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idustria! Gaz

PUBLISHED BY AUTHORITY

Sub-Part 6 THURSDAY, 27th DECEMBER, 1984 Vol. 64—Part 2

THE mode of citation of this volume of the Western Australian Industrial Gazette will be as follows:- 64 W.A.l.G.

CUMULATIVE CONTENTS AND DIGEST APPEAR AT THE END OF THIS PUBLICATION

BEFORE THE WESTERN AUSTRALIAN INDUSTRIAL COMMISSION.

No. 1008 of 1984. In the matter of the Industrial Arbitration Act, 1979;

and in the matter of an application for a General Order under section 50 (2) of the said Act relating to the closure of businesses on 24th and 31st December, 1984.

Order. HAVING heard Mr R. Meecham on behalf of the Trades and Labor Council of W.A.; Mr L. Girdlestone on behalf of the Confederation of Western Australian Industry (Inc.); Mr G. Moore on behalf of the Attorney General for the State of Western Australia and the Public Service Board; Mr L. Pilgrim on behalf of Australian Mines and Metals Association and Mr R. Heaperman intervening on behalf of the Meat and Allied Trades Federation of Australia (Western Australian Branch) Union of Employers, the Commis- sion in Court Session, pursuant to the powers conferred on it under the Industrial Arbitration Act, 1979 and by consent hereby orders and declares:—

1. That this order applies to employees who are employed under and subject to an award on 24th December, 1984, or, as the case may be, 31st December, 1984.

2. That each award in force on 24th December, 1984 or, as the case may be, 31st December, 1984, be varied by adding a clause in the terms which follow, namely—

Notwithstanding anything contained elsewhere in this award, an employer who elects to close his place of business or part thereof on 24th December, 1984 shall pay his employees for the ordinary hours they would have worked on that day if the place of business or part had not been closed and in that event—

(i) may deduct one day from the annual leave or pro rata annual leave entitlement of each employee affected which exists on or accrues after that day; or

(ii) where an employee has a regularly rostered day off duty arising out of a 38 hour week (or less) and that rostered day off is not 24th December, 1984, may allow that day to the employee as the rostered day off duty and the next schedul- ed rostered day off duty shall then be deemed to be an ordinary working day; or

(iii) may allow 24th December, 1984 as a holiday in substitution for one only of the holidays specified elsewhere in this award.

(iv) The provisions of this clause shall also be applied with respect to 31st December, 1984 and for that purpose the expression "31st December, 1984" shall be substituted for the expression "24th December, 1984" wherever the latter expression occurs.

Dated at Perth this 26th day of November, 1984.

By the Commission in Court Session,

(Sgd.)E. R. KELLY, [L.S.] Commissioner.

WESTERN AUSTRALIAN INDUSTRIAL GAZETTE. 64 W.A.I.G. 2124

INDUSTRIAL APPEAL COURT— Appeals against Decision of Full

Bench—

IN THE WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT.

Appeals Nos. 4 and 6 of 1984.

In the matter of an appeal from a decision of the Full Bench given in matters numbered 164 of 1984 and 165 of 1984 dated 22nd May, 1984. Between Norwest Beef Industries Limited, First Appellant, and Derby Meat Processing Co. Ltd., Second Ap- pellant, and West Australian Branch, Australian Meat Industry Employees Union, Industrial Union of Workers, Perth, Respondent.

Mr R. I. Viner Q. C. and Mr P. R. Momber (instructed by Messrs Jackson McDonald & Co.) appeared for the appellant.

Mr R. J. M. Anderson Q. C. and Mr D. H. Schapper (instructed by Messrs D. H. Schapper & Co.) appeared for the respondent.

Before Mr Justice Brinsden (Presiding Judge), Mr Justice Kennedy, Mr Justice Olney.

Tuesday, 30th October, 1984.

Cases referred to in judgment. Tramways Union v. Commissioner of Railways

(1928) 7 W.A.I.G. 155. A.W.U. v. Lake View and Star (1934) 14 W.A.I.G

279 at 280. A.W.U. v. Co-operative Bulk Handling (1946) 26

W.A.I.G. 353 at 354. Amalgamated Society of Engineers v. Adelaide

Steamship Co. Ltd. 28 C.L.R. 129 at 161. Life Insurance Co. of Australia Ltd. v. Phillips 36

C.L.R. 60 at 70. Jones v. Walton (1966) W.A.R. 139 at 142. Furniture Trades Award v. Foy and Gibson 30

W.A.I.G. 231. Merchant Service Guild v. Sydney Steam Collier

Owners 1 F.L.R.248 at 251. Amalgamated Investment and Property Co. Ltd. v.

Texas Commerce International Bank Ltd. (1982) Q.B. 84.

United Furniture Trades Industrial Union v. Dale Manufacturing Co. Pty. Ltd. 30 W.A.I.G. 539.

Cases also cited. Coastal Districts Master Tailors v. Tailors Union

(1908) 7 W.A.A.R. 9. Nugarra Miners' Union v. Black Range Gold Mines

(1908) 7 W.A.A.R. 39. United Furniture Trades Union v. Povey (1931) 11

W.A.I.G. p.269. W.A. Sawmillers v. Millars (1935) 15 W.A.I.G. 105. United Furniture Union v. Washing Bros. (1938) 18

W.A.I.G.211. W.A. Police Union v. Minister of Police (1940) 21

W.A.I.G. 42. Field Construction Co. v. The Boilermakers Society

of Australia, Union of Workers, Coastal Districts 41 W.A.I.G. 990.

The Chief Secretary and the Hospital Employees In- dustrial Union of Workers of W.A. (Coastal Branch) 11 W.A.I.G. 105.

Re Bulk Wheat Handling Award 9/1944, A.W.U. and Co-operative Bulk Handling Ltd. 26 W.A.I.G. 353.

Pickard v. John Heine and Son Ltd. 35 C.L.R. 1. The W.A. Locomotive Engine Drivers Firemen's and

Cleaners Union v. W.A.G.R. 63 W.A.I.G. 1159. W.A. Branch, Australasian Meat Industry Employees

Union v. Meat and Allied Trades Federation of Australia (Western Australian Division) 61 W.A.I.G. 1061.

BRINSDEN J. These appeals, which by agreement were heard together, were from the decision of the Full Bench of the Commission in which it dismissed appeals by the same appellants from the decision of Commissioner Martin upon a hearing by him in repsect of two applications made by the respondent for the interpretation of the Meat Industry (Norwest Abattoirs) Award 18 of 1981 and the Meat Industry (Wyndham) Award 16 of 1981. The applications before Mr Commissioner Martin had been brought to him pursuant to the provisions of section 46 of the Industrial Arbitration Act, 1979 and Amendments (the Act) which provides by sub section (1) as follows:

1. At any time while an award is in force under this Act the Commission may, on the application of any employer, union, or association bound by the award—

(a) declare the true interpretation of the award; and

(b) where that declaration so requires, by order vary any provision of the award for the purpose of remedying any defect therein or of giving fuller effect thereto.

Before stating the decision of the Commissioner which was the subject of appeal to the Full Bench, and in order to make it intelligible, it is necessary to set out the relevant provision of these awards which was the subject of the request for interpretation, fortunately, these awards are more or less in common form and so I propose to set out only the relevant clause in respect of award No. 16 of 1981 (the Wyndham Award) and henceforth in these reasons this award will be called the Wyndham Award and the other award the Broome/Derby Award. The terminology indicates the obvious that the Wyndham award related only to the area of Wyndham and the other award to the areas of Derby and Broome. Clause 12 is in the following terms:

12.—Tallies and Penalties. (1) Slaughterman.

(a) The daily tally to apply to a slaughterman in the slaughtering tally team shall be 13 head per man per day.

(b) For the purpose of calculating tally— (i) a body of beef weighing—

under 250 kg shall equal 1 beast, 250 kg to 318 kg shall equal 1.1 beasts 318 kg to 385 kg shall equal 1.2 beasts. 386 kg and over shall equal 1.25 beasts.

(ii) Bulls and genuine stags weighing— Under 136 kg shall equal 1 beast 136 kg shall equal 2 beasts A 'genuine stag' means a fully grown animal that exhibits characteristics of a bull, including a definite neck crest. Any dispute arising from this subparagraph shall be determined by the meat inspector.

(iii) All cattle condemned by the veterinary officer for any of the following causes—

tuberculosis, cancer, ulcer, tumour, gangrene, leptosperosis or brucellosis,shall be paid for at double rates.

(c) (i) When any of the following mechanical aids are used in the on- rail cattle slaughtering section, for

64 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE.

the purpose of calculating tally per man per day they shall count as follows:—

head (a) Upward hide stripper 5 (b) 'H' Bone cutter or saw

cutting 'H' Bone 25 (c) Hock Cutters 25

(ii) Notwithstanding the above provisions, tallies shall be negotiated between the employer and the Union when it is shown the above mechanical aids are not 100 per cent efficient.

(iii) No combination of the aids listed in (c) (i) hereof shall increase the tally more than 1.5 head per man per day.

(iv) In the event of any change in the system or upon the introduction of other mechanical aids, liberty is reserved to either party to apply to amend the tallies for slaughtering cattle.

(d) An employee who is not a member of the slaughtering team and who is—

(i) required to handle a bullock's head from a carcase condemned for—

tuberculosis, cancer, ulcer, tumour, gangrene, leptosperosis or brucellosis,

shall be paid an amount of $1.00 for each head, and when that employee is a member of a team, then that amount shall be divided equally amongst all members of the team.

(ii) Head ring workers shall be paid a penalty for bull's heads and genuine stags weighing 136 kg. and over. The penalty shall be equal to one-fifth of the classification rate for a head ring worker divided by the slaughterman's tally.

(iii) required to cut up a condemned carcase shall be paid for at the rate of $1.50 per body, and when more than one employee is usually employed on the task then the amount shall be divided amongst the employees usually employed upon the task.

(2) Boner.

(a) The daily tally for each boner shall be 22 sides per man.

(b) For the purpose of calculating tally— (i) a body of beef weighing:—

Under 250 kg. shall equal 2 sides.

250 kg. to 318 kg. shall equal 2.2 sides.

318 kg. to 385 kg. shall equal 2.4 sides.

385 kg. and over shall equal 2.5 sides.

2 hindquarters shall equal 1 side.

3 horses heads shall equal 1 side. 3 forequarters shall equal 2

sides. 2 crops shall equal 1 side. 5 briskets with shin and portion

of clod bone attached shall equal 1 side.

10 briskets shall equal 1 side.

(ii) Bulls and genuine stags weighing:—

136 kg. to 272 kg. shall equal 3 sides.

272 kg. and over shall equal 4 sides.

"genuine stag" means a fully grown animals that exhibits characteristics of a bull, including a definite neck crest.

Any dispute arising from this subparagraph shall be determined by the meat inspector.

(c) Notwithstanding the provisions of paragraph (a) of this subclause, the tally for on-rail boning shall be reduced by negotiation between the employer and the Union when it can be shown that the system is not in accordance with the provisions of subclause (7) of Clause 29. — Definitions and Work of Employees.

(d) For the purpose of calculating tally, 1 side or the equivalent thereof boned on the table shall equal 1.1 sides.

3. Slicer. (a) The daily tally for each slicer shall be 20

sides per man. (b) For the purpose of calculating tally—

(i) a body of beef weighing— Under 250 kg. shall equal 2

sides. 250 kg. to 318 kg. shall equal 2.2

sides. 318 kg. to 385 kg. shall equal 2.4

sides. 385 kg. and over shall equal 2.5

sides. (ii) A bull or genuine stag weighing—

Under 182 kg. shall equal 2 sides.

182 kg. to 363 kg. shall equal 3 sides.

363 kg. and over shall equal 4 sides.

A "genuine stag" means a fully grown animal that exhibits characteristics of a bull including a definite neck crest.

Any dispute arising from this subparagraph shall be determined by the meat inspector.

(c) (i) When a team of 12 or less boners is employed then the team of slicers following shall have one member more than the boning team,

(ii) When a team of 13 or more boners is employed the team of slicers following shall have two members more than the boning team.

(4) Hideman: The daily tally for each hideman shall be 75 per day.

(5) Any dispute arising from this clause may be referred to the Western Australian Industrial Com- mission.

Mr Commissioner Martin interpreted placita (i) and (ii) of paragraph (b) of subclause (1), paragraphs (b) and (d) of subclause (2) and paragraph (b) of subclause (3) of Clause 12 subclause (2) and paragraph (b) of subclause (3) of Clause 12 in both the awards as "equivalents" to be used for the purpose of determining the tally achieved on any day by slaughtermen, boners and slicers, and payment for over tally pursuant to Clause 25—Overtime, subclause (2) Tally Employees of both awards. Clause 25 needs also to be stated but only

2126 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE. 64 W.A.I.G.

in relation to tally employees. This clause which is in common form in both awards (though in respect of one of them there is an obvious typographical error or omis- sion), deals with two classes or workers, timeworkers and tally employees, In these appeals we are only concerned, as were the other Courts, with tally employees. Subparagraph (2) of Clause 25 is in the following form.

(2) Tally Employees— (a) When the daily tally of a tally employee is

exceeded, he shall be paid at rate and a half for each additional carcase in excess of tally up to 100 per cent in excess of tally and at rate and three-quarters for each additional carcase in excess of 100 per cent in excess of tally, provided that if the excess of 100 per cent in excess of tally is worked on more than two days in any week, then on any day in excess of such two days the rate shall be double.

(b) A tally employee shall be paid for all work on a Saturday at rate of a half per carcase up to one-quarter of tally, and all in excess shall be paid for at double rates.

(c) A tally employee shall be paid for all work on a Sunday at double rate per carcase processed.

(d) A tally employee who is required to work on a holiday or a day observed in lieu as prescribed in Clause 19.—Holidays, shall in addition to payment for that holiday be paid rate and one-half for each carcase processed up to and including tally and double rate and one-half for each carcase processed in excess of tally, with a minimum payment for three-eights of tally-

(e) (i) When excess tally is worked outside the ordinary hours, Monday, to Fri- day, a tally employee shall not receive overtime payments in addition to the excess tally rate applicable.

(ii) When tally employees work on Satur- days, Sundays or public holidays, they shall not receive overtime payments in addition to the tally rate prescribed for those days.

