WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

CITATION : 2018 WAIRC 00887

DELIVERED : WEDNEsday, 12 DECEMBER 2018

FILE NO. : M 163 OF 2016

CLAIMANT

AND

Bechtel Construction (Australia) Pty Ltd

Respondent

CatchWords : INDUSTRIAL LAW – Construction of enterprise agreement - Entitlement to 'tradespersons allowance' - Jurisdiction of Industrial Magistrates Court – Contractual claim - ‘Safety net contractual entitlement’ – Jurisdiction of Industrial Magistrates Court to consider defences of acquiescence, waiver and estoppel – Whether acquiescence, waiver or estoppel by delay in complaint

Legislation : Fair Work Act 2009 (Cth)
Electricity Licensing Regulations 1991 (WA)
Industrial Relations Act 1979 (WA)
Industrial Magistrates Courts (General Jurisdiction) Regulations 2005 (WA)
Evidence Act 1906 (WA)
Judiciary Act 1903 (Cth)
Fair Work Act 1994 (SA)

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 : Qube Ports Pty Ltd v Maritime Union of Australia [2018] FCAFC 72
Re Harrison; Ex Parte Hames [2015] WASC 247
Sharrock v Downer EDI Mining Pty Ltd [2018] WAIRC 377
Brogden v Metropolitan Railway Co (1877) 2 App Cas 666
Commonwealth v Crothall Hospital Services (1981) 36 ALR 567
MK & JA Roche Pty Ltd v Metro Edgley Pty Ltd [2005] NSWCA 39
Gayle Balding, Workplace Ombudsman v Liquid Engineering 2003 Pty Ltd [2008] WAIRComm 350
Cuzzin Pty Ltd v Grnja [2014] SAIRC 36
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
Perera v Playkidz Enterprises Pty Ltd [2016] FCCA 2478
Ultrarad Pty Ltd v Health Insurance Commission [2005] FCA 816
Association of Professional Engineers, Scientists and Managers, Australia v Wollongong Coal Limited [2014] FCA 878

Result : Judgment for the claimant

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 Wright) is a qualified plumber.1 He worked for the respondent (the Company) as a pipe fitter on a remote site known as ‘the Wheatstone Project’, starting on 11 December 2014 and ending on 7 October 2017. His employment was subject to a contract of employment (the Employment Contract) evidenced by a written offer of employment by the Company dated 3 December 2014 (the Contract Letter). His 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 Contract Letter stated that Mr Wright’s wages and allowances were to be in accordance with the applicable classification in the Agreement, namely ‘Pipe Fitter’, and also stated that a tradespersons allowance of $1.97 per hour was applicable. The Agreement makes provision for a tradesperson’s allowance payable to an employee who is engaged at ‘Tradesperson level’. Mr Wright was paid in accordance with the Contract Letter from 11 December 2014 until, commencing 4 January 2015, the Company stopped paying the tradesperson allowance. The Company view, expressed in a letter to Mr Wright dated 25 December 2014, was that continued payment of the tradesperson allowance was ‘not in line with’ the Agreement. The Company maintained that, properly construed, the Agreement did not provide for a tradesperson allowance to be payable to Mr Wright in circumstances where, notwithstanding his qualification as a plumber, he was employed by the Company as a pipe fitter and, unlike a plumber, a pipe fitter is not a recognised trade. Before commencing this claim on 15 November 2016, Mr Wright took issue with the Company’s position by way of written communications in November 2015 and January 2016. Two issues arise for my determination.

2         First, it will be necessary determine whether, on the proper construction of the Agreement, Mr Wright was entitled to the tradesperson allowance.2 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 Wright from 4 January 2015 was not a contravention of cl 10 of Appendix 2 of the Agreement.

