2021 WAIRC 00160
WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT


CITATION : 2021 WAIRC 00160

CORAM
: INDUSTRIAL MAGISTRATE J. HAWKINS

HEARD
:
WEDNESDAY, 20 JANUARY 2021

DELIVERED : FRIDAY, 11 JUNE 2021

FILE NO. : M 152 OF 2020

BETWEEN
:
ADRIAN MANESCU
CLAIMANT

AND

BAKER HUGHES AUSTRALIA PTY. LIMITED ABN:20 004 762 050
RESPONDENT

CatchWords : INDUSTRIAL LAW – Fair Work Act 2009 (Cth) – Application by the respondent for summary judgment or, in the alternative, strike out – whether attempt to re-litigate matters
Legislation : Fair Work Act 2009 (Cth)
Magistrates Court (Civil Proceedings) Act 2004 (WA)
Industrial Magistrates Courts (General Jurisdiction) Regulations 2005 (WA)
Instruments : Professional Employees Award 2010 (Cth)
Case(s) referred
to in reasons: : Alloy Fab Pty Ltd v High Performance Alloys (Australia) Pty Ltd [2017] WADC 15
Agar v Hyde [2016] HCA 41;(2001) CLR 552
Tomlinson v Ramsey Food Processing Pty Ltd [2015] 256 CLR 507
Manescu v Baker Hughes Australia Pty. Limited ABN: 20 004 752 050 [2019] WAIRC 00871
Shilkin v Taylor [2011] WASCA 255
Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4
Chipadza v Freo Group Pty Ltd [2020] WAIRC 00273
Result : The claim is dismissed
REPRESENTATION:

CLAIMANT : SELF-REPRESENTED
RESPONDENT : MR M. STUTLEY (OF COUNSEL) FROM KINGSTON REID SOLICITORS

REASONS FOR DECISION
History
1 Mr Adrian Manescu (Mr Manescu) commenced proceedings against Baker Hughes Australia Pty Ltd (BHA) on the 10 September 2020. Mr Manescu’s Originating Claim (annexed to these reasons for decision at sch 1) in brief alleges that BHA has failed to comply with an Award, agreement, instrument or order namely the National Employment Standards (NES) and Professional Employees Award 2010 (Cth) (the Award).
2 Mr Manescu unusually only seeks payment of a penalty or something else.
3 The last two paragraphs of Mr Manescu’s Originating Claim states:
Claimant main case is for breaches of ‘Maximum of 38 weekly hours of work’ NES and lack of written negotiated flexibility agreement and hours of work as requested by the Award.
Claimant case is also for breaches in Annual Leave provisions as per NES and Professional Employee Award. Employee (Claimant) was refused annual leave applications, despite Employee having excessive leave accruals. In the same time, Claimant was forced to take one day annual leave, despite the legal requirement that employees should not be forced to take annual leave of less than a week. And several other such breaches of annual leave-taking provisions.
4 BHA’s response, lodged on 7 October 2020, denies the matters set out in the Originating Claim. BHA allege Mr Manescu’s Originating Claim is substantially similar to a previous claim by him against BHA in Western Australian Industrial Magistrates Court (IMC) which was dismissed by her Honour Industrial Magistrate Scaddan on 12 December 2019 (the Previous Claim). A copy of the reasons for decision of the Previous Claim are annexed at sch 2 of these reasons.
5 By orders dated 29 October 2020, Mr Manescu was required to lodge further and better particulars of claim which:
· Substantiate the breach alleged; and
· Specify in detail the remedy that was sought.
6 The further and better particulars (annexed at sch 3) were lodged by Mr Manescu on 19 November 2020 (Further and Better Particulars). As best I can understand them, the Further and Better Particulars allege in summary that:
(a) Mr Manescu started employment with BHA in July 1997 and his contract stipulated normal office hours of 8.00 am to 5.00 pm Monday to Friday (which he alleges is ‘more than 38 hours per week’);
(b) By the introduction of the Fair Work Act 2009 (Cth) (FW Act), Mr Manescu alleges that minimum standards were introduced that could not be overridden by the terms of an enterprise agreement or an award. Mr Manescu alleges these included maximum weekly hours, annual leave and the requirement to provide a ‘Fair Work Information Statement’;
(c) Mr Manescu alleges that his employment is covered by the Award;
(d) In November 2010 and January 2011, Mr Manescu alleges that his employment contract was renewed, keeping all the terms and conditions as set out in his 1997 original contract of employment which included working hours of 8.00 am to 5.00 pm Monday to Friday. Mr Manescu alleges that when this occurred, no ‘Fair Work Information Statement detailing the Employee minimum entitlements was provided’ to him by BHA;
(e) Mr Manescu also alleges that the Award required a written agreement if any variations were to be made to the NES and the Award conditions. Mr Manescu alleges that no such written agreement was entered into in respect to working 8.00 am to 5.00 pm Monday to Friday;
(f) Further, Mr Manescu alleges that in October 2015 he was directed to take annual leave because of excessive leave accrued and that his manager called him into a meeting and filled in his leave applications for November 2015 and December 2015. Mr Manescu alleges that this direction was in breach of cl 19.8(b)(i), cl 19.8(b)(ii) and cl 19.8(b)(iii) of the Award;
(g) Mr Manescu also alleges that in the last quarter of 2016 he applied twice for annual leave and on both times the leave request was denied. Mr Manescu alleges this is a breach of the FW Act as an ‘employer must not unreasonably refuse to agree to a request … to take annual leave’; and
(h) In summary, Mr Manescu says that these alleged breaches are:
(i) A failure to provide a ‘Fair Work Information Statement’;
(ii) Negotiate the Award flexibility;
(iii) Respect maximum weekly hours; and
(iv) Respect annual leave provisions.
7 By way of a remedy Mr Manescu seeks only that a pecuniary penalty be imposed. He does not seek payment of any amount in relation to these alleged contraventions of the FW Act.
8 Following service of Mr Manescu’s Further and Better Particulars, BHA made an application for summary judgment or to strike out Mr Manescu’s claim (the Application). In summary, BHA allege that the present proceedings are an attempt to re-litigate matters which have been heard and determined or which ought to have been reasonably made or raised for determination in the Previous Claim.
9 In support of the Application, BHA lodged:
· An affidavit of Michael James Stutley, sworn 18 December 2020; and
· Submissions in support of the Application.
10 In opposing the Application, Mr Manescu lodged a written outline of submissions in reply.
11 In summary, Mr Manescu contends that his Previous Claim only concerned incentive bonuses and overtime, and therefore should not be struck out or summary judgment should not be entered.
12 The Application was heard on 20 January 2021 and both parties made further oral submissions during the hearing.
Issues For Determination
13 The key issue is whether, given the determination of the Previous Claim, Mr Manescu’s present proceedings should be bought to an end without the need for a trial.
BHA’s Submissions
Strike out
A. Reasonable grounds
14 BHA submit that Mr Manescu’s Originating Claim does not disclose any reasonable grounds to seek compensation, as it does not detail:
· The instruments alleged to have been breached;
· What the breach was;
· What loss causes; and
· The basis of what compensation and quantum of compensation is sought.
15 BHA argues that in so far as the Originating Claim seeks a remedy, if it is in respect to the minimum wage pursuant to the Award, then it maintains that such matters have been heard and determined and dismissed in Industrial Magistrate Scaddan’s decision on the Previous Claim. As such, BHA says the Originating Claim is an abuse of process, and supports the contention that no reasonable grounds for a claim against BHA exist.
16 Further, BHA says that the Originating Claim does not outline a cause of action and is simply a bald plea for remedy and is therefore liable to be struck out.
17 In respect to Mr Manescu’s Further and Better Particulars, BHA argues that these documents do not contextualise the Originating Claim. BHA submit that they do not cure any of the defects in the Originating Claim and appear to raise separate claims which have no reasonable prospect of success.
B. Abuse of process
18 BHA submits that the claimant’s Originating Claim appears to seek an alternative basis to consider the issue of compensation for matters addressed in the Previous Claim. As such, BHA says this is an abuse of process pursuant to s 17(1)(c) of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCCP Act) and rely on Alloy Fab Pty Ltd v High Performance Alloys (Australia) Pty Ltd [2017] WADC 15.
(Alloy Fab).
19 In Alloy Fab Gething DCJ said in summary as follows:
[38] The categories of abuse of process are not closed, and a court may exercise its power in relation to an abuse of process ‘as and when the administration of justice demands’ … For present purposes, I proceed on the basis that an attempt to litigate in the court a dispute or issue which has been resolved by settlement, without any remaining residual issues, may, depending on the circumstances, constitute an abuse of process …
[39] The power to summarily terminate proceedings for an abuse of process must, however, be exercised with caution …
20 His Honour went on to cite comments of the plurality in Agar v Hyde [2016] HCA 41;(2001) CLR 552 [57] where it was stated:
Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways …. but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way …
21 BHA argues that the abuse arises in the context of seeking to re-litigate matters that have been heard, determined and dismissed by the IMC in Previous Claim’s reasons for decision.
22 Further, BHA rely on Tomlinson v Ramsey Food Processing Pty Ltd [2015] 256 CLR 507.
(Tomlinson v Ramsay), where it states:
… a claim or raising an issue which was made or raised and determined in earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process (emphasis added)
23 BHA says that Mr Manescu, unsuccessful in the Previous Claim, now seeks to re-petition the Court to consider an alternative basis for compensation notwithstanding the fact that no breach or reason for awarding compensation was identified in the Previous Claim. Accordingly, BHA argues that this is a claim of ‘the clearest of cases’ of an abuse of process where Mr Manescu has had the opportunity to put his case against BHA before the Court and that claim has been dismissed.
24 BHA say, in addition, the matters set out in the Mr Manescu’s Further and Better Particulars raise allegations regarding directions to take annual leave and refusals to grant annual leave.
25 BHA submits that these were all issues that could have reasonably been raised before the Court in the Previous Claim. BHA refer to documents attached to Mr Manescu’s Originating Claim in this matter, which they say are the same as those contained in Mr Manescu’s witness statement in the Previous Claim and refer to the same issues Mr Manescu seeks to advance in these proceedings. Accordingly, BHA says these were matters at the time of the Previous Claim that could have reasonably been raised. Indeed, BHA says that when Mr Manescu sought to raise issues relating to annual leave before Industrial Magistrate Scaddan, he then effectively abandoned those claims. Affidavit of Michael James Stutley, sworn 18 December 2020, [17]; MJS-3, 200 - 237.

