2024 WAIRC 00083
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION : 2024 WAIRC 00083

CORAM : INDUSTRIAL MAGISTRATE D. SCADDAN

HEARD : THURSDAY, 8 FEBRUARY 2024

DELIVERED : FRIDAY, 23 FEBRUARY 2024

FILE NO. : M 113 OF 2023

BETWEEN : CONSTRUCTION, FORESTRY AND MARITIME EMPLOYEES UNION
CLAIMANT

AND

QUBE PORTS PTY LTD
RESPONDENT

CatchWords : INDUSTRIAL LAW – Application by respondent for summary dismissal of claim – Whether there is a real issue of fact or law to be tried – Provision of allocation details under terms of an industrial enterprise agreement
Legislation : Fair Work Act 2009 (Cth)
Industrial Relations Act 1979 (WA)
Industrial Magistrate’s Court (General Jurisdiction) Regulations 2005 (WA)
Instrument : Qube Ports Pty Ltd Port of Port Hedland Enterprise Agreement 2020
Case(s) referred
to in reasons: : Casella v Hewitt [2008] WASCA 13; 13 WAR 1
Mildren v Gabbusch [2014] SAIRC 15
Miller v Minister of Pensions [1947] 2 All ER 372, 374
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Fedec v The Minister for Corrective Services [2017] WAIRC 00828
City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Excelior Pty Ltd [2013] FCA 638
United Voice WA v The Minister for Health [2011] WAIRC 01065; 91 WAIG 2337
Fancourt v Mercantile Credits Ltd [1983] HCA 25; 154 CLR 87
Mary v Schon [2015] WADC 92
Edenham Pty Ltd v Meares (No 2) [2016] WASC 302
Lewkowski v Bergalin Pty Ltd (Unreported, WASCA, Library No 7675, 26 May 1989)
Whitehall Holdings Pty Ltd v Ravi Nominees Pty Ltd (Unreported, WASCA, Library No 9189, 13 December 1991)
Dey v Victorian Railways Commissioners [1949] HCA 1; 78 CLR 62
Theseus Exploration NL v Foyster [1972] HCA 41; 126 CLR 507
Burton v Shire of Bairnsdale [1908] HCA 57; 7 CLR 76
Result : Application granted; claim dismissed
Representation:


Claimant : Mr K. Sneddon (of counsel)
Respondent : Mr R. Boothman (of counsel)