3          Secondly (and alternatively), it will be necessary to determine whether, as alleged by Mr Wright, the failure to pay the tradesperson allowance was a breach of the Employment Contract. It will also be necessary to address jurisdictional objections raised by each party regarding the Employment Contract. Mr Wright contends that the failure to pay the tradesperson allowance stated in the Contract Letter was breach of the Employment Contract and that it follows from s 323(1) of the FW Act that the breach was also a contravention of a civil remedy provision of the FW Act. Mr Wright, relying upon s 545(3) and s 323(1) of the FW Act, seeks orders for payment of amounts payable to him under the Employment Contract and, relying upon s 546 of the FW Act, seeks an order that the Company pay a penalty for contravention of a civil remedy provision i.e. s 323(1) of the FW Act. The Company answers the allegation of breach of the Employment Contract by contending that the delay of Mr Wright to respond to the withdrawal of the tradesperson allowance founds successful defences of acquiescence, waiver and estoppel. The Company, relying upon observations in Colin Sharrock v Downer EDI Mining Pty Ltd [2018] WAIRC 377 on the proper construction of s 323(1) of the FW Act, also contends that, in any event, this court does not have jurisdiction to order payment of any amount owed to Mr Wright by reason only of a breach of the Employment Contract. Mr Wright maintains that this court has jurisdiction to make the orders sought. However, he disputes that this court has jurisdiction to entertain the defences of acquiescence, waiver and estoppel 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 Employment Contract; the Company has an obligation under s 542(1) of the FW Act on safety net contractual entitlements to pay the allowance; and the Company has contravened the civil remedy provision found in s 323(1) of the FW Act by failing to pay the allowance.

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 3);
3. The two affidavits of Mr Wright sworn 13 September 2017 (exhibit 5), 14 November 2017 (exhibit 6) and his evidence at trial; 3
4. The affidavit of Mr Adam Leary, an ‘employment relations’ manager of the Company based at the Wheatstone Project, sworn 24 November 2017 (exhibit 10) and his evidence at trial; 4 and
5. The affidavits of Mr Daniel Lee sworn 21 November 20175 (exhibit 12) and Mr Warren Edwards sworn 21 November 20176 (exhibit 8).

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 Wright and Mr Leary.

7          In August 2014, the Company was recruiting pipe fitters that it required to work on the Wheatstone Project. Mr Wright applied for a position with the Company. He possessed relevant formal qualifications including, in June 1995, having been certified by the Scottish Qualifications Authority in ‘Mechanical Engineering Services: Plumbing (Level 3)’ and, in September 2007, having been assessed by the Australian Government’s Department of Employment and Workplace Relations as a ‘General Plumber’. His work experience as a plumber included the development of skills relevant to pipe fitting: aligning pipes, cutting pipes, butting pipes together and reading relevant drawings.

8          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, mechanical fitters and painters.7 Mr Wright, a qualified plumber, is a Recognised Tradesperson.

9          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 a pipe fitter is filled by any person with the necessary skills and expertise. It is not necessary for a pipe fitter to be 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.

10       The observations in the previous paragraph 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.

11       In November 2014, the Company arranged for Mr Wright to undertake a ‘verification of competency test in pipe fitting’. The test had a theoretical component and a practical component. Mr Wright passed the test.

12       On 3 December 2014, the Company sent an email to Mr Wright. The email attached an offer of employment to a position as a pipe fitter. The relevant parts of the email state:

Congratulations on your appointment to the Wheatstone Project. Attached is your Letter of Offer of Employment to join Bechtel's Wheatstone ISBL Team in Onslow. We confirm you have been offered a role as a fulltime Pipe Fitter. Your start date is the 11th December 2014. You will be required to attend a Bechtel Orientation … on this date. …

You have 2 working days to accept this offer by reply email, however your earliest response would be appreciated.

13       The Contract Letter (noted in the introduction above) is the ‘letter of offer of employment’ referred to in the Company’s email of 3 December 2014. The Contract Letter makes an offer of employment on conditions in accordance with the Agreement and provides for ‘wages and allowances’ in accordance with a classification in the Agreement as a ‘Pipefitter’. The Contract Letter states that the ‘wages and allowances’ of Mr Wright include a Tradespersons Allowance of $1.97 per hour is noted. The relevant parts of the Contract Letter state:

Dear William,

On behalf of Bechtel Construction (Australia) Pty Ltd ('Bechtel'), we confirm our offer of employment as a Fulltime Pipefitter and welcome you to join Bechtel's Wheatstone ISBL team, on this LNG construction project.