26 As such, BHA says the claims in respect to annual leave referred to in the Further and Better Particulars are matters which ought reasonably to have been raised in the Previous Claim and, therefore, constitute an abuse of process. As such BHA says Mr Manescu’s claim should be struck out and dismissed.
C. Frivolous and vexatious
27 Reliant on the submission that the Originating Claim is an abuse of process, BHA maintains that in engaging in an abuse of process establishes that Mr Manescu’s claim is frivolous and vexatious.
28 Further, BHA argues that Mr Manescu’s Further and Better Particulars are equally frivolous and vexatious because:
(a) They are alleged to have occurred between 2010 and 2011 which is outside the limitation period stated by s 544 of the FW Act even as acknowledged by Mr Manescu in his Originating Claim wherein the claimant’s opening paragraph states:
Claimant understands his claim covers from 31st of August/1st of September 2014 to 16th December 2016 because of time statute limitations. See s 544 of the FW Act and the analysis at [55] - [57] of Manescu v Baker Hughes Australia Pty. Limited ABN: 20 004 752 050 [2019] WAIRC 00871.

(b) that the alleged refusals to grant annual leave applications in 2015 and 2016 were due to operational circumstances. BHA submits, however, refusing an annual leave application must not be ‘unreasonable’ pursuant to s 88(2) of the FW Act. BHA submits that excessive workloads is a reasonable ground for refusing annual leave applications and therefore no sound basis arises to allow such a claim to proceed.
(c) BHA submit that Mr Manescu’s Further and Better Particulars also seek to add causes of action rather than particularise what is outlined in the Originating Claim. As such, BHA maintains that such conduct is designed to ultimately gain a collateral advantage of causing ongoing legal costs to be incurred by BHA, rather than pressing a serious controversy to be tried by the Court.
29 Again, BHA says these grounds a basis to strike out Mr Manescu’s claim entirely.
D. Purpose to harass or annoy, or to cause delay or detriment, or is otherwise wrongful
30 BHA maintains that Mr Manescu’s claims presses matters heard, determined and dismissed by the IMC, and does not, in all the circumstances, raise issues of merit which require judicial intervention. As such, BHA says it can be inferred that Mr Manescu’s Originating Claim and Further and Better Particulars are designed to harass and annoy BHA and cause ongoing legal costs and are therefore liable to be struck out.
Summary judgment
31 As to BHA’s claim for summary judgment, it maintains that Mr Manescu’s claims have no reasonable prospect of succeeding. BHA cites Shilkin v Taylor [2011] WASCA 255 and maintains that the salient features of that case set out the principles that apply in determining whether or not the claim has no reasonable prospect of succeeding as follows:
First, it remains the case that the power summarily to terminate proceedings must be exercised with caution. Secondly, the expression ‘a reasonable prospect of succeeding’ … still requires a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial.
32 BHA maintains that the outcome in this claim breaches the degree of certainty of outcome identified in Shilkin v Taylor because of the determination made in the Previous Claim. BHA argues that no new evidence is sought to be led by Mr Manescu. Further, BHA submit that it is difficult, if not impossible, to reasonably predict an outcome other than that recorded in the Previous Claim.
33 BHA maintains that those same arguments apply to the Further and Better Particulars as any conduct of BHA relating to limitation periods between the 2010 - 2011 falls outside of the limitation period and will likely be dismissed as being out of time. In respect to the refusals to grant annual leave applications to Mr Manescu due to his workload, BHA says, such a ground of refusal is not unreasonable if related to the operational circumstances and has not given rise to a contravention of the Award or FW Act.
34 BHA argues that viewed in this light it is reasonably certain to predict that the outcome of these allegations in the matters will be dismissed as no reasonable refusal of annual leave application can be made out. As such, BHA maintains that this claim has no reasonable prospect of succeeding and that judgment should be entered in BHA’s favour pursuant to s 18 of the MCCP Act.
Mr Manescu’s Submissions
35 Mr Manescu lodged a written outline of submissions. At the outset he complained that the affidavit lodged by BHA in the IMC failed to annex the entirety of the Originating Claim being Mr Manescu’s Form 1.1. The Court notes, however, that it holds the Originating Claim which includes Mr Manescu’s Form 1.1 attached to these reasons for decision at sch 1.
36 In answer to BHA’s submission that the Originating Claim does not disclose any reasonable grounds, Mr Manescu states at [6] - [7] of his written submissions, inter alia, that his Originating Claim lists the following samples of claims:
a) Claimant case is that Respondent failed to transition and implement the new workplace laws, Fair Work Act 2009 and Professional Employee Award 2010.
b) Fair Work Act 2009, introduced the National Employment Standards (NES). The NES are minimum standards that cannot be overridden by the terms of enterprise agreements or awards. First of these minimum standards is ‘Maximum of 38 weekly hours of work plus reasonable additional hours’.
c) No written agreement was made between employer and employee, as required by the Professional Employee Award 2010 in regards with changing the award conditions (flexibility).
…
d) Claimant’s main case is for breaches of ‘Maximum of 38 weekly hours of work’ NES and lack of written negotiated flexibility agreement and hours of work as requested by the Award.
Claimant case is also for breaches in Annual Leave provisions as per NES and Professional Employee Award. Employee (Claimant) was refused annual leave applications, despite Employee having excessive leave accruals. In the same time, Claimant was forced to take one day annual leave, despite the legal requirement that employees should not be forced to take annual leave of less than a week. And several other such breaches of annual leave taking provisions.
37 Mr Manescu also submits that his Further and Better Particulars detail alleged breaches and at [12] he states:
12 In summary, the alleged breaches are failure to a) ever provide fair work information statements (NES) b) negotiate Award flexibility (Award) c) respect Maximum Weekly hours (NES) c) respect Annual Leave provisions (NES and Award).
38 Mr Manescu submits that the decision on the Previous Claim, dealt only with his claim in respect to incentive bonuses and overtime, and are not the same as his present claim which allege breaches of the FW Act and the NES.
39 Mr Manescu also submits that, in any event, he is not seeking compensation in respect to any such breach but seeks that the IMC impose a penalty.
40 As to the Further and Better Particulars raising issues concerning annual leave entitlements, he points to the issues defined by Industrial Magistrate Scaddan in the Previous Claim and says this issue was not the subject of prior determination.
Determination
41 The central issue is whether what has been put before the IMC by Mr Manescu is simply an attempt to re-litigate matters which have previously been the subject of determination in the Previous Claim or which ought reasonably to have been raised in the Previous Claim.
42 Mr Manescu seeks to raise issues concerning whether BHA complied with provisions of the FW Act concerning the NES. In particular, under ‘Statement of The Grounds of the Case’ of the Originating Claim he states:
Fair Work Act 2009, introduced the National Employment Standards (NES). The NES are minimum standards that cannot be overridden by the terms of enterprise agreements or awards. First of these minimum standards is ‘Maximum of 38 weekly hours of work – plus reasonable additional hours’.
43 In the opening paragraph of the Originating Claim, under the heading ‘Statement of The Grounds of the Case’, it refers to Mr Manescu’s contract of employment stipulating that his hours of work were between 8.00 am to 5.00 pm Monday to Friday, equating to 45 hours of work. That ‘Statement of The Grounds of the Case’ states that the introduction of the FW Act, set minimum standards of hours, being 38 hours a week. Mr Manescu also refers to cl 18.1 of the Award, which he relies upon, to state for the purposes of the NES, ordinary hours of work under the Award are 38 hours per week.
44 Mr Manescu’s Originating Claim goes on to state that there were no negotiated agreements between himself and BHA in regard to the new workplace law system. Ultimately, Mr Manescu alleges that his case against BHA is that it failed to transition and implement the new workplace laws, FW Act and the Award. Ultimately, on the last page of his Originating Claim he states that his ‘main case is for breaches of “Maximum of 38 hours of work” NES and lack of written negotiated flexibility agreement and hours of work as requested by the Award’.
45 Further, at [12] of his Further and Better Particulars he states:
12 In summary, the alleged breaches are failure to a) ever provide fair work information statements (NES) b) negotiate Award flexibility (Award) c) respect Maximum Weekly hours (NES) c) respect Annual Leave provisions (NES and Award).
46 It is clear, therefore, that Mr Manescu is seeking to re-agitate issues concerning his employment with BHA in relation to working more than a 38 hour week.
47 In the reasons for decision for the Previous Claim, Industrial Magistrate Scaddan noted:
29 Mr Manescu says that his entitlement to be paid overtime is under the Professional Award and/or the [FW Act]. Manescu v Baker Hughes Australia Pty. Limited ABN: 20 004 752 050 [2019] WAIRC 00871 [29].