REASONS FOR DECISION
Background
1 The claimant seeks an order that the respondent pay a civil pecuniary penalty for an alleged failure to provide access to allocation details in compliance with cl 17.4 of the Qube Ports Pty Ltd Port of Port Hedland Enterprise Agreement 2020 (the Agreement), thereby contravening s 50 of the Fair Work Act 2009 (Cth) (the FWA).
2 In particular, the claimant says that on:
2.1 9 August 2023, Leah Costa, an employee, sent an email to Nick Armitage, Operations Superintendent, requesting allocation details;
2.2 17 August 2023, Joel O’Brien, an organiser for the claimant, sent an email to Mr Armitage requesting allocation details; and
2.3 29 August 2023, Mr O’Brien sent an email to James Waltham, General Manager, requesting allocation details.
(the Claim)
3 The claimant says the respondent has not provided access to the allocation details as requested above.
4 The respondent says it provided the allocation details on 17 August 2023 in an email sent by Mr Armitage to Mr O’Brien. Further, it says the email from Mr O’Brien to Mr Waltham was a repetition of the same request to that contained in the email dated 17 August 2023 (and which was already provided).
The respondent’s application and orders sought
5 On 22 December 2023, the respondent lodged an application seeking:
5.1 a stay of programming orders dated 27 November 2023 pending determination of the remainder of the application; and
5.2 pursuant to regulation 5 and 7(1) of the Industrial Magistrate’s Court (General Jurisdiction) Regulations 2005 (WA) (the IMC Regulations), the claim be struck out because: (a) it does not disclose any reasonable grounds for any claim in it; or (b) the claim is an abuse of process; or (c) the claim is frivolous, vexatious, scandalous or improper.
(the Application)
6 The respondent’s grounds for the Application are that the Claim:
· does not disclose any reasonable grounds for any claim of a contravention of cl 17.4 of the Agreement upon its proper construction (referred to as the Proper Construction Ground);
· is improper because there was not a contravention of the Agreement where Mr Armitage provided the relevant allocation details to Mr O’Brien by email on 17 August 2023 and Mr O’Brien’s email dated 29 August 2023 merely repeated the same request, and on 30 August 2023 Mr Waltham spoke with Paul Brett, Organiser for the claimant, referring him to the email containing the allocation details (referred to as the Improper Claim Ground); and
· is an abuse of process because the claimant knew or ought to have known at the time it filed the Claim the respondent had provided the claimant with all the requested allocation details, and the Claim is designed to harass the respondent (referred to as the Abuse of Process Ground).
7 There is overlap between the three grounds.
8 The respondent relies upon two affidavits of Ronan David Boothman affirmed on 20 December 2023 and 6 February 2024 in support of the Application (Boothman Affidavit One and Two, respectively).
9 The claimant opposes the Application and relies upon the affidavit of Kevin Sneddon affirmed on 2 February 2024 (Sneddon Affidavit).
10 Schedule I of these reasons outlines the jurisdiction, standard of proof, practice, and procedure of the Court in determining this case.
11 Schedule II of these reasons outlines the principles relevant to the construction of industrial agreements.
The respondent’s evidence
12 Mr Boothman is a legal practitioner employed by solicitors who act for the respondent. In Boothman Affidavit One, he deposes to the following:
· clause 17.4 of the Agreement requires the respondent to ‘provide access to allocation details if requested by the employee, to the employee’s chosen representative’ but does not prescribe a minimum period by which the allocation details must be provided;
· on 17 August 2023 the respondent provided the allocation details to the claimant’s representative, and he annexes an email chain of correspondence starting with an email from Ms Costa dated 9 August 2023 to Mr Armitage copied to Mr O’Brien which states:
I believe I’m being treated inequitably through the allocation system. Can you please provide access to allocation details and barrel roster for the past four weeks? Also please provide access to Joel as my representative? Affidavit of Ronan David Bootham affirmed 20 December 2023 at annexure RDB 1.

· on 17 August 2023 at 9.49 am, Mr O’Brien sent an email to Mr Armitage copied to Ms Costa which states:
In line with cl 17.3 & 17.4, can you please share the info as requested by Leah below?
For the avoidance of doubt this email constitutes step 2 of the Dispute procedure in cl 49 of the Agreement, with Leah’s email sent on the 9 August being step 1.
Can you please provide the info before CoB tomorrow or we will proceed to step 3. Affidavit of Mr Boothman at RDB 1.