…

Details of our offer of employment are as follows.

…

C. Employment conditions

1  Your employment conditions will be in accordance with the Bechtel Construction (Australia) Pty Ltd Wheatstone Agreement (the 'AGREEMENT’), a copy of which was provided as part of the Mobilisation process, copies are available on site on request. The AGREEMENT prescribes the wage rates and employment conditions which all parties are bound to comply with.

2) Your primary employment designation is: Pipefitter Classification the AGREEMENT. In addition to performing any duties with your assigned classification group you will perform any duties in groups below that assigned, provided that such duties are within your skills, competence, qualifications and training, and are consistent with occupational health and safety and statutory requirements.

3) Under the terms of the AGREEMENT, you will be initially engaged for a five week probationary period. This initial period may be extended under specific circumstances.

...

J. Wages and Allowances

1) Wages and allowances applicable to your Classification are paid in accordance with the AGREEMENT and set out below:

…

R. Offer of Employment

1) This Offer of Employment supersedes any previous offer that may have been made to you, either verbally or in writing, perceived or implied.

2) Prior to signing, please read this letter and the attachments carefully to ensure you have a full understanding of the terms and conditions contained therein and your responsibilities and obligations.

This Offer of Employment is conditional upon:

• Your acceptance of the conditions set out in this Letter of Offer
• Any craft tickets, trades licenses or rights to work you have relied upon to gain this position being current and valid;
• Your acceptance of the terms and conditions set out in the Bechtel Construction (Australia) Pty Ltd Wheatstone Agreement (the 'AGREEMENT’);

…

14       Given the references in the Contract Letter (and subsequent correspondence below) 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

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:

…

15       Mr Wright worked as a pipe fitter for the Company between 11 December 2014 and 7 October 2017. His work involved the full range of duties of a pipe fitter, including: interpreting drawings, preparation and installation of pipes, working with flanges and carrying out relevant inspections. Mr Wright’s training and experience as a plumber was relevant to his work as a pipe fitter. As a plumber, Mr Wright acquired technical skills in aligning pipes in the correct position and in the management of leaks. These same skills were used by Mr Wright in his work as a pipe fitter for the Company. Mr Wright also found that the exacting and professional approach required of his work as a plumber was also required of his work as a pipe fitter.

16       By a letter dated 25 December 2014 and received by Mr Wright in mid January 2015 at the Wheatstone Project site, the Company advised Mr Wright that the tradesperson allowance referred to in the Contract Letter would no longer be paid to him. The letter states:

Notification of Overpayment

Dear William,

Please be advised that a recent audit of Letters of Offer indicated that you have been receiving a Tradesperson Allowance of $1.97 per hour since your engagement as part of your wages structure. This is not in line with the Bechtel Construction Australia Wheatstone Agreement that restricts these allowances to those that hold a current Tradesperson Certificate specific to each Trade Classification. Accordingly, this allowance will be removed from your wages payment structure from the pay week commencing Monday, December 28, 2014.

As it is understood that this overpayment is not the result of any action of your own, be advised that on this occasion the company does not intend to pursue any repayment for the amount that has been overpaid.

We thank you for your understanding in this matter and look forward to working with you on the remainder of the Project.

17       In early 2015, Mr Wright spent three months working on night shift.

18       By way of written communications to the Company dated 13 November 2015, 13 January 2016 and 16 January 2016, Mr Wright took issue with the Company decision to cease payment to him of the tradesperson allowance.8 Relevant extracts from those communications are quoted below.

13 November 2015: Letter Mr Wright to Construction Manager for [the Company]:

Your Correspondence “Notice of Overpayment” dated 25/12/14
Tradesperson Allowance per hour $1.97

Dear Sir/Madam

I wish to advise that the above mentioned allowance which has been withheld from me from the 28 December 2014 constituted an integral and conclusive ‘allowance’ (term) and condition in your letter ‘Offer of Employment’ which commenced 11th December 2014(Pg 4 Payment Entitlements).