(3) (a) The employer shall give the union delegate concerned reasonable notice of the necessity to work overtime. Sufficient competent men shall be made available for any overtime to be worked and the union or its representative shall be responsible for the supply of such employees.

(b) Subject as hereinafter provided, overtime shall be distributed on a roster system between employees competent to do the work but an employee shall not be entitled to claim overtime on work outside his normal classification unless required so to work by the employer. Provided that an employee shall have the right to forfeit his place on the roster if he obtains a replacement suitable to the employer to perform any work required by any such replacement shall maintain his own place on the roster.

(c) Should the employer require employees for overtime in excess of the numbers employed in a classification; then the lowest paid employees shall be given first preference for such overtime work.

(4) Liberty is reserved to either party to apply to amend this clause.

The effect of Commissioner Martin's decision was to uphold the interpretation the respondent sought to place upon Clause 12 in both awards. The employers, the present appellants, appealed to the Full Bench and lost that appeal. They now appeal to this Court, pursuant to the

provisions of section 90 of the Act, which limits the right of appeal to the ground that the decision appealed from is erroneous in law or is in excess of jurisdiction. It is common ground the question of interpretation involved in Clause 12 is a matter of law and therefore the appeals lie to this Court.

The awards concern the slaughtering of cattle at three abbatoirs in the Norwest. When looking at the awards it will be necessary to say something shortly about the industry involved, but obviously the context already referred to indicates the slaughtering of cattle for domestic and overseas consumption and that is the industry carried on in the abbatoirs. It will be observed from Clause 12 (1) (a) that the daily tally for a slaughtering team in Wyndham is 13 per head per man per day. In respect of the Derby and Broome Award the tally rate for Derby is 11.5 head and Broome 12.5 head. Nothing material rests on these differences but I mention them because of an exercise which Mr Commissioner Martin went through to illustrate the difference between the interpretations advocated by the respective parties based on the tally rate of 11.5 head per day. Before referring to that exercise it is necessary to refer to some other clauses.

Clause 11 provides for the minimum rate of wages payable per week to adult employees covered by the Awards and sets out the respective details as, for example, for employees in the slaughtering section. Assume a weekly rate of $260 for slaughtermen in Clause 11 and divide that by 5 to ascertain the daily rate of wage which would yield $52 per day. Clause 11 (13) provides as follows:

The base tally rate shall be derived by dividing one fifth of the rate of wages of the appropriate classification and the seasonal allowance as prescribed in Clause 13 for the classification by the appropriate daily tally prescribed in Clause 12—Tallies and Penalties.

The daily tally of 11.5 when divided into $52 pro- duceds a rate per head of approximately $4.50. Now this means, and there was no dispute at least on this point, the awards provide that a tally worker, as for example, a slaughterman, is expected to slaughter, as a member of a team, 11.5 head per man per day in order to earn his basic rate of pay. The next step is to make the assump- tion that five of those head of cattle weighed in excess of 386 kg. The Commissioner then equated those five beasts to 1.25 beasts each pursuant to the provisions of Clause 12 (1) (b) (i). The rate of over tally by virtue of paragraph (a) of subclause (2) of Clause 25 is rate and a half for each additional carcase in excess of tally. The respondent would calculate the amount of money due to the slaughterman as follows:

Tally completed =15 + 5 overweights at 1.25 = 21.25.

Tally = 11.5x4.50 = $52 Over Tally = 9.75 x 6.75 (rate and a half) =

$65.80. Amount due $117.80

In other words the respondent sees the overweight as going towards the calculation of the tally. As soon as the tally is exceeded by reason of additional overweight, the overweight is payable not at the base rate but at the rate said to be prescribed by Clause 25, namely rate and a half.

Based on these figures the appellants interpret the award to yield the following result:

Tally 11.45 x $4.50 = $52.00 Over Tally 8.5 x $6.75 = $57.38 Five overweights at 1.25 x $4.50 = $5.63 Total $115.01

In other words, the appellants interpret Clause 12 (1) (b) (i) as not going towards the calculation of over tally in the terms of an extra number of head slaughtered per man per day but as a penalty for overweight. Despite the opening words of subparagraph (1) (b), the appellants say all the provisions of that

64 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE. 2127

subclause relate to penalty as do similar provisions in respect of subparagraph (2) relating to boners and subparagraph (3) relating to slicers. The difference between these two calculations seems small in the above exercise but the difference in money terms Mr Commissioner Martin pointed out, becomes more pronounced as the value allocated to an overweight in excess of unity in- creases as, for example, a bull weighing in excess of 136 kgs. equals two beasts. The Commissioner puts the difference succintly in his reasons for judgment when he says as follows, bearing in mind the applicant to whom he refers is the respondent:

"The difference in methods arises from the applicant using the 'overweight' value to increase the number of cattle actually processed to a number of cattle 'deemed' to have been processed. The respondent's method deals only for tally purpose with the number of cattle actually processed and adds the overweight value to the number of overweights processed at an additional or penalty rate."

The respondent on the appeal developed the same argument which found favour in the other tribunals by saying Clause 12 is straightforward and obvious in meaning admitting of no ambiguity. The principles applied in interpreting awards are the same principles as are applied in the Courts of law for the constructions of deeds, instruments and statutes: Tramways Union v. Commissioner of Railways (1928) 7 W.A.I.G. 155; A.W.U. v. Lake View and Star (1934) 14 W.A.I.G. 279 at 280 and A.W.U. v. Co-operative Bulk Handling (1946) 26 W.A.I.G. 353 at 354. Applying those principles the argument goes, the meaning of a provision in an award is to be obtained by considering the terms of the award as a whole. If the terms are clear and unambiguous, it is not permissible to look to extrinsic material to qualify that meaning. A number of cases were quoted in support of that proposition and it is only necessary to mention a few: Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. 28 C.L.R. 129 at 161-2; Life Insurance Co of Australia Ltd. v. Phillips 36 C.L.R. 60 at 70; Jones v. Walton (1966) W.A.R. 139 at 142. As clause 12 is unambiguous and clear in meaning, earlier awards, the progenitors of these awards, and the reasons for the making of the earlier awards, and the behaviour of the parties over the years in acting pursuant to the awards, are therefore ir- relevant.

Lawyers are frequently accused of perceiving difficulties in matters which, to a layman, are clear. But in this case both the other tribunals had no difficulty in reading Clause 12 so as to put an interpretation on it which precisely coincided with that sought by the respondent. It must be borne in mind the distinction made by Isaacs J. in Life Insurance Co. of Australia Ltd. v. Phillips at 78, where he observed that an ambiguity in a document might arise from doubt as to the construction in the totality of the ordinary and in themselves well understood English words the parties have employed, that being a matter of true construction, or the ambiguity may arise from the diversity of subjects to which those words may,in the circumstances, be applied. That latter ambiguity is a matter of interpretation of terms which is always a question of fact. "The 'meaning of the words' is what I call interpretation, whether the words to be interpreted into ordinary English are foreign words or code words or trade words or mere signs or even ordinary English words which on examination of surrounding circumstances turn out to be incomplete. Their effect when translated into complete English is construction." The difficulty in this case is a matter of interpretation and for these reasons.

In Clause 12 (1) the reference is to "head" per man per day and the action referred to is by implication the act of slaughtering. At this point the beast to be slaughtered is alive and entire.

In Clause 1 (b) (i) the expression used is "a body of beef". Prima fade that does not mean the same thing as a head of cattle. A body of beef is created after

slaughter and after trimming: see Commissioner Johnson in 56 W.A.I.G. at 692 in his reasons for judgment in respect of Award 11/74. What the respondent contends is that a body of beef, being unity or more than unity in accordance with the scale in subclause (1) (b) (i), is to be notionally interpreted as meaning one head or more than one head in accordance with the daily tally in subclause (1) (a). To take that step strikes me as being a difficult step unless there are other words in the subclause which support it. These words are said to be contained in the introductory words to subparagraph (b) namely, "For the purpose of calculating tally— Now the trouble with relying on those words is that they also govern subparagraph (iii) which deals with condemned cattle being paid for at double rates. Clearly a condemned head for the purpose of calculating tally is not to be regarded as twice unity, since the words of the subclause do not admit of such a construction which would lead to the absurd result that a condemned beast was not only given the tally value of twice unity but would also have to be paid for at double rates, thereby causing payment of a penalty upon a penalty. Subclause (c) (i) is instructive since that clause makes it clear that where mechanical aids are used in the on-rail catle slaughtering section the daily tally per head may be increased per man but not exceeding 1.5 head per man. The phrase used in that subclause is "calculating tally per man per day". One thing is clear, therefore, the words "For the purpose of calculating tally" in subclause (b) do not govern (b) (iii) so as to affect the calculation of the daily tally. They must mean in this limited sense for the purpose of calculating tally for penalty purposes."

Clause 25 (ii) speaks only of "carcase" not a body of beef. In a temporal sense it speaks after the daily tally has been exceeded and of course by then the tally has been slaughtered. As the word is being used in respect of an abattoir perhaps the meaning intended was the whole trunk of a slaughtered animal after removal of the head, limbs and offal which is one of the meanings given to the word in a New English Dictionary Vol. 2. There does not seem to be anything in this subclause which would suggest that in the use of the word "carcase", and in consideration of excess tally, a carcase might amount to more than unity by reason of overweight. This seems to be true, certainly in relation to a slaughterman, though there is more difficulty in applying the sub-clause to a boner and slicer since those workers being employed in respect of sides and a tally is fixed as a number of sides per man. One supposes "carcase" is to be interpreted when dealing with these employees as meaning "side".

In the hope that I have not fallen into the lawyers' trap of seeing difficulties where none exist my view is Clause 12 is ambiguous in a number of respects. Having reached that view it seems to me I am entitled not only to consider earlier awards involving the same parties and the reasons for the making of them, but also the conduct of the parties over the years in the carrying on of their relations to each other pursuant to the earlier awards and indeed under these two awards: see Fur- niture Trades Award v. Foy and Gibson 30 W.A.I.G. 231; Merchant Service Guild v. Sydney Steam Collier Owners 1 F.L.R. 248 at 251, 254, 256, 257.

It seems to be common ground that for many years, in excess of ten, the appellants have paid their workers in accordance with the construction they place upon the awards. That construction was specifically upheld by Commissioner O'Suilivan in 1972 in giving his opinion following a compulsory conference between the parties pursuant to section 171 of the Industrial Arbitration Act, 1912. The difference of opinion raised before him by the parties was similar to the difference in construction they now seek to maintain. He said:

It is my opinion that the proper procedure in dealing with the clause is to assess the tally according to the carcasses presented and to apply


penalty to their carcase rate; as I understand the arguments at the conference, that is the method of application of the clause by the employer. That being so, he is acting properly and I will not make any recommendation on the dispute.

Commissioner O'Sullivan's opinion is especially important as he had a hand in drafting the earlier awards on which the present awards are based and I now turn to consider them.

Award No. 17 of 1969 followed upon a disputed hearing between the parties before Commissioner O'Sullivan. The award as drawn up is similar but by no means identical with the present awards under consideration. Clause 13.—Overtime, provided as in Clause 25 (2) of the present awards that when the daily tally of a tally worker was exceeded he should be paid at rate and a half for each "additional carcase" in excess of tally at certain specified rates. Clause 22.—Rates and Con- ditions, first set out a basic wage for males and females and specifically for adult male workers of various classifications on the slaughter floor. Subclause (2) (ii) provided:

The daily tally or the equivalent thereof for the slaughtering team shall be 11.25 cattle per man.

Very importantly subclause (iii) (to which no reference appears to have been made in the hearings before the earlier tribunals nor was any reference made to it by counsel before us) states:

All cattle treated for the purpose of over tally shall be paid for at the base rate of $1.13 per beast.

In his reasons for judgment the Commissioner stated how he determined that rate and it was achieved by dividing the rate of wage payable on the slaughter floor by the weekly tally of a slaughterman, namely 56.25. That is a similar calculation to what presently prevails in the two awards for calculating a base rate. Subclause (iv) stated that "For the purpose of tally" a body of beef would weigh unity if under 550 lbs. but 550 lbs. or over more than unity depending upon the scale. There was a similar provision in relation to bulls and genuine stags, as now appears in the Awards, as there was also for condemned cattle. The provisions in relation to boners, slicers seem to be similar also. Even looking only at the terms of Award 17 of 69 I have no doubt a slaughterman would have been paid like this. If there was no over tally or overtime he would have received the minimum rate of wage according to the scale in Clause 22. If there was over tally in the sense that the overweight provisions applied he would receive $1.13 per beast for the over tally. If, however, the number of cattle actually slaughtered exceeded 11.25 per man, the provisions of Clause 13 would have applied so that he would then have been paid for the excess of each individual carcase killed beyond 11.25 at the rate prescribed by subclause (9). In short, for the purpose of calculating the tally of 11.25, no cattle killed would have been treated as more than unity.

Turning to the Commissioner's reasons at 49 W.A.I.G. p.956 there can be no doubt that the rates to be paid in cases where the daily tally was exceeded or where work was performed on Saturdays, Sundays or public holidays was expressed in Clause 13—Overtime. The rate of $1.13 was to be paid for a body of beef weighing less than 550 lbs. but the Commissioner pointed out that in respect of heavier cattle he had assessed on a scale of equivalents. By that he meant the rate of $1.13 applied not only to a body of beef weighing less than 500 lbs. but also to a body weighing in excess.

The next award is 17/70 published in 51 W.A.I.G. 722. That award arose out of a dispute and was determined by Commissioner O'Sullivan. The format of the award is to some extent different from the earlier award which he fathered but in my view the similarity is such that no different construction should be placed upon it so far as the treatment of overweights in all three sections. namely the slaughtering, boning and slicing sec-

tions and that, as before, bulls and stags as well as condemned cattle were to be treated on the basis of penalty and not excess tally. In other words, in both clauses the words "for the purpose of tally" refer not to the com- putation of the amount of tally in terms of numbers but how the items of tally are to be treated for the purpose of the payment of the penalties prescribed. Clause 10 (7) once again affirms that all carcases treated for the purpose of over tally and penalties are to be paid for at certain designated base rates. The only difference between this clause and the earlier clause in Award 17 of 1969 is that the base rate is specified for slaughtermen, boners and slicers as well as trimmers and, in respect of each, Wyndham, Broome and Derby. I should have added earlier that the area of the awards was for those three towns.