48 Further in that decision her Honour had regard to the application of cl 18 of the Award and had stated:
68 Mr Manescu’s claim in relation to an alleged failure to pay overtime is not referrable to any clause in the Professional Award, and, to the extent that he sought to clarify his claim in his evidence, it is apparent that he seeks to be paid for the hours he says he worked in excess of 38 hours per week. Manescu v Baker Hughes Australia Pty. Limited ABN: 20 004 752 050 [2019] WAIRC 00871 [68].
(emphasis added)
49 At [69] and [70] of those reasons for decision her Honour found:
69 The Professional Award makes no provision for an hourly rate payable for hours worked in excess of 38 hours per week. The Professional Award contemplates two things:
(1) as a professional employee, the employee will be paid an annualised salary; and
(2) where the employee regularly works in excess of 38 hours per week the employer will compensate the employee for doing so and such compensation can be considered in the fixation of the annual remuneration.
70 Therefore, where the Professional Award does not contain, nor does it contemplate, the payment of an hourly rate for hours worked in excess of 38 hours per week, the respondent cannot have contravened the Professional Award in the manner alleged by Mr Manescu.
50 Accordingly, her Honour dealt with the issue of the application of cl 8 of the Award relied upon by Mr Manescu and any breach thereof by BHA, and found that no breach had occurred.
51 Her Honour also had regard to any other possible entitlement to payment for overtime under the FW Act and at [85] - [88] of her reasons sets out her findings.
52 In particular, her Honour stated at [86] as follows:
86 While the National Employment Standards apply to Mr Manescu and his employment by the respondent, none of the minimum standards in s 61(2) of the FWA refer to the requirement to pay overtime in the way alleged by Mr Manescu.
53 At [87] she states:
87 Mr Manescu’s claim otherwise makes no other reference to how he says the respondent has breached the [FW Act].
54 At footnote 11 her Honour states:
11 In particular, any reference to s 323 of the [FW Act] as it may relate to consideration of ‘safety net contractual entitlements’. However, the definition of ‘safety net contractual entitlement’ in s 12 of the [FW Act] is referable to s 61(2) of the [FW Act] in any event.
55 Accordingly, her Honour has made clear in her reasons that, in any event, there had been no breach by BHA in respect to the FW Act as it applies to safety net contractual entitlements, i.e. the NES.
56 Further, and in any event, Mr Manescu’s claim that subsequent to the introduction of the FW Act, BHA failed to transition and implement new workplace laws, failed to provide a ‘Fair Work Information Statement’, or failed to negotiate the Award flexibility are all matters that relate to Mr Manescu’s concerns regarding working beyond a 38 hour week.
57 As noted by the High Court of Australia in Tomlinson v Ramsay, applied in the decision of Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4, an abuse may arise where a party seeks to re-litigate matters ‘which ought reasonably to have been made or raised for determination in that earlier proceeding’ (emphasis added).
58 The IMC therefore has power to dismiss a claim if it concludes circumstances exist to do so to deal with the case efficiently, economically and expeditiously and to ensure the IMC’s resources are used as efficiently as possible. Reg 5 and reg 7 of the Industrial Magistrates Courts (General Jurisdiction) Regulations 2005 (WA).