…

A binding contract inclusive of all terms and conditions was created at that exact point in time.

...

Your retraction of my tradesperson allowance of $1.97 per hour would constitute a breach of CONTRACT.

…

I trust that the above mentioned entitlement/allowance be back paid to date and continue through the entirety of our contract …

13 January 2016: Email Mr Wright to Mr Leary [of the Company]:

Subject: William Wright right of representation

To Whom it may Concern,

[At a meeting in November 2015] Mr Leary stated that they have no record of my Trades Certificate to assess the payment level and then he requested a further copy of my Qualifications. … Nothing was resolved during this meeting and I now find that I have no further option but to nominate A.M.W.U to represent me in my claim to have my original pay grade reinstated and to have monies back paid to me…

16 January 2016: Bechtel Employee Relations Query Form

Query: As per email sent to A. Leary on the 13 January 2016 please note letter of right to represent for W. Wright, regarding allowance dispute representation to be by A.M.W.U.

19       Mr Wright’s complaint about not being paid the tradesperson allowance by his letter of 13 November 2015 was the subject of the meeting in November 2015 between Mr Wright, Mr Saul Simpson (supporting Mr Wright), and Mr Leary (adverted to in Mr Wright’s letter of 13 January 2016). In the meeting, Mr Leary suggested that Mr Wright submit evidence directly to him in support of his claim. Mr Leary also confirmed that Mr Wright was not required to invoke any formal dispute resolution procedure.

20       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).

Issue 1: Enterprise Agreement Claim: Entitlement to a Tradespersons Allowance

21       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.

22       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

23       It is apparent that whether or not Mr Wright is entitled to the tradespersons allowance requires construction of Tradesperson Allowance Clause in light of the Agreement (including Appendix 2) as a whole.

24       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).

25       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.

26       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.

27       In addition to cl 9 of the Agreement 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

28       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 ten special allowances.

29       In the case of nine of the ten 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), (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.9

Tradespersons Allowance Clause

30       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).

31       Mr Wright 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 Wright, 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 Wright argues that the Qualification Element is satisfied by an employee being a Recognised Tradesperson. I have already made a finding that Mr Wright is a Recognised Tradesperson by reason of his qualifications as a plumber. Finally, Mr Wright 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 Wright 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 Wright, that he has performed the full range of duties of a tradesperson.

32       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 Wright was engaged (and classified) by the Company as a pipe fitter. A pipe fitter is not a Recognised Tradesperson. On this view, Mr Wright 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 carpenter and who is a Recognised Tradesperson in the field of carpentry and who performs the full range of duties of a carpenter is entitled to the allowance.

33       My view is that, for the reasons that follow, the interpretation suggested by the Company is correct.

34       Mr Wright’s submission requires the word ‘tradesperson’ in the Qualification Element to be ascribed a different meaning to the word ‘tradesperson’ in the Engaged Element and Performance Element. 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.

35       Mr Wright’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. carpenter) and occupations that are not of Recognised Tradespersons (e.g. pipe fitter, welder).

36       An implication of the interpretation of the Engaged Element urged by Mr Wright 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.

37       Finally, I address some specific submissions made by Mr Wright:

(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 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 Wright. I am unable to ascribe any significance to the use of a capital ‘T’ in ‘Tradesperson’ when interpreting the Engaged 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.

(e)   Neither the John Holland Agreement nor the CBI Gorgon Agreement provides insight into the meaning of the Tradesperson Allowance Clause. The content of the John Holland Agreement is sufficiently similar to the Agreement to reveal (without answer) the same issues as raised in this case. The content of Schedule A of the CBI Gorgon Agreement is sufficiently different to Clause 9 of the Agreement to limit the utility of any inferences to be drawn from any conclusion as to the effect of the CBI Gorgon Agreement.

Issue 2(a): Employment Contract Claim: Jurisdictional Issues

38       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 s 81A and s 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’,10 and is invested with the jurisdiction specified in the FW Act.

