2023 WAIRC 00215
WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT


CITATION : 2023 WAIRC 00215

CORAM
: INDUSTRIAL MAGISTRATE B. COLEMAN

HEARD
:
WEDNESDAY, 27 JULY 2022

DELIVERED : WEDNESDAY, 19 APRIL 2023

FILE NO. : M 33 OF 2021

BETWEEN
:
STEPHEN SMITH
CLAIMANT

AND

PILBARA IRON COMPANY (SERVICES) PTY LTD
RESPONDENT
FILE NO. : M 34 OF 2021

BETWEEN
:
MICHAEL HULTEN
CLAIMANT

AND

PILBARA IRON COMPANY (SERVICES) PTY LTD
RESPONDENT


CatchWords : Long Service Leave; Statutory construction; Unilateral nomination of accrued Long Service Leave; Employer refusal of employee request
Legislation : Long Service Leave Act 1958 (WA)
Industrial Relations Act 1979 (WA)
Industrial Relations Legislation Amendment Act 2021
Interpretation Act 1984 (WA)
Magistrates Court (Civil Proceedings) Act 2004 (WA)
CASE(S) REFERRED
to in reasons : SZTAL v Minister for Immigration and Border Protection [2017] HCA 34
Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26
Public Transport Authority v Yoon [2017] WASCA 25
Result : Declarations made, Claims dismissed
REPRESENTATION:

CLAIMANT : MR A. BUKARICA (OF COUNSEL) AND WITH HIM MS E. ONG AS INSTRUCTED BY THE AUSTRALIAN WORKERS’ UNION WEST AUSTRALIAN BRANCH
RESPONDENT : MR A. MOSSOP (OF COUNSEL) AND WITH HIM MR S. PACK AS INSTRUCTED BY MILLS OAKLEY

