘trade’ and omitting reference to an entitlement to a tradespersons allowance.23 However, in error, the Second Offer Letter was identical to the First Offer Letter. Soon after receipt, Mr Stagnitta signed the Second Offer Letter, incorrectly recording the signed date as 27 May 2015, and sent the signed offer to the Company. The date of signing must have been on or after the date that Ms Quick sent the Second Offer Letter which was 29 May 2015. Ms Quick did not become aware of the error until after this claim had been filed in this court.
18 On 11 June 2015, Mr Stagnitta attended the Company premises in Kewdale to complete his induction as a new employee. Among a group of 13 new employees of the Company, Mr Stagnitta signed documents presented to him in a ‘payroll pack’. It is agreed that the payroll pack included payroll, taxation and superannuation records.24 There is a dispute about whether the payroll pack included the Third Offer Letter and whether that letter was signed by Mr Stagnitta during the induction. The Third Offer Letter was identical to the First Offer Letter except omitting reference to a pipefitter being a ‘trade’ and explicitly stating that Mr Stagnitta was not entitled to a tradespersons allowance. Ms Quick stated that the usual practice of the Company was to include in the payroll pack a copy of an employee’s (most recent) offer letter for re-signature and for her to sight each employee’s signed documents, including the offer letter, at the end of the induction session.25 Ms Quick produced, from the Company records, the signed documents from the payroll pack, including the Third Offer Letter apparently signed by Mr Stagnitta, albeit dated 10 June 2015.26 Mr Stagnitta stated that he had no recollection of sighting or signing the Third Offer Letter during the induction session.27 For the reasons stated in the following paragraph: I am satisfied that Mr Stagnitta signed the Third Offer Letter during the induction session; and I am not satisfied that Mr Stagnitta read the document or was given an adequate opportunity to consider the contents of the document prior to being asked to sign it.
19 Ms Quick gives plausible and uncontradicted evidence of the following events and I am satisfied as to the reliability of her evidence in this regard:
· creating the Third Offer Letter after her telephone conversation with Mr Stagnitta on 29 May 2019;
· saving the Third Offer Letter in the Company records;
· mistakenly sending the Second Offer Letter to Mr Stagnitta on 29 May 2019;
· the Company practice of including an employee offer letter in each induction payroll pack for the purpose of updating Company records with an offer letter containing a ‘wet signature’ of each new employee;
· attending the induction session of Mr Stagnitta;
· her practice of checking that each employee signed all documents in the each payroll pack, including each offer letter; and
· having no recollection of Mr Stagnitta omitting to sign any document included in his payroll pack.28
20 Mr Stagnitta agreed that the Third Letter Offer in the Consolidated Exhibit Book29 contained a signature that was the same as his own signature. It is implausible that an unknown third party has forged the signature of Mr Stagnitta. I am satisfied that Mr Stagnitta signed the Third Offer Letter during the induction session on 11 June 2015, mistakenly recording the date as 10 June 2015. The payroll pack contained payroll, taxation and superannuation documents in addition to the Third Offer Letter.30 The pack was presented to Mr Stagnitta at the commencement of a ‘signing’ session early on the induction day of the 11 June 2015. He was expected to sign the documents and move on to the next session. There is no evidence on the time available to Mr Stagnitta to consider the contents of the pack before he was expected to attend the following session. Mr Stagnitta did not initial each page of the Third Letter Offer. I would not infer that Mr Stagnitta was given an opportunity to read the contents of the pack. Mr Stagnitta may, truthfully, not have recalled sighting and signing the Third Offer Letter because it was one of a number of documents that he signed at the same time.
21 On 11 June 2015, Mr Stagnitta commenced work for the Company as a pipe fitter. Given the references in the three offer letters to the Agreement and particularly to the ‘Pipe Fitter’ classification and the Tradespersons Allowance, it is convenient to set out the text of cl 9(1) of the Agreement on Wage Rates and cl 10 of Appendix 2 of the Agreement on Special Allowances (the Tradesperson Allowance Clause):
9 WAGE RATES
WAGE AND CLASSIFICATION STRUCTURE
(1) The classification structure in this Agreement is set out below. Indicative tasks undertaken by various levels within the classification structure is described in detail in Appendix 1 Classification Structure of this Agreement.
Employees must be prepared to perform all tasks as required of their classification level or any lower level for which they have the required skills and competence provided that the intention of this provision is not to promote the de-skilling of classifications, but to recognise and make use of the full range of skills and competence held by the workforce.
Employees covered by this Agreement shall be classified at a level as specified by this clause and Appendix 1 based on their skills, qualifications, experience, competency and training provided that the Company has the need for such skill and competence. Each Employee's classification level will be specified in their letter of appointment. Employees may be required to carry out work either individually or as part of a work group. Employees are responsible for carrying out work in a safe manner and for the quality of their work. Employees at all levels shall carry out all duties which are:
(a) incidental or peripheral or ancillary to their main tasks or functions, and/or
(b) within their skill, competence and training, and/or
(c) routine functions.
An Employee, engaged in writing, for more than two hours, during one day on duties carrying a higher rate than the Employee's Ordinary Classification, shall be paid the higher rate for the whole day. Otherwise the employee shall be paid the higher rate for the time so worked
The following are the minimum hourly wage rates payable to Employees for working Ordinary Hours under the classifications described. Civil/Structural classifications are described in Appendix 1 - Classification Structure of this Agreement.
…
CIVIL/STRUCTURAL
…
TRADE & TECHNICAL CLASSIFICATIONS

$ from commencement
..
…
Extra Low Voltage Installer/Communication Technician
39.20


Welder
Pipe Fitter
Boilermaker
Mechanical Fitter
Carpenter
Painter
Refractory Tradesperson
Sheetmetal Worker (1st class)
Sprinkler Plumber
Communications Tradesperson
Tradesperson - other
40.84


…
Licensed Plumber
Welder Special Class
Mechanical Tradesperson Special Class
42.88


…
Instrument Tradesperson
…
44.92


Electronics Tradesperson
46.97


CRANE CLASSIFICATIONS
…
APPENDIX 2: SPECIAL ALLOWANCES
…
TRADESPERSON ALLOWANCE
(10) An employee who is engaged at Tradesperson level or higher, holding a current tradesperson certificate or tradespersons rights recognition who is required to perform the full range of duties of a Tradesperson, shall be paid an hourly all purpose allowance in accordance with the table below:
…
22 Mr Stagnitta was not paid a tradespersons allowance. In August 2015, he complained in writing that he was not being paid the tradespersons allowance and specifically adverted to the content of the First Offer Letter and the Second Offer Letter.31 The Company’s reply, by letter dated 31 August 2015 from project superintendent, Mr George Kerr, was to the effect that he had twice been informed that he had not entitlement to the allowance: adverting to Ms Quick’s version of the telephone conversation with Mr Stagnitta of 29 May 2015 (outlined above) and also to the Second Offer Letter, incorrectly assuming that the First Offer Letter had been amended.32 Mr Stagnitta did not reply to the letter, plausibly explaining in cross-examination that he determined to ask his union to pursue the issue on his behalf.33 In the period November 2015 to January 2016, Mr Stagnitta raised with Mr Leigh Cocks, a piping superintendent with responsibility for supervision of Mr Stagnitta, his concern about the non-payment of the tradesperson allowance. Mr Cocks considered and discussed the issue with other supervisors. There was no resolution of Mr Stagnitta’s complaint until, on 10 October 2016, he was re-classified and commenced a new role as a mechanical fitter.