39       The jurisdiction of this court under the FW Act is primarily defined by three provisions, discussed in more detail below: (1) s 539 of the FW Act 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) s 545(3) of the FW Act 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) s 546(1) of the FW Act which concerns the making of pecuniary penalty orders upon the contravention of a civil remedy provision.

40       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’.11 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.12 Relevant to Mr Wright’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 Wright alleges that it was a term of the Employment Contract that the Company pay him the tradesperson allowance specified in the Contract Letter. The failure to pay the allowance from January 2015 is alleged by Mr Wright, 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 Wright’s claim, filed on 15 November 2016, is made within six years of the alleged January 2015 contravention.

41       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) was the subject of examination in Sharrock v Downer EDI Mining Pty Ltd [2018] WAIRC 377, discussed below. Secondly, the failure to pay the relevant amount must be a contravention of a civil remedy provision.

42       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.

43       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) 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.

44       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).

45       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.

46       In a claim to which the small claim procedure applies, 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.

47       Relevant to Mr Wright’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 Wright to identify a provision of the FW Act other than s 323(1), which has the effect of creating an obligation to pay the amount claimed pursuant to the Employment Contract.

48       The Company submits that the reasoning in Sharrock applies to Mr Wright’s claim with the result that ‘in the event that Mr Wright is successful in establishing his contractual claim, the extent of any underpayment would not be recoverable on account of lack of jurisdiction’.13

49       Mr Wright’s submission on Sharrock makes three points.14 First, it argued that Sharrock should be distinguished on the basis that it was a case concerned with a small claim proceeding.15 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 Wright’s claim) and is not persuasive. Secondly, it is argued by reference to the text of relevant provisions of the FW Act16 and the failure to give weight to cases that emphasise the ‘stand-alone’ nature of the obligation created s 323(1),17 that the reasoning in Sharrock is wrong. As a matter of judicial comity, a judge will follow earlier decisions of single judges of a court unless the judge is of the view that the earlier decision is plainly wrong.18 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.19 The submissions on behalf of Mr Wright have 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), 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.20

50       The third argument made in Mr Wright’s submission is to observe that, consistent with the reasoning in Sharrock,21 this court has power to make the order sought by Mr Wright if he is able to identify a provision of the FW Act other than s 323(1) which has the effect of creating an obligation to pay the amount he claims pursuant to the Employment Contract. Mr Wright 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 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.22 The Contract 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. 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 Wright in reliance on s 542(1) of the FW Act, does not 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) to make a payment under the Employment Contract that ‘is in excess of any basic entitlement under the Agreement’.23

51       If the Company has an obligation to pay the tradespersons allowance as a result of the Employment Contract (discussed below under the heading Issue 2(b)), Mr Wright 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 (2) the failure to pay the allowance is a contravention of a civil remedy provision, namely s 323(1) of the FW Act.

52       Mr Wright and the Company have made competing submissions on the issue of whether this court has the jurisdiction to consider issues of acquiescence, waiver and estoppel (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.24 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 Wright and the Company relating to the tradespersons allowance.25 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.26 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 Wright, with respect to the effect of s 323(1) of the FW Act, do not persuade me to the contrary; authority on the non-federal jurisdiction of this court is distinguishable.27

Issue 2(b): Employment Contract Claim: the Merits

53       For present purposes, the Company’s recitation of the following legal principles (in written submissions) may be accepted.28

• Variation of a contract may be inferred from the words or conduct of the parties indicating an agreement to vary the contract.29
• Waiver of the right of one party to enforce a term of a contract may be inferred from the words or conduct of that party.30
• Estoppel of the right of one party to assert a contractual right arises where the words or conduct of that party constitute a representation that the right will not be enforced and the other party has (detrimentally) relied upon the representation.31

54       I would make two observations on these formulations of legal principle.

55       First, I agree with submissions of the Company to the effect that variation, waiver or estoppel may, depending on the circumstances of a case, be inferred from the conduct of a party and, depending on the circumstances of the case, relevant conduct may take the form of an omission by a party to assert the existence of a right conferred by contract.