The next award, 11/74, was issued by Commissioner Johnson and appears in 56 W.A.I.G. 691. It is clear from his reasons for the making of the award he did not intend, to depart from the method of payment previously in existence. Over tally in the nature of additional carcases he treated as distinct from overweight which he terms as a penalty: p.692. there had been a dispute between the parties as to the payment for heavy weights and in noting this the Commissioner stated that the employer had pointed to the universal practice in the trade of paying according to weight and grade in the finished product and that in any event, many carcases were from small beasts well below 250 kgs. and the worker must take the good with the bad. He quoted Commissioner O'Sullivan in his reasons for judgment in respect of Award 17 of 69 when he said the rate had been determined on the basis that it should be paid for a body of beef weighing less than 550 lbs. but that in the case of heavier cattle he had assessed a scale of equivalents. Commissioner Johnson then observed that there would need to be some significant change demonstrated before any alteration in the previous method of payment should be made. He found inade- quate information to allow him to make a change. There were, however, changes made in the text of the award. Clause 11—Wages, provided by subclause (14):

the base tally rate shall be derived by dividing one fifth the rate of wage of the appropriate classification and the seasonal allowance as prescribed in Clause 13 for that classification by the appropriate daily tally prescribed in Clause 12.

That clause is similar to the one now appearing in the two awards in question but dissimilar of course to the express provision in the earlier awards that over tally and penalties would be paid for at base rates, though it is equally concerned with base rates. Clause 12 "Tallies and Penalties" was in the same form as is the clause in the current awards and hence the words "or the equivalent thereof" had been deleted. No explanation is given in the reasons for judgment as to why these words were deleted. The overtime clause, Clause 25, is in the same form also as the present two awards and is similar to the provisions in the earlier awards. Commissioner Johnson's intention was clear that he did not contemplate he was making any change in the method of payment for overweights and penalties and in my view that is how award 11/74 should be interpreted. No doubt the draftsmen thought that the words, "or the equivalent thereof", were no longer required, or con- fused the intention of the document. I am, however, quite satisfied that in award 11/74 the words "for the purpose of calculating tally" did not mean and were not intended to mean that what followed thereafter should be used for the purpose of calculating the daily tally. The same construction, I think, goes for both of the current awards and consequently I am of the view the construction put forward by the appellants is the correct construction, which is abundantly supported not only by the historical context but also by the way in which the parties themselves have conducted their affairs pursuant to the awards for many years.


This appeal should be allowed and this Court should declare the true interpretation of the awards so far as Clause 12 was concerned. That declaration should be along these lines:

The provisions of placita (i) and (ii) of paragraph (b), of subclause (1), paragraphs (b) and (d) of subclause (2) and paragraph (b) of subclause (3) of Clause 12—Tallies and Penalties of the Meat In- dustry (Wyndham) Award No. A16 of 1981 as varied and the Meat Industry (North West Abat- toirs) Award No. A18 of 1981 as varied are penalties to be applied to the carcases actually presented and slaughtered and are not equivalents for the purpose of determining the tally achieved on any day by slaughtermen, boners and slicers and for payments of over tally pursuant to Clause 25—Overtime, subclause (2) of the aforesaid awards."

If that declaration is made I do not think any order under 46 (1) (B) of the Act need be made. KENNEDY J.: The material facts and the relevant provisions of the Meat Industry (Wyndham) Award No. 16 of 1981 have been set out sufficiently in the other judgments and it is unnecessary for me to repeat them.

The consent awards which have given rise to the present appeals are the product of an extended history. They display the scars of that history. In particular, there occur within them changes in wording which clearly are not intended to convey changes in meaning. They are simply the consequence of a change in the author or of the same author writing at a different time. In my view, not a great deal of weight can be placed upon changes in language in these awards.

It is only necessary to consider the Wyndham Award. I agree that any differences between the terms of the two awards are not such as to require separate consideration.

The opening words of Clause 11 of the Award would have it that the fifteen paragraphs of that clause set out the minimum rates of wates payable per week to adult employees. Two of those paragraphs, however, do not deal with minimum rates of wages for adult employees. Paragraph (15) deals specifically with junior employees, and paragraph (13) describes how the "base tally rate", a term which apparently is not used anywhere else in the award, is to be ascertained. It is derived by dividing one- fifth of the rate of wage of the appropriate classification and the seasonal allowance as prescribed in Clause 13 for the classification by the appropriate daily tally prescribed in Clause 12—Tallies and Penalties. It is to be assumed that the rate of wage referred to in paragraph (13) is the minimum rate of wage payable per week as prescribed in the earlier paragraphs of Clause 11.

Clause 12 is headed "Tallies and Penalties". By paragraph (a) of subclause (1), the daily tally to apply to a slaughterman in the slaughtering tally team is 13 head per man per day, a figure derived by dividing the number of head slaughtered by the team in a day by the number in the team. For a boner, the daily tally is 22 sides per man (subclause (2) (a)), and for a sheer, 20 sides per man (subclause (3) (a)). Paragraph (b) of Clause 12 (1) is expressed to deal with calculating tally for slaughtermen. Thus, a body of beef weighing 250 kilograms to 318 kilograms is said to equal 1.1 beasts, and bulls and genuine stags, weighing 136 kilograms are said to equal 2 beasts. Subparagraph (hi) of paragraph (b), however, notwithstanding the opening words of the paragraph, admittedly is not concerned with tallies. It relates to the applicable rates for cattle condemned by the veterinary officer for any one of a number of causes. It therefore relates to penalties strictly so-called.

It is argued that, by reason of the presence in paragraph (b) of Clause 12 (a) of this particular provision which deals with penalties and not with tallies, subparagraphs (i) and (ii) should also be regarded as dealing directly with penalties. In support of this argument, the

change in wording from "head" in paragraph (a) to "beast" in subparagraphs (i) and (ii) of paragraph (b) is pointed to. I am unable to accept this argument. It is one thing to suggest that subparagraph (iii) does not deal with calculating tallies. It is quite another to say that none of subparagraphs (i), (ii) or (iii) does so and accordingly to reject altogether the opening words of the paragraph — "For the purpose of calculating tally"." I am unable to attach any particular significance to the change in wording from "head" to "beast". In my opinion, the two terms are synonymous for the present purposes. Nor do I consider that the reversion to "head" in paragraph (c) or the change from "calculating tally" in paragraph (b) to "calculating tally per man per day" in paragraph (c) is of any consequence. These are all, in my view, merely examples of inexact draftsmanship. That the tally referred to in paragraph (a) is not simply a figure arrived at by dividing the team's actual kill by the number in the team is, in my view, confirmed by paragraph (c) which is patently to be used in the calculation of tally — and see in particular subparagraphs (iii) and (iv).

The position becomes even clearer, in my view, when regard is had to the provisions of subclause (2) of Clause 12, dealing with boners, and of subclause (3), dealing with slicers, where there is no intrusion of any penalty rates for condemned cattle and where the language is consistent, the term "sides" being used throughout. Paragraph (b) of each of those subclauses can only be concerned with the calculation of the tally, as it is expressed to be.

Without more, it might be thought that the special provisions for calculating tally in Clause 12 were appropriate simply for the calculation of the daily tally. However, a further reference to tally is to be found under the inappropriate heading of "Overtime" in Clause 25. In relation to "tally employees", by subclause (2) (a), when the daily tally of a tally employee is exceeded, he is to be paid at rate and a half for each additional carcase in excess of tally up to 100 per cent in^xcess of tally, and at rate and three-quarters for each additional carcase in excess of 100 per cent in excess of tally.

The argument of the respondent is that the special provisions of Clause 12, expressed to be for the purpose of calculating tally, are to be applied to Clause 25. In my opinion, this argument must be accepted. I am unable to attach any significance to the use of the word "carcase" in Clause 25, bearing in mind that it must comprehend both "head", for slaughterman, and "side" for boners and slicers. With the one exception already noted with respect to condemned cattle, no rates are referred to in the material portions of Clause 12. Rates are dealt with in Clause 25 and those rates must, in my view, be applied to the tallies calculated in accordance with Clause 12. The base tally rate is to be applied to the daily tally and the appropriate higher rate to any overtallies. Two calculations only are involved, and not three, as the appellants' argument would have it.

In my opinion, the relevant provisions of the awards are sufficiently clear to deny any resort to extrinsic aids. I have arrived at this conclusion with considerable reluc- tance, having regard to the basis upon which the parties have conducted themselves for such a period of time. In an ordinary contractual situation, the facts may possibly have given rise to an estoppel by convention — see Amalgamated Investment and Property Co. Ltd v. Texas Commerce International bank Ltd (1982) Q.B. 84. However, in these proceedings, the function of this Court is to determine whether the Full Bench has erred in law. In my opinion, it has not, there being no "doubt or uncertainty or ambiguity", as contended in ground 2 of the grounds of appeal, in the meaning of the relevant provisions. This being so, there is no room for the application of section 46 (1) (b) of the Industrial Arbitra- tion Act, 1979.

For the foregoing reasons, I would dismiss these appeals.

2130 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE.

OLNEY J.: The proceedings to which these appeals relate had their origin in separate applications made by the respondent Union to the Western Australian In- dustrial Commission pursuant to section 46 of the In- dustrial Arbitration Act in which declarations were sought as to the true interpretation of identical provisions in the Meat Industry (Wyndham) Award (Award No. 16 of 1981) and the Meat Industry (Northwest Abattoirs) Award (Award No. 18 of 1981). The two applications were heard together by Mr Commissioner Martin and resulted in him declaring the true interpretation of the awards to be in accordance with the construction then and now advocated by the respondent. In each case the present appellants unsuccessfully appealed to the Full Bench of the Western Australian Industrial Commission and now appeal to this Court from the Full Bench decision.

There are some unusual features about this case. The clauses in respect of which the respondent sought declarations had their origin in an arbitrated award (now superseded) handed down by former Chief In- dustrial Commissioner B. M. O'Sullivan in 1971. At the time the Chief Commissioner explained the intention of the relevant provisions in a manner which suggests that they were intended to apply in a manner consistent with the appellants' views as to their construction. In 1972, following a compulsory conference, the Chief Commis- sioner again expressed his opinion as to the meaning of the clauses and again his view was consistent with the appellants' arguments both before this Court and in the proceedings in the Commission. At all times since 1971, the appellants have applied the award in a manner consistent both with the views they presently advocate and the utterances of the Chief Commissioner in 1971 and 1972. The two current awards, that is Awards Nos. 16 and 18 of 1981, which so far as they are relevant to the present proceedings contain provisions identical in terms to those contained in the 1971 award, were made by consent of the parties. In 1983, a substantially similar provision in the Meat Industry (State) Award was interpreted by Mr Commissioner Martin in the manner advocated by the appellants and in accordance with the practice that the appellants had followed over the preceding twelve years but on appeal that interpretation was reversed by the Full Bench and the interpretation advocated by the respondent was adopted. It will be seen, therefore, that Mr Commissioner Martin's interpretation at first instance in the matters now under appeal was consistent with the 1983 Full Bench decision in relation to the Meat Industry (State) Award but was different from the view previously expressed by him at first instance in that matter.

Without intending to unnecessarily add to the volume of judicial and other opinion that has been expressed over many years concerning the function of section 46 and its equivalent provisions in previous State and counterpart Federal legislation, it is appropriate at this stage to observe that in view of the limited appellate jurisdiction of this Court these appeals are only competent if in the facts of the particular case the declaration of the true interpretation of the awards in question involves a question of law. It has not been suggested on either side that the case is otherwise and for that reason and also in view of the conclusion I have reached, it is neither appropriate nor necessary for me to enter upon a consideration of whether a question of law is in fact involved. It is sufficient to say that I am by no means convinced that on every occasion an application for the declaration of the true interpretation of an industrial award will necessarily involve a question of law entitling a dissatisfied party to take the matter through the appellate structure ultimately to this Court. There is some authority to suggest that the jurisdiction of the Commis- sion pursuant to section 46 is at least in part arbitral in nature and indeed I can imagine circumstances where the only real function to be performed upon an application for a declaration as to the true interpretation of an award would be fact finding, and this would be particularly so in cases where the meaning of terms or the established custom and usage in an industry are in issue.

64 W.A.I.G.

Put shortly, in the context of this case the issue before this Court is whether the award provisions now under scrutiny have the meaning which the framer of the original award from which they are taken said they were intended to have (which is the view advocated by the appellants) or whether, on the other hand, those provisions mean something else (which is the view advocated for the respondent and that arrived at by the Commis- sioner at first instance and the Full Bench).

Before particularising the competing interpretations that have been advocated before us, I will set out those provisions of the awards which, in my view, are or may be relevant to the issues under consideration. For the sake of convenience, my references are taken entirely from Award No. 16 of 1981.

7.—Terms of Employment. Subject to the following provisions and except in

the case of casual employees, the contract of service shall be by the week . . .

(a) The terms of contract of a seasonal employee shall be as is contained in the contract of employment as provided in Clause 9—Guarantee . . . The terms of the contract shall include an estimated total season kill, the number of tally workers in each team, the estimated number of six day weeks and any other conditions of employment which are not set out in the Award.

11.—Wages. The minimum rates of wages payable per week to

adult employees covered by this Award shall be as follows:—

(1) Employees in slaughtering section:— $

(a) Slaughterman 209.80

(2) Employees in boning section:— (a) Boner 198.80 (b) .... (c) Slicerl85.90

(13) The base tally rate shall be derived by dividing one-fifth of the rate of wage of the appropriate classification and the seasonal allowance as prescribed in Clause 13 for the classification by the appropriate daily tally prescribed in Clause 12—Tallies and Penalties.

12.—Tallies and Penalties. (1) Slaughterman:

(a) The daily tally to apply to a slaughterman in the slaughtering tally team shall be 13 head per man per day.

(b) For the purpose of calculating tally— (i) a body of beef weighing—

under 250 kg shall equal 1 beast, 250 kg to 318 kg shall equal 1.1

l^CciStS 318 kg to 385 kg shall equal 1.2

beasts, 386 kg and over shall equal 1.25

beasts. (it) Bulls and genuine stags weighing—

Under 136 kg shall equal 1 beast, 136 kg shall equal 2 beasts, A "genuine stag" means a fully grown animal that exhibits characteristics of a bull, including a definite neck crest. Any dispute arising from this subparagraph shall be determined by the meat inspector.