23 Mr Stagnitta’s work as a pipe fitter between 11 June 2015 and 9 October 2016 required him to undertake the full range of duties of a pipe fitter, including, with respect to pipes: cutting, preparing for welding, grinding, sanding, aligning, measuring, cleaning and hand facing and reading drawings. He was also required, occasionally and incidental to his work as a pipefitter, to perform other duties: bolt up flanges and valves, bolt pipe spools and (as one of a team) certain high-tension work. Mr Stagnitta’s training and experience as a fitter and turner was relevant and helpful to his work as a pipe fitter.
24 The duties performed by a pipe fitter require skill and expertise. However, a pipe fitter is not a Recognised Tradesperson; a pipe fitter is not within the list of occupations for which exist uniformly recognised qualifications recognised in the construction industry. In the construction industry, the position of pipe fitter is filled by any person with the necessary skills and expertise. It is not necessary for a pipe fitter to be a Recognised Tradesperson. However, a pipe fitter may, in addition to having the skill and expertise necessary to be a pipe fitter, also be a Recognised Tradesperson. In fact, many persons working for the Company as a pipe fitter were also a Recognised Tradesperson, having a qualification such as boilermaker, plumber or a fitter and turner. The same observations may also be made of a ‘Welder’. A welder is not a Recognised Tradesperson. The position is filled by any person with the necessary skills and expertise. A welder may, in addition to having the skill and expertise necessary to be a welder, also be a Recognised Tradesperson.
25 A mechanical fitter is a Recognised Tradesperson. On the Wheatstone Project, mechanical fitters regularly work alongside pipe fitters. Certain specialised tasks must be undertaken by a mechanical fitter and may not be undertaken by a pipe fitter: testing (except of hand torqueing joints); and responsibility for bolted joints and inline mechanical components (as required by drawings).34
26 In addition to the Agreement, other enterprise agreements made under the FW Act cover other parties engaged in construction on the Wheatstone Project (e.g. the first such agreement was the John Holland Pty Ltd Wheatstone Project Agreement 2012) or parties engaged in related construction projects (e.g. CBI Constructors Pty Ltd – AMWU – Gorgon Project – Barrow Island Greenfields Agreement 2010).
27 In respect of the following conversations between Mr Stagnitta and Ms Quick on 1 April 2015 and 29 May 2015, I have concluded (above) that I am satisfied as to the reliability of the account of each conversation given by Ms Quick. My reasons for this conclusion are as follows:
(1) I have made a finding (above) that Ms Quick created the Third Offer Letter after her conversation with Mr Stagnitta on 29 May 2015. The contents of the Third Offer Letter are consistent with her account of the conversation with Mr Stagnitta on 29 May 2015.
(2) The Company letter of 31 August 2015, drafted after consultation with Ms Quick35, is consistent with Ms Quick’s account of the conversation with Mr Stagnitta on 29 May 2015 being repeated by her to the author of the letter of 31 August 2015.
(3) In cross-examination, Ms Quick was directly responsive to questions including questions where the answers did not assist the case for the Company. She promptly agreed that: her notes of conversations with Mr Stagnitta do not mention the ‘tradesperson allowance’; and that she had no recollection of the conversation of 27 May 2015 in which she made an offer of employment. Ms Quick’s account of some of her conversations with Mr Stagnitta included specific details about what was stated and comments on distinctive aspects of Mr Stagnitta’s personality.
(4) I have considered the submissions made on behalf of Mr Stagnitta questioning the accuracy and reliability of the evidence of Ms Quick.36 Ms Quick’s affidavit was prepared over two years after the critical conversations. She had dealt with many, many prospective employees of the Company before, during and after the period that she was dealing with Mr Stagnitta. She had no recall at all of the content of some of her interactions with Mr Stagnitta, for example, arranging pre-employment logistics or the telephone conversation advising him of his successful application (after the interview of 22 April 2015). Her notes of conversation of 1 April 2015 did not confirm her oral evidence.37 Ms Quick was unable to explain ‘how she made the mistakes’ that resulted in the First Offer Letter and the Second Offer Letter containing errors. There is force in each submission. However, taking into account these points, individually and collectively, I remain satisfied as to Ms Quick’s account of the conversations of 1 April 2015 and 29 May 2015. The fact of a telephone conversation between Ms Quick and Mr Stagnitta on 29 May 2015 is not in dispute. Nor is it in dispute that the subject matter of the conversation was Ms Quick’s desire to replace the First Offer Letter with new written offer for Mr Stagnitta to sign. Some explanation was required. The true explanation (of an error in the First Offer Letter) is consistent with the position of the Company on tradesperson allowances at that time. The content of Ms Quick’s record of the 1 April 2015 conversation does not contradict her oral evidence. Her inability to recall certain events is to be expected given the passage of time.
(5) I would not (as urged by submissions on behalf of the Company) draw any inferences from the absence of a replying affidavit by Mr Stagnitta. However, the brief recollections of his conversations with Ms Quick that appear in his affidavit, were not supplemented by Mr Stagnitta during cross-examination. He had limited recall of detail of the topics discussed on 1 April 2015 and the fact of the telephone conversation on 27 May 2015. Mr Stagnitta was also unhelpfully defensive. For example, Mr Stagnitta testified by way of evidence in chief (in his affidavit) that in the telephone conversation of 29 May 2015, Ms Quick stated that she was going to send an amended offer. When pressed to explain his understanding of the proposed amendment, Mr Stagnitta countered that Ms Quick may have stated that she going to send another offer. Whether Ms Quick promised an ‘amended offer’ or ‘another offer’ is less significant than Mr Stagnitta’s attempts to avoid directly answering questions going to the reliability of his evidence in chief. I do not agree with the Company’s submission that I should infer that Mr Stagnitta was an untruthful witness by reason of his conduct after he commenced employment and arguing for a tradesperson allowance.38 However, I was left questioning the reliability of the evidence of Mr Stagnitta on the content of the conversations of 1 April 2015 and 29 May 2015.
(6) I have been unable to resolve disputes concerning certain peripheral facts and those disputes have played no part in making my findings above. Assertions about those facts have not been relied upon in reaching my conclusion. For example: whether Mr Stagnitta or Ms Quick initiated the telephone call of 1 April 2015; and whether Mr Stagnitta mentioned Mario Cavuto or Rick Reece to Ms Quick.
Issue 1: Enterprise Agreement Claim: Entitlement to a Tradespersons Allowance
28 I respectfully adopt the observations made in Re Harrison; Ex Parte Hames [2015] WASC 247 [50] (Beech J) on the approach to be taken by a court when interpreting a legal instrument:
1. The primary duty of the court in construing an instrument is to endeavour to discover the intention of the parties as embodied in the words they have used in the instrument;
2. It is the objectively ascertained intention of the parties as it is expressed in the instrument, that matters; not the parties’ subjective intentions. The meaning of the terms of an instrument is to be determined by what a reasonable person would have understood the terms to mean;
3. The objectively ascertained purpose in object of the transaction that is the subject of a commercial instrument may be taken into account in construing that instrument. This may invite attention to the genesis of the transaction, its background and context;
4. The apparent purpose or object of the relevant transaction can be inferred from the express and implied terms of the instrument, and from any admissible evidence from the surrounding circumstances;
5. An instrument should be construed so as to avoid it making commercial nonsense or giving rise to commercial inconvenience. However it must be brought in mind that business common sense may be a topic upon which minds may differ; and
6. An instrument should be construed as a whole a construction that makes the various parts of an instrument harmonious is preferable if possible, each part of an instrument should be construed so as to have some operation.