56       Secondly, the objective theory of contract requires consideration of what a reasonable person in the circumstances would have made of the conduct of Mr Wright in determining whether or not to draw an inference of: an agreement to a variation; the waiver of a right to enforce a contractual term; or a representation that a contractual right will not be enforced.32

57       The Company’s submission on the factual findings relevant to this issue33 is not different to my findings of fact above (under the heading, ‘The Facts’), save that I would add reference to a meeting between Mr Wright and Mr Leary in November 2015 and to the ‘Employee Relations Query Form’ submitted by Mr Wright on 16 January 2016.

58       The relevant primary facts may be shortly re-stated. In response to a Company letter dated 25 December 2014 asserting the right to cease payment of the tradesperson allowance and ceasing payment from 4 January 2015, Mr Wright’s written and verbal response between November 2015 and January 2016 was to unequivocally assert, by express reference to the Employment Contract, his right to the continued payment of the tradespersons allowance and to backpay from 4 January 2015.

59       A reasonable observer might not know what to make of Mr Wright’s inaction in the period from December 2014 to January 2015, until November 2015 to January 2016. However, his conduct by omission during this eleven month period, without more, is equivocal. It is not a basis upon which to infer an agreement between the parties or the waiver of a contractual right enjoyed by Mr Wright or the making of a representation by Mr Wright.

60       The relevant circumstances of this case include, in the period between November 2015 to January 2016, Mr Wright’s written demand, in unequivocal terms and by express reference to the Employment Contract, that the tradespersons allowance payment to him be reinstated with backpay from 4 January 2015. Objectively, Mr Wright’s conduct in the period between November 2015 to January 2016 is clearly inconsistent with the existence of an agreement or waiver or estoppel arising during that period. Subsequent conduct of Mr Wright must also be assessed in light of his conduct in that November 2015 to January 2016 period.

61       Again, the reasonable observer might not know what to make of Mr Wright’s further inaction for eleven months from January 2016 until his claim in this court was filed on 15 November 2016. However, again, such equivocal behaviour is not a basis upon which to infer an agreement or waiver or estoppel, particularly in light of Mr Wright’s unequivocal conduct in the November 2015 to January 2016 period.

62       The cases relied upon by the Company are, on their facts, distinguishable from this claim. Brogden v Metropolitan Railway Co (1877) 2 App Cas 666 held that a contract had been formed when, notwithstanding agreement as to price and subject matter being inferred from conduct over a period of years, the parties had not reached agreement on the identity of an arbiter in the event of a dispute. The case does not assist the Company; there is no analogy with the facts of this claim. Commonwealth v Crothall Hospital Services (1981) 36 ALR 567 concerned an agreement to variation of a contract price, held to result from one party engaging in conduct, over a period between 1967 and 1973 of making regular ‘above contract’ price payments. Mr Wright has not engaged in (positive) conduct over a period of years that is clearly consistent with variation of the Employment Contract. MK & JA Roche Pty Ltd v Metro Edgley Pty Ltd [2005] NSWCA 39 concerned an estoppel that was held may arise from the conduct of parties to a building contract making plans for future building work while their respective lawyers exchanged letters about the alleged breach of contract. Again, the conduct of Mr Wright is not comparable to the conduct of the parties in MK & JA Roche Pty Ltd.

Conclusion

63       I will hear from the parties on the orders to be made following my conclusion that the Company has an obligation under s 542(1) of the FW Act to pay the allowance provided for in the Employment Contract and has contravened the civil remedy provision found in s 323(1) of the FW Act by failing to pay the allowance.

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 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 Wright amounts owed to him under the Agreement. It follows from the s 546 of the FW Act that this court may also order the Company to pay a pecuniary penalty for contravention of the civil remedy provision.

3 Transcript, ts 45 – 57 (18 April 2018).

4 Transcript, ts 84 – 95 (19 April 2018).

5 Noting the agreement of the parties to paragraphs of the affidavit to be omitted from evidence.

6 Noting the agreement of the parties to paragraphs of the affidavit to be omitted from evidence and additional agreed facts.