· on 17 August 2023 at 2.43 pm, Mr Armitage sent an email to Mr O’Brien copied to Ms Costa which states, ‘Please see attached. Have also shared the information with several ERC members recently as per Leah’s request’. An attachment to the email is described as PHEO – July 2023.pdf and is annexed to Boothman Affidavit One (the Table). Affidavit of Mr Boothman at RDB 1.
Schedule III of these reasons sets out the Table.
13 Boothman Affidavit Two annexes a copy of the Maritime Union of Australia’s Official Western Australia Members’ Magazine for December 2023, which describes, amongst other things, industrial and litigation action against the respondent.
The claimant’s evidence
14 Mr Sneddon is a legal practitioner engaged by the claimant. In the Sneddon Affidavit, he deposes to:
· the respondent failing to provide the entitlement and says when the entitlement was not provided, and states the entitlement has not been provided;
· the respondent’s assertion that there was not a contravention of the Agreement is properly a matter for evidence at a hearing and the entitlement being satisfied is incorrect;
· email correspondence between the parties [more correctly, their lawyers] dated 14 and 15 December 2023 where Mr Sneddon and Mr Boothman disagree on the content and character of the data provided by the respondent in the email from Mr Armitage on 17 August 2023. Notably, Mr Sneddon refers to the information being economic conditions data (ECD) in cl 13 of the Agreement (the Sneddon Emails) Affidavit of Kevin Sneddon affirmed on 2 February 2024 annexure KS1.
; and
· further stating the entitlement sought by Ms Costa has not been satisfied.
The parties’ submissions
The respondent’s submissions
15 The respondent says the whole of the Claim should be struck out or subject to summary judgment on the basis that:
· it does not disclose any reasonable grounds for the Claim;
· defects in the Claim were highlighted to the claimant, and it was ordered to provide further and better particulars which it did on two occasions, but which do not further advance the basis for the Claim;
· the allocation details sought by the claimant’s member, Ms Costa, were provided on 17 August 2023 in an email attachment to Ms Costa’s representative, Mr O’Brien, being the Table;
· the claimant’s pleadings, as amended by the provision of further and better particulars of the Claim, make no reference to Ms Costa being treated unequally or any other inequity, only that the respondent failed to provide allocation details on three occasions when requested, which the respondent says is contained in the Table and was provided on 17 August 2023;
· the respondent risks being subject to rolling amendments to the Claim because the claimant is attempting to address something else, rather than the provision of allocation details, which they received on 17 August 2023;
· the Agreement provides a mechanism in cl 49 for dispute resolution, which the claimant is required to use under the terms of the Agreement, and the claimant seeks to prosecute the Claim as part of a deliberate campaign to damage and harass the respondent.
The claimant’s submissions
16 The claimant says in response that:
· dispute resolution does not preclude prosecution of the respondent where the claimant is often forced to go to court to seek member entitlements;
· the Table is ECD and not allocation details and evidence will be lead at trial about this;
· the Sneddon Email dated 15 December 2023 at 9.06 am sets out the reasons why the claimant says the Table is ECD and why it does not contain allocation details. Allocation details, in part, are directed towards showing shifts that attract more money and ensuring they are distributed equally. This will be the subject of witness statements when it comes time to exchange pre-trial evidence;
· there is a dispute of fact as to the content of the Table and what constitutes ECD and allocation details and this should be settled at a hearing, and not at this early stage;
· there is a single issue for resolution, namely the entitlement is not in compliance with cl 17 of the Agreement; and
· it will not change the ambit of the Claim from the one that is pleaded.
Issues for determination
Does the Table contain allocation details?
17 One of the key issues for determination in the Application, and the principal issue in dispute between the parties, is the content of the Table with the respondent saying the Table contains the allocation details requested by Ms Costa, and the claimant saying the Table is ECD and is not the allocation details requested by Ms Costa.
18 In plain terms the claimant asserts three things: (a) the entitlement, being access to allocation details, has not been satisfied; (b) the information provided by the respondent is ECD not the entitlement: and (c) the respondent must have the information constituting the entitlement but does not say what this information is.
19 I note the claimant’s submission that these are matters of fact for trial. However, this is hardly a satisfactory response where the claimant has an evidentiary onus if the respondent persuades the Court to enter judgment against the claimant.