59 The legal principles in respect to an abuse of process were clearly set out in Chipadza v Freo Group Pty Ltd Chipadza v Freo Group Pty Ltd [2020] WAIRC 00273
at [53] - [59].
60 In my view this is such a case as it concerns the various claims raised by Mr Manescu in respect to the issue of working in excess of a 38 hour week.
61 Mr Manescu claims concerning failure to provide a ‘Fair Work Information Statement’, negotiate the Award flexibility, and respect weekly hours, all concerns working in excess of 38 hours per week. That was the issue that was heard and determined in the Previous Claim.
62 Simply because Mr Manescu seeks to raise alternative alleged contraventions of BHA, the central contention by Mr Manescu relates to his grievance concerning working beyond a 38 hour week. Such alleged contraventions ought reasonably to have been made or raised for determination in the Previous Claim. I am satisfied therefore the claims as they relate to working in excess of a 38 hour week are an abuse of process.
63 The remaining issue is whether the claims by Mr Manescu concerning annual leave entitlement are likewise an abuse of process. Mr Manescu raises allegations regarding directions given to him during his period of employment to take annual leave and refusals to grant annual leave applications. Clearly, he accepts that any claims that fall beyond the six year time limit imposed by s 44 of the FW Act are time barred.
64 As to the claims in respect to annual leave that are not time-barred, the documents lodged with Mr Manescu’s claim are the same as those contained in the Mr Manescu’s witness statement and document bundle filed in the Previous Claim. See Affidavit of Michael James Stutley, sworn 18 December 2020, MJS 2; MJS 4, 4 - 6.
Clearly these were matters that were previously known to Mr Manescu. However, during a directions hearing held on 31 October 2019 in the Previous Claim, Mr Manescu confirmed that his case against BHA was confined to the issue of overtime and bonuses. Mr Manescu therefore made clear to the Court he did not wish to litigate the issues concerning annual leave and, in doing so, abandoned his claims concerning annual leave entitlements.
65 To now raise the matters set out in the Originating Claim and Further and Better Particulars is an abuse of process as it is an attempt to re-litigate matters that should have been litigated in earlier proceedings. Mr Manescu seeks to suggest these claims are different because he does not seek compensation but that a penalty be imposed. Nonetheless, the IMC would still need to consider if any contraventions of the Award or FW Act arose to enliven the imposition of a penalty. Even if it is open to the IMC to consider such a remedy in the absence of a claim for relief, this does not change the key basis of Mr Manescu’s claims. The claims in respect to working beyond a 38 hour week and annual leave were known to Mr Manescu at the time of the Previous Claim. As such the matters set out in the Originating Claim and Further and Better Particulars are matters which ought reasonably to have been made or raised in the Previous Claim. They are therefore an abuse.
66 It is for those reasons therefore that I consider that Mr Manescu’s claim should be struck out and the claim dismissed.
67 Having reached that conclusion there is no need to consider whether summary judgment should be entered in favour of BHA.
Order
68 For the reasons given, the BHA’s strike out applications is granted and the whole of the claim (M152 of 2020) is dismissed.



J. HAWKINS
INDUSTRIAL MAGISTRATE




Schedule 1 – Originating Claim Of Mr Manescu









Schedule 2 – Reasons For Decision On The Previous Claim

WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT


CITATION : 2019 WAIRC 00871

CORAM
: INDUSTRIAL MAGISTRATE D. SCADDAN

HEARD
:
THURSDAY, 7 NOVEMBER 2019

DELIVERED : THURSDAY, 12 DECEMBER 2019

FILE NO. : M 234 OF 2018

BETWEEN
:
ADRIAN MANESCU
CLAIMANT

AND

BAKER HUGHES AUSTRALIA PTY. LIMITED ABN: 20 004 752 050
RESPONDENT

CatchWords : INDUSTRIAL LAW – Application of Federal and State limitation periods to the claim – Accrual of cause of action – Alleged contraventions of Fair Work Act 2009 (Cth) and Professional Employees Award 2010 (Cth) – Jurisdiction of Industrial Magistrates Court under Industrial Relations Act 1979 (WA) – Application of Minimum Conditions of Employment Act 1993 (WA)
Legislation : Corporations Act 2001 (Cth)
Fair Work Act 2009 (Cth)
Industrial Relations Act 1979 (WA)
Limitation Act 2005 (WA)
Minimum Conditions of Employment Act 1993 (WA)
Magistrates Court (Civil Proceedings) Act 2004 (WA)

Instruments : Professional Employees Award 2010 (Cth)
Western Australian Professional Engineers (General Industries) Award 2004 (WA)
Case(s) referred
to in reasons: : Cigna Insurance Asia Pacific Ltd v Packer [2000] WASCA 415
Miller v Minister of Pensions [1947] 2 All ER 372
Briginshaw v Briginshaw (1938) 60 CLR 336
Sammut v AVM Holdings Pty Ltd [No2] [2012] WASC 27
Result : Claim is dismissed
REPRESENTATION:

CLAIMANT : MR. A. MANESCU (IN PERSON)
RESPONDENT : MR J. PARKINSON (OF COUNSEL) FROM K&L GATES

REASONS FOR DECISION
1 On 16 December 2016, Mr Adrian Manescu’s (Mr Manescu) employment with Baker Hughes Australia Pty Ltd (the respondent) was terminated by reason of redundancy.
2 Mr Manescu was employed by Western Atlas International Incorporated (Western Atlas) in July 1997 as a data processor.1 Western Atlas was acquired by the respondent and Mr Manescu’s employment was transferred to that organisation in January 1999.2
3 On 1 December 2005, Mr Manescu was promoted to Geoscientist Staff, Grade 13.3
4 On 1 November 2010, Mr Manescu’s employment was transferred to the respondent and his current terms and conditions of his employment remained the same.4
5 Between 23 and 29 March 2016, Mr Manescu’s employment terms were varied to part-time with his base salary and any allowances paid pro rata.5
6 On 19 December 2018, Mr Manescu lodged a claim in the Industrial Magistrates Court of Western Australia (IMC), alleging the respondent failed to:
· comply with the Professional Employees Award 2010 (Cth) (Professional Award) and/or the Western Australian Professional Engineers (General Industries) Award 2004 (WA) (WA Engineers Award); and
· pay overtime and ‘respect its bonus promises’ made in writing.
7 The claim was purported to be made under the Fair Work Act 2009 (Cth) (FWA), the Industrial Relations Act 1979 (WA) (IR Act) and the Minimum Conditions of Employment Act 1993 (WA) (MCE Act).
8 The basis for Mr Manescu’s claim is that he was not paid:
· overtime during his 20 years of service with the respondent and its predecessors; and
· an incentive bonus until the second half of 2005, when he was promised a bonus payment which was cancelled and replaced with the promise of stable and continuous employment.
9 To that end Mr Manescu says that the underpayments or non-payments occurred on 16 December 2016 when the promise of stable employment was not honoured, and he was made redundant. Further, while Mr Manescu accepts the payment of a bonus payment is discretionary, he says it should not be exercised whimsically. Mr Manescu says that his employment is covered by either the Professional Award or the WA Engineers Award.
10 Mr Manescu claims an amount to be paid between $35,000 and $100,000 depending upon which calculation he uses.
11 The respondent denies Mr Manescu’s claim in its entirety because it says:
· the claim for an underpayment related to the bonus payment and a portion of overtime is outside the applicable statutory limitation periods under the FWA, the IR Act and the MCE Act for the period claimed by him; and
· Mr Manescu’s total remuneration represented full payment and compensated him for all entitlements, benefits or additional payments that may otherwise have been due under any applicable industrial instrument or law.
12 At the commencement of the hearing IMC clarified, and Mr Manescu confirmed, what he was seeking in his claim, namely:
· a bonus payment from 2001 to the first quarter of 2005 according to an employee/employer agreed incentive bonus scheme pursuant to the IR Act or at common law; and
· payment for overtime worked in excess of ordinary hours from 4 January 2011 to 3 January 2017 pursuant to the Professional Award or WA Engineers Award or the FWA.
13 The respondent accepts that:
· Mr Manescu was an employee of the respondent;
· Mr Manescu is a national systems employee within the meaning of s 13 of the FWA;
· Mr Manescu is an employee within the meaning of s 15 of the FWA;
· it is an Australian proprietary company limited by shares registered pursuant to the Corporations Act 2001 (Cth) that engaged in substantial activity trading maintenance services for fees;
· it is a constitutional corporation within the meaning of s 12 of the FWA;
· it was Mr Manescu’s employer until his employment was terminated by reason of redundancy; and
· accordingly, it is a national systems employer within the meaning of s 14(1)(a) of the FWA.
14 Schedule I outlines the jurisdiction, practice and procedure of the IMC under the FWA.
15 Schedule II outlines the jurisdiction of the IMC under the IR Act.
Issues For Determination
16 To resolve the claim, the following issues require determination:
· When did the cause of action accrue with respect to the payment of an incentive bonus and any purported overtime?
· Is Mr Manescu subject to any limitation period with respect to any aspect of his claim?
· Does the Professional Award contain any terms applicable to Mr Manescu and the respondent, and do the terms of the award cover his employment?
· Is Mr Manescu otherwise entitled to overtime under the FWA, IR Act or MCE Act?
· What entitlements, if any, are payable by the respondent to Mr Manescu?
When Did Mr Manescu’s Cause Of Action Accrue?
17 A cause of action accrues when all the facts have occurred which the claimant must prove in order to succeed: Cigna Insurance Asia Pacific Ltd v Packer [2000] WASCA 415 [31] (Malcolm CJ) (other references omitted).
18 The principle issue for determination in answering this question is identifying the date on which any cause of action accrued, both with respect to the payment of a bonus or incentive payment and any alleged underpayment of overtime.
19 Mr Manescu says this date is 16 December 2016 when he was made redundant and the respondent broke its promise to provide him with stable and continuing employment.
20 The respondent says that s 545(5) of the FWA, s 83A(2) of the IR Act and s 13(1) of the Limitation Act 2005 (WA) (Limitation Act) applies and Mr Manescu is statute barred in relation to both aspects of his claim for any alleged underpayment that may have accrued prior to 19 December 2012.
What is the applicable date with respect to the accrual of a cause of action related to the alleged failure to pay a bonus or incentive payment?
21 According to Mr Manescu:6
· in the first half of 2001, David Barr, company president for Baker Atlas, informed Geoscience employees at a town hall meeting that a bonus would be paid, and Mr Manescu was provided with a letter confirming his qualification in the quarterly bonus plan to be implemented in 2001;
· on 10 August 2001 the bonus was cancelled by email, which Mr Manescu described as done for ‘bogus reasons’;
· no performance bonus was paid between 2001 and the second quarter of 2005; and
· the payment of a performance bonus resumed in the third quarter of 2005 and was paid thereafter for the remainder of 2005 to 2016.
22 In clarifying his evidence, Mr Manescu stated that he thinks there is a contractual failure by the respondent where in December 2016 he was ‘let go’ contrary to a previous comment made by someone that he would have ‘stable employment’. As I understood his evidence, Mr Manescu’s assertion is that once the respondent broke its purported promise to him of stable employment and made him redundant, the bonus payments from 2001 to 2005 were required to be paid to him.
23 I do not accept Mr Manescu’s submission that the applicable date on which the cause of action accrued for the alleged failure to pay an incentive payment for the period 2001 to the second quarter of 2005 was 16 December 2016.
24 Leaving aside his eligibility for a bonus or incentive payment or what the terms of any bonus or incentive payment might have been, it is clear from Mr Manescu’s evidence that when a bonus or incentive payment was paid from the third quarter of 2005 to sometime in 2016, it was paid as and when it fell due under the terms of any bonus scheme.
25 Further, Mr Manescu was aware from August 2001 that the incentive payment that he thought would be paid was not paid and he was aware of the reasons, bogus or otherwise, for why it had not been paid. Thereafter, he was aware that he had not been paid a bonus payment from August 2001 to the third quarter of 2005.
26 Therefore, the date on which his cause of action (leaving aside whether he has one or not) accrued for any purported failure to pay a bonus or incentive payment was the date on which the payment would be paid but was not paid. The latest date that this must have been was sometime in mid-2005. That is, on Mr Manescu’s evidence a bonus payment for the second quarter of 2005 would be paid on or around 30 June 2005 where he received a performance bonus in the third quarter of 2005.
27 In this case the exact date in 2005 is unimportant because Mr Manescu lodged his claim on 19 December 2018, which is some 13 years after the latest bonus payment Mr Manescu says that he was entitled to receive.
What is the applicable date with respect to the accrual of a cause of action related to the alleged failure to pay overtime?
28 Mr Manescu clarified his claim for overtime which he claims is for hours worked in excess of 38 hours per week from 4 January 2011 to 3 January 2017 and he stated:
· on his conservative guess he worked about 5% more than the minimum 38 hours per week which he says equates to around 42 hours per week every week; that is between two and four hours per week overtime every week;
· this additional work comprised attendance at technical meetings, conferences and carrying out scientific work; and
· he did not maintain any personal records of overtime hours he says he worked but says the respondent has a time writing procedure and this should reflect the overtime hours he worked.
29 Mr Manescu says that his entitlement to be paid overtime is under the Professional Award and/or the FWA.
30 Again, leaving aside his eligibility for overtime payment, on Mr Manescu’s evidence he was not paid overtime for hours he says he worked in excess of 38 hours per week every week from 4 January 2011 to 3 January 2017. That is, each alleged non-payment or underpayment of overtime gives rise to a separate cause of action.
31 Mr Manescu was paid on the fifteenth of each month.7
32 Therefore, on the fifteenth of each month, on Mr Manescu’s evidence, he expected he should be paid overtime for the preceding month’s overtime hours worked.
33 Mr Manescu lodged his claim for failure to pay overtime for hours worked in excess of 38 hours per week on 19 December 2018.
34 Therefore, the first date on which his cause of action accrued for any purported failure to pay overtime for hours worked in excess of 38 hours per week was 15 January 2011 and the fifteenth of each month thereafter.
Is Mr Manescu Subject To Any Limitation Period With Respect To Any Aspect Of His Claim?
Limitation period applicable to the payment of a bonus or incentive payment
35 Section 544 of the FWA provides:
A person may apply for an order under this Division in relation to contravention of one of the following only if the application is made within 6 years after the day on which the contravention occurred:
(a) a civil remedy provision;
(b) a safety net contractual entitlement;
(c) an entitlement arising under subsection 542(1).
36 The Division referred to in s 544 of the FWA is Division 2 in Chapter 4, Part 4.1, which contains the power of courts to make orders.
37 The IMC has limited powers to make orders under the FWA. Relevant to Mr Manescu’s claim, the orders the IMC can make are contained in s 545(3) of the FWA. That is, the IMC may order an employer to pay an amount to an employee if the court is satisfied that:
(a) the employer was required to pay the amount under this Act or a fair work instrument; and
(b) the employer has contravened a civil remedy provision by failing to pay the amount.
38 For the purposes of determining whether s 544 of the FWA applies to Mr Manescu’s claim, it is assumed that the failure to pay a bonus or incentive payment is a contravention of a civil remedy provision and the respondent is required to pay the amount claimed under the FWA or Professional Award. That is, for the purposes of determining a preliminary issue of whether Mr Manescu’s claim is subject to a limitation period, I accept Mr Manescu’s claim most favourable to him under the relevant provisions of the FWA.