(iii) All cattle condemned by the veterinary officer for any of the following causes—

tuberculosis, cancer, ulcer, tumour, gangrene, leptosperosis or brucellosis, shall be paid for at double rates.

(2) Boner: (a) The daily tally for each boner shall be 22


(i) A body of beef weighing:— Under 250 kg shall equal 2 sides 250 kg to 318 kg shall equal 2.2

sides 318 kg to 385 kg shall equal 2.4

sides, 385 kg and over shall equal 2.5

sides, 2 hindquarters shall equal 1 side, 3 horses heads shall equal 1 side, 3 forequarters shall equal 2

sides, 2 crops shall equal 1 side, 5 briskets with shin and portion

of clod bone attached shall equal 1 side,

10 briskets shall equal 1 side. (ii) Bulls and genuine stags weighing—

136 kg to 272 kg shall equal 3 sides,

272 kg and over shall equal 4 sides,

"genuine stag" means a fully grown animal that exhibits characteristics of a bull, including a definite neck crest. Any dispute arising from this subparagraph shall be determined by the meat inspector.

(c) ... (d) For the purpose of calculating tally, 1 side

or the equivalent thereof boned on the table shall equal 1.1 sides.

(3) Sheer: (a) The daily tally for each sheer shall be 20


(i) a body of beef weighing— Under 250 kg shall equal 2 sides, 250 kg to 318 kg shah equal 2.2

sides 318 kg to 385 kg shall equal 2.4

sides, 385 kg and over shall equal 2.5

sides (ii) A bull or genuine stag weighing—

Under 182 kg shall equal 2 sides 182 kg to 363 kg shall equal 3

sides, 363 kg and over shall equal 4

sides. A "genuine stag" means a fully grown animal that exhibits characteristics of a bull including a definite neck crest. Any dispute arising from this subparagraph shall be determined by the meat inspector.

24.—Hours. (1) The ordinary working hours shah not exceed

40 in any one week, or eight in any one day, Mon- day to Friday exclusive. Such hours to be consecutive except for the meal break.

(2) In any week in which a public holiday or the day in lieu is observed falls between Monday to Fri- day inclusive, the ordinary hours of work for that week shall be 32 hours, and in any week in which two public holidays or the days in lieu are observed fall between Monday to Friday inclusive, the ordinary hours of work for that week shall be 24 hours.

(3) The ordinary starting time shall not be earlier than 6.00 a.m. and the ordinary finishing time shall not be later than 4.00 p.m. Monday to Friday inclusive, or as otherwise agreed between the parties hereto.

25.—Overtime. (1) Time Workers—

(a) Subject to the provisions of this clause all time worked outside the ordinary working hours shall be paid at the rate of:—

(i) Time and a half for the first two hours and double time thereafter if performed in the period between one and a half hours before the employee's usual starting time and that starting time and in the period between the employee's usual finishing time and midnight.

(ii) Double time if performed after midnight on any day when the time so worked commenced before that time or if it commenced before that time or if it commenced at or after midnight but before one and a half hours of the employee's usual starting time.

(iii) Double time if the time so worked commenced at or after midnight on Friday but before 6.00 a.m. on Saturday, and in such a case the payment of double time shall continue until work is complete; and

(iv) Time and a half for the first two hours and double time thereafter with a minimum payment for three hours if otherwise worked on a Saturday, providing all work after noon is paid at double time.

(b) All time worked on a Sunday shall be paid for at the rate of double time, with a minimum payment for three hours.

(c) All time worked on a holiday prescribed in Clause 19—Holidays shall be paid for at the rate of double time and a half, with a minimum payment of three hours.

(h) (i) The employer may require any employee to work reasonable overtime or overtally and such employee shall work overtime or overtally in accordance with such requirement,

(ii) The Union party to this Award of employee or employees covered by this Award shall not in any way, whether directly or indirectly be a party to or concerned in any ban, limitation or restriction upon the working of overtime or overtally in accordance with the requirements of this subclause.


(2) Tally Employees— (a) When the daily tally of a tally employee is

exceeded, he shall be paid at rate and a half for each additional carcase in excess of tally up to 100 per cent in excess of tally and at rate and three-quarters for each additional carcase in excess of 100 per cent in excess of tally, provided that if the excess of 100 per cent in excess of tally is worked on more than two days in any week, then on any day in excess of such two days the rate shall be double.

(b) A tally employee shall be paid for all work on a Saturday at rate of a half per carcase up to one-quarter of tally, and all in excess shall (be) paid for at double rates.

(c) A tally employee shall be paid for all work on a Sunday at double rate per carcase processed.

(d) A tally employee who is required to work on a holiday or a day observed in lieu as prescribed in Clause 19.—Holidays, shall in addition to payment for that holiday be paid rate and one-half for each carcase processed up to and including tally and double rate and one-half for each carcase processed in excess of tally, with a minimum payment for three-eighths of tally.

(e) (i) When excess tally is worked outside the ordinary hours, Monday to Fri- day a tally employee shall not receive overtime payments in addition to the excess tally rate applicable.

(ii) When tally employees work on Satur- days, Sundays or public holidays, they shall not receive overtime payments in addition to the tally rate prescribed for those days.

30.—General Conditions. (1) When slaughtermen, boners and sheers are

employed under the tally system, they shall work on a team basis, e.g. there shall be teams of slaughtermen, boners and slicers who shall slaughter bone or slice the total daily amount required by the employer. Subject to the provisions of Clause 7 (b) of this Award, the duties of each member of a team shall be determined by the employer.

(2) The employer shall keep in each section where tally work is performed, a tally board on which shall be shown the number and type of cattle or carcases that are to be processed each day. The total throughout each day shall be equally divided amongst the teams of tally workers engaged.

(21) A tally employee who has completed tally or overtally required for the day by the employer shall not be required to perform any other work for that day.

31 .—Time and Wages Records. (1). . . (2) The employer shall keep records showing:—

(a) the name and address of each employee, (b) the occupation of each employee, (c) the time worked by each employee, (d) the total number of carcases and/or

pieces processed by a tally employee each day,

(e) the wages and other earnings paid therefor.

35.—Waiting Time and Commencement of Operations. (1) . . . (2) Any member of the tally team who is kept

waiting by reason of any delay in starting work or interruption of work which is not his fault, or a breakdown of machinery which prevents work being performed, in excess of an aggregate of 15 minutes on any day shall be paid waiting time at his ordinary rate.

The award does not define the terms "tally", "tally team", "time workers", or "tally employees", all of which no doubt are familiar terms to those engaged in the industry and to the Industrial Commissioners under whose responsibility the industry falls. It is, however, possible from a reading of the award as a whole to glean sufficient information to enable the general thrust of the disputed clauses to be understood. The distinction between time workers and tally employees appears reasonably clear. From the provisions quoted it seems a fair conclusion that time employees are paid on the basis of a specified'wage for a 40-hour five day week worked Monday to Friday(between the hours of 6.00 a.m. and 4.00 p.m. with penalty rates for work performed outside that span of hours and at weekends and on holidays. On the other hand, tally employees are in effect what tradi- tionally were called piece workers, that is, their remuneration is dependent not upon the hours worked but upon the degree of productivity achieved. A tally employee who achieves the prescribed daily tally becomes entitled to an amount equivalent to a day's pay, that is, one-fifth of a week's pay for his particular classification and one who achieves a level of production in excess of the specified daily tally becomes entitled to payment for "over-tally" at a higher rate. Similar- ly, a tally employee working on a weekend or holiday is paid at a penalty rate for the amount of work done rather than for the time worked. Just as overtime is calculated in accordance with the time worked beyond the prescribed daily ordinary time, so a tally worker is paid for over-tally based upon the extent to which his daily tally exceeds the prescribed daily tally.

The question raised in the respondent's applications before the Commission is in each case.

Do the following items in Clause 12— (1) (b) (i) (ii), (2) (b) (i) (ii), (2) (d),

(3) (b) (i) (ii) attract a constant penalty payment or are they equations or equivalents to be used in determining the tally total for the day and over- tally and amounts payable under Clause 25 (a) (b) (c) (d).

The alternative propositions are these. The respondent says that provisions referred to operate so as to produce a notional tally, or number, each day depending on the type and size of the animals processed and that the over-tally is that notional number less relevant daily tally prescribed in subparagraph (a) of each of the subclauses in question. The appellant's view, and the practice heretofore followed, is that the calculation of over-tally is based upon the number of "carcases" actually slaughtered, boned or sliced (as the case may be) each day less the prescribed daily tally for the particular classification and that in addition a penalty payment is made in respect of such animals as exceed the weights or are of the types specified in the subparagraphs referred to.

In the jargon of the question posed, the respondent says that the subclauses mentioned are equations or equivalents to be used in determining the tally total for the day whereas the appellants maintain that they merely provide for a penalty payment depending upon the size and type of each animal.

In a long and reasoned judgment Mr Commissioner Martin came to the conclusion that on the plain meaning of the words of the awards the interpretation advocated by the respondent is the correct one and he felt obliged to adopt that approach by virtue of the previous ruling of the Full Bench rather than what he considered


to be the more preferable alternative of determining the matter "in the industrial relations sense" in accordance with his findings of fact. In the end, the Commissioner answered the question posed in these terms:

The provisions of placita (i) and (ii) of paragraph (b) and (d) of subclause (2) and paragraph (b) of subclause (3) of Clause 12—Tallies and Penalties of the Meat Industry (Wyndham) Award, No. A16 of 1981 as varied, and the Meat Industry (Northwest Abattoirs) Award, No. A18 of 1981 as varied are "equivalents" to be used for the purpose of determining the tally achieved on any day by slaughtermen, boners and slicers and payment for over-tally pursuant to Clause 25—Overtime, subclause (2), Tally employees of the aforesaid awards.

The majority of the Full Bench (the President and Mr Commissioner Collier) were of the opinion that "apart from an inappropriate reference to condemned cattle under Clause 12 (1) (b) (iii), the provisions with which the Commission was concerned appear to be unambiguous and upon the ordinary and natural meaning of the language provide overweight equations which are to be used for the purpose of calculating tally, that is, the final count of product processed for the day in units of head of cattle (or carcases) for slaughtermen and sides of cattle for boner and slicers". The third member of the Full Bench, Senior Commissioner Cort, did not express an opinion as to the "ordinary and natural meaning of the language" used in the award but rather treated the question of interpretation as being pre- empted by the 1972 decision of Chief Commissioner O'Suliivan which was given in settlement of an industrial dispute then current and which the parties had ever since acted upon, apparently without dissent, until May 1983 even to the extent of adopting the same award provisions in subsequent awards issued in 1976 and 1981 without in any way changing the manner of application of those provisions. The Senior Commissioner preferred to adopt the expressed intention of the framer of the award as indicative of its true meaning.

If it be the case that the correct approach to the interpretation of an industrial award is to read the document itself and give to the words used their ordinary com- monsense English meaning (see Jackson J. in United Furniture Trades Industrial Union v. Dale Manufactur- ing Co. Pty. Ltd., 30 W.A.I.G. 539, at p. 540) then the first task in every case will be to determine whether the words used are capable in their ordinary sense of having unambiguous meaning. If that question is answered in the affirmative then the further consideration of the expressed or supposed intention of the award making tribunal does not fall to be considered. The majority of the Full Bench in this case took that view when they

It is now trite law that when the meaning of language read in its ordinary and natural sense is obtained it is not necessary or indeed permissible to look to the intention of the parties.

In my opinion the majority of the Full Bench has correctly stated the basic principle to be applied in the interpretation of industrial awards. Any other conclusion would lead to industrial anarchy. If the contrary were the case every employer, union official and indeed each employee would need to have available to him the expressed views of the award making tribunal whether they be expressed before or after the making of the award in order to determine the intention of the tribunal whilst the award itself would be rendered meaningless.

In the present case, both the Commissioner at first instance and the majority of the Full Bench were of one mind, namely that the award provisions interpreted according to their ordinary meaning left no room for debate. The Senior Commissioner, although dissenting from the majority decision in the Full Bench, did not express a contrary view on the question of the literal interpretation of the award and indeed it is implicit in his

reasons that he was unconcerned with the literal meaning of the relevant clauses in view of the expressed opi- nions of the award maker and the subsequent conduct of the parties.

There will be occasions when an award is genuinely capable of two or more meanings and in those circumstances it is obvious that the primary rule of construction cannot be applied. But that case is not this case. In my view the express terms of Clauses 12 and 25 read in the context of the award as a whole leave no room for argument as to their meaning. Each of paragraphs 12 (1) (b), 12 (2) (b) and 12 (3) (b) provides a formula related to the weight or type of animal being dealt with "for the purpose of calculating tally". In each case "tally" is obviously "the daily tally" which by virtue of the immediately preceding paragraph is said to apply to the particular classification of employee. The term "the daily tally" in Clause 25 (2) must as a matter of simple logic have the same meaning as that term in Clause 12, so that when Clause 25 (2) speaks of "each additional carcase in excess of tally" it is referring to the notional number of animals arrived at by applying the relevant formula in Clause 12. There is no question but that there are many anomalies and in- consistencies in the drafting of these awards. They would indeed be unique if they were without such faults. A more extensive use of definitions would probably have avoided many of the problems but be that as it may the parties are of one mind as to the meaning of tally, i.e. the number of head (in the case of slaughtermen) or sides (in the case of boners and slicers) to be credited to each man each day. Once that stage is reached the introductory words of paragraph (b) in each of subclauses 12 (1), (2) and (3) "for the purpose of calculating tally" do not admit of any ambiguity.

In my opinion the Full Bench has erred neither in the application of any principle nor in its conclusion that the award when construed in accordance with principle has the unambiguous meaning ascribed to it by the Full Bench and the Commissioner at first instance. I would dismiss both appeals.

IN THE WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT.

Appeal Nos. 4 and 6 of 1984.

In the matter of an appeal from the decision of the Full Bench of the Western Australian Industrial Com- mission given on 22 May 1984, in matter Nos. 164 and 165 of 1984.

Between Norwest Beef Industries Limited, Appellant and West Australian Branch, Australasian Meat Industry Employees' Union, Industrial Union of Workers, Perth, Respondent.

Before Mr Justice Brinsden (Presiding Judge), Mr Justice Kennedy and Mr Justice Olney.