20 The Agreement does not define ‘allocation details’.
21 The Table lists from highest to lowest supplementary employees as it relates to earnings, hours worked, worker’s compensation, total hours, total shift, off roster, unworked hours, and a breakdown of the shifts across days, evenings and nights.  It is a comparison of work undertaken by one category of employee, being supplementary employees, during a defined period.
22 That is, the Table contains information comparing various indicators of one category of employee of which Ms Costa is a member. It shows where Ms Costa is bench marked as against other employees in the same category. In my view, this information enables Ms Costa to consider her position with respect to other supplementary employees, and if she continues to hold a view that she has in some way been treated inequitably in the allocation in comparison to other supplementary employees, she can rely on this information to advance her claim of inequity.
23 The Table is also consistent with submissions made by the claimant that allocation details show whether there has been an equal distribution of high value shifts (in this case, I suggest, amongst other things, by reference to days, evenings and nights shifts).
24 That there might be other unknown information available to the parties to support or oppose Ms Costa’s view is not to the point and it is not for the Court to speculate on what that might be. Thereafter, it is open to Ms Costa to further engage the dispute resolution process in cl 49 of the Agreement, as indicated by Mr O’Brien in his email to Mr Armitage dated 17 August 2023.
The alternative argument - Is the information provided by the respondent ECD?
25 The difficulty with the claimant’s assertions is there is little or no evidence supporting them. The closest the claimant comes to supporting its position (including in its amended further and better particulars) is the Sneddon Emails, which contain the lawyer's characterisation of what was provided by Mr Armitage on 17 August 2023, and a bare claim by the claimant that this is not what the claimant is seeking.
26 The claimant refers to one of the Sneddon Emails, dated 15 December 2023 sent at 9.06 am, where Mr Sneddon informs Mr Boothman:
… [a]t 2.48, five minutes later, Joel O’Brien of the MUA responded to Mr Armitage and pointed out that the information provided was the Economic Conditions Data (ECD) (emphasis added). Clause 13 of the Agreement outlines what [ECD] data is intended for and the obligation on the part of the employer to provide it to the Union. The [ECD] report provided was in the format previously agreed between the Parties as being appropriate.
Allocation details, an obligation pursuant to clause 17.4 of the Agreement, are an entirely different obligation and intended to ensure that the Union can monitor the employer’s obligation to provide fair and equitable opportunities for all employees. As Mr O’Brien pointed out in his email of 17 August 2023, this requires the ability to see what each supplementary was allocated over a pay period and that equity has been provided (emphasis added). This has not been provided by your client and is the basis for our application.
27 The only email from Mr O’Brien to Mr Armitage dated 17 August 2023 is that annexed to Boothman Affidavit One, where Mr O’Brien states:
In line with cl 17.3 & 17.4, can you please share the info as requested by Leah below?
For the avoidance of doubt this email constitutes step 2 of the Dispute procedure in cl. 49 of the Agreement, with Leah’s email sent on the 9th of August being step 1.
Can you please provide the info before CoB tomorrow or we will proceed to step 3.
28 Thereafter, Mr O’Brien reproduces the whole of cl 17 of the Agreement in the email.
29 If there was a different email from Mr O’Brien to Mr Armitage dated 17 August 2023 pointing out ‘the ability to see what each supplementary was allocated over a pay period and that equity has been provided’, then it is reasonable to expect it would have been annexed to the Sneddon Affidavit for the purposes of opposing the Application (and not wait until any trial). Accordingly, it is reasonable to infer the email referred to in paragraph [26] is the same email referred to in the Sneddon Emails dated 15 December 2023.
30 ECD is defined in cl 2.1(f) the Agreement to include:
… earnings, counted hours, all leave balances, workers’ compensation and shift patterns and other relevant information.
31 The purpose of ECD is found in cl 13 of the Agreement, where in an industry subject to economic fluctuations there is transparency enabling the parties to work together in times of economic downturn (howsoever it arises) and reduce the impact an economic downturn might have on the respondent’s employees and provide benefit to employees in economic upturn. The ancillary purpose is to ensure the respondent does not capriciously hide behind an economic downturn for commercial or other reasons. The remainder of the clause deals with the process in the event of economic downturn.