REASONS FOR DECISION
1 By application lodged 5 February 2022 the claimants Stephen Smith and Michael Hulten (the claimants) seek a declaration pursuant to s 11(1) of the Long Service Leave Act 1958 (WA) (the Act) to determine the statutory construction of s 9 of the Act.
Introduction
2 The claimants are employees of Pilbara Iron Company (Services) Pty Ltd (the respondent).
The Background
3 The respondent has a long service leave policy that provides for more generous benefits than the entitlements pursuant to the Act.
Mr Smith
4 Mr Smith commenced employment with the respondent on 10 June 2022. He became eligible for long service leave on:
· 17 June 2012 (8 and 2/3 weeks); and
· 17 June 2017 (4 and 3/4 weeks).
5 By agreement with the respondent, Mr Smith took long service leave between:
· 8 to 13 May 2008, 6 shifts;
· 14 to 19 August 2010, 6 shifts;
· 19 to 23 December 2011, 5 shifts;
· 27 December 2014 to 1 January 2015, 6 shifts;
· 21 to 26 March 2015, 6 shifts;
· 13 to 18 August 2017, 6 shifts;
· 23 to 28 December 2017, 6 shifts; and
· 18 December 2018 to 4 January 2019, 12 shifts.
6 As of 22 February 2021, he had 10.33 weeks of long service leave accrued.
Mr Hulten
7 Mr Hulten commenced employment with the respondent on 9 June 2008. He became eligible for long service leave on 7 July 2018 and had accrued 8 and 2/3 weeks.
8 By agreement with the respondent, Mr Hulten took long service leave between:
· 2 December 2014 to 1 January 2015, 6 shifts;
· 20 April to 7 May 2016, 12 shifts;
· 9 to 14 January 2017, 6 shifts; and
· 30 December 2018 to 4 January 2019, 6 shifts.
9 As of 22 February 2021, he had 8.83 weeks of long service leave accrued.
10 The claimants work as operators of haul trucks at one of the respondent’s operations near Tom Price, Western Australia. Each of the claimants works a roster of three day-shifts, three night-shifts and three days off. Each shift is 12.5 hours in length.
11 The claimants perform an important role in the respondent’s business, without which the respondent’s production can be adversely impacted.
The leave book
12 The respondent operates a ‘leave book system’ (leave book) to ensure that it has adequate resources to run its operations. The leave book permits a maximum number of employees to be absent on planned annual leave or long service leave at any one time.
13 The system operates on a ‘first come, first served’ basis and approvals do not depend on whether the leave requested is annual leave or long service leave.
14 Once the maximum number of approvals for leave has been reached for a particular period, any further requests for leave for that period will be rejected unless the respondent is required to grant a request for long service leave under s 9 of the Act.
15 The respondent generally has a higher demand for leave around school and public holidays and the leave book during high demand periods usually fills up one year in advance.
16 The respondent will typically approve applications for long service leave at any time for periods not less than one week when the leave book is not full.
17 When the leave book is full and:
(a) an employee applies for long service leave; and
(b) the employee provides more than two weeks’ notice of the period during which the employee intends to take the long service leave; and
(c) the employee had an entitlement to long service leave which the employee became entitled to more than 12 months before the time the employee wants to take the long service leave,
then the respondent will not refuse the employee taking long service leave if they take all the relevant outstanding balance in one continuous period.
18 When the leave book is full, the respondent does not agree to employees taking long service leave in separate periods of less than one week, where that separate period is less than all of their relevant outstanding balance.
19 When long service leave is taken in one continuous period, alternative arrangements can be made to accommodate the extended absence such as engaging a contractor to perform the work.
20 Alternative arrangements are not practical for short absences of any duration where only two weeks’ notice is provided.
The leave requests
21 Mr Smith and Mr Hulten each made a request for long service leave for the period 19 and 24 December 2020 in October 2020.
22 The respondent declined each of their long service leave requests.
23 The claimants then applied to the Western Australian Industrial Relations Commission (the Commission) pursuant to s 44 of the Industrial Relations Act 1979 (WA) (the IR Act), resulting in a conciliation conference on 10 December 2020, during which the respondent agreed to consider alternative leave dates in April 2021 for each claimant.
24 Mr Smith and Mr Hulten each sought to take long service leave from 6 to 11 April 2021, which was a school holiday period for Western Australia.
25 The alternative leave dates were considered against the respondent’s leave book, however, the leave book was already full.
26 On or about 19 December 2020, the respondent notified the claimants that it was unable to accommodate their alternative leave requests.
27 Subsequently, the claimants discontinued their claim in the Commission and filed this claim.
The Issue
28 The issue to be decided in this claim is whether the statutory construction of s 9(1a) of the Act allows an employee to unilaterally nominate to take any portion of long service leave that they wish to take (whether it be a day, a week or their entire accrued entitlement), once they have reached the 12-month anniversary of the accrual of their long service leave.
29 Since the commencement of these proceedings, s 9 of the Act has been amended by the Industrial Relations Legislation Amendment Act 2021, in effect from 20 June 2022.
30 The parties have agreed that the Court is only required to determine the statutory construction of the current provision, though regard may be had to previous versions of the Act in determining the purpose or object underlying the legislation.
The Legislation
31 The relevant sections of the current provision state:
9 Taking long service leave and payment on termination
(1) Where an employee becomes entitled to a period of long service leave under this Act the leave is to be granted and taken -
(a) except as provided in subsection (1AA), as soon as reasonably practicable after it becomes due; and
(b) in one continuous period, or if the employer and the employee so agree, in separate periods.
(1AA) The employee and employer may agree when the employee will take long service leave.
(1a) When an employer and employee have not agreed when the employee is to take the employee’s long service leave, subject to subsection (1b), the employer is not to refuse the employee taking, at any time suitable to the employee, any period of long service leave to which the employee became entitled more than 12 months before that time.
(1b) The employee is to give the employer at least 2 weeks’ notice of the period during which the employee intends to take the long service leave.
(1C) The employee may request the employer to grant the employee a period of long service leave -
(a) twice as long as the period to which the employee would otherwise be entitled; and
(b) at a rate of pay equal to half the employee’s ordinary pay.
(1D) The employee may request the employer to grant the employee a period of long service leave –
(a) half as long as the period to which the employee would otherwise be entitled; and
(b) at a rate of pay equal to twice the employee’s ordinary pay.
The Claimants’ Position
32 The claimants submit that the words in s 9 (1a) of the Act allow an employee to unilaterally nominate any period of leave that the employee wishes to take, whether it be a day, a week or the entirety of the outstanding long service leave entitlement.
33 The claimants state that the ordinary meaning of the words ‘not to refuse’, ‘at any time suitable’ and ‘any period’ when read in context, are entirely consistent with the purpose of granting and taking long service leave for any length of time sought by the employee.
The Respondent’s Position
34 The respondent submits that on a proper construction of s 9 of the Act, particularly s 9(1a) of the Act, the respondent is permitted to refuse an employee’s request to take long service leave for periods of time that are less than the employee’s overall long service leave entitlement.
35 The respondent submits that an employee is not permitted to unilaterally take long service leave for periods less than their overall long service leave entitlement, where the long service leave entitlement accrued more than 12 months earlier.
Determination
36 Schedule 1 sets out the jurisdiction, practice and procedure of the Western Australian Industrial Magistrates Court of Western Australia (IMC) and the relevant legislation.
37 The power of this Court to make a declaration regarding the interpretation of s 9 of the Act arises pursuant to s 81AA of the IR Act and s 11(1)(b) of the Act.
38 The IMC has the power to determine all questions and disputes in relation to rights and responsibilities under the Act, including whether, when and to what extent an employee is entitled to long service leave. Section 11(1)(b) Long Service Leave Act 1958 (WA).