29 When interpreting legal instruments of the nature of industrial awards and agreements, some emphasis has been placed on the need to have regard to the fact that such instruments are commonly drafted by lay persons. In Qube Ports Pty Ltd v Maritime Union of Australia [2018] FCAFC 72 [64] – [65], White J states:
There are well developed principles concerning the construction of industrial awards and agreements which take account of the fact that they are commonly drafted by lay persons and lack the precision and clarity to be expected in commercial contracts.
The principles were reviewed recently by Tracy J in Transport Workers Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829 at [29]. It is not necessary to repeat the principles in detail in these reasons. It is sufficient to say that the court will seek to identify, in an objective way, the meaning intended by the parties to the agreement having regard to the language they have used and in doing so avoid a narrow or pedantic approach. In particular, the court takes account of the circumstance of the drafters of the agreement when likely of a ‘practical bent of mind’ and likely to have been concerned when expressing their intentions in ways understood in the context of the relevant industry and industrial relations environment. As with commercial contracts, the court will prefer a construction which gives effect to the presumed purpose of the parties.
The Agreement
30 It is apparent that whether or not Mr Stagnitta is entitled to the tradespersons allowance requires construction of Tradesperson Allowance Clause in light of the Agreement (including Appendix 2) as a whole.
31 The Agreement commenced in December 2013. The Agreement is divided into sections and appendices that regulate:
(1) the coverage of the Agreement (section 1);
(2) calculating the income of employees (section 2);
(3) working hours, including time considered to be eligible for overtime payments (section 3);
(4) paid and unpaid leave for specified purposed (section 4);
(5) miscellaneous topics: casual employment, termination, payment of wages, cyclone procedure, etc. (section 5);
(6) detailed descriptions of the occupation of each ‘Civil/Structural’ classification listed in clause 9 (appendix 1(1));
(7) detailed descriptions of the qualifications and role of select ‘Trade & Technical’ classifications: ‘Electrician – Special Class’; ‘Instrument/Electrical Grade 1’ and ‘Electronics Tradesperson’ (appendix 1(2));
(8) criteria for payment of (special) allowances to employees and the rate of payment: (appendix 2);
(9) criteria for payment to employees of travel expenses or a subsidy for living locally and the rate of payment (appendices 3 and 4); and
(10) consultation on major change (appendix 5).
32 The Agreement binds employees of the Company working in on-site construction work for the Wheatstone Project and employed in ‘classifications set out in’ cl 9 of the Agreement.
33 Clause 9 of the Agreement serves three related functions. First, it lists the occupation of each employee of the Company bound by the Agreement and creates a ‘classification structure’ of those occupations. This is done by allocating each occupation into a group and creating a hierarchy of groups, called ‘classification levels’. The levels are set out under three headings: ‘Civil/Structural’, ‘Trade & Technical’ and ‘Crane’. Secondly, it provides a mechanism for the allocation of employees into classification levels, namely, as specified in the ‘letter of appointment’ of the Company. Clause 9 of the Agreement states that the allocation must reflect the skills and competency possessed by the employee as needed by the Company. It may be observed that cl 9 of the Agreement provides for allocation to a ‘level’ comprising multiple occupations and not to a single occupation named within the level. No doubt, the level is dictated by the particular occupation required by the Company on appointment and for which the employee has the requisite skills and competence. However, it is evident from the requirement of cl 9 of the Agreement that employees be ‘prepared to perform all tasks required of their classification level or any lower level’. That appointment is to a level and not to an occupation. The third function of cl 9 of the Agreement is to specify, by nominating the minimum hourly wage rates payable for each classification level, a basis for calculating the wages and certain other entitlements of employees of the Company.
34 In addition to clause 9 on wage rates, section 2 of the Agreement contains: clause 10 on the site allowance payable to each employee; clause 11 on the allowance payable to ‘a leading hand appointed in writing as such’ by the Company; clause 12 on the allowance payable to an employee holding a first aid qualification and appointed in writing by the Company; clause 14 on the income protection insurance provided to each employee; and clause 15 on the payment to each employee of superannuation as required by law.
Appendix 2 – Special Allowances.
35 Section 2 of the Agreement also contains clause 13, stating that, ‘where relevant, an employee shall be paid the special allowance applicable to the work being performed by them as specified by Appendix 2 – Special Allowances of this agreement’. The emphasised words of cl 13 of the Agreement directs attention to an allowance being paid for work having a particular quality as defined in the appendix. Appendix 2 makes provision for 10 special allowances.
36 In the case of nine of the 10 special allowances, the identity of the eligible employee is unambiguous. Four allowances are payable to every employee who works in a specified physical environment: on preheated steel (2(2)); within pipes (2(3)); welding work within pipes (2(4)); and on a barge (2(6)). Three allowances are payable to an employee whose occupation is specified by reference to a description corresponding to an occupation that appears in the classification structure in cl 9 of the Agreement and where the employee meets additional criteria. A ‘welder’ is entitled to a payment for the time involved in pre-employment competency testing (2(1)). A ‘welder special class’ is entitled to a special allowance ‘when carrying out the full range of duties involved in specialist welding work’ as described in the appendix (2(5)). A ‘refractory tradesperson’ is entitled to a special allowance if the employee’s major and substantial work is in a refractory (2(7)). Two allowances are payable to a ‘tradesperson’ (and an assistant) who holds and may be required to use a particular qualification under the Electricity Licensing Regulations 1991 (WA) (2(8) and 2(9)). The effect of the statutory qualification requirement is to render the reference to ‘tradesperson’ otiose. A person holding a stated qualification under the Electricity Licensing Regulations 1991 (WA) is a Recognised Tradesperson.39
Tradespersons Allowance Clause
37 It is convenient to identify (and label) the three distinct elements of the Tradesperson Allowance Clause. Firstly, an employee must be ‘engaged at Tradesperson level or higher’ (the Engaged Element). Secondly, the employee must ‘hold a current tradesperson certificate or tradespersons rights recognition’ (the Qualification Element). Thirdly, the employee must be ‘required to perform the full range of duties of a tradesperson’ (the Performance Element).
38 Mr Stagnitta submits that the Engaged Element is satisfied upon an employee being classified by the Company to any level in the classification structure appearing under the heading, ‘Trade and Technical Classifications’. On this view, Mr Stagnitta was ‘engaged at tradesperson level or higher’ because he was engaged as a ‘Pipe Fitter’ and thus to a level in the classification structure under the heading, ‘Trade and Technical Classifications’. Mr Stagnitta argues that the Qualification Element is satisfied by an employee being a Recognised Tradesperson. I have already made a finding that Mr Stagnitta is a Recognised Tradesperson by reason of his qualifications as a fitter and turner. Finally, Mr Stagnitta submits that the Performance Element is satisfied by an employee who performs the full range of duties required of the occupation that resulted in the employee being classified under the heading, ‘Trade and Technical Classifications’. Mr Stagnitta was classified under the heading ‘Trade and Technical Classifications’ by reason of being engaged as a pipe fitter and, throughout his employment performed the full range of duties of a pipe fitter. It follows, argues Mr Stagnitta, that he has performed the full range of duties of a tradesperson.
39 The Company takes a different view of the Engaged Element. The Company submits that the Engaged Element is only satisfied upon an employee being classified by the Company on the basis of an occupation of a Recognised Tradesperson. For example (from the list in the Facts above which is not exhaustive), classification on the basis of the following occupations may result in an allowance being payable: plumber, carpenter, boilermaker, mechanical fitter and painter. Mr Stagnitta was engaged (and classified) by the Company as a pipe fitter. A pipe fitter is not a Recognised Tradesperson. On this view, Mr Stagnitta does not satisfy the Engaged Element. The Company argues that in construing the Engaged Element in this manner informs the meaning to be ascribed to the remaining two elements. The Qualification Element is satisfied by an employee being a Recognised Tradesperson in the classified occupation. The Performance Element is satisfied by the employee performing the full range of duties relevant to the occupation which resulted in the employee being classified by the Company on the basis of an occupation of a Recognised Tradesperson. For example, an employee classified to a level on the basis of being engaged as a Mechanical Fitter and who is a Recognised Tradesperson in the field of a Mechanical Fitter and who performs the full range of duties of a Mechanical Fitter is entitled to the allowance.