32 Notably cl 13.1.1 of the Agreement provides ‘[e]qually, it is acknowledged that the Company [the respondent] favours full time permanent employment arrangements and in favourable economic conditions...’.
33 ‘Permanent employee’ is defined in cl 2.1(p) of the Agreement, and it does not include a ‘supplementary employee’ who by the definition in cl 2.1(s) ‘is a non-permanent casually engaged person to supplement the use of other Employees in accordance with cl 9.8 of this Agreement.’
34 Clause 13 of the Agreement treats supplementary employees the least favourably during economic downturn consistent with their position as casual employees and cl 9.8.1(b) of the Agreement.
35 Clause 9.8.1(b) of the Agreement provides that supplementary employees will be available for totally irregular allocation.
36 Clause 10.1 of the Agreement provides that the respondent is to ensure there is fair and equitable opportunity to be engaged for work for all employees to their respective classification. Thereafter, cl 10.2 of the Agreement refers to skill, competencies, availability and performance determining allocation in conjunction with a hierarchy of employee classification so that certain employees are allocated work before others (e.g. full-time salaried employees with annualised hours are allocated work before a labour hire company).
37 One purpose of cl 10 of the Agreement is to ensure employees with minimum employment requirements can achieve those minimum requirements, which impacts upon financial and other entitlements. Another purpose is to ensure individual employees are not given preferential treatment, all other things being equal.
38 This, in part, contextualises cl 17 of the Agreement and Mr Sneddon’s reference to what ‘each supplementary was allocated over a pay period’ in the Sneddon Emails. Clause 17 of the Agreement provides for certain information being made publicly available, being work orders posted on noticeboards and emails and hours posted (somewhere else or also on noticeboards and emails) monthly along with other information.
39 Thereafter, an employee can question the allocation if they believe they have been treated inequitably through the system by using the mechanism in cl 17.3 of the Agreement.
40 Once invoked, the respondent via cl 17.4 of the Agreement agrees to provide access to allocation details to the employee’s chosen representative.
41 For the following reasons I am satisfied, and I find the Table is not ECD:
· ECD is not directed towards individual employees. It is big picture or global employee information relevant to circumstances of economic fluctuation and assists in the process of managing employees during these times;
· while there may be some cross-over of information, the information in the Table does not include all leave balance, shift patterns or ‘other relevant information’ (whatever that might be);
· further, bench marking individual employees against other categories of employees has questionable value in terms of fairness and equity, when the Agreement conditions of employment are vastly different and where the parties recognise that at times preference is given to certain categories of employees;
· Mr Sneddon recognises in the Sneddon Emails; Ms Costa is bench marked against other supplementary employees and not against all other categories of employees;
· where it shows a comparison of work undertaken by one category of employee, being supplementary employees, during a defined period. This supports my view that the Table is not ECD.
42 I am satisfied and I find the Table contains allocation details relevant to Ms Costa and to other supplementary employees, being employees in the same employment category as her.
Determination
Principles relevant to summary judgment applications
43 The Industrial Magistrates Court (IMC) has the power to summarily dispose of a claim on the basis that there is no reasonable prospect of success. United Voice WA v The Minister for Health [2011] WAIRC 01065; 91 WAIG 2337.
The IMC’s duties in dealing with cases are set out in reg 5 of the IMC Regulations. The IMC is exercising federal jurisdiction in respect of the Claim and the Regulations apply to govern the practice and procedure of the IMC in this regard.
Regulation 7 of the IMC Regulations sets out what the IMC may do for the purpose of controlling and managing cases and trials, including, at reg 7(1)(h) ‘order that an issue not be tried’, and at r 7(1)(r) ‘take any other action or make any other order for the purpose of complying with regulation 5’.
44 Therefore, the IMC has the power to make the order sought by the respondent if it concludes the Claim is so clearly untenable that it could not possibly succeed and, if that circumstance exists, to dismiss the claim so as to deal with the case efficiently, economically and expeditiously and to ensure that the IMC’s resources are used as efficiently as possible. Regulation 5(2)(a) and (c) of the Regulations.