The law relating to statutory interpretation
39 It is well settled law that the starting point for interpreting legislation is to consider the ordinary meaning of the text of the statute, while considering its context and purpose.
40 In the High Court decision of in SZTAL v Minister for Immigration and Border Protection SZTAL v Minister for Immigration and Border Protection [2017] HCA 34.
[2017] HCA 34, Kiefel CJ, Nettle and Gordon JJ at [14] said:
The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

41 It follows then, that when interpreting the meaning of a statutory provision, a choice must be made between competing meanings, often referred to as ‘a constructional choice’ Statutory Interpretation in Australia, 9th Ed 2019, D Pearce, page 33.
.
42 The following comments of Gageler J in SZTAL SZTAL at [37]– [38].
are important to consider when undertaking the task of choosing between competing meanings:
… The task of construction begins, as it ends, with the statutory text. But the statutory text from beginning to end is construed in context, and an understanding of context has utility “if, and in so far as, it assists in fixing the meaning of the statutory text”.

The constructional choice presented by a statutory text read in context is sometimes between one meaning which can be characterised as the ordinary or grammatical meaning and another meaning which cannot be so characterised. More commonly, the choice is from “a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural”, in which case the choice “turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies”.

43 Section 18 of the Interpretation Act 1984 (WA) (the IA Act) provides an unqualified statutory instruction regarding the interpretation of Western Australian Acts, which reflects the prevailing legal principle that the statutory provision must be interpreted in context with the statutory purpose of the Act:
18. Purpose or object of written law, use of in interpretation
In the interpretation of a provision of a written law, a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object.
44 Section 19(1) of the IA Act allows for the use of extrinsic materials to assist in the interpretation of legislation, however, that is qualified by s 19(3) of the IA Act:
(3) In determining whether consideration should be given to any material in accordance with subsection (1), or in considering the weight to be given to any such material, regard shall be had, in addition to any other relevant matters, to –
(a) The desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law; and
(b) The need to avoid prolonging legal or other proceedings without compensating advantage.
45 In other words, where the ordinary meaning of the words in the provision are clear, having regard to context and the purpose of the Act, there is no need to consider any extrinsic materials.
History of the Long Service Leave Act
46 Long service leave has been an important employee entitlement for Australians for many years. In essence, the entitlement rewards long-term employees for their commitment to their employer for their length of service and it assists employers to retain valued employees for a consistent workforce.
47 Long service leave is a uniquely Australian phenomenon, with its origins in colonial history, when long-serving British public servants were provided with paid leave to travel the lengthy sea voyage back to visit the mother country. Macken’s Law of Employment, 8th Ed, Sappideen, O’Grady & Riley [12.220] page 498.
The entitlement was eventually legislated by State and Territory governments in the 1950s.
48 The Western Australian Long Service Leave Bill was originally introduced to Parliament in 1958 to ensure that those employees not covered by awards or industrial agreements would be given long service leave such as was already being enjoyed by private industry employees. Second reading speech, Mr W Hegney, pg 938 Hansard, Legislative Assembly 18 September 1958.