Tuesday, 30th October, 1984. Order.

HAVING heard Mr R. I. Viner Q.C. and Mr P. R. Member of Counsel for the appellant, and Mr R. J. M. Anderson Q.C. and Mr D. H. Schapper of Counsel for the respondent in the appeal herein from the decision fo the Full Bench of the Western Australian Industrial Commission, given on 22nd May, 1984, the Court doth hereby order the appeal be dismissed.

K. SCAPIN, Clerk of the Court.

WESTERN AUSTRALIAN INDUSTRIAL GAZETTE. 64 W.A.I.G.


No. 956 of 1984.

Between Hamersley Iron Pty. Limited, Appellant, and Electrical Trades Union of Workers of Australia (Western Australian Branch), Perth, Respondent.

Before the Full Bench. His Honour the President D. J. O'Dea, Chief Industrial Commissioner E. R. Kelly and Commissioner O. K.

Salmon.

The 22nd day of November, 1984.

Mr L. A. Jackson (of Counsel) of behalf of the appellant.

Mr S. R. Edwards (of Counsel) on behalf of the respondent.

Reasons for Decision. THE PRESIDENT: We have considered the proposition which has been put to us this morning. We accept the assurance which has emanated from both sides of the bar table that the decision with which this appeal is concerned affects no-one outside the parties represented before us.

We are satisfied that the order which constitutes the decision in respect of which the appeal has been brought is not consistent with the reasons for that decision and that there are grounds justifying the proposition that the order should not stand. The parties have proposed, by consent, that we uphold the appeal and quash the order.

In these unusual circumstances we are satisfied that that is a proper course and we propose to make an order by consent to that effect.

Order accordingly.


No. 956 of 1984.

Between Hamersley Iron Pty. Limited, Appellant, and Electrical Trades Union of Workers of Australia (Western Australian Branch), Perth, Respondent.

Before the Full Bench. His Honour the President D. J. O'Dea, Chief In- dustrial Commissioner E. R. Kelly and Commis-

sioner O. K. Salmon.

Order. THIS matter having come on for hearing before the Full Bench on the 22nd day of November, 1984 and having heard Mr L. A. Jackson (of Counsel) on behalf of the appellant and Mr S. R. Edwards (of Counsel) on behalf of the respondent and upon the application of the appellant with the consent of the respondent, those parties agreeing that the appeal should be allowed and that no other party is affected it is this day, the 22nd day of November, 1984 ordered that:—

1. The appeal be upheld; and 2. The decision of Commissioner G. G. Halliwell

given on the 26th day of October, 1984 in matter No. CR267 of 1984 be quashed.

By the Full Bench,


No. 867 of 1984.

In the matter of the Industrial Arbitration Act, 1979, and in the matter of an application pursuant to subsection (5) of section 71 of the Act by the Australian Railways Union of Workers, West Australian Branch for alteration of registered rules.

Before the Full Bench.

His Honour the President D. J. O'Dea, Senior Com- missioner B. J. Collier and Commissioner G. A.

Johnson.

Order. THIS matter having come on for hearing before the Full Bench on the 29th day of November, 1984 and having heard Mr R. M. Collie on behalf of the applicant, there being no party desiring to be heard in opposition thereto, and the Full Bench having considered and approved the application, it is this day, the 29th day of November, 1984 ordered that the Registrar register an alteration to the rules of the applicant union in the terms of the following schedule.

By the Full Bench,

(Sgd.) D. J. O'DEA, President.

(Sgd.) D. J. O'DEA, President.

Schedule. 1. Insert a new rule 80 as follows:—

80. Notwithstanding the foregoing provisions of

these rules each office in the Union may, from such time as the Committee of Management of the Union may determine, be held by the person who, in accordance with the rules of the Union's Counterpart Federal Body, holds the corresponding office in that Body.

2. (a) Existing rule 80 to be renumbered 81. (b) Existing rule 81 to be renumbered 82. (c) Existing rule 82 to be renumbered 83. (d) Existing rule 83 to be renumbered 84.


No. 750 of 1984.

In the matter of the Industrial Arbitration Act, 1979 and in the matter of an application by the Hospital Salaried Officers Association of Western Australia (Union of Workers) for alteration of rule 3.—Constitution of its registered rules.

Before the Full Bench. His Honour the President D.J. O'Dea, Senior Commis- sioner B. J. Collier and Commissioner G. A. Johnson.

THIS matter having come on for hearing before the Full Bench on the 8th day of November, 1984 and having heard Mr G. N. Hocking on behalf of the applicant, there being no party desiring to be heard in opposition thereto, and the Full Bench having considered and approved the application in an amended form, it is this day, the 8th day of November, 1984 ordered that the Registrar register an alteration to the rules of the applicant union in the terms of the following schedule.

By the Full Bench, (Sgd.) D. J. O'Dea,

[L.S.] President.

64 W.A.I.G

Schedule. Rule 3.—Constitution: Delete this rule and insert in

lieu:—

3. Constitution. (1) The Union shall consist of workers engaged in

Professional, Administrative, Technical, Super- visory or Clerical capacities employed by:—

(a) Any public or private hospital other than any hospital or institution established under the Mental Health Act, 1962.

Provided that those persons who are employed as Shift Engineers at Royal Perth Hospital shall not be eligible for membership of the Union.

(b) The Hospital Laundry and Linen Service. Provided that any classification of

work covered by an Award or Agreement to which the Metropolitan Laundry Employees' Industrial Union of Workers or the Western Australian Clothing and Allied Trades' Industrial Union of Workers is a party as at the 24th of Oc- tober, 1975, shall be excluded and any worker performing the duties of such classification of work shall not be eligible for membership of the Union.

(c) The Western Australian School of Nurs- ing or any service ancillary to the practice of medicine including institutions or facilities solely or substantially engaged in providing Medical Laboratory services, Radiological services, Physiotherapy services, Occupational Therapy services, Speech Therapy services or Social Work services.

Provided that any person who is employed as an officer or temporary employee under and within the meaning of the Public Service Act, 1904, or who is determined by the Western Australian In- dustrial Commission to be a "government officer" shall not be eligible for membership of the Union.

Provided further that any person employed in Doctors' surgeries or any wholesale or retail distributing or manufacturing organisation shall not be eligible for membership of the Union.

Provided also that any person who is employed by the St. John Ambulance Association for the purpose of operating first aid and/or ambulance services shall not be eligible for membership of the Union.

(d) The Western Australian Division of the Red Cross Society in facilities or services other than those referred to in paragraphs (a) and (c) of subrule (1) of this Rule.

Provided that any person who is employed as a Clerk shall not be eligible for membershp of the Union under this paragraph.

(e) The Spastic Welfare Association of Western Australia (Incorporated) in facilities or services other than those referred to in paragraphs (a) and (c) of subrule (1) of this Rule.

Provided that any person employed as a Tradesman and who is performing the usual duties of his trade shall not be eligible for membershp of the Union.

(f) The Silver Chain Nursing Association (Inc.) in facilities or services other than those referred to in paragraphs (a) and (c) of subrule (1) of this Rule.

2135

(g) The Slow Learning Childrens Group of Western Australia (Inc.) in facilities or services other than those referred to in paragraphs (a) and (c) of subrule (1) of this Rule.

(h) Dentists, provided that membership of the Union shall be limited to Dental Therapists.

(i) Paraplegic-Quadriplegic Association of Western Australia (Inc.), in facilities or services other than those referred to in paragraphs (a) and (c) of subrule (1) of this Rule.

For the purposes of this paragraph only, the word "Supervisory" appearing in the preamble to subrule (1) shall include categories of work which oversee and/or supervise the execution or performance of tasks by or the actions and activities of persons who are not employees under Western Australian industrial law.

Any person who is eligible for membership in accordance with the registered rules of the Royal Australian Nursing Federation (Western Australian Branch) Industrial Union of Workers as at the 1st of August, 1966, shall not be eligible for membership of the Union.

(2) No person shall be eligible for membership of the Union who is not a worker within the meaning of the Industrial Arbitration Act, 1912.

In the matter of the Industrial Arbitration Act, 1979 and in the matter of an application by the Hospital Salaried Officers Association of Western Australia (Union of Workers) for alteration of its rules.

Decision. HAVING read the application, there being no person desiring to be heard in opposition thereto, after con- sulting with the President, and upon being satisfied that the requirements of the abovementioned Act and the regulations made thereunder have been complied with, I have this day registered an alteration to rule 3, Constitu- tion of the registered rules of the applicant union in the terms of the application as filed on 13th September, 1984, and as amended.

Dated at Perth is 8th day of November 1984. T. POPE,

Deputy Industrial Registrar.

FULL BENCH — UNIONS— Declarations made under

Section 71 —


No. 919 of 1984.

In the matter of the Industrial Arbitration Act, 1979, and in the matter of an application to the Full Bench for a declaration under Section 71 of the Act that the rules of The Federated Miscellaneous Workers Union of Australia, Hospital, Service & Miscellaneous, W.A. Branch and its Counterpart Federal Body relating to the qualifications of persons for membership and prescribing the offices which shall exist within the Branch are deemed to be the same.

Before the Full Bench. His Honour the President, D. J. O'Dea, Senior Com- missioner B. J. Collier and Commissioner G. G.

Halliwell.

WESTERN AUSTRALIAN INDUSTRIAL GAZETTE.


Declaration. THIS matter having come on for hearing before the Full Bench on the 20th day of November, 1984 and having heard Mr J. A. McGinty on behalf of The Federated Miscellaneous Workers Union of Australia, Hospital, Service & Miscellaneous, W.A. Branch, there being no other party desiring to be heard in respect of the application, and the Full Bench having considered the application, it is this day, the 23rd day of November, 1984, declared that the rules of the West Australian Branch of The Federated Miscellaneous Workers Union of Australia relating to the qualifications of persons for membership of the Branch and prescribing the offices which shall exist within the Branch are deemed, for the purposes of Section 71 of the Industrial Arbitration Act, 1979, to be the same as the rules of the said union relating to the corresponding subject matter.

By the Full Bench,

(Sgd.) D. J. O'DEA, [U.S.] President.

FULL BENCH—Government Officers—Section 96—


No. 669 of 1984.

In the matter of the Industrial Arbitration Act, 1979, and in the matter of an application pursuant to subsection (4) of section 96 of the Act by the Civil Service Association of Western Australia In- corporated to vary Order No. 262 of 1967 issued on the 17th day of March, 1967.


His Honour the President, D. J. O'Dea, Chief In- dustrial Commissioner E. R. Kelly and Commissioner

G. A. Johnson.

The 6th day of November, 1984.

Mr G. Hoare on behalf of the applicant. Mr L. A. Jackson (of Counsel) on behalf of the

Western Australian Development Corporation. Mr L. J. Irwin on behalf of the Association of

Draughting, Supervisory and Technical Employees, Western Australian Branch.

Reasons for Decision. THE PRESIDENT: This is the unanimous decision of the Full Bench. The provisions of section 96 of the In- dustrial Arbitration Act, 1979 contain a description of an employee who, for the purposes of the Act, is called a Government officer. It includes:

every person who is employed in any public authority named in an order made under subsection (4) or in force pursuant to subsection (3), and who is declared by that order to be a Government officer, and who is, or is eligible to become, a member of the association;

Subsection (3) continues in force an order made under the repealed Act amended from time to time whereby certain persons were declared to be Government officers.

Subsection (4) empowers the Full Bench, on the application of the Civil Service Association of Western Australia Incorporated or any other union or employer

to make an order varying the order referred to so as to include within its operation persons employed in a public authority which is defined as:—

. . . any Government department, State trading concern, State instrumentality, or State agency or any public statutory body established by or under a law of the State;

The present application seeks such an order to include persons employed in the Western Australian Develop- ment Corporation established by the Western Australian Development Corporation Act, 1983. The application is brought by the Association and the issue of an order is opposed by the Corporation and by the Association of Draughting, Supervisory and Technical Employees, Western Australian Branch.

The purpose of the Western Australian Development Corporation Act, 1983 was to establish a corporation to promote the development of economic activity in Western Australia and the Corporation seeks to achieve that through economic activity carried on with a view to making a profit or producing revenue. The provisions of the Act enable the Corporation:—

To promote the development of economic activity in Western Australia by facilitating the provision of financial resources and services to business undertakings.

To operate as a public company with a Board independent of the Government.

To promote Western Australian ownership of business undertakings.

To increase opportunities for Western Australians to invest in economic development in the State.

To operate as a profitable commercial business. The Corporation is a body corporate with a Board of

Directors of which each member except the Managing Director is appointed by the Governor on the recommendation of the Minister. The Board is the governing body with authority in the name of the Corporation to exercise and perform the powers, functions and duties conferred or imposed on the Corporation under the Act. The Corporation is an agent of the Crown in right of the state of Western Australia and enjoys the status, immunities and privileges of the Crown except as otherwise provided by the Act or Regulations. The Corpora- tion is not subject to direction by the Minister save that the Minister may from time to time inform the Corpora- tion of the policy of the Government in relation to the development of economic activity or business undertakings considered by the Government to be of special significance or importance to the state. Where this hap- pens the Corporation is required to seek out opportunities to perform any of its functions in respect of economic activity notified by the Minister and report to the Minister. In addition the Board is required to furnish to the Minister annually a report of its activities. The Minister is obliged to carry out a review of the operations of the Act after five years and to consider the effectiveness of the operations of the Corporation and the need to continue its functions.

Persons declared to be Government officers are excluded from the jurisdiction of the Western Australian Industrial Commission as regards the regulation of their salary or wages or the conditions of their employment and the terms and conditions of their employment and related matters are within the province of the Public Service Arbitration Act, 1966.

A person may be declared by order to be a Govern- ment officer if he is employed in a public authority as defined and is, or is eligible to be, a member of the Association.

It is contended by the Corporation that it is not a public authority within the meaning of the statutory definition because its functions are essentially commercial and no more public in that sense than those of a public company. In this respect the Corporation differs from other public authorities named in the order. Nevertheless, it is expressly appointed an agent of the


Crown and we note that it has been treated as a public authority for the purposes of section 23 (d) of the In- come Tax Assessment Act, 1936 at least while all the issued shares in the authorised capital of the Corpora- tion are wholly owned by the State Government through the Treasurer of Western Australia.