39 Mr Manescu’s claim for a bonus or incentive payment must fail under the FWA where his application was made well outside the six-year time limit on which the contravention occurred. With respect to the payment of a bonus payment, the date on which the contravention was found to have occurred was between 2001 to mid-2005, some 13 to 17 years out of time.
40 Therefore, if Mr Manescu’s claim for the failure to pay a bonus or incentive payment is made under the FWA, he is statute barred from doing so pursuant to s 544 of the FWA and this aspect of his claim must be dismissed.
41 Section 82A of the IR Act provides:
An application under section 77, 83, 83B, 83E or 84A shall be made within 6 years from the time of the alleged contravention or failure to comply.
42 The IMC has limited jurisdiction under the IR Act: s 81A of the IR Act. Relevant to Mr Manescu’s claim, the IMC’s enforcement jurisdiction is contained in s 83 of the IR Act and applies to the enforcement of an award, an industrial agreement, an employer-employee agreement and an order made by the Western Australian Industrial Relations Commission (WAIRC) (which has no application in this case): s 83(1) and s 83(2) of the IR Act.
43 Again, for the purposes of determining whether s 82A of the IR Act applies to Mr Manescu’s claim, it is assumed that the failure to pay a bonus or incentive payment is a contravention of one of the instruments in s 83(2) of the IR Act.8 That is, again for the purposes of determining a preliminary issue of whether Mr Manescu’s claim is subject to a limitation period, I accept Mr Manescu’s claim most favourable to him under the relevant provisions of the IR Act.
44 Mr Manescu’s claim for a bonus or incentive payment must also fail under the IR Act as his application was made well outside the six-year time limit on which the contravention occurred for the reasons already given.
45 Therefore, if Mr Manescu’s claim for the failure to pay a bonus or incentive payment is made under the IR Act, he is statute barred from doing so pursuant to s 82A of the IR Act and this aspect of his claim must be dismissed.
46 Further, pursuant to s 83A(2) of the IR Act, an order for the payment of an entitlement to be paid under an industrial instrument referred to in s 83(2) of the IR Act can only be made under s 83A(1) provided the amount relates to a period not being more than six years prior to the commencement of proceedings. For reasons already given, where Mr Manescu commenced proceedings in the IMC on 19 December 2018, any payment for a bonus or incentive payment from 2001 to mid-2005 is outside the limitation period referred to in s 83A(2) of the IR Act.
47 Section 7 of the MCE Act provides:
A minimum condition of employment may be enforced –
(aa) where the condition is implied in an employer-employee agreement, under section 83 of the IR Act; or
(b) where the condition is implied in an award, under Part III of the IR Act; or
(c) where the condition is implied in a contract of employment, under section 83 of the IR Act as if it were a provision of an award, industrial agreement or order other than an order made under section 32 or 66 of that Act.
48 Further, s 13(1) of the Limitation Act provides:
An action on any cause of action cannot be commenced if 6 years have elapsed since the cause of action accrued [subject to any exemptions that do not apply in this case or have not been applied in this case].
49 Thus, if Mr Manescu’s claim for a failure to pay a bonus or incentive payment from 2001 to mid-2005 is made under s 7 of the MCE Act, any application to the IMC for the enforcement of minimum conditions of employment is subject to the same legislative regime contained in s 83 of the IR Act, and, accordingly, s 82A and s 83A(2) of the IR Act apply to statute bar the enforcement proceedings or the making of an order to pay an amount of money purported to be owed.
50 However, if Mr Manescu relies upon principles applicable to common law breach of contract, the IMC has no jurisdiction to consider a claim for breach of contract or denial of contractual benefits which is within the jurisdiction of the WAIRC or the IMC. Further to this, Mr Manescu would then be subject to the limitation period in s 13(1) of the Limitation Act.
Limitation period applicable to the payment of overtime
51 Subject to one further point related to the application of the FWA, the reasons stated from [35] to [46] apply equally to the limitation period applicable to the alleged failure to pay overtime.
52 The further point related to the FWA is the application of s 545(5) of the FWA which provides that
[a] court must not make an order under this section in relation to an underpayment that relates to a period that is more than 6 years before the proceedings concerned commenced.
53 The effect of s 545(5) of the FWA means the IMC, even if satisfied of the factors in s 545(3), cannot make an order for the payment of an amount of money relating to a period more than six years before Mr Manescu made his claim in the IMC.
54 Therefore, leaving aside the merits of the claim, Mr Manescu’s claim for failure to pay overtime for hours worked in excess of 38 hours is subject to a six-year limitation period (and thus is statute barred) from 19 December 2018. The effect of this limitation period is that Mr Manescu can make a claim for overtime for the period after 19 December 2012 only.
Outcome of the applicable limitation periods to Mr Manescu’s claim
55 Mr Manescu’s claim for the alleged failure by the respondent to pay a bonus or incentive payment for the period 2001 to mid-2005 is statute barred under the FWA, the IR Act and the MCE Act, and this part of the claim is dismissed.
56 The IMC has no jurisdiction to consider Mr Manescu’s claim for the payment of a bonus or incentive payment for the period 2001 to mid-2005 under the common law principles applicable to breach of contract.
57 Mr Manescu’s claim for the alleged failure by the respondent to pay overtime as it relates to the period prior to 19 December 2012 is statute barred under the FWA, the IR Act and the MCE Act, and this part of the claim is dismissed.
Is Mr Manescu Entitled To Overtime Under The Professional Award Or WA Engineers Award?
58 In simple terms, Mr Manescu’s claim in the IMC, as it relates to the respondent’s alleged failure to pay overtime, can only succeed if Mr Manescu demonstrates on the balance of probabilities:
· the FWA or one of the awards referred to by him apply to his employment with the respondent;
· the FWA or a term of the award has been contravened by the respondent; and
· the IMC can make an order for payment under the FWA or the IR Act.
59 As previously stated, the IMC has no jurisdiction to consider a bare common law breach of contract claim.
60 During the hearing, Mr Manescu referred principally to the respondent’s failure to comply with the Professional Award and/or the FWA by not paying him overtime for hours worked in excess of 38 hours per week. Mr Manescu made no reference in evidence or submission about the applicability of the WA Engineers Award and relied solely on the terms of the Professional Award.
Do overtime rates apply under the Professional Award?
61 It is convenient to consider whether overtime rates in the manner claimed by Mr Manescu apply under the Professional Award. If overtime rates do not apply there can be no contravention of the Professional Award. If there is no contravention of the Professional Award then there is no contravention of a civil penalty provision under the FWA and no contravention of an industrial instrument under the IR Act, and, therefore, no power to make an order for a payment of an amount of money purported to be owed.
62 Again, for the purposes of determining whether Mr Manescu is entitled to overtime pay for hours worked in excess of 38 hours per week under the Professional Award, it is assumed that the Professional Award applies to his employment with the respondent.
63 Clause 2.2 of the Professional Award provides that
[t]he monetary obligations imposed on employers by this award may be absorbed into overaward payments. Nothing in this award requires an employer to maintain or increase any overaward payment.
64 Clause 18 of the Professional Award details ordinary hours of work and rostering. In cl 18.1 the ordinary hours of work are 38 hours per week. In cl 18.2 the employer is to compensate for, amongst other things:
(a) time worked regularly in excess of ordinary hours of duty;
(d) time spent carrying out professional engineering duties or professional scientific/information technology duties outside of the ordinary hours of duty over the telephone or via remote access arrangements; or
(e) time worked on afternoon, night or weekend shifts.
In cl 18.3 of the Professional Award the compensation may include, amongst other things:
(c) taking this factor into account in the fixation of annual remuneration.
65 Clause 18.3 of the Professional Award requires that any compensation or remuneration for additional work in cl 18.2 of the Professional Award will include consideration of the penalty rate or equivalent and the conditions as applicable from time to time to the majority of employees employed in a particular establishment in which the employee is employed. Further, under cl 18.4 of the Professional Award the compensation and/or remuneration will be reviewed annually to ensure that it is set at an appropriate level having regard to the factors listed in cl 18 of the Professional Award.
66 The minimum wage payable to full-time employees is contained in cl 15 of the Professional Award (varied from time to time). The minimum wage is an annual wage. No other provision or clause of the Professional Award contemplates the payment of hourly overtime rates.
67 Mr Manescu’s evidence concerning the payment of overtime is outlined in [28] to [31] above.
68 Mr Manescu’s claim in relation to an alleged failure to pay overtime is not referrable to any clause in the Professional Award, and, to the extent that he sought to clarify his claim in his evidence, it is apparent that he seeks to be paid for the hours he says he worked in excess of 38 hours per week.
69 The Professional Award makes no provision for an hourly rate payable for hours worked in excess of 38 hours per week. The Professional Award contemplates two things:
(1) as a professional employee, the employee will be paid an annualised salary; and
(2) where the employee regularly works in excess of 38 hours per week the employer will compensate the employee for doing so and such compensation can be considered in the fixation of the annual remuneration.
70 Therefore, where the Professional Award does not contain, nor does it contemplate, the payment of an hourly rate for hours worked in excess of 38 hours per week, the respondent cannot have contravened the Professional Award in the manner alleged by Mr Manescu.
An alternate argument under the Professional Award
71 Mr Manescu does not allege the respondent contravened the Professional Award by failing to pay him compensation in accordance with cl 18.3 and cl 18.4 for time worked in accordance with cl 18.2 of the Professional Award. Further, he led little, or no, evidence consistent with this allegation, save, without more, he says the respondent failed to keep track with salary increases in the oil and gas industry and to provide promotions.9
72 But even if Mr Manescu’s oblique reference in submission documents enables consideration of an alleged contravention of cl 18.2 or cl 18.3 of the Professional Award for failing to compensate him for overtime worked, Mr Manescu’s claim is, arguably, deficient.
73 In cross-examination, Mr Manescu was asked about salaried amounts he was paid, which included the following annual amounts:
· April 2013 - $132,230
· March 2014 - $137,518
· April 2015 - $140,957 (Mr Manescu disagreed with this figure saying it was closer to $134,000)
· April 2016 - $140,957 (again, Mr Manescu disagreed with this figure saying it was closer to $134,000)
74 Notably the above figures do not include bonus or incentive payments.
75 The minimum wage for a level 4 professional/experienced medical research employee in July 2019 was $74,885 (gross) based on a 38-hour week.10
76 Having regard to Mr Manescu’s evidence that he estimates he was working between two and four hours per week more than the ordinary 38 hour working week, he was paid an annualised salary in excess of the applicable minimum wage for July 2019 (which is the minimum wage for the same position three years after Mr Manescu’s cessation of employment) as follows:
· April 2013 - $57,345
· March 2014 - $62,633
· April 2015 - $66,072 (or $59,115 if Mr Manescu’s oral assertion is accepted)
· April 2016 - $66,072 (or $59,115 if Mr Manescu’s oral assertion is accepted)
77 On the assumption that Mr Manescu never took annual leave in any year from 2013 to the end of 2016, on his own estimate of hours worked per week, he worked an additional maximum 208 hours per year, which equates to the equivalent of between approximately $275 to $298 per hour for purported overtime hours worked over the minimum wage for July 2019.
78 Beyond this, however, Mr Manescu:
· led no evidence consistent with his assertion his annualised salary was in the range of academia rather than industry standard (whatever that might be);
· led no evidence how the annualised salary he was paid failed to compensate him for purported work undertaken outside of the ordinary 38 hours per week;
· led no evidence of what the applicable compensation was having regard to comparable positions in the same or similar industry working under the same or similar terms or conditions; and
· at best, estimated what he thought he should be paid based on an estimate of purportedly between two and four hours per week worked in excess of 38 hours per week.
79 With respect to Mr Manescu, he has made an oblique assertion that in some way he was not properly compensated, which, when regard is had to the minimum wage in July 2019 that would be applicable to him if the Professional Award applied to his employment and to the annualised salary he was paid each year from 2013 to 2016, is not proven to the requisite standard on the evidence before the IMC.
Outcome Of The Payment Of Overtime Under The Professional Award And The WA Engineers Award
80 There is no provision or clause in the Professional Award requiring the payment of overtime rates on an hourly basis for work done over the ordinary hours of 38 hours per week.
81 The respondent cannot contravene a clause of the Professional Award that does not exist.
82 While Mr Manescu’s claim was for an alleged failure to pay overtime for hours worked in excess of 38 hours per week, when consideration is given to a possible alternate argument referrable to cl 18.2 or cl 18.3 of the Professional Award, Mr Manescu has not proven to the requisite standard that the respondent did, in fact, contravene either of these clauses of the Professional Award by failing to compensate him for time worked in excess of his ordinary hours of duty.
83 As stated, Mr Manescu led no evidence about the applicability of the WA Engineers Award to his employment with the respondent. Mr Manescu’s claim always applied the Professional Award to his employment. Accordingly, I have not considered, nor do I intend to consider, the WA Engineers Award where Mr Manescu has made no other reference to this award save for writing it on the front of the claim form and referring to it in the alternative to Professional Award on page 2 of a document entitled ‘Statement on The Grounds of Contractual Entitlement Underpayment’. The IMC is not required to discover a claimant’s claim.
84 I am not satisfied that Mr Manescu has proven his claim to the requisite standard that the respondent has contravened a term of the Professional Award as it relates to an alleged failure to pay overtime (based on the assumption that the Professional Award applies to him and the respondent).
Is Mr Manescu Entitled To Payment For Overtime Under The FWA?
85 Mr Manescu’s claim makes no substantive reference to how he says the respondent has breached the FWA in failing to pay him overtime as alleged.
86 While the National Employment Standards apply to Mr Manescu and his employment by the respondent, none of the minimum standards in s 61(2) of the FWA refer to the requirement to pay overtime in the way alleged by Mr Manescu.
87 Mr Manescu’s claim otherwise makes no other reference to how he says the respondent has breached the FWA.11
88 Accordingly, I am not satisfied that Mr Manescu has proven his claim to the requisite standard that the respondent has contravened the FWA as it relates to an alleged failure to pay hourly rates of overtime for hours worked in excess of 38 hours per week.
Is The IR Act Or MCE Act Relevant To Mr Manescu’s Claim?
Enforcement of an alleged provision of an industrial instrument under the IR Act
89 Pursuant to s 83 of the IR Act, an application to the IMC for enforcement can only be made in respect of an instrument to which subsection (1) applies. These instruments are detailed in s 83(2) of the IR Act and include an award, an industrial agreement, an employer-employee agreement or an order made by the WAIRC. This provision is also referrable to s 7 of the MCE Act.
90 To invoke the IMC’s enforcement jurisdiction, a claimant must first identify which instrument he or she says they are seeking to enforce. In Mr Manescu’s case, he can only rely upon the Professional Award as there is no other applicable industrial agreement (referred to him in any substantive way), there is no employer-employee agreement (as that term is defined in s 7 of the IR Act) and no order made by the WAIRC.
91 Thereafter, once the instrument is identified, consistent with the words in s 83(1) of the IR Act, Mr Manescu must also identify the provision he says has been contravened or not complied with by the respondent.
92 Relevant to Mr Manescu’s claim, he refers to a failure to comply with the Professional Award.
93 One of the orders sought by Mr Manescu is the payment of an amount of money he says he was entitled to be paid under the Professional Award, namely overtime rates for hours worked in excess of 38 hours per week. Any such order can only be made by the IMC under s 83A(1) of the IR Act in proceedings under s 83, where the employee has not been paid an amount to which they are entitled under the relevant instrument.
94 Leaving aside the IMC’s jurisdiction to consider an application under s 83 of the IR Act for an alleged contravention of a Federal Modern Award, Mr Manescu has made an ambit claim. He has not identified the provision he says has been contravened by the respondent.
95 Further, for the same reasons stated in [63] to [69] above, the Professional Award contains no clause referrable to the payment of hourly overtime rates for work undertaken in excess of 38 hours per week. Further, for the same reasons stated in [71] to [78] above, even if Mr Manescu relied upon the alternative argument, he has failed to prove his claim to the requisite standard that his annualised salary failed to compensate him in the manner provided in cl 18.2 and cl 18.3 of the Professional Award.
96 But in any event, the definition of ‘award’ in s 7 of the IR Act means ‘an award made by the Commission under that Act’. An ‘employee-employer agreement’ means ‘an employer-employee agreement provided for by section 96UA’.
97 The Professional Award is an award made under the FWA and not by the WAIRC under the IR Act. It is not a state-based award. There is no employer-employee agreement, or other industrial agreement or order made by the WAIRC, applicable to Mr Manescu and the respondent. Therefore, there is no instrument to which s 83(1) of the IR Act applies capable of enforcement in the IMC.
Enforcement of an alleged condition implied by the MCE Act
98 There are two reasons why the MCE Act does not apply to Mr Manescu’s claim for the payment of overtime for time worked in excess of 38 hours per week:
· Section 3 of the MCE Act contains the definition of minimum condition of employment which includes:
(aa) the requirement as to maximum hours of work prescribed in Part 2A; or
(a) a rate of pay prescribed by this Act; or
(b) a requirement as to pay, other than a rate of pay, prescribed by this Act; or
(c) a condition for leave prescribed by this Act; or
(d) the use, in a manner prescribed by this Act, of a condition for leave prescribed by this Act; or
(e) a condition prescribed by Part 5.
· Pursuant to s 5(1) of the MCE Act, the minimum conditions of employment are deemed to be implied into any employer-employee agreement, any award or if a contract of employment is not governed by an employee-employer agreement or an award, in that contract.
· Pursuant to s 5(1) of the MCE Act,
[a] provision in, or condition of, an employer-employee agreement, an award or a contract of employment that is less favourable to the employee than a minimum condition of employment has no effect.
· Section 7 of the MCE Act provides that a minimum condition of employment is enforceable as provided in (aa), (b) and (c).
· Mr Manescu claims payment of overtime worked in excess of 38 hours per week. The payment of overtime is not a minimum condition of employment as that term is defined in the MCE Act and thus is not implied in a contract of employment under s 7(c) of the MCE Act. Therefore, an alleged non-payment of overtime for hours worked in excess of 38 hours per week cannot be enforced under s 7 of the MCE Act.
· The definition of ‘award’ in s 3 of the MCE Act means ‘an award made under the IR Act and includes any industrial agreement or order of the Commission under that Act’. An ‘employee-employer agreement’ in s 3 of the MCE Act means ‘an employer-employee agreement under Part VID of the IR Act’.
· As stated previously, the Professional Award is an award made under the FWA and not the IR Act. There is no other industrial agreement or order of the WAIRC or employer-employee agreement applicable to Mr Manescu and the respondent.
99 Therefore, s 7(aa) and s 7(b) of the MCE Act does not apply to the Professional Award or to Mr Manescu and any condition (if it existed) cannot be enforced under s 83 of the IR Act.
Outcome Of The Payment Of Overtime Under The FWA, The IR Act And The MCE Act
100 Mr Manescu has not identified an applicable provision of the FWA that he says the respondent has contravened with respect to the alleged failure to pay hourly overtime for hours purported to have been worked in excess of 38 hours per week.
101 Further, and in any event, I am not satisfied that Mr Manescu has proven his claim to the requisite standard that the respondent has contravened the FWA as it relates to an alleged failure to pay hourly rates of overtime for hours worked in excess of 38 hours per week.
102 The IMC does not have jurisdiction under s 83 of the IR Act to consider Mr Manescu’s application for enforcement of an alleged failure to pay overtime rates for purported hours worked in excess of 38 hours per week in contravention of instrument to which s 83(1) of the IR Act applies, as it relates to a provision of the Professional Award or as a deemed minimum condition of employment.
103 Further, and in any event, I am not satisfied that Mr Manescu has demonstrated that any such condition of employment (if it exists) is a minimum condition of employment or a term of the Professional Award capable of enforcement under s 83 of the IR Act.
Result
104 Having regard to the reasons provided, Mr Manescu’s claim is dismissed.