49 The 1958 Act allowed for 13 weeks leave after 20 years of continuous employment Section 8(2)(a) Long Service Leave 1958.
and a further 6 and a half weeks leave for each ten years’ continuous employment thereafter. Section 8(2)(b) Long Service Leave Act 1958.

50 Section 9 of the 1958 Act allowed for the leave to be taken in one continuous period or, if the employer and employee agreed, in not more than three separate periods for the first 13 weeks entitlement and in not more than two separate periods for any subsequent entitlement. Section 9(1(c) Long Service Leave Act 1958.

51 The Act subsequently evolved over the decades, allowing for further flexibility between the employee and employer, ultimately resulting in the current form of s 9(1) of the Act, which allows for leave to be taken in one continuous period, or in separate periods.
52 The question is whether the current form of the Act allows for such flexibility that an employee (once they have reached the 12-month anniversary of the accrual of their long service leave) can unilaterally take any portion of leave that he or she pleases, whether it be a day, a week or a month, with only two weeks’ notice to the employer.
53 When interpreting the current s 9 of the Act, regard must be had to the entirety of the provision, ensuring that the construction is consistent with the purpose of the whole of the provision, along with the purpose of the Act Section 18, Interpretation Act 1984 (WA); Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28.
. It would be incorrect to read each sub-section separately to determine the meaning of a particular sub-section.
54 Section 9 of the Act deals with the taking of long service leave after it has properly accrued, the differing ways in which the leave may be paid, along with the payment in lieu of accrued long service leave upon termination of the employment relationship.
55 In summary, the section deals with:
(a) when the leave can be taken;
(b) how it can be taken;
(c) how it can be paid; and
(d) how the accrued entitlement is paid to an employee when the employment ends.
56 Section 9(1a) and s 9(1b) of the Act set out the default position for the taking of long service leave: an employee is required to take an accrued period of long service leave as soon as reasonably practicable after it becomes due and in one continuous period.
57 By reference to s (9)(1AA) of the Act and the words contained within s 9(1b) of the Act, the only way that this default position can be altered is by agreement between the employer and employee.
58 Section 9 (1AA) of the Act allows an agreement to be made between the employee and the employer to defer the taking of the long service leave, rather than taking the leave as soon as reasonably practicable after it has accrued.
59 This is sensible, since the employee may wish to utilise the leave for an extended vacation or to maximise a break from work when planning for the birth of a child. Conversely, the employer may have staffing issues which warrant an agreement to be made between the parties to defer the leave to a more convenient time in the work calendar.
60 Section 9(1a) of the Act goes on to deal with the situation where the parties cannot reach an agreement about when an employee can take their accrued leave and relates only to employees that have reached the 12-month anniversary of the accrual of their long service leave.
61 The following pre-requisites must apply before s 9(1a) of the Act is enlivened:
(a) the employee became entitled to their long service leave more than 12 months prior;
(b) and the employee has deferred the taking of that leave (for personal or operational reasons);
(c) or the employer and employee have not reached an agreement about when the leave can be taken.
62 If the pre-requisites in s 9(1a) of the Act are met, then an employer cannot refuse the leave being taken at a time suitable to the employee. The only qualifier is set out in s 9(1b) of the Act: the employee must give at least two weeks’ notice of their intention to take the leave.
63 This then begs the question: does s 9(1a) of the Act allow the employee to take any portion of their leave by giving two week’s notice?
64 On a plain reading of the ordinary meaning of the text, taking into account its context and the purpose underlying the provision, it does not.
65 To arrive at the meaning espoused by the claimants, words would have to be ‘read in’ to the text as follows:
(1a) When an employer and employee have not agreed when the employee is to take the employee’s long service leave… the employer is not to refuse the employee taking, at any time suitable to the employee, any [portion of any] period of long service leave to which the employee became entitled more than 12 months before that time [Emphasis added].
(1b) The employee is to give to the employer at least 2 weeks’ notice of the period during which the employee intents to take the [portion of] long service leave [Emphasis added].
66 A contextual examination of the use of the words ‘period’, ‘continuous period’, ‘separate period’ and ‘any period’ within the whole of s 9 of the Act supports the interpretation espoused by the respondent.
67 Focusing on the singular word ‘period’ throughout s 9 of the Act, it is plainly clear that the word connotes the entire accrued entitlement. The only qualification is set out in s 9(1b) of the Act, where there are references to ‘continuous period’ and ‘separate periods’.