45 The power to order summary judgment or wholly strike out a claim is one that should be exercised with great care. Fancourt v Mercantile Credits Ltd [1983] HCA 25; 154 CLR 87.
An application for summary judgment should be determined on the material before the Court, not based on the prospect that, given the opportunity, the other party might be able to remedy a deficiency. Mary v Schon [2015] WADC 92 [43] - [44].
The persuasive onus rests on the applicant for judgment, but the respondent to the application bears an evidentiary onus. Edenham Pty Ltd v Meares (No 2) [2016] WASC 302 [18].
The claim or defence put forward should not contain bare allegations unsupported by material facts. Lewkowski v Bergalin Pty Ltd (Unreported, WASCA, Library No 7675, 26 May 1989).

46 The other party has an obligation to provide particulars of an arguable defence or claim (as the case may be) and to provide a statement of facts which go to show that it is arguable. Whitehall Holdings Pty Ltd v Ravi Nominees Pty Ltd (Unreported, WASCA, Library No 9189, 13 December 1991).
The summary judgment procedure is not confined to cases which are immediately plain and obvious. Dey v Victorian Railways Commissioners [1949] HCA 1; 78 CLR 62, 91.

47 While the Court may determine a difficult question of law on a summary judgment application, usually it is appropriate to leave the determination of such a question for trial. Theseus Exploration NL v Foyster [1972] HCA 41; 126 CLR 507, 514 – 515.

48 Disposal of a claim or a defence summarily ‘will never be exercised unless the [party’s claim or defence] is so obviously untenable that it cannot possibly succeed’. Burton v Shire of Bairnsdale [1908] HCA 57; 7 CLR 76, 92 (see also Shilkin v Taylor [2011] WASCA 255 [29]).

49 Her Honour McLure JA made similar observations in Casella v Hewitt [2008] WASCA 13; 36 WAR 1. She said at [36]:
In a summary judgment application, leave to defend should be given where there is a question to be tried: Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87, 99. There should be summary judgment if the facts are undisputed and the law is clear: The State of Western Australia v Rothmans of Pall Mall (Aust) Ltd [2001] WASCA 25. In general, however, an application for summary judgment is not the occasion to dispose of difficult or substantial questions of law which cannot be determined without full argument: Theseus Exploration NL v Foyster (1972) 126 CLR 507, 514, 515. I am satisfied that the master erred in awarding summary judgment in this case.
Should summary judgment apply to the Claim?
50 The Application is less about the proper construction of cl 17 of the Agreement, and more about whether what was provided by the respondent a week after Ms Costa’s initial request was allocation details relevant to Ms Costa and other supplementary employees or ECD. Necessarily, that requires the Court to consider aspects of the Agreement and construe relevant clauses referred to by the parties.
51 However, the Claim, even as amended, as professed by the claimant is a single issue; the entitlement (being the allocation details) was not provided in compliance with cl 17 of the Agreement. To the extent this was expanded on, it is that the Table is ECD and not allocation details.
52 Noting the principles applicable to summary judgment applications where the whole of the claim is sought to be struck out, based on the material before the Court, and not on the prospect the claimant may, given the opportunity, remedy its deficiency of information concerning what it says allocation details incorporates or why the Table is not allocation details, I am satisfied, and I find:
· the Table is not ECD;
· the Table contains allocation details for Ms Costa and other supplementary employees;
· the Table was attached to an email from Mr Armitage dated 17 August 2023 and provided to Mr O’Brien, Ms Costa’s representative as requested by her in her email dated 9 August 2023; and
· I also accept this request was duplicated by Mr O’Brien in a later email to Mr Waltham.
53 Implicit in making these findings, it follows that the respondent has met the persuasive onus for summary judgment where the respondent has demonstrated it complied with cl 17.4 of the Agreement. I am satisfied the Application did not contain bare allegations unsupported by material facts.
54 The claimant bears an evidentiary onus to provide particulars of an arguable claim and to provide a statement of facts which go to show that it is arguable. In respect of the Claim, I am not satisfied the claimant has done so.
55 Combined, the Claim (including the further and better particulars); the Sneddon Affidavit; and the Sneddon Emails provide only that the Table is ECD, as a conclusion, and assertions that the respondent did not comply with three email requests to provide access to allocation details. That is, there is nothing in the claimant’s evidence which in any way provides what the allocation details ought to have contained; or where the Table is deficient; or how or why it is ECD. The claimant’s contention is that this ought to be the subject of evidence at trial which, I infer, is when the claimant intends to show its hand.
56 However, once it is determined on the material before the Court that the Table is not ECD and contains allocation details, then in the absence of any other material by the claimant, having regard to the further and better particulars and being mindful that the disposal of a claim should never be exercised unless it is so obviously untenable that it cannot possibly succeed, I am satisfied to the high degree required that the whole of the Claim should be dismissed and judgment entered against the claimant.
57 In doing so, I am cognisant of the early stage of the proceedings and the level of care required before exercising the power. However, the Court also has an obligation to deal with cases efficiently, economically and expeditiously and to ensure that the Court’s resources are used as efficiently as possible, particularly in cases where it concludes the Claim is so clearly untenable that it could not possibly succeed.  In my view, this is such as a case.
Outcome and orders made
58 Pursuant to regulations 5 and 7(1)(h) of the Regulations, the whole of the Claim is struck out and judgment is entered against the claimant and the Claim is dismissed.