On balance we are not persuaded that the Corpora- tion is not a public authority within the meaning of the

The Corporation also argues that its employees are not eligible to be members of the Association. Rule 6—Membership of the Association's Rules provides, inter alia, that membership shall be confined to any person who is—

(2) employed under the Forests Act, the Main Roads Act or any Act now in force or hereafter enacted whereby any Board, Commission or any other body is constituted to administer any such Act;

The eligibility of those persons sought to be covered by order appears to depend on them being employed under "any Act . . . whereby any Board, Commission or other body is constituted to administer any such Act". The Corporation contends that it is not constituted in the relevant sense to administer the Western Australian Development Corporation Act, 1983, but it is difficult to accept that contention.

What is meant by "constituted to administer" an Act under the rules of the Association is not without doubt, but some clarification may be obtained from other Acts referred to in the context. Under the Forests Act there is constituted a department called the Forests Department in which there is expressly vested the administration of the Act. Under the Main Roads Act the Governor is em- powered to appoint a Commissioner of Main Roads for the due administration of the Main Roads Act. Ac- cording to the short title of the Western Australian Development Corporation Act, 1983 formation of the Corporation is its object. Although not constituted in terms to administer the Act it is intended that the Cor- poration, through its Board, carry out its purposes and functions in much the same manner as those purposes and functions of the Forests Act and Main Roads Act are carried out by those bodies constituted to do so. However, for reasons which follow we do not need to express a final view on the Corporation's contention at this time or to deal with other objections raised by the Corporation and the Association of Draughting, Super- visory and Technical Employees, Western Australian Branch.

From the terms of the definition of the expression "public authority" a public statutory body derives a connotation of Government or State operation, but so far as may be judged from the Act and the submissions made to us the functions of the Corporation are quite unlike those of a Government department or a State instrumentality in the usual sense even though it carries out those functions for the benefit of the public ultimately. The functions however are commercial and not Governmental functions. It appears that in a very real sense the Corporation is to operate independent of Government control and in this and other respects appears to be distinguishable from public authorities employing persons declared to be Government officers under the order which is presently in force. The Cor- poration has features associated with public authorities, but because of the commercial nature of its functions, its autonomy and the lack of factors relating to Govern- ment control generally characteristic of public authorities whose employees are subject to the order, we are not convinced at this stage that its employees should properly be compared with Government officers.

In that regard, we were told nothing of the nature of the work of the employees concerned beyond the fact that there were some persons employed as clerks and typists.

The Corporation has been in existence for only a short time and we are of the opinion that it is too early to make a conclusive determination of its status and that of its employees.

For those reasons we think that that part of the present application which seeks to add the Western Australian Development Corporation to the order made pursuant to section 96 (4) should be dismissed. The Association may apply again if subsequent experience of the Corporation's activities over a suitable period of time leads it to think that such an application is then desirable.

The final order of the Full Bench will now issue and will incorporate the interim order issued by the Full Bench in this application on the 20th September, 1984.

Order accordingly.


No. 669 of 1984.

In the matter of the Industrial Arbitration Act, 1979, and in the matter of an application pursuant to subsection (4) of section 96 of the Act by the Civil Service Association of Western Australia In- corporated to vary Order No. 262 of 1967 issued on the 17th day of March, 1967.


His Honour the President D. J. O'Dea, Chief Industrial Commissioner E. R. Kelly, and Commissioner G. A.

Johnson.

Order. THIS matter having come on for hearing before the Full Bench on the 20th day of September and the 16th day of October, 1984 and having heard Mr K. H. Dodd and Mr G. Hoare on behalf of the applicant; Mr G. E. Bull on behalf of the Aboriginal Affairs Planning Authority and Others; Mr L. A. Jackson (of Counsel) on behalf of the Western Australian Development Corporation and Mr L. J. Irwin on behalf of the Association of Draughting, Supervisory and Technical Employees, Western Australian Branch and the Full Bench having approved that part of the application relating to the Small Business Development Corporation and accordingly issued an Interim Order on the 20th day of September, 1984 and having reserved judgment on that part of the application relating to the Western Australian Development Corporation and judgment being delivered on the 6th day of November, 1984 wherein the Full Bench found that such part of the application should be dismissed and gave reasons therefor it is this day, the 6th day of November, 1984 ordered that:—

1. Order No. 262 of 1967 made on the 17th day of March, 1967, as varied and consolidated, and in force pursuant to subsection (3) of section 96 of the Industrial Arbitration Act, 1979, be further varied in the following manner, namely—

By adding to the existing Schedule A of that Order the following:—

Small Business Development Corpora- tion.

2. The Interim Order issued by the Full Bench in this matter on the 20th day of September, 1984 be cancelled; and

3. The application herein, otherwise be dismissed.

By the Full Bench,

(Sgd.) D. J. O'DEA, [L.S.] President.


COMMISSION IN

COURT SESSION —

Appeals Against Decisions of Board of Reference—


No. 773 of 1984.

Between Australasian Society of Engineers, Moulders and Foundry Workers Industrial Union of Workers, Western Australian Branch, Appellant, and Timcast Pty. Ltd., Respondent.

Before the Commission in Court Session. Mr Commissioner G. G. Halliwell, Mr Commissioner

G. J. Martin and Mr Commissioner G. L. Fielding.

The 26th day of October, 1984.

Dr J. Crouch on behalf of the Applicant. Mr C. D. Steytler (of Counsel) on behalf of the

Respondent.

Reasons for Decision. THIS is the unanimous decision of the Commission in Court Session.

The Appellant and the Respondent differ as to whether the Respondent acquired its business by way of "transmission" from P. C. Timms & Co. Pty. Ltd. A Board of Reference, acting under the authority of the Long Service Leave provisions contained in the Metal Trades (General) Award, determined that their acquisition was not by way of transmission. The Board concluded that the Respondent had only acquired some of the assets of P. C. Timms & Co. Pty. Ltd., rather than the business. These proceedings are an appeal against that determination.

The Board published lengthy reasons for its determination which incorporated various findings of fact, some of which are of only marginal relevance, at least to these proceedings. The material facts found by the Board can be shortly stated as follows:—

(a) At all material times, P. C. Timms & Co. Pty. Ltd. conducted a foundry business in Osborne Park.

(b) On 12th August, 1983, pursuant to the terms of a floating charge, the entire property and assets of the company were placed in the hands of Receivers and Managers.

(c) On 23rd November, 1983, the Receiver and Manager gave notice terminating the employment of the employees of P. C. Timms & Co. Pty. Ltd., with effect from 30th November, 1983.

(d) With few exceptions, the employees left the workplace on 30th November.

(e) On 12th December, 1983, a company controll- ed by the Respondent purchased the land and buildings of P. C. Timms & Co. Pty. Ltd. at Osborne Park, and on the same day the Respondent purchased some of the plant and equipment owned and operated there by P. C. Timms & Co. Pty. Ltd., together with all of its stock, including stock in trade.

(f) The Respondent commenced business at the Osborne Park premises on 13th December, 1983, on which day 17 of the 21 former employees of P. C. Timms & Co. Pty. Ltd. were offered and accepted employment by the Respondent.

(g) The Respondent did not acquire the business name of "P. C. Timms & Co. Pty. Ltd.", nor its goodwill. There was deliberately no cove- nant made restraining trade on behalf of P. C. Timms & Co. Pty. Ltd.

(h) The benefit of existing contracts for work held by P. C. Timms & Co. Pty. Ltd. was not assigned to the Respondent. Although some quite valuable contracts were completed by the Respondent, some "were abandoned", and others lost through "lack of technical expertise' ' on the part of the Respondent.

(i) The nature of the business conducted by the Respondent at the premises at Osborne Park was different from that of P. C. Timms & Co. Pty. Ltd.

The Appellant challenges the Board's determination on a number of grounds, all of which together amount in essence to an assertion that there was a transfer of so much of the assets of P. C. Timms & Co. Pty. Ltd. to the Respondent as to amount to a transfer of the business as a going concern. The operations of P. C. Timms & Co. Pty. Ltd. were said to be so financially unsound as to have no valuable goodwill, and the changes made to its business by the Respondent were only such as was necessary to make the business viable. Great reliance was placed by the Appellant on the fact that the Respondent, which was a newly-formed company, obtained a "commercial advantage" through the acquisition of a ready-made venue, and an established workforce. The argument was that it was able to commence a business which was essentially the same as that of P. C. Timms & Co. Pty. Ltd., without having to establish a factory or goodwill of its own. Thus it was suggested that the business was transferred as a "going concern", to use the words of Lord Fraser in Melon v. Hector Powe Limited (1981) All E.R. 313, 317, and was the same business in different hands, and hence a transmission for the purpose of the Long Service Leave provisions of the Award.

It is worth noting that appeals of this nature are somewhat limited in their scope. In particular, section 48 (12) of the Industrial Arbitration Act requires that such appeals be heard and determined on the basis of the facts as found and recorded in the memorandum required to be made and filed by the Board, rather than on the basis of all the evidence raised by the parties before the Board. Thus, given the finding that "the nature of Timcast's business is different from that of P. C. Timms", it is difficult to see how in the circumstances the Appellant can be heard to say there was in fact a transmission. However, even if that is not taken as a primary finding of fact but as a conclusion legitimately open to question on this occasion, the result is the same because the majority of the Board properly addressed themselves to the task at hand.

It is well established, as the Board recognised, that in considering whether there has been a "transmission" of a business from one employer to another, consideration has to be given to the substance rather than the form of the transaction which has given rise to the change of employment (see Kenmire Pty. Ltd. v. Frizzell (1968) 1 All E.R. 414). Furthermore, there needs to be a transmission of the whole business and not just part of it although, as the Board also recognised, that is not to say that each and every part of the assets and liabilities of the undertaking need be transmitted, (see Manley v. Gazal Clothing Co. Pty. Ltd. 1973 A.R. (N.S.W.) 547). What is important is that the business as a "going concern" or trading unit be transmitted. There is, of course, more to a business than its physical possessions and its staff. In addition, there is its work in progress, book debts and intangibles such as its goodwill, all of which are vital ingredients of any trade or business. Thus, as Buckley, L. J. noted in Woodhouse v. Peter Brotherhood Limited (1972) 3 All E.R. 91, 98, the acquisition of a "production unit" in the form of a factory, plant and machinery and the existing workforce, does not amount to the acquisition of a business. There is a distinction between the means of carrying on the business, and the business itself. It is the whole trading unit which constitutes the business and which needs to be acquired by the new employer to bring it within the scope of the Award.


Whether there has been a transmission of the business, or simply a transfer of its assets is, as has frequently been said, a question of fact and of degree for the Board, (see Melon v. Hector Powe Limited (supra)). In this case, we think that there was ample evidence to justify the determination reached by the majority of the Board, that there had simply been a transfer of the assets of the business of P. C. Timms & Co. Pty. Ltd., rather than a transfer of the business itself. There was, for example, as the Board noted, no transfer of the goodwill, or of the liabilities of the company, nor of the existing contracts, and a transfer of only some of the plant and equipment. Further, the fact that some of the existing contracts of P. C. Timms & Co. Pty. Ltd. were "abandoned" and not taken on by the Respondent, and others lost through lack of technical expertise on the part of the Respondent, is hardly consistent with the business being transferred as a going concern.

The factors referred to by the majority of the Board suggest to us, as they did to the majority of the Board, that the business of P. C. Timms & Co. Pty. Ltd. was not transmitted to the Respondent. Whilst none of the factors referred to taken alone are in themselves necessarily conclusive, taken together they lead to the almost inescapable conclusion that there was no transmission of the business. While the Respondent might have acquired the premises of P. C. Timms & Co. Pty. Ltd. and many of its assets, the trading concern or unit carried on thereafter was not in substance the same as that which had been carried on by P. C. Timms & Co. Pty. Ltd. Much of what was done and the basis on which it was done, reflected initiatives of the Respon- dent. The majority of the Board appears to have accepted that "the business of the last-named company was a 'service operation', or otherwise a 'demand-pull oepration', whereas the Respondent's business was a 'product-push' operation, or one designed to sell a specified range of goods", and that wts clearly open to them. The fact that the work done was n some cases the same as the work done before, and the fact that the employees might have thought little ad changed, are not the criteria for determining wheth; ■ there has been a transmission or not. As has previously been mentioned, the work done in pursuance of a business undertaking is not itself the business, but only a component of it. Similarly, the fact that it was once the intention of the Receivers to "bring about a situation vhereby continuity of employment may be possible" does not advance the Appellant's cause, even if the intention had been carried out, which it was not. Likewise, considerations of "commercial advantage" to the transferee simply beg the question, since such an advantage can be derived from the transfer of a single asset without a transmission of the business. The issue stiil remains as to whether it is the "business" of an employer, rather than simply its assets, which have been acquired by the new employer.

We consider that the Board properly understood the concept of "transmission" of a "business" in the context of the Long Service Leave provisions of the Award, and correctly applied that concept to the facts as it found them. The Appeal is therefore dismissed.


No. 773 of 1984.

Between Australasian Society of Engineers, Moulders and Foundry Workers Industrial Union of Workers, Western Australian Branch, Appellant, and Timcast Pty. Ltd., Respondent.

2139

Order. HAVING heard Dr J. Crouch on behalf of the Ap- pellant and Mr C. D. Steytler (of Counsel) on behalf of the Respondent, the Commission in Court Session, pursuant to the powers conferred on it under the Industrial Arbitration Act, 1979, hereby orders—

That the Appeal be dismissed.

Dated at Perth this 26th day of October, 1984.


(Sgd.)G. G. HALLIWELL, [L.S.] Commissioner.

PRESIDENT — matters dealt

with—


No. 917 of 1984.

In the matter of the Industrial Arbitration Act, 1979 and in the matter of a summons directed to Thomas Christopher Fleming to appear and show cause why a penalty as provided should not be imposed under section 44 of the Act for failure to attend a compulsory conference before the Commission called under the section for 9.15 a.m. on Monday, 17th September, 1984 at Perth having been duly summoned to attend.

Before His Honour the President D.J. O'Dea.

The 14th day of November, 1984. Mr K. Scapin, Industrial Registrar, on his own

behalf. Mr J. J. O'Connor on behalf of Thomas Christopher

Fleming.