68 That qualification arises by virtue of the fact that Parliament in s 9(1b) of the Act has permitted the employer and employee to alter the default position: the employer and employee can agree for the employee to take the long service leave in separate periods.
69 In s 9(1b) of the Act, the accrued entitlement is to be taken as one ‘continuous period’ unless the employer and employee agree it can be taken in ‘separate periods’.
70 Thereafter, s 9 (1a) and s 9(1b) of the Act revert to the use of the singular word ‘period’, being the entirety of the accrued long service leave.
71 Parliament has intentionally inserted the word ‘separate’ into s 9(1b) of the Act to connote a portion of long service leave that is different to the entire accrued entitlement. The word ‘separate’ has not been inserted into s 9(1a) of the Act, therefore the words ‘any period’ must be referenced back to the entire accrued entitlement referred to in the commencing words of s 9(1) of the Act.
72 Such an interpretation is further strengthened by examining the sub-sections subsequent to s 9(1a) of the Act: s 9(1C) and s 9(1D) of the Act deal with the way the long service leave can be taken but also require the parties to agree: those subsections use the singular word ‘period’ and must also be read in conjunction with s 9(1AA) of the Act.
73 The ordinary meaning of the text in s 9 (1a) and s 9(1b) of the Act permit an employee to unilaterally take the entirety of their long service leave with not less than two weeks’ notice, but only in circumstances where more than 12 months have passed since the accrual of their leave.
74 In drafting s 9 of the Act, Parliament intended employees take their long service leave upon accrual, rather than defer. That is why the prohibition on refusal arises in s 9(1a) of the Act.
75 Section 9(1a) of the Act prevents an employer from refusing to grant long service leave to an employee when the employee has deferred the taking of that leave for more than 12 months: the operational effect of the sub-section prioritises the taking of the long service leave that has accrued, since that is the intent of s 9 of the Act.
76 It does not allow the employee to unilaterally decide how much of that leave they want to take: that can only be done by agreement with the employer, as specifically set out in s 9(1)(b) of the Act.
77 To interpret the provision in such a way as to allow the employee to choose whatever portion of their leave they wish to take, with only two weeks’ notice to the employer, would inevitably result in chaos within a workplace.
78 By way of example, on the interpretation preferred by the claimants, an employee that has reached the 12-month anniversary of the accrual of their long service leave could inform their employer that in 15 days’ time (being more than two weeks’ notice as required by s 9(1b) of the Act), the employee intends to take one day of long service leave. The employer would be required (at short notice) to make alternative arrangements in the workplace to cover that employee’s position and/or reallocate their work.
79 That same employee could then take their day of long service leave, return to the workplace the following working day and make the same demand, requiring the employer to make arrangements to cover the employee at short notice in a further 15 days’ time.
80 The employer would essentially be held to ransom by any employees that had reached the 12-month anniversary of the accrual of their long service leave.
81 An employer with many staff would inevitably have a larger number of employees that had reached their 12-month anniversary. Managing the work roster would become untenable, particularly on popular leave dates such as school holidays, Easter and Christmas.
82 Effective operational decisions for the running of an employer’s business would not be able to be made, most notably in the mining sector, where many employees are rotating on ‘fly in, fly out’ rosters.
83 Such an interpretation as advocated by the claimants brings forth an unjust result, Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26 per Gibbs CJ at 5.
which could never have been the intention of the Western Australian Parliament in the drafting of s 9(1a) of the Act. If it had been so, then such a change would have been promoted within the Explanatory Memorandum.
84 Indeed, the comments within the Explanatory Memorandum for the 2021 amendments give an example:
Clause 90(1) amends s 9 to remove the requirement that this be for periods of not less than one week. The parties may therefore agree, for example, to the employee taking leave in single day absences [Emphasis added]. Explanatory Memorandum, Industrial Relations Legislation Amendment Act 2021 (WA), p117.

85 Relevantly, the Explanatory Memorandum does not go on to explain that the employee may unilaterally elect to take a single day absence after their 12-month anniversary. It does not do so because that was never Parliament’s intention.
86 The purpose or object of the Act is to allow for the granting and taking of long service leave to Western Australian employees not covered by an award or industrial instrument, to ensure that all long-term employees of this State have equivalent entitlements. Public Transport Authority v Yoon [2017] WASCA 25 at 38.