40 My view is that, for the reasons that follow, the interpretation suggested by the Company is correct.
41 Mr Stagnitta’s submission requires the word ‘tradesperson’ in the Qualification Element to be ascribed a different meaning to the word ‘tradesperson’ in the Engaged and Performance Elements. The Company suggests a consistent interpretation linked to the skills, qualifications and duties of a Recognised Tradesperson. Consistency of interpretation is preferable, particularly within a single clause.
42 Mr Stagnitta’s submission requires the word ‘tradesperson’ in the Qualification Element and the Performance Element to be ascribed a meaning other than the ordinary meaning of the word. It ascribes a meaning by calling in aid a list in cl 9 of the Agreement. The submission is not without force insofar as the phrase ‘Tradesperson level’ and the word ‘engaged’ in the Engaged Element invite comparison with the text of cl 9 of the Agreement containing references to ‘a classification level specified in a letter of appointment’ and to the classification structure heading ‘Trade & Technical’. I have also noted that the effect of cl 9 of the Agreement is to provide for allocation of an employee to a ‘level’ comprising multiple occupations and not to a single occupation named within the level. However, recalling my earlier observations on the functions performed by cl 9 of the Agreement, I do not agree that the meaning of ‘Tradesperson level’ in the Engaged Element is assisted by noting a heading ‘Trades & Technical’ in a classification structure that contains occupations of Recognised Tradespersons (e.g. mechanical fitter) and occupations that are not of Recognised Tradespersons (e.g. pipe fitter, welder).
43 An implication of the interpretation of the Engaged Element urged by Mr Stagnitta is that a Recognised Tradesperson will be entitled to an allowance notwithstanding appointment on the basis of skills not required of a Recognised Tradesperson (e.g. appointment of a pipe fitter or a welder). An implication of the suggested interpretation of the Performance Element is that a Recognised Tradesperson will be entitled to an allowance notwithstanding the duties being performed by the employee are unrelated to the particular trade of the Recognised Tradesperson. These implications are, objectively, unlikely to have been intended by the parties. Further, the implications are inconsistent with my observation (above) that cl 13 of the Agreement suggests a special allowance is for work performed.
44 Finally, I address some specific submissions made by Mr Stagnitta:
(a) It does not follow from the fact that some or many pipe fitters (or welders) are Recognised Tradespersons that the Qualification Element is satisfied by each occupation on a list that includes pipe fitter, welder and a number of occupations of Recognised Tradespersons.
(b) I would not infer that from a reference to ‘Tradesperson-other’ at the end of a list of occupations that each occupation in the list is that of a ‘Tradesperson’. The context is also consistent with a ‘Tradesperson-other’ being the occupation of Recognised Tradesperson not otherwise appearing in the list.
(c) It is not ‘meaningless or confusing’ to prefer the interpretation suggested by the Company over the interpretation suggested by Mr Stagnitta. I am unable to ascribe any significance to the use of a capital ‘T’ when interpreting the Qualification Element.
(d) The proportion of pipe fitters employed by the Company (or generally) who are Recognised Tradespersons is not significant when construing the Tradesperson Allowance Clause. It may be accepted that many if not most pipe fitters are Recognised Tradespersons. However, even if every pipe fitter employed by the Company was a Recognised Tradesperson, the question remains whether the effect of the Tradesperson Allowance Clause is to confer upon a pipe fitter an entitlement to the allowance.
Issue 2(a): Employment Contract Claim: Jurisdictional Issues
45 This court, constituted by an Industrial Magistrate, is created by s 81 of the Industrial Relations Act 1979 (WA) (IR Act). It exercises the jurisdiction conferred by sections 81A and 81AA of the IR Act (and other Western Australian statutes). Nothing in the IR Act (or any other Western Australian statute) confers jurisdiction on this court to determine a dispute concerning the Employment Contract. However, s 77(iii) of the Constitution empowers the Commonwealth Parliament to invest any court of a state with federal jurisdiction with respect to, inter alia, ‘any matter arising under the any laws made by the Parliament’. The FW Act invests certain state courts, defined as an ‘eligible State or Territory court’, with the jurisdiction specified in the FW Act. This court, being constituted by an Industrial Magistrate, is an ‘eligible State or Territory court’,40 and is invested with the jurisdiction specified in the FW Act.
46 The jurisdiction of this court under the FW Act is primarily defined by three provisions, discussed in more detail below:
(1) section 539 which identifies the civil remedy provisions of the FW Act which may be the subject of an application to an eligible state or territory court;
(2) section 545(3) which describe the criteria for an eligible state or territory court to make an order for an employer to pay an amount to an employee upon the contravention of civil remedy provision; and
(3) section 546(1) which concerns the making of pecuniary penalty orders upon the contravention of a civil remedy provision.
47 Section 539 of the FW Act identifies, from among the several civil remedy provisions of the FW Act, the particular civil remedy provisions for which application may be made to an eligible state or territory court ‘for orders in relation to a contravention of the provision’.41 The provision also identifies, for each civil remedy provision, the person with standing to make application to the relevant court and, expressed in penalty units, the maximum penalty for a contravention.42 Relevant to Mr Stagnitta’s claim in this court, s 539 of the FW Act provides for an application to this court by an employee for orders in relation to a contravention of civil remedy provision created by s 323(1) of the FW Act. Section 323(1) of the FW Act provides that ‘an employer must pay an employee amounts payable to the employee in relation to the performance of work …in full’. Mr Stagnitta alleges that it was a term of the Employment Contract that the Company pay him the tradesperson allowance specified in the First Offer Letter or the Second Offer Letter. The failure to pay the allowance is alleged by Mr Stagnitta, adopting the language of s 323(1) of the FW Act, to be a failure to ‘pay an amount payable (under the Employment Contract) to an employee in relation to the performance of work’. Section 544 of the FW Act states that an application for an order must be made within six years of the contravention. Mr Stagnitta’s claim is made within six years of the alleged contravention commencing in June 2015.
48 Section 545(3) of the FW Act provides that an eligible state or territory court ‘may order an employer to pay an amount to an employee if the court is satisfied’ of two criteria. First, the employer must have an obligation, ‘under the Act or under a fair work instrument’ (e.g. a modern award or an enterprise agreement) to pay the relevant amount. The meaning of ‘under the Act’ as it appears in s 545(3) of the FW Act was the subject of examination in Sharrock, discussed below. Secondly, the failure to pay the relevant amount must be a contravention of a civil remedy provision.
49 Section 546(1) of the FW Act provides that ‘an eligible State or Territory Court’ may order a person who has contravened a civil remedy provision to pay a pecuniary penalty that the court considers appropriate.
50 At issue before Scaddan IM in Sharrock was the power of this court, in a claim attracting the small claims procedure under s 548 of the FW Act, to make an order that an employer (Downer EDI Mining Pty Ltd) pay the amount of $7,569.83 to an employee (Sharrock) upon an allegation of a breach of an employment contract. The claim was calculated by reference to the difference between employee entitlements of $42.17 per hour, alleged to be a term of the employment contract, and employee entitlements of $39.65 per hour, alleged (by the employer) to be a term of an enterprise agreement. Two relevant issues were addressed by Scaddan IM.