D. SCADDAN
INDUSTRIAL MAGISTRATE



SCHEDULE I: Jurisdiction, Practice and Procedure of the Industrial Magistrates Court (WA)
Jurisdiction
[1] An employee, an employee organization 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.
[2] The IMC, being a Court constituted by an industrial magistrate, is ‘an eligible State or Territory court’: FWA, s 12 (see definitions of ‘eligible State or Territory court’ and ‘magistrates court’); Industrial Relations Act 1979 (WA), sections 81 and 81B.
[3] The application to the IMC must be made within six years after the day on which the contravention of the civil penalty provision occurred: FWA, s 544.
[4] The civil penalty provisions identified in s 539 of the FWA include the terms of an enterprise agreement where the agreement applies to give an entitlement to a person and to impose an obligation upon a respondent employer: FWA, s 51(2). The agreement applies if it covers the employee or the employee organisation and the employer, the agreement is in operation and no other provision of the FWA provides that the agreement does not apply: FWA, s 52(1) (when read with s 53 of the FWA).
[5] An obligation upon an ‘employer’ covered by an agreement is an obligation upon a ‘national system employer’ and that term, relevantly, is defined to include ‘a corporation to which paragraph 51(xx) of the [Australian] Constitution applies’: FWA, s 42, s 53, s 14 and s 12. An entitlement of an employee covered by an agreement is an entitlement of 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’: FWA, s 42, s 53 and s 13.
Contravention 
[6] Where the IMC is satisfied that there has been a contravention of a civil penalty provision, the Court may make orders for an employer to pay to an employee an amount that the employer was required to pay under the modern award: FWA, s 545(3)(a).
[7] The civil penalty provisions identified in s 539 of the FWA include:
Contravening a term of an enterprise agreement: FWA, s 539 and s 50.
[8] 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’: FWA, s 14 and s 12. 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’: FWA, s 13.
[9] Where the IMC is satisfied that there has been a contravention of a civil penalty provision, the Court may make orders for:
An employer to pay to an employee an amount that the employer was required to pay under the FWA: s 545(3).
A person to pay a pecuniary penalty: FWA, s 546.
In contrast to the powers of the Federal Court and the Federal Circuit and Family Court of Australia, an eligible State or Territory court has no power to order payment by an entity other than the employer of amounts that the employer was required to pay under the FWA. For example, the IMC has no power to order that the director of an employer company make payments of amounts payable under the FWA: Mildren v Gabbusch [2014] SAIRC 15.
Burden and standard of proof
[10] In an application under the FWA, the party making an allegation to enforce a legal right or to relieve the party of a legal obligation carries the burden of proving the allegation. 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.
[11] In the context of an allegation of the breach of a civil penalty provision of the FWA it is also relevant to recall the observation of Dixon J said in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 362:
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.