87 Long service leave is fundamentally different in nature to annual leave. Annual leave is taken annually, for short breaks from the workplace. Long service leave is essentially a reward for continuous service over many years, historically taken as a long break from the workplace, either for respite or recuperation. Ibid at 42.

88 It is correct that the Act has evolved to allow for shorter periods of long service leave to be taken, as demonstrated in the most recent amendment to s 9 of the Act to omit the words ‘of not less than one week’ from s 9(1)(b) of the Act:
9 Taking long service leave and payment on termination
(1) Where an employee becomes entitled to a period of long service leave under this Act the leave is to be granted and taken –
(a) except as provided in subsection (1AA), as soon as reasonably practicable after it becomes due; and
(b) in one continuous period, or if the employer and the employee so agree, in separate periods of not less than one week [Emphasis added].
89 However, Parliament has only allowed for shorter periods of leave to be taken with the agreement of the employer. That is clear from the text of the provision when s 9(1) of the Act, s 9(1AA) of the Act and s 9(1)(a) and s 9(1)(b) of the Act are read together.
90 When drafting s 9 of the Act, Parliament took care to balance the interests of both the employee and the employer, ensuring that the employee can, with the permission of their employer, take their long service leave for shorter periods of time should they seek to do so, if the business needs of the workplace can be accommodated.
91 Where no agreement can be reached, the employee that has reached their 12-month anniversary remains entitled to take the entirety of their outstanding balance of long service leave upon the giving of more than two weeks’ notice, ensuring that the employee is granted their respite from work.
92 Absent agreement, the requirement to take the entirety of the accrued long service leave ensures that the adverse impact upon the employer is reduced, since the employer can more readily cover an employee’s position and/or reallocate their work when there is a longer period of absence from the workplace.
93 The current operation of the respondent’s leave book might not be fair, particularly given the ‘first in, best dressed’ approach and the fact that leave cannot be booked more than 12 months in advance.
94 One can envision many instances in which an astute employee might regularly receive leave at Easter, Christmas or on school holidays over and above another, just because that person was prompt in submitting their leave. Perhaps the respondent should introduce a process for ensuring that popular leave dates are spread across all employees in a fair manner: however, that is not the question to be considered in this matter.
Result
95 The sole question to consider is whether the statutory construction of s 9(1a) of the Act allows an employee to unilaterally nominate to take any portion of long service leave that they wish to take, whether it be a day, a week or their entire accrued entitlement, once they have reached the 12-month anniversary of the accrual of their long service leave.
96 The answer to that question is no.
97 Section 9(1a) of the Act only allows an employee to unilaterally nominate, with more than two weeks’ notice, to take their entire accrued period of long service leave, once that employee has reached the 12-month anniversary date of the accrual.
98 Section 9(1)(b) of the Act allows the employee to take long service leave in separate periods that are less than the entirety of accrued leave (whether it be a day, a week or a month), only in circumstances where the employer agrees.
99 The claims are dismissed.




B. COLEMAN
INDUSTRIAL MAGISTRATE



Schedule 1 – Jurisdiction of the Western Australian Industrial Magistrates Court
[1] The Western Australian Industrial Magistrates Court (IMC) has the jurisdiction conferred by the Industrial Relations Act 1979 (WA) (IR Act) and other legislation. Section 83 and s 83A of the IR Act confer jurisdiction on the Court 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 powers, practice and procedure of the IMC are the same as in a case under the Magistrates Court (Civil Proceedings) Act 2004 (WA). The onus of proving a claim is on the claimant and the standard of proof required to discharge this onus is proof ‘on the balance of probabilities’.
[3] The IMC is not bound by the rules of evidence and may inform itself on any matter and in any manner as it thinks fit. In Sammut v AVM Holdings Pty Ltd [No 2] [2012] WASC 27 [40] - [47], Commissioner Sleight examined a similarly worded provision regulating cases in the State Administrative Tribunal of Western Australia, noting:
[T]he rules of evidence are [not] to be ignored … After all, they represent the attempt made, through many generations, to evolve a method of enquiry best calculated to prevent error and elicit truth …
The more flexible procedure provided for does not justify decisions made without a basis in evidence having probative force.