51 First, after reviewing relevant cases, Scaddan IM concluded (at [29]) that the failure to make a payment provided for in an employment contract was a contravention of s 323(1) of the FW Act:
[A] failure to pay a contractual entitlement is capable of contravening s 323 of the FWA. Given such a contravention of s 323 is capable of being heard and determined in an eligible state or territory court as a civil remedy provision, it follows that it is open for an application for an order relevant to a contravention of s 323 (as it relates to a breach of a contractual entitlement) to be made to eligible state or territory court (the Industrial Magistrates Court).
52 Secondly, Scaddan IM concluded (at [73] – [76]) that the contractual obligation to make a payment is not, by reason of section 323(1), an obligation ‘under the Act’:
[73] The words required to pay the amount ‘under this Act’ in s 545(3) of the FWA must have work to do or meaning in the context of the amount required to be paid by the employer. These words in effect qualify what amount the employer is required to pay. Otherwise the section could merely have referred to any amount the employer might be required to pay without reference to the FWA or any other federal instrument.
[74] Therefore, Mr Sharrock’s claim needs to be referrable to another section of, or obligation under, the FWA over and above the legal obligation to pay in full in s 323 in order for any amount sought to be paid by Downer EDI Mining. No other section or requirement has been established by Mr Sharrock.
[75] The IMC is not empowered under s 545(3) or s 548(1A) to make an order for compensation and the order sought by Mr Sharrock is an amount for damages for an alleged breach of contract and not one which is referrable to any amount required to be paid by Downer EDI Mining under the FWA.
[76] While s 323 of the FWA opens the door to a claim under the FWA by placing a legal obligation on the employer to pay in full amounts owed, it does not, of itself, empower the IMC to make the order sought by Mr Sharrock by: (1) providing a remedy; or (2) specifying an obligation on the employer as to what the employer is required to pay under the FWA.
53 In a claim to which the small claim procedure applies, s 548 and s 548(1A)(a)(i) of the FW Act limits the power of this court to making an order for an employer to pay an amount required to the paid ‘under the Act’. It followed, in Sharrock, this court lacked the power to make the order that was sought by the employee.
54 Relevant to Mr Stagnitta’s claim in this court, s 545(3) of the FW Act limits the power of this court in precisely the same language as s 548(1A)(a)(i) of the FW Act. If the reasoning in Sharrock is applied to s 545(3) of the FW Act, it will be necessary for Mr Stagnitta to identify a provision of the FW Act other than section 323(1) which has the effect of creating an obligation to pay the amount claimed pursuant to the Employment Contract.
55 The Company submits that the reasoning in Sharrock applies to Mr Stagnitta’s claim with the result that ‘in the event that Mr Stagnitta is successful in establishing his contractual claim, the extent of any underpayment would not be recoverable on account of lack of jurisdiction’.43
56 Mr Stagnitta’s submission on Sharrock makes three points.44 First, it argued that Sharrock should be distinguished on the basis that it was a case concerned with a small claim proceeding.45 The argument does not engage with the similarity of language in s 548(1A) (on small claims) and s 545(3) of the FW Act (relevant to Mr Stagnitta’s claim) and is not persuasive. Secondly, it is argued by reference to the text of relevant provisions of the FW Act46 and the failure to give weight to cases that emphasise the ‘stand-alone’ nature of the obligation created section 323(1),47 that the reasoning in Sharrock is wrong. As a matter of judicial comity, an Industrial Magistrate will follow earlier decisions of the Industrial Magistrates Court unless the Magistrate is of the view that the earlier decision is plainly wrong.48 It has been said the principle is apt for application to questions of statutory construction where courts are often faced with a choice of possible interpretations.49 The submissions on behalf of Mr Stagnitta has not led me to conclude that the reasoning in Sharrock is plainly wrong. A textual analysis of the FW Act results in a range of plausible outcomes on the meaning of the phrase ‘under the Act’ in s 545(3) of the FW Act, including the outcome favoured in Sharrock. The relevant jurisprudence of the Federal Court on the significance of the s 323(1) of the FW Act was not overlooked in Sharrock.50
57 The third argument made in Mr Stagnitta’s submission is to observe that, consistent with the reasoning in Sharrock,51 this court has power to make the order sought by Mr Stagnitta if he is able to identify a provision of the FW Act other than section 323(1) which has the effect of creating an obligation to pay the amount he claims pursuant to the Employment Contract. Mr Stagnitta nominates s 542(1) of the FW Act on safety net contractual entitlements as such a provision. I agree with this submission. Section 542(1) of the FW Act provides that ‘a safety net contractual entitlement’ has effect as an entitlement of an employee under the FW Act. A ‘safety net contractual entitlement’ is defined in s 12 of the FW Act to mean an entitlement under a contract between an employee and an employer that relates to any of a list of subject matters that include, by reference to s 139(1)(g)(ii) of the FW Act, allowances for skills that are not taken into account in rates of pay.52 The Second Offer Letter, identifying a ‘wage payment per hour’ and a separate ‘tradespersons allowance per hour’, makes provision for payment of an allowance for the skill of a tradesperson that is not taken into account in the rate provided for a wage payment. If the Second Offer Letter evidences the terms of the Employment Contract (discussed below), the tradespersons allowance in the Employment Contract is a safety net contractual entitlement which, as a result of s 542(1) of the FW Act, casts an obligation upon the Company to pay the allowance. The fact that, as a result of s 543 of the FW Act, this court would not have jurisdiction to entertain a claim by Mr Stagnitta in reliance on s 542(1) of the FW Act, does detract from the obligation upon the Company under s 542(1) to pay the allowance. The fact that, as a result of s 542(2) of the FW Act, the safety net contractual entitlement is ‘subject to any modifications by the Agreement’ and the Agreement makes provision for a tradesperson allowance, does not detract from the obligation of the Company under s 542(1) of the FW Act to make a payment under the Employment Contract that ‘is in excess of any basic entitlement under the Agreement’.53
58 If the Company has an obligation to pay the tradespersons allowance as a result of the Employment Contract (discussed below), Mr Stagnitta will have satisfied the two conditions in s 545(3) of the FW Act for an order that the Company pay the allowance to him:
(1) the allowance is an entitlement under the FW Act, namely under s 542(1) and s 542; and
(2) the failure to pay the allowance is a contravention of a civil remedy provision, namely s 323(1) of the FW Act.
59 Mr Stagnitta and the Company have made competing submissions on the issue of whether this court has the jurisdiction to consider the equitable doctrine of ‘rectification’ (relied upon by the Company) in determining whether, because of the Employment Contract, the Company has an obligation to pay the allowance. The submissions assume that the issue requires consideration of the text of s 323(1) of the FW Act.54 In fact, as discussed in the previous two paragraphs, the issue requires consideration of the text of s 545(3) and s 542(1) of the FW Act. Those provisions, and the definition of ‘safety net contractual entitlement’ found in s 12 of the FW Act combine to confer on this court the power to make an order for payment of an amount that is an ‘entitlement under a contract between’ Mr Stagnitta and the Company relating to the tradespersons allowance.55 There is no express or implied limitation on the power of this court suggested by ordinary meaning of the phrase ‘entitlement under a contract’ or by the ordinary meaning of the single words, ‘entitlement’, ‘under’ and ‘contract’. The ordinary meaning of the word ‘contract’ in a statute invites attention to the concept of a legally enforceable agreement, with an inquiry into the enforceable rights and obligations of the parties.56 I see no reason to exclude consideration of any principle of law – from statute, common law or equity – in order to determine the rights and obligations of the parties to the Employment Contract. The written submissions of Mr Stagnitta with respect to the effect of s 323(1) of the FW Act), do not persuades me to the contrary; authority on the non-federal jurisdiction of this court is distinguishable.57
Issue 2(b): Employment Contract Claim: the Merits
60 The Third Letter Offer states that a tradespersons allowance is not payable to Mr Stagnitta. I have found that Mr Stagnitta signed the Third Letter Offer on 11 June 2015. The signing of a written offer by the offeree is (almost always) compelling evidence of acceptance of an offer, irrespective of whether the offeree has read the written offer.58 However, it remains open for a party who has signed an offer to demonstrate that the circumstances of signing reveal that the offeror would not reasonably understand the offeree’s signature to be a manifestation of intent to assent to the terms of the offer.59 In my findings of fact above I describe the circumstances in which Mr Stagnitta signed the Third Letter Offer. He was with a group of other employees when they were ushered into a room as part of an induction process. They were requested to sign documents in a ‘pack’ of documents before proceeding to the next stage of their induction. The Third Letter Offer was included among other documents in the ‘pack’. Numerous documents were to be signed. In a practical sense, Mr Stagnitta did not have an opportunity to depart from the Company premises before he signed the Third Letter Offer. In all of those circumstances, the Company could not reasonably understand that his signature was an assent to the terms of the Third Letter Offer. My view is that the terms of the Employment Contract are not to be found in the Third Offer Letter, notwithstanding my finding above that the Third Offer Letter was signed by Mr Stagnitta on 11 June 2015.