Reasons for Decision. (Given extemporaneously at the conclusion of the hearing, taken from the transcript of proceedings as edited by His Honour.) THE PRESIDENT: Under the provisions of the In- dustrial Arbitration Act, 1979 the Industrial Commis- sion is charged with a duty to endeavour by all reasonable means, in the circumstances of the case, to settle by conciliation all matters which come before it. This is expressed specifically in section 43 of the Act. Section 44, under which these present proceedings are brought, expresses the means by which resolution of disputes in that way, as envisaged by section 43, is to be achieved. It includes a power in the Commission to summon, for attendance at a conference, any person whose attendance, in the view of the Commission, might be important, perhaps essential, to the resolution of the dispute. That is, of course, a matter of judgment for the Commission in each case. Once the decision has been made and the summons issued, because it is essential for the purposes of the Act and for the proper execution of the Commission's duty, that summons must be obeyed and if it is not, the section expressly provides—that is to say the parliament has determined and prescribed in the Act—a penalty of $1 000.

That is a reflection, I think, of the seriousness of failure to attend when summoned at a specified time and place for a conference before the Commission. It is regarded as so important, so imperative that the command to attend be obeyed that failure to do so it, unless

37051 —2


cause be shown, met with a severe penalty and the penalty provided is $1 000. In my view that penalty should be imposed by the President, who has the duty of exercising this particular jurisdiction, in the worst case—that is to say a blatant, deliberate failure to obey the summons.

What is blatant and deliberate depends, of course, upon the circumstances.

This is the first occasion on which a person has been the subject of proceedings of this kind, even though the Act has been in operation for some five years. Never- theless the proceedings have been instituted by the Com- mission at the direction of Mr Commissioner Salmon. Evidence has been given as to the circumstances in which he directed the Registrar to inquire as to why Thomas Christopher Fleming having been summoned to attend a conference on 17th September at 9.15 a.m. in Perth did not do so.

The evidence which has been put before me makes it clear that the summons was duly served. In fact, there is no dispute by Mr Fleming that that was so, and indeed the Act deems service to have been properly effected unless the person who receives the summons to attend satisfies the Commission that it was not received. In this case there is no question of that.

The circumstances were that Mrs Kordic, the Com- missioner's associate, spoke to Mr Fleming on the telephone and told him that he was required to attend. In fact that narrative indicates that he said words to this effect, "I suppose this means that I have to attend, does it?" She said, "Yes, it does." I do not think that anything Mr Fleming has said today was meant to indicate that he was not aware of the necessity to be in attendance.

Unfortunately on 17th September another meeting was arranged, that being a mass meeting of employees, members of unions at Dampier, for the same date as the conference had been arranged. Those who were responsible for organising that mass meeting advised Mr Flem- ing, who sought their advice, that he had a first obligation to his members and that he should attend the Mon- day mass meeting and put the union's case to those members.

With the greatest respect to matters of solidarity the interests of the union concerned and the interests of the local branch of the Mining Unions Association seeking to bring to a settlement the matter of dispute, that was, quite plainly, the wrong advice. It may be thought to be unfortunate but Mr Fleming had no choice to make between attending the conference to which he had been summoned or attending the mass meeting and address- ing that meeting. His obligation, in the clearest terms, required him to obey the summons. If persons summoned are free to make the choice which he made, are free to decline to attend, then it can plainly be seen that the system is at risk. The system, as I pointed out, is essential to the carrying out by the Commission of its duty, that is the resolution of disputes by all reasonable means.

It may well be, as Mr O'Connor has been at pains to explain, that Mr Fleming's attendance at the meeting might not have contributed substantially, or at all, to the resolution of the dispute. That, I am prepared to accept is quite possible on the basis of what he has said, but that really is not a criterion by which to measure whether he should have been there. It is certainly not a justification, or cause shown, to excuse his failure to attend because it is, as I said at the outset, the decision of the Commission as to who should attend a conference and, having made that decision and issued a summons requiring attendance, it is obligatory on the person receiving it to be there at the time specified. In the event that he fails to do so, then a penalty as provided by the Act is to be meted out.

In this case I do have regard to what has been said by way of mitigation and I think that there are a number of factors which make this case less serious than it might otherwise have been regarded. I agree with Mr O'Con-

nor that there are degrees of seriousness. I agree with him that the fundamental purpose of a conference of this kind is the settlement of the dispute.

I do not think that Mr Fleming deliberately intended to flout the authority of the Commission. I do not think that he intended to deliberately refuse its order. He is relatively inexperienced and possibly relied too much upon the advice of others. I have already said, I think, that it was wrong advice.

I accept because I have no reason to doubt what he said about his emotional approach to attending Perth so soon after having been there for three days and having had an unfortunate experience. He told me that his wife was against him going. It does seem somewhat of an afterthought, and it has been put as an explanation secondary to the fact that he attended and was advised to attend the mass meeting. Although it has been put in a secondary way I take account of the emotional factor which he introduced. I accept that as something of an explanation, although, of course, it would have been wise to have communicated with the Registrar or some person in authority at the Commission and explained that as a reason why he did not wish to attend the conference on the Monday.

An explanation of that kind would have met with sympathy but I must stress that simply not to attend carries with it the necessity to explain the non-attendance adequately or to suffer the consequences.

As I have said, this is the first time in which proceedings of this kind have been taken. There is an absolute need to uphold the obligation which section 44 casts upon any person summoned by the Commission to be in attendance when required unless there is good cause why he cannot be. That cause should be shown preferably to the Commission before the event—in other words, an explanation should be made as to why it would be inconvenient or difficult to be there at that time—in which case other arrangements can be made.

I do accept that in the present circumstances the progress of events was such that the meeting arranged for the Monday had been made at the time Mr Fleming was summoned, and it was made, of course, for a time which coincided with the date of the conference and the date of return of the summons.

I have been asked to take those matters which I have referred to into account and I do so. I think that having taken them into account they certainly diminish to a considerable degree the seriousness with which it would be appropriate to regard this offence.

Nevertheless, it is an offence under the Act which the law sees as so serious as to require what I consider to be a maximum penalty of $1 000 and it is an offence which requires the imposition of a penalty. In this case considerable expense has been incurred in bringing these proceedings but it is fortunate for Mr Fleming that there has been no attempt to obtain an order for costs. I have already said that I think the Registrar quite properly has not sought, as he would have been entitled to seek, that I order costs to be met by Mr Fleming.

Although I do not therefore make any such order it is well to bear in mind that there has been a good deal of expense involved in the prosecution of these proceedings in requiring him to show cause.

I propose to impose a penalty which will be a very substantial reduction from the maximum penalty provided; a penalty which I think will reflect the seriousness of this particular offence but have regard appropriately to the circumstances which have been explained—the factors of mitigation which have been indicated.

I propose that a penalty of $250 be imposed. I fix one month as a period in which payment is to be made. I make no further order as to costs.

Order accordingly.

64 W.A.l.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE.

BEFORE THE WESTERN AUSTRALIAN INDUSTRIAL COMMISSION

No. 917 of 1984.

In the matter of the Industrial Arbitration Act, 1979 and in the matter of a summons directed to Thomas Christopher Fleming to appear and show cause why a penalty as provided should not be imposed under section 44 of the Act for failure to attend a compulsory conference before the Commission called under the section for 9.15 a.m. on Monday, 17th September, 1984 at Perth having been duly summoned to attend.

Before His Honour the President D.J. O'Dea.

Order. THOMAS CHRISTOPHER FLEMING having appeared before me on 14th November, 1984, pursuant to a summons dated 19th October, 1984 and having heard Mr K. Scapin, Industrial Registrar, on his own behalf and Mr J. J. O'Connor appearing to show cause on behalf of Thomas Christopher Fleming and having heard Thomas Christopher Fleming, and judgment being delivered on the said 14th November, 1984 wherein I found that cause had not been shown and gave reasons therefore, it is hereby ordered that:-

1. A penalty of $250 be imposed on Thomas Christopher Fleming; and

2. A period of one month from the date of this order be fixed as the period in which payment of the said penalty to be made.

Dated at Karratha this 14th day of November, 1984.

[L. S.] (Sgd.) D.J. O'DEA,

President.

proach which was adopted by the Industrial Appeal Court, to ask those two questions. We will be submitting to you that the approach which ought to be adopted in these proceedings today is not unlike that which was stated by Wickham J. on page 2 of that decision.

We will be submitting to you that a similar approach would ask what class of persons are received into the frail aged hostels and for what purposes are they received into those hostels. The answer we will submit is not one related to the accommodation industry.

In analysing that rule, the first decision to which I referred you, namely that of the Industrial Appeal Court imposing those two questions I think what needs to be done here and what needs to be done to come to a proper appreciation of the extent of the Liquor Trades Union constitution rule is to ask in relation to service flats and/or apartment houses, boarding and/or lodging houses—to define the limits of those terms one needs to ask what class of persons are received into those places and what is the purpose for which they are received. The answer, in each case, is that lodgers are received and they are received for board and lodging or alternatively for pay or reward.

The Commission in Court Session went on to make reference to the Shorter Oxford English Dic- tionary in the definintion of a flat—the inner part of a house, a building for human habitation, a dwelling place. We say that frail aged hostels are far far more than those definitions would render and they are so much more as to be substantially different from a service flat, apartment house or boarding and/or lodging house because the persons received into those places fit into a particular class of persons, namely the disabled and frail aged and they are there, not for the purpose of accommodation for which they pay or reward the land owner

MISCELLANEOUS WORKERS' (Hostel Domestics and Supervisors).

Award No. 1 of 1984.


No. A1 of 1984.

Between the Federated Miscellaneous Workers' Union of Australia, Hospital, Service and Miscellaneous, West Australian Branch, Applicant, and Catholic Homes for the Aged Inc. and Others, Respondents.

Before Mr Commissioner G. G. Halliwell. The 20th day of June, 1984.

Mr J. McGinty on behalf of the Applicant. Mr R. H. Gifford on behalf of the Respondents.

Reasons for Decision. THIS is an application for a new award to replace three existing awards, Nos. 19 of 1977, 6 of 1978 and 5 of 1976. The basic issue falling for determination in these proceedings is best stated inter alia in Mr McGinty's own words:—

That decision, in my submission, is important for two reasons. The first is that until that time the union had proceeded on the basis that the private Hospital Award covered frail aged hostels and that decision said, "No, the union does not" and that started off a chain of other applications to the Commission. The second importance is the ap-

(Emphasis mine.) It was readily conceded by the applicant that the class

of accommodation described as "self care units" forms part of the accommodation industry and is thus appropriately covered by the objecting union.

Equally, nursing homes for the aged are presently covered by the applicant union and no challenge is made thereto. However, what was described as "the in between group"—viz. hostels for the aged, form the disputed area. Essentially, it is argued by the applicant that with the changes to the (Federal) Aged and Disabl- ed Persons Homes Act, 1958, effective from 1st January, 1984, the differences between the situation examined by the Commission in Court Session in 1976/77 (See 57 W.A.l.G. 89) and the situation since 1st January, 1984 are such as to render that decision no longer applicable and, further, to place those establishments outside the purview of the objecting union's constitutional rule. The respondent's position was stated by Mr Gifford as:—

What we are saying, in essence—and there is lot of detail that must be gone into here—is that the circumstances affecting the operations of aged persons hostels and, indeed, the after-care hostels, have not altered or, if they have altered, they have not altered to an extent that is significant since the last major review conducted by this Commission which was that in 1981, the decision of Johnson C. That is the matter reported at Vol. 61, W.A.l.G., p. 1763. That decision, as is well understood by the Commission, applied the landmark decision in these proceedings which is the decision of the Com- mission in Court Session, 1976, which is at Vol. 57, W.A.l.G., p. 89.

It is the demarcation line in terms of the union constitution or eligibility coverage, in the first instance. What we are saying is that the extent to which the Liquor Trades Union was deemed to


have coverage in this area was a matter which was determined in 1976. We are saying that that determination by the Commission in Court Session still holds good. The Commission in Court Session at that time clearly determined the extent of the award coverage as well—that the liquor union should be extended. (Transcript pages 86-87.)

The intervening union submits inter alia that:— On hostels for the aged it is my submission to the

Commission that, on the evidence before this Com- mission, that evidence indicates that the accommodation in hostels is that of a motel type. The residents live in units with private en suites—the words of Mr Bradshaw. Clearly such type of accommodation is within our constitution, as determined by the 1976 decision of the Commission in Court Session that such a combination could be described as flats and apartments.

The applicant submitted to the Commission that the provision of personal care services to residents in hostels for the aged is the substantial function of such establishments and that the accommodation provided to the residents is no more than an adjunct.

We submit, sir, that, on the evidence that has been presented, whilst there have been new regulations since 1st January, nothing has really changed since 1976. In broad terms, the same personal care services, especially in relation to general oversight of medication, personal laundry, cleaning rooms, bathing and dressing, provision of three meals daily in a communal dining room or, if necessary, in their own rooms, with sufficient staff to assist residents, etc. etc.—these same personal care services which are required today existed in 1976, and also in 1981, where, on both occasions, the Com- mission concluded—in 1981 by deciding to endorse the 1976 decision—that the major and substantial part of the establishment is the provision of accommodation and that the adjunct (and I submit) was the personal care services. (Transcript pages 168-170.)

Suffice it to say that all parties to these proceedings fully developed their respective points of view. The first issue is the fundamental question of the constitutional coverage of the establishments in question, by the intervening union.

The Commission in Court Session (57 W.A.I.G. 89 and 91) stated:

We must determine, on the evidence and other information available to us, first, whether the establishments with which these matters are concerned, or any of them, may be said to be service flats and/or apartment houses or boarding and/or lodging houses within the context of those words as used in that constitution rule and this, notwithstanding that, coincidentally, such establishments are hospitals for the purposes of the constitution of the Hospital Employees' Union. If the establishments fall within the constitution of the Liquor and Allied Industries Union we must then determine whether one or the other of the unions, or both, should be allowed the industrial coverage of the workers employed in those establishments. In this regard it is relevant to remark that it is an established and known rule that a union which has constitutional coverage of workers in an industry will not necessarily be granted award coverage of those workers,

and later concluded that: In the ordinary sense, an establishment, even if

not furnished, which provides accommodation together with meals is part of the "accommodation industry" which is usually the province of the Liquor and Allied Industries Union even though such an establishment may be restricted to a resident of a particular type such as a student, a

member of an Association, a female or, for that matter, an elderly person. The real question is to what extent, if at all, does the nature of such an establishment change with the employment of staff, with no nursing qualifications. That staff may be called upon, from time to time, to assist some occupants—on the evidence by far the minority—in bathing and dressing, cleaning their rooms and laundering personal clothing and who would generally oversight the taking of medication and is available to render assistance and who is otherwise called upon to ensure the occupant is living in a home environment.