7 Exhibit 12, affidavit of Daniel Lee at paragraph [36] and [49] – [52].

8 See ‘Consolidated Exhibit Book’ at pages 232 – 235.

9 See reg 67 of the Electricity Licensing Regulations 1991 (WA) and predecessor regulations concerning ‘Grade A’ and ‘Grade B’.

10 This result follows from the definitions of ‘eligible State or Territory court’, and ‘magistrates court’ in s 12 of the FW Act.

11 See s 539(2) of the FW Act and Column 3 of the table headed , ‘Standing, Jurisdiction and maximum penalties’.

12 See s 539(2) of the FW Act and Columns 2 and 4 of the table headed , ‘Standing, Jurisdiction and maximum penalties’.

13 ‘Respondent’s Supplementary (Written) Submissions’ regarding Sharrock v Downer EDI Pty Ltd (6 July 2018).

14 ‘Claimants’ (Written) Submissions’ about Sharrock v Downer EDI Pty Ltd (6 July 2018).

15 ‘Claimants’ (Written) Submissions’ about Sharrock v Downer EDI Pty Ltd (6 July 2018) at [5] – [6].

16 ‘Claimants’ (Written) Submissions’ about Sharrock v Downer EDI Pty Ltd (6 July 2018) at [18] – [23] on the significance of the word ‘amount’; [24] – [27] on the text of s 545(1) and s 545(2) compared to s 545(3); [28] on s 545(3); [34] – [38] on the words ‘must pay’ in s 323(1).

17 ‘Claimants’ (Written) Submissions’ about Sharrock v Downer EDI Pty Ltd (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.

18 BHP Billiton Iron Ore v The National Competition Council [2007] FCAFC 157 [88] – [89].

19 Nezovic & Anor v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1263 [206] (French J).

20 Sharrock v Downer EDI Mining Pty Ltd [2018] WAIRC 377 [23].

21 Sharrock v Downer EDI Mining Pty Ltd [2018] WAIRC 377 [60] – [61].

22 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.’

23 Perera v Playkidz Enterprises Pty Ltd [2016] FCCA 2478 [2].

24 ‘Claimant’s Outline of Submissions and List of Authorities’ (20 March 2018) at [123]; ‘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].

25 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.

26 Ultrarad Pty Ltd v Health Insurance Commission [2005] FCA 816 [50] – [51]; (2005) 143 FCR 526 (French J).

27 ‘Claimant’s Closing Submissions’ (23 May 2018) at [12] – [13].

28 ‘Respondent’s Outline of Submissions’ (10 April 2018) at [10] – [23].

29 ‘Respondent’s Outline of Submissions’ (10 April 2018) at [10] – [13].

30 ‘Respondent’s Outline of Submissions’ (10 April 2018) at [15] – [17].

31 ‘Respondent’s Outline of Submissions’ (10 April 2018) at [19] – [21].

32 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52, (2004) 219 CLR 165 at [38] – [41].

33 Respondent’s closing submissions (8 June 2018) at [48] adopting the ‘Respondent’s Outline of Submissions’ (10 April 2018) at [7].

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 when determining a claim that 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 under the FW Act 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 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 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 Industrial Relations Act 1979 (WA)

81CA Procedure etc. of industrial magistrate’s courts

…

(3)    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, when exercising general jurisdiction are those provided for by the Magistrates Court (Civil Proceedings) Act 2004 as if the proceedings were a case within the meaning of that Act.

…

(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 by s 81CA of the IR Act, 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 to 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 Wright is as follows:

[3] Objection upheld. Irrelevant.

[20] Objection overruled. Relevant.

[25] Objection upheld. Irrelevant.

8          My ruling on the objections of Mr Wright, stated in the Claimants’ Closing Submissions of 23 May 2018, to the admissibility of the evidence of Mr Leary is as follows:

[13] Objection upheld. Irrelevant.

[14] Objection upheld. Hearsay.

[15]-[17] Objection overruled regarding [15] (relevant observation) and objection upheld regarding [16]-[17] (irrelevant).

[28] Objection upheld regarding first 11 words (opinion) and objection overruled as to balance of sentence.

[35] Objection upheld. Irrelevant.

[39] Objection overruled.

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 (WA).

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].