61 The Second Offer Letter set out the wages and allowances to be paid to Mr Stagnitta in a tabular form, including a payment type of ‘Tradespersons Allowance per hour’ in the fourth row with the amount $1.97 in the adjacent column. The Company mistakenly included this payment type in the Second Offer Letter. It is not in dispute that the Second Offer Letter was signed by Mr Stagnitta on 29 May 2015 and forwarded by him to the Company. The objective theory of contract precludes the Company from reliance upon its mistake to deny the creation of a contract upon Mr Stagnitta signing the letter and communicating his acceptance to the Company.60 Subject to the application of the equitable doctrine of rectification, the terms of the Employment Contract are to be found in the Second Offer Letter.
62 For present purposes, the law on rectification as stated in RCR Tomlinson Ltd v Russell [2015] WASCA 154 [49] – [54] may be adopted.61 There is a presumption that the terms of an instrument, signed by the parties, reflects the common intention of the parties to the agreement. The object of rectification is to reform an instrument that does not reflect the intention of the parties. The onus is upon a party seeking rectification to displace the presumption in favour of the terms of an instrument by proving that the written terms do not reflect the true agreement of the parties. The evidence necessary to discharge the onus must be clear and convincing. The common intention must be sufficiently clear and well-defined so as to be incorporated into the instrument.
63 I have made findings (above) that Ms Quick and Mr Stagnitta engaged in two conversations about whether or not the Company would pay Mr Stagnitta a tradespersons allowance if he was to be engaged as a pipe fitter. In the conversation on 1 April 2015, Ms Quick was unequivocal. The Company would not pay the allowance and Mr Stagnitta should not proceed with his application if this was not acceptable to him. In the conversation on 29 May 2015, Ms Quick was also unequivocal. She told him that the First Offer Letter mistakenly provided for payment to Mr Stagnitta of the tradespersons allowance and the Company would not pay the allowance to Mr Stagnitta. Mr Stagnitta said, in effect, that he would accept the Company offer of employment without the tradesperson allowance being paid. The Second Offer Letter signed by Mr Stagnitta shortly after this conversation with Ms Quick did not reflect their common intention. I am confident that the clarity of the common position reached in the conversation of 29 May 2015 because it followed an exchange of views on the same topic on 1 April 2015 and because Ms Quick identified the mistake in the First Offer Letter.
64 I am satisfied as to the requirements for rectification of clear and convincing evidence of a well-defined term. The terms of the Employment Contract are to be found in the Second Offer Letter, rectified by the substitution of the words ‘not applicable’ in place of the figure ‘$1.97’ adjacent to the payment type, ‘Tradespersons Allowance per hour’.
65 In the result, while the Company has an obligation under s 542(1) of the FW Act on safety net contractual entitlements to pay any allowance provided for in the Employment Contract, the Company has satisfied me that the Employment Contract does not provide for a tradespersons allowance to be paid to Mr Stagnitta.
Conclusion
66 Mr Stagnitta has been unsuccessful with his claim for payment of a tradespersons allowance during the period he worked for the Company as a pipefitter. I have considered and rejected the claim based upon the construction of the Agreement and, alternatively, based upon the terms of the Employment Contract.



M. FLYNN
INDUSTRIAL MAGISTRATE


1 The trial in M 111/2016 Stagnitta v Bechtel Construction (Australia) Pty Ltd and M 163/2016 Wright v Bechtel Construction (Australia) Pty Ltd was conducted jointly and the reasons for judgment will be published at a joint hearing. There is sufficient overlap in issues that arise in each case for it to be expedient, where relevant, to use the same language in each judgment. Obviously (and as will be apparent), the case of Stagnitta is determined on the basis of evidence admitted in that case and the case of Wright is determined on the basis of evidence admitted in that case.
2 The Agreement, Appendix 2, clause (10).
3 It follows from sections 50, 51, 539(1) and 545(3) of the FW Act that a contravention of the Agreement is also the contravention of a civil remedy provision of the FW Act and this court may make orders for the Company to pay to Mr Stagnitta amounts owed to him under the Agreement. It follows from the section 546 of the FW Act that this court may also order the Company to pay pecuniary penalty for contravention of the civil remedy provision.
4 Transcript, ts 18 – 44 (18 April 2018).
5 Transcript, ts 60 – 80 (18 April 2018).
6 Transcript, ts 100 – 107 (19 April 2018).
7 Noting the agreement of the parties to paragraphs of the affidavit to be omitted from evidence.
8 Noting the agreement of the parties to paragraphs of the affidavit to be omitted from evidence and additional agreed facts.
9 Exhibit 11, affidavit of Daniel Lee; exhibit 13, affidavit of Leigh Cocks, paragraph [35].
10 Mr Stagnitta does not recall whether the identity of his interlocutor on 1 April 2015: Exhibit 4, paragraph 4; Transcript, ts 23 (18 April 2018). Ms Quick’s identification of herself as the author of the ‘screening questionnaire’ of 1 April 2015 (tab 3 of the ‘Consolidated Exhibit Book’) satisfies me that the parties to the conversation were Ms Quick and Mr Stagnitta.
11 Exhibit 9 at paragraphs [46] – [62].
12 Exhibit 4, paragraph 4; Transcript, ts 23 (18 April 2018).
13 Tab 4 of the ‘Consolidated Exhibit Book’.
14 Exhibit 9, paragraph [76].
15 Exhibit 4, paragraph [8]; Transcript, ts 24 (18 April 2018).
16 Jones v Dunkel (1959) 101 CLR 298 [320]; J D Heydon AC, Cross on Evidence, 10th edn, 2014, LexisNexis, Sydney at [1215].
17 Exhibit 9 at paragraphs [81] – [82].
18 Exhibit 9 at paragraph [82].
19 Exhibit 4, paragraph [8] concerns 22 April 2015 and paragraph [9] concerns 28 May 2015.
20 The Agreement, Appendix 2, clause (10).
21 Exhibit 9 at paragraphs [90] – [92].
22 Exhibit 4, paragraph [12].
23 Exhibit 9, paragraph [93].
24 Compare exhibit 4 paragraph [15] and exhibit 9 paragraph [98].
25 Exhibit 9 paragraph [102].
26 ‘Consolidated Exhibit Book’ at tab 18.