SCHEDULE II: Construction of Industrial Instruments
[1] This case involves, in part, construing industrial agreements and statutes. Similar principles apply to both. The relevant principles to be applied when interpreting an industrial instrument are set out by the Full Bench of the Western Australian Industrial Relations Commission in Fedec v The Minister for Corrective Services [2017] WAIRC 00828 [21] - [23].
In summary (omitting citations), the Full Bench stated:
The general principles that apply to the construction of contracts and other instruments also apply to the construction of an industrial agreement;
(1) the primary duty of the court in construing an instrument is to endeavour to discover the intention of the parties as embodied in the words they have used in the instrument;
(2) it is the objectively ascertained intention of the parties, as it is expressed in the instrument, that matters; not the parties' subjective intentions. The meaning of the terms of an instrument is to be determined by what a reasonable person would have understood the terms to mean;
(3) the objectively ascertained purpose and objective of the transaction that is the subject of a commercial instrument may be taken into account in construing that instrument. This may invite attention to the genesis of the transaction, its background and context;
(4) the apparent purpose or object of the relevant transaction can be inferred from the express and implied terms of the instrument, and from any admissible evidence of surrounding circumstances;
(5) an instrument should be construed so as to avoid it making commercial nonsense or giving rise to commercial inconvenience. However, it must be borne in mind that business common sense may be a topic on which minds may differ’;
(6) an instrument should be construed as a whole. A construction that makes the various parts of an instrument harmonious is preferable. If possible, each part of an instrument should be construed so as to have some operation; and
(7) industrial agreements are usually not drafted with careful attention to form by persons who are experienced in drafting documents that have legal effect.
[2] The following is also relevant:
Ascertaining the intention of the parties begins with a consideration of the ordinary meaning of the words of the instrument. Ascertaining the ordinary meaning of the words requires attention to the context and purpose of the clause being construed. City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813 [53]  [57] (French J) (City of Wanneroo).
Context may appear from the text of the instrument taken as a whole, its arrangement and the place of the provision under construction. The context includes the history of the instrument and the legal background against which the instrument was made and in which it was to operate. City of Wanneroo [53] - [57] (French J); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Excelior Pty Ltd [2013] FCA 638 [28] - [30] (Katzmann J).

SCHEDULE III: Table annexed to Boothman Affidavit One


POSITION TYPE

EARNINGS

WORKED HOURS

WCOMP

UNWORKED HOURS

TOTAL HOURS

TOTAL SHIFT

OFF ROSTER

D

E

N

D

E

N
SUPP
$ 17290.24
266
0
0
266
23
0
56.50%
43.50%
0.00%
13
10
0
SUPP
$ 17003.91
264
0
0
264
24
0
54.20%
45.80%
0.00%
13
11
0
SUPP
$ 16560.91
244
0
7
251
21
0
28.60%
71.40%
0.00%
6
15
0
SUPP
$ 15535.59
237
0
4
241
23
0
100.00%
0.00%
0.00%
23
0
0
SUPP
$ 14317.89
217
0
7
224
20
0
60.00%
40.00%
0.00%
12
8
0
SUPP
$ 13486.94
198
0
7
205
18
0
50.00%
50.00%
0.00%
9
9
0
SUPP
$ 12519.32
188
0
7
195
20
0
90.00%
10.00%
0.00%
18
2
0
SUPP
$ 15057.02
186
0
49
235
16
0
25.00%
75.00%
0.00%
4
12
0
SUPP
$ 11778.80
184
0
0
184
17
0
82.40%
17.60%
0.00%
14
3
0
SUPP
$ 10549.20
158
0
7
165
16
0
75.00%
25.00%
0.00%
12
4
0
SUPP
$ 9759.87
152
0
0
152
14
0
42.90%
57.10%
0.00%
6
8
0
SUPP
$ 12586.97
148
0
49
197
16
0
100.00%
0.00%
0.00%
16
0
0
Leah Costa
$ 9297.77
138
0
7
145
14
1
64.30%
35.70%
0.00%
9
5
0
SUPP
$ 7306.87
111
0
0
111
11
0
36.40%
63.60%
0.00%
4
7
0
SUPP
$ 0.00
0
0
0
0
0
0
0.00%
0.00%
0.00%
0
0
0
SUPP
$ 0.00
0
0
0
0
0
0
0.00%
0.00%
0.00%
0
0
0
SUPP
$ 0.00
0
0
0
0
0
0
0.00%
0.00%
0.00%
0
0
0
SUPP
$ 0.00
0
0
0
0
0
0
0.00%
0.00%
0.00%
0
0
0
SUPP
$ 0.00
0
0
0
0
0
0
0.00%
0.00%
0.00%
0
0
0
SUPP
$ 0.00
0
0
0
0
0
0
0.00%
0,00%
0.00%
0
0
0