D SCADDAN
INDUSTRIAL MAGISTRATE



1 Exhibit 2 - witness statement of Ignatius Jayapragasam dated 24 October 2019 at annexure IJ-1.
2 Exhibit 2 at annexure IJ-2.
3 Exhibit 2 at annexure IJ-3.
4 Exhibit 2 at annexure IJ-4.
5 Exhibit 2 at annexure IJ-5.
6 Exhibit 1 - witness statement of Adrian Manescu lodged on 17 October 2019 at [13] to [24].
7 Exhibit 2 at annexures IJ-2, IJ-3.
8 For the avoidance of doubt, this assumption in no way reflects a determination that an alleged failure to pay an incentive bonus is a contravention of one of the industrial instruments referred to in s 83(2) of the IR Act.
9 Exhibit 1 at [40].
10 Mr Manescu’s employment type is not level 5 because he is not a medical research employee, experienced or otherwise.
11 In particular, any reference to s 323 of the FWA as it may relate to consideration of ‘safety net contractual entitlements’. However, the definition of ‘safety net contractual entitlement’ in s 12 of the FWA is referable to s 61(2) of the FWA in any event.
Schedule I: Jurisdiction, Practice And Procedure Of The Industrial Magistrates Court of Western Australia Under The Fair Work Act 2009 (Cth)
Jurisdiction
[1] An employee, an employee organisation or an inspector may apply to an eligible state or territory court for orders regarding a contravention of the civil penalty provisions identified in s 539(2) of the FWA. IMC being a court constituted by an industrial magistrate, is ‘an eligible State or Territory court’: s 12 of the FWA (see definitions of ‘eligible State or Territory court’ and ‘Magistrates Court’); the IR Act, s 81, s 81B.
[2] The application to the IMC must be made within six years after the day on which the contravention of the civil penalty provision occurred: s 544 of the FWA.
[3] The civil penalty provisions are identified in s 539 of the FWA.
[4] An ‘employer’ has the statutory obligations noted above if the employer is a ‘national system employer’ and that term, relevantly, is defined to include ‘a corporation to which paragraph 51(xx) of the Constitution applies’: s 14, s 12 of the FWA. The obligation is to an ‘employee’ who is a ‘national system employee’ and that term, relevantly, is defined to include ‘an individual so far as he or she is employed by a national system employer’: s 13 of the FWA. It is not in dispute and it was found that the respondent is a corporation to which paragraph 51(xx) of the Constitution applies and that the claimant was employed by the respondent.
[5] Where the IMC is satisfied that there has been a contravention of a civil penalty provision, the court may make orders for a person to pay a pecuniary penalty: s 546 of the FWA.
Burden And Standard Of Proof
[6] In an application under the IR Act, the claimant carries the burden of proving the claim. The standard of proof required to discharge the burden is proof ‘on the balance of probabilities. In Miller v Minister of Pensions [1947] 2 All ER 372, 374, Lord Denning explained the standard in the following terms:
It must carry a reasonable degree of probability but not so high as is required in a criminal case. If the evidence is such that the tribunal can say 'we think it more probable than not' the burden is discharged, but if the probabilities are equal it is not.
[7] In the context of an allegation of the breach of a civil penalty provision of the IR Act it is also relevant to recall the observation of Dixon J said in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences [362].
[8] Where in this decision it is stated that a finding has been made, the finding is made on the balance of probabilities. Where it is stated that a finding has not been made or cannot be made, then no finding can be made on the balance of probabilities.
Practice And Procedure Of The Industrial Magistrates Court
[9] The IR Act provides that, except as prescribed by or under the FWA, the powers, practice and procedure of the IMC is to be the same as if the proceedings were a case under the Magistrates Court (Civil Proceedings) Act 2004 (WA): s 81CA. Relevantly, regulations prescribed under the IR Act provide for an exception: 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: reg 35(4).
[10] In Sammut v AVM Holdings Pty Ltd [No2] [2012] WASC 27, Commissioner Sleight examined a similarly worded provision regulating the conduct of proceedings in the State Administrative Tribunal and made the following observation (omitting citations):
… The tribunal is not bound by the rules of evidence and may inform itself in such a manner as it thinks appropriate. This does not mean that the rules of evidence are to be ignored. The more flexible procedure provided for does not justify decisions made without a basis in evidence having probative force. The drawing of an inference without evidence is an error of law. Similarly, such error is shown when the tribunal bases its conclusion on its own view of a matter which requires evidence [40].

Schedule II: Jurisdiction, Practice And Procedure Of The Industrial Magistrates Court Of Western Australia Under The Industrial Relations Act 1979 (WA)
Jurisdiction
[1] The IMC has the jurisdiction conferred by the IR Act and other legislation. Section 83 and s 83A of the IR Act confer jurisdiction on IMC to make orders for the enforcement of a provision of an industrial agreement where a person has contravened or failed to comply with the agreement. If the contravention or failure to comply is proved, the IMC may issue a caution or impose a penalty and make any other order, including an interim order, necessary for the purpose of preventing any further contravention. The IMC must order the payment of any unpaid entitlements due under an industrial agreement.
[2] The same principles referred to in Schedule 1 at [6] to [10] otherwise apply.

Schedule 3 – Mr Manescu’s Further And Better Particulars