27 Exhibit 4, paragraph [15], Transcript, ts 31-33 and 43 (18 April 2018).
28 Exhibit 9 at paragraphs [90] – [105].
29 At page 279 of the ‘Consolidated Exhibit Book’.
30 ‘Consolidated Exhibit Book’, pages 270 – 287.

31 ‘Consolidated Exhibit Book’, tab 20 – 21.
32 ‘Consolidated Exhibit Book’, tab 22.
33 Transcript, ts 36 – 38 (18 April 2018).
34 Exhibit 13, affidavit of Leigh Cocks, para [33] – [35].
35 Transcript, ts 79 (18 April 2018).
36 ‘Claimants’ Closing Submissions’ (23 May 2018) at [59] – [66] and see also submissions on the evidence at [23] – [58].
37 See the ‘screening questionnaire’ of 1 April 2015 (tab 3 of the ‘Consolidated Exhibit Book’).
38 ‘Respondents’ closing submissions’ (8 June 2018) at [23] – [29]. See the ‘Claimants’ closing submissions in reply’, especially at [14], [20] and [21].
39 See reg 67 of the Electricity Licensing Regulations 1991 (WA) and predecessor regulations concerning ‘Grade A’ and ‘Grade B’.
40 This result follows from the definitions of ‘eligible State or Territory court’, and ‘magistrates court’ in s 12 of the FW Act.
41 See s 539(2) and Column 3 of the table headed , ‘Standing, Jurisdiction and maximum penalties’.
42 See s 539(2) and Columns 2 and 4 of the table headed , ‘Standing, Jurisdiction and maximum penalties’.
43 ‘Respondent’s Supplementary (Written) Submissions’ re Sharrock (6 July 2018) at [5].
44 ‘Claimants’ (Written) Submissions’ about Sharrock (6 July 2018).
45 ‘Claimants’ (Written) Submissions’ about Sharrock (6 July 2018) at [5] – [6].
46 ‘Claimants’ (Written) Submissions’ about Sharrock (6 July 2018) at [18] – [23] on the significance of the word ‘amount’; [24] – [27] on the text of sections 545(1) and (2) compared to section 545(3); [28] on section 545(3); [34] – [38] on the words ‘must pay’ in section 323(1).
47 ‘Claimants’ (Written) Submissions’ about Sharrock (6 July 2018) at [14] – [15]; [29] – [33] on Australian Education Union v State of Victoria (Department of Education and Early Childhood Development) (2015) 255 IR 341.
48 BHP Billiton Iron Ore v The National Competition Council [2007] FCAFC 157 [88] – [89].
49 Nezovic & Anor v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1263 [206] (French J).
50 Sharrock v Downer EDI Mining Pty Ltd [2018] WAIRC 377 [23].
51 Sharrock v Downer EDI Mining Pty Ltd [2018] WAIRC 377 [60] – [61].
52 See Association of Professional Engineers, Scientists and Managers, Australia v Wollongong Coal Limited [2014] FCA 878 [19]ff per Buchanan J, especially at [22]: ‘[N]either the particular terms of a minimum standard, nor the necessity to engage the terms of a particular modern award , are necessary to the existence of the statutory obligation which now exists to observe the terms of a safety net contractual obligation.’
53 Perera v Playkidz Enterprises Pty Ltd [2016] FCCA 2478 [2].
54 ‘Claimant’s Outline of Submissions and List of Authorities’ (28 March 2018) at [108]; ‘Claimant’s Closing Submissions’ (23 May 2018) at [2] – [14]; ‘Respondent’s closing submissions’ (8 June 2018) at [7] – [22]; ‘Respondent’s Further Submissions’ (in reply) at [2] (26 June 2018).
55 Provided that the court is satisfied that the Company has contravened a civil remedy provision by failing to pay the amount: s 545(3)(b) FW Act.
56 Ultrarad Pty Ltd v Health Insurance Commission [2005] FCA 816; (2005) 143 FCR 526 (French J) at [50] – [51].
57 ‘Claimant’s Closing Submissions’ (23 May 2018) at [12] – [13].

58 See Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52 [45]: ‘[T]o sign a document known and intended to affect legal relations is an act which itself ordinarily conveys a representation to a reasonable reader of the document. The representation is that the person who signs either has read and approved the contents of the document or is willing to take the chance of being bound by those contents…’.
59 Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52 [63]: ‘There could also be circumstances in which one party would not reasonably understand another party's signature to a document as a manifestation of intent to enter into legal relations, or of assent to its terms.’
60 Taylor v Johnson [1983] HCA 5; (1983) 151 CLR 422 at 429 (Mason ACJ, Murphy and Deane JJ).
61 ‘Claimant’s Outline of Submissions’ (28 March 2018) at [107].

Schedule: Ruling on Objections to Evidence
1 Section 551 of the FW Act provides that ‘a court must apply the rules of evidence and procedure for civil matters when hearing proceedings relating to a contravention’. There is authority for the proposition that the effect of the provision is that an ‘eligible State or Territory Court’ is required to apply the rules of evidence found in the common law and relevant state legislation (e.g. Evidence Act 1906 (WA)) when a claim concerns the contravention of a civil remedy provision of the FW Act: Gayle Balding, Workplace Ombudsman v Liquid Engineering 2003 Pty Ltd [2008] WAIRComm 350; Cuzzin Pty Ltd v Grnja [2014] SAIRC 36 [14].
2 In Qube Ports Pty Ltd v Maritime Union of Australia [2018] FCAFC 72 [94] – [108] White J (with whom Mortimer and Bromwich JJ agreed) undertook a comprehensive analysis of the issue in the context of contravention proceedings before a state court of South Australia, the former Industrial Relations Court of South Australia (IRCSA). The IRCSA was created by South Australian legislation, the Fair Work Act 1994 (SA). It is convenient to set out s 154 of the Fair Work Act 1994 (SA) which has the effect of excluding the rules of evidence and, for comparison, extracts of s 81CA of the IR Act (WA) which is to be read with reg 35(4) of the Industrial Magistrates Courts (General Jurisdiction) Regulations 2005 (WA) (also set out below):
Section 154 of the Fair Work Act 1994 (SA)
154—General principles affecting exercise of jurisdiction
(1) In exercising its jurisdiction, the Court or the Commission—
(a) is governed in matters of procedure and substance by equity, good conscience, and the substantial merits of the case, without regard to technicalities, legal forms or the practice of courts; and
(b) is not bound by evidentiary rules and practices but may, subject to subsection (2), inform itself as it thinks appropriate.
(2) The Court and the Commission must observe the rules of natural justice.
Section 81CA of the Industrial Relations Act 1979 (WA)
81CA. Procedure etc. of industrial magistrate’s courts
…
(2) Except as otherwise prescribed by or under this Act or another law —
(a) the powers of an industrial magistrate’s court; and
(b) the practice and procedure to be observed by an industrial magistrate’s court,
…
(5) When exercising prosecution jurisdiction an industrial magistrate’s court constitutes a court of summary jurisdiction and the Criminal Procedure Act 2004 applies.
…
Regulation 35 of the Industrial Magistrates Courts (General Jurisdiction) Regulations 2005 (WA)
35. Conduct of trial
(1) A trial must be conducted in public unless the Court is of the opinion that the interests of justice will be better served by conducting the trial in private.
(2) A Court may hear a trial at any time or place the Court thinks fit.
(3) A Court hearing a trial may adjourn the trial to a fixed date as the Court thinks fit.
(4) Except as provided in these regulations, a Court hearing a trial is not bound by the rules of evidence and may inform itself on any matter and in any manner as it thinks fit.
3 The conclusion reached by White J in Qube Ports Pty Ltd v Maritime Union of Australia [2018] FCAFC 72, [105] – [108] was as follows:
[105] It is apparent that s 551 [FW Act] does require the rules of evidence and procedure for civil matters to be applied by courts hearing proceedings relating to contraventions of a civil remedy provision. It is also apparent that s 551 must contemplate that the rules of evidence and civil procedure will vary from court to court. That is because s 546(1) of the FW Act vests jurisdiction to order the payment of pecuniary penalties in eligible State and Territory courts as well as in the Federal Court and the Federal Circuit Court. When the latter two courts are exercising the jurisdiction, the Evidence Act 1995 (Cth) applies. By reason of s 4 of the Evidence Act 1995 and the definition of ‘federal court; in the dictionary, the Evidence Act does not apply to proceedings in State and Territory courts. Section 79(1) of the Judiciary Act 1903 (Cth) identifies the evidentiary and procedural regime to be applied by a State or Territory court when exercising federal jurisdiction: Rizeq v Western Australia [2017] HCA 23; (2017) 344 ALR 421 at [42], [58][63]. It provides: The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.
[106] This means that in those States and Territories which have a counterpart to the Evidence Act 1995, it is that counterpart which will supply the evidentiary rules to be applied. South Australia has not enacted a counterpart to the Evidence Act 1995. The laws relating to evidence in South Australia are, subject to modification by a particular statute, found in the common law and in the Evidence Act 1929 (SA).
…
[108] Prima facie, s 154 of the Fair Work Act 1994 (SA) is a law of the State of South Australia relating to procedure and evidence and, accordingly, was to be applied by the Industrial Magistrate in this case. However, account had to be taken of the stipulation in s 79(1) [of the Judiciary Act 1903 (Cth)] that the laws relating to evidence and procedure of a State or Territory are binding “except as otherwise provided by ... the laws of the Commonwealth”. Is s 551 to be regarded as such a law? Can a provision that a court is not bound by the rules of evidence but may, subject to compliance with the rules of natural justice, inform itself as it thinks appropriate, be regarded as a rule of evidence for the purpose of s 551? The parties’ submissions did not address these issues. That suggests that it would be undesirable for the Court presently to be expressing concluded views about them.
4 The effect of reg 35(4) of the Industrial Magistrates Courts (General Jurisdiction) Regulations 2005 (WA), provided for s 81CA of the IR Act (WA), is that when exercising non-federal jurisdiction this court is ‘not bound by the rules of evidence and may inform itself on any matter and in any manner as it thinks fit’. The effect of the regulation is that when exercising non-federal jurisdiction this court is not required to apply laws concerning evidence that would otherwise be required to be applied i.e. the laws concerning evidence contained in the Evidence Act 1906 (WA) and the common law.1 Absent s 551 of the FW Act, the effect of s 79(1) of the Judiciary Act 1903 (Cth), would be to apply reg 35(4) of Industrial Magistrates Courts (General Jurisdiction) Regulations 2005 (WA) to this court when exercising federal jurisdiction. However, s 79(1) of the Judiciary Act 1903 (Cth) is qualified. State laws on procedure and evidence are applied when exercising federal jurisdiction, except as otherwise provided by a law of the Commonwealth. The question for determination in this case is whether, properly construed, s 551 of the FW Act is a law of the Commonwealth that ‘otherwise provides’ for the application of particular laws relating to procedure and evidence. Section 551 of the FW Act states that ‘a court must apply the rules of evidence and procedure for civil matters when hearing proceedings relating to a contravention’. Comparison may be made with provisions of the FW Act expressly providing for the non-application of ‘the rules of evidence and procedure’ to small claims proceedings before the Federal Circuit Court or a magistrates court (s 548(3) of the FW Act) or in matters before the Fair Work Commission (s 591 of the FW Act). The comparison suggests a legislative intention of a qualitative distinction between the rules of evidence to be applied, on the one hand, by a court (including a state court) determining contravention proceedings and, on the other hand, by a court determining a small claims proceeding.
5 The use of the definite article ‘the’ and the preposition ‘for’ in the text of s 551 of the FW Act is significant: ‘the rules of evidence and procedure for civil matters’. Grammatically, those words suggest the existence of a single body of rules in connection a category of cases (civil matters). The phrase ‘the rules of evidence and procedure’ has an accepted ordinary technical meaning; it comprises the law on evidence and procedure contained in statute and the common law as applied in judicial proceedings.2 Similarly, the phrase ‘civil matter’ has an accepted ordinary technical meaning as comprising all matters other than criminal matters.3 The legislative intention identified in the previous paragraph would be promoted if the ‘rules of evidence and procedure for civil matters’ required to be applied by s 551 of the FW Act was construed to mean the law of evidence and procedure applied by a court of general jurisdiction when exercising jurisdiction in non-criminal matters. This intention would be defeated if the ‘rules of evidence and procedure for civil matters’ required to be applied by s 551 of the FW Act was construed to mean the law of evidence and procedure applied by this court when exercising non-federal jurisdiction in non-criminal matters. My view is that, having regard to the grammatical structure of the section, s 551 of the FW Act bears the former construction and is to be preferred as a construction that promotes the intention of the legislature.
6 In the result it is necessary to apply the laws of evidence contained in the Evidence Act 1906 (WA) when assessing the objections made to the admissibility of evidence in this case.
7 My ruling on the objections of the Company, stated in a document filed on 10 April 2018, to the admissibility of the evidence of Mr Stagnitta is as follows:
[19] Objection upheld insofar as reference to a ‘mechanical fitter’. Irrelevant.
[20] Objection overruled. Evidence is of witness’ observations.
[21] – [26] Objection overruled. Relevant only to rebut attack on credit.
8 My ruling on the objections of Mr Stagnitta, stated in the Claimants’ Closing Submissions of 23 May 2018, to the admissibility of the evidence of Ms Quick is as follows:
[23] Objection overruled. Witness belief as to the Company interpretation of the Agreement relevant only to explanation of her motive for impugned conduct.
[24] Objection upheld. Irrelevant.
[25] Objection overruled. Witness belief as to the Company interpretation of the Agreement relevant only to explanation of her motive for impugned conduct.
[39] Objection overruled. Relevant.
[46] Objection overruled.
[47] Objection overruled. Evidence is of witness’ observations.
[55] Objection overruled. Quotation explains basis for opinion.
[59] Objection overruled.
[78] – [79],[82] Objection overruled. Evidence of habit from which an inference may be drawn is relevant.
[93] Objection overruled. Relevant. Weight is a matter for the court.
[101] Objection upheld with respect to second sentence.
[102] Objection overruled. Matters raised properly addressed in cross-examination.
[105] Objections overruled. Evidence is of witness’ observations and of observed habit of other staff from which inference may be drawn.
9 My ruling on the objections of Mr Stagnitta, stated in the claimants’ ‘Closing Submissions’ of 23 May 2018, to the admissibility of the evidence of Mr Cocks is as follows:
[30] Objection overruled. Evidence is of witness’ observations.
[31] – [33] Objection overruled. Evidence is of witness’ observations.
[34], [35] – [38] Objection overruled. Relevant.
[39] Objection overruled. Evidence taken to be of witness’ observations.
[40](b), (e) and (f) Objection overruled. Evidence taken to be of witness’ observations. Weight is a matter for the court.


1 The laws concerning evidence and the laws concerning procedure that would otherwise be required to be applied are those laws that apply to a ‘case’ under the Magistrates Court (Civil Proceedings) Act 2004 (WA): s 81CA(3) of the IR Act.
2 See J D Heydon Cross on Evidence (10th Australian ed, 2015), [1020] – [1025].
3 See J D Heydon Cross on Evidence (10th Australian ed, 2015), [1030].