It appears to us that the "Major and substantial" function of such a hostel is to provide accommodation (including meals) and companionship, and that "medical care" in the generally accepted sense is not provided.

In our view an establishment staffed with persons not engaged in the field of nursing, and whose duties may be likened to those experienced in the home environment in caring for the elderly, does not take an establishment which mainly employs domestic and kitchen staff out of the "accommodation industry" and it would not be appropriate to allow the Hospital Employees' Union as well as the Liquor and Allied Industries Union the award coverage of such establishments.

Thus the essential determination to be made is whether, in the light of the material provided by the Department of Social Security (contained in Exhibit SS- 1), the concept of aged hostels as found by the Commis- sion in Court Session, has so altered that they are no longer within "the accommodation industry" for purposes of the intervening union's constitutional rule.

It is necessary to set out in detail material extracted from Exhibit SS-1:

(1) Hostel Care Services: Hostel care services are provided to people who are still capable of making personal decisions, but who can no longer maintain without support a satisfactory standard of health, nutrition, social well-being or social acceptability. Hostel care services, as specified in the Commonwealth of Australia Gazette Notice S350 of 30 December, 1983, comprise:

(1) The provision of three adequate meals per day for each eligible person

(a) in a communal dining room; or (b) where because of the state of

health of the person, it is not possible to provide a meal or meals in a communal dining room in the private room of the person.

(2) The provision of heavy laundry facilities and heavy laundry services for each eligible person.

(3) Where an eligible person requires assistance

(a) in the cleaning of the person's room;

(b) in other necessary room services, including bed-making; or

(c) with personal laundry; the provision of such assistance to that person.

(4) The provision of social programs which have the objects of encouraging each eligible person to:

(a) engage in social activities; and (b) participate in community life.

(5) The attendance of at least one responsible officer of an approved organisation who, is continuously:

(a) on the hostel premises; and (b) on call to render emergency

assistance to each eligible person who requires such assistance.


(6) Where any eligible person is disabled or both frail and aged the provision of call bells, grab rails and associated aids for the person.

These services must include the provision of at least an average five hours staff-time per resident a week. This staff-time involves all staff, including administrators, groundsmen, cooks etc., and may also include personal care staff-time of three hours per week provided to residents needing personal care services.

(2) Personal Care Services: Personal care services are provided to people who require some additional assistance to hostel care. Personal care may be defined broadly as "social and general therapeutic support extended to people who, on a physical or social assessment, are unable to function without daily assistance, but who do not need full-time nursing home care". Personal care services, as specified in the Commonwealth of Australia Gazette Notice of 30 December, 1983, comprise:—

(1) Where an eligible person requires assistance with:

(a) bathing, showering or personal hygiene;

(b) toileting or continence; (c) dressing or undressing; (d) mobility; (e) transfer; (f) feeding; or (g) sensory communication or the fit-

ting of sensory communication aids;

the provision of such assistance to that person.

(2) Where an eligible person requires a special diet—the provision of such a diet to that person.

(3) Where an eligible person is diagnosed as suffering from dementia or any other condition requiring emotional support the provision of emotional support to that person.

(4) The control and administration of medications.

(5) Where an eligible person requires rehabilitative support, such as the supervision of exercises or arranging for attendance of the person at rehabilitative treatment—the provision of support to that person on a non-professional basis.

(6) Where an eligible person contracts a short-term illness and requires assistance beyond accommodation services of a kind specified in Schedule 1 the provision of such assistance to that person.

Assessment for Personal Care Subsidy is based, not on a medical diagnosis, but on the functional or mental ability of the resident to undertake independent living activities.

In recommending for Personal Care Subsidy, a minimum of 12 hours personal care service must be given to the resident during a 28 day assessment period. While the ADPHA stipulates that personal care services must be provided on a daily basis, it is not necessary for a daily service to be actual physical assistance every day. The assistance can also take the form of close supervision (for example, checking that appropriate medication has been taken, giving reminders about personal hygiene) in conjunction with some physical assistance on a regular basis. Neither is it necessary for a resident to require assistance with each of the services listed above. Case examples of assessment for Personal Care Subsidy are at Attachment B.

An "Assessment Officer's Handbook of Instruc- tions" which has been prepared to provide depart- mental Assessment Officers with working guidelines to assist them in determining whether organisations or individuals meet the stipulated criteria for subsidy eligibility is at Attachment C.

It is not necessary that all Personal Care Services have to be delivered by suitably experienced (or qualified) staff. There needs to be at least one such person in charge of the care arrangements of residents or performing only duties of giving personal care services, but other persons may also assist in giving personal care services, even if their contribution takes up only part of their work-time.

The Commission notes further from Exhibit SS-1 that:—

Background. The Aged Or Disabled Persons Homes Act, 1954:

Purpose of the Act. The purpose of the Aged or Disabled Per-

sons Homes Act 1954 (ADPHA), when introduced as the Aged Persons Homes Act in 1954, was to:

encourage and assist the provision of suitable homes for aged persons and in particular homes at which aged persons may reside in conditions approaching as nearly as possible normal domestic lifeT and, in the case of married people, with proper regard to the companionship of husband and wife.

1983 Amendments to the Act. A restructuring of Personal Care Subsidy

was announced in the 1983/84 Federal Budget to reflect the Commonwealth Government's belief that greater emphasis should be placed on providing care services rather than just accommodation for frail aged or disabled hostel residents. The announced changes reflected recommenda- tions put forward in three major reports which indicated a need for detailed consideration to be given by the Government to a revision of the basis of financial support for hostels for aged or disabled people. These were:

The Report of the Joint Working Party on Hostel Accommodation (February 1980), consisting of representatives of the Department of Social Security (DSS); and the Australian Affiliation of Voluntary Care Associations (AAVCA); Report—An Investigation of the Range of Care Services provided in Hostels for Aged People (April 1982), by a DSS officer, Miss Ruth Prescott; and

Hostels for the Frail—A Proposal for changes to the Basis of Government Sub- sidy for Hostel Care of the Aged and Disabled (January 1983), Working Party consisting of representatives of DSS, AAVCA, Australian Council on the Age- ing (ACOTA) and Department of Health.

The change in emphasis (described above) is a factor of weight in the Commission's deliberations on the issue presently before it, reflecting as it does the Federal Government's legislative intention.

In deciding the constitutional issue I would respect- fully adopt the approach specified by the Industrial Ap- peals Court in Gary's Case (56 W.A.I.G. Pt. 2, 795-796) wherein it is stated:—

What care was in fact administered and whether any persons were failing in faculties and health are not the decisive questions. The questions to be asked and answered are—

(1) What class of persons were received and (2) for what purposes were they received?


The conventional meaning of the word "hospital" in our present day community is not at all the same as when Holt C.J. made a not un- favourable comparison between a hospital and a college:—

There is no manner of difference between a COLLEGE and an hospital, except only in degree; an hospital is for those that are poor and mean and low and sickly; a college is for another sort of indigent persons; but it hath another intent—to study in and breed up persons in the world that have not otherwise to live. Phillips v. Bury, 2 T.R. 353.

Be that as it may the class of person who is to be "received" to bring the institution within the meaning of the Scope clause is a "patient", and a "patient" according to the Shorter Oxford Dic- tionary is "a person in need of medical or surgical treatment". It is no doubt the case that in the instance some or even most of the patrons of the relevant hostels were in need of some medical treatment, or became in need of it at some time after their reception. Upon the facts however this was so only as a matter of degree. Patients in the ordinary meaning of the word were received into the nursing home section and not into the hostel section. It is also the case that to fall within the meaning of the Scope clause the persons must be received for a particular purpose, namely the purpose of, among other things, medical care.

If I have correctly applied that judgement to the fac- tual situation now before the Commission the question "what class of persons are received" (since January 1984) is answered by quoting from page 4 and what follows thereafter of Exhibit SS-1 specifically,

. . . people who are still capable of making personal decisions, but who can no longer maintain without support a satisfactory standard of health.

(Emphasis mine.) Secondly, the question "for what purpose are they

received" is answered by stating they are there to receive Hostel Care Services (as defined on page 4 of SS-1) and Personal Care Services (as defined on page 5 of SS-1). The combination of all the above now places the aged hostels, subject of this application, outside the ordinary meaning of the "accommodation industry" as defined in the constitutional rule of the intervening union in that they may now not be said to be "service flats and/or apartment houses or boarding or lodging houses" within the ordinary context of those words as used in the constitutional rule.

Turning to the second issue, that of establishments operated as after-care mental hostels, the Commission has insufficient information presently before it, to answer the questions posed in the test it has adopted (supra).

This issue is accordingly stood over to await the further advice of the parties.


No. A1 of 1984.

Between the Federated Miscellaneous Workers' Union of Australia, Hospital, Service and Miscellaneous, W.A. Branch, Applicant, and Catholic Homes for the Aged Inc. and Others, Respondents.

Before Mr Commissioner G. G. Halliwell. The 24th day of September, 1984.

Mr J. A. McGinty on behalf of the Applicant. Mr R. H. Gifford on behalf of the Respondents. Mr E. L. Fry intervening on behalf of the Federated

Liquor and Allied Industries Employees' Union.

Supplementary Reasons for Decision. IN an earlier decision in this matter (A1 of 1984 20th June, 1984 unreported) the Commission as presently constituted concluded—"Turning to the second issue, . . . the Commission has insufficient information before it, to answer the questions posed in the test it has adopted". As a result the matter was relisted and concluded on 4th September, 1984. The issue for decision is whether or not approved private psychiatric hostels should be included within the scope clause of a new award to be known as the Miscellaneous Workers (Hostel Domestics and Supervisors') Award 1984 or whether the establishments should remain within Award 29 of 1974 held by the intervening Union.

The tests adopted, for reasons given by the Commis- sion in its decision of 20th June, 1984 were stated as follows:— "The questions to be asked and answered are (1) What class of persons were received and (2) for what purpose were they received?" Evidence was given by Mrs N. M. Paust, Social Work Supervisor with the Health Department of Western Australia, and it is to that evidence that the Commission now turns in some detail.

Mrs Paust described the position as to the Health Department's role, inter alia, as follows:—

MR McGINTY (continuing): Could you tell the Commission, in relation to the hostels, what staff are employed in that division to work with the hostels?

Yes. We have a psychiatrist superintendent who is responsible for the division, one medical officer, the social work section, which includes three social workers, four community officers and one welfare officer, and we have the administrative nurse and community care nurses. We have occupational therapists who work both within the hostels and also in providing services in day centres.

To what extent are each of those classes of persons you have just described engaged, either full- time or substantially on work with residents of mental health after care hostels?

The social work section is engaged in offering a supportive service to the hostel residents. The occupational therapists provide daily living skills and, through their day centres, provide occupational therapy programmes for residents within hostels, and the nursing staff monitor the physical and mental condition of residents in hostels.

So it would be true to say that those people are employed to service the needs of people who are hostel residents?

Yes. I don't think I mentioned that there is a medical officer as well.

On the issues of the class of persons received, and for what purpose, Mrs Paust testified that:—

MR McGINTY (continuing): Could you tell the Commission of the sorts of persons who are accommodated in the hostels?

Yes. They are people who do not need any further hospital or nursing home care but are unable to function within the general community without support.

Why are they unable to function in the broader community?

For a number of reasons actually. It may be age, infirmity, because of their psychiatric illness and the fact that they need some supportive care which

house. Would it be accurate to describe the class of per-

sons who are resident in hostels as people who are disabled and as a result of that disablement are in need of support and care?

Yes, to a greater or lesser extent. Could you tell the Commission what the hostels

are?


The hostels are registered as lodging houses and then they apply for accreditation as a private psychiatric hostel. I am not too sure what you mean by your question when you say "What are they?". They are places providing care and support for disabled people—socially or mentally disabled peo- ElL.

Yes, that is my question; but is it only the question of supervision of drugs which is a supportive service?

No, it is not. It is really that they are involved with the personal care. Under section 8E it says the licence holder shall provide programmes to facilitiate the psychiatric, physical and social rehabilitation of the residents and shall be responsible for the wellbeing and general appearance of residents. They have to provide a diet and also under 8D it is applicable that the licence holder on becoming aware of any changes within that resident—It says here, "on becoming aware of suicidal tendencies, undue excitement, serious illness or other abnormal condition in a resident shall report such symptoms forthwith to the psychiatrist superintendent or his authorised representative.

Would the domestic staff form the majority of the workers in most of these establishments, if not all?

I think by reason of the work involved, which includes not only the supervision and supportive care of residents, yes, certainly some people would be expected to do domestic work as well.

Are you aware of the amount of time the residents would demand assistance from the supervisor? Is it just occasionally each day?

No. It depends very much on the individual resident.

Would it be possible that on any one day, they do not require assistance?

It is possible, yes, but it is not likely in the majority of hostels.

From the abovequoted material the Commission concludes that the answer to the question posed viz. What class of person is received?, is answered by saying "They are people who are unable to function in the general community due to age, infirmity, psychiatric illness; they need supportive care they are not able to get in an ordinary boarding house".

As to the question "for what purpose are they received", the answer is ". . . to facilitate the psychiatric, physical and social rehabilitation of the residents . . .".

Thus these establishments are outside of the ordinary concept of "service flats and or apartment houses or boarding or lodging houses" as those words are used in the intervening union's constitutional rule.

The award to issue will include approved private psychiatric hostels within its scope.


No. A1 of 1984.

Between the Federated Miscellaneous Workers' Union of Australia, Hospital, Service and Miscellaneous, W.A. Branch, Applicant, and Catholic Homes for the Aged Inc. and Others, Respondents.

Award. HAVING heard Mr J. A. McGinty on behalf of the applicant and Mr R. H. Gifford and later Mr D. M. Jones on behalf of the respondents, and Mr E. L. Fry intervening on behalf of the Federated Liquor and Allied Industries Employees' Union of Australia, the Commis- sion, pursuant to the powers conferred on it under the Industrial Arbitration Act, 1979, hereby makes the following award—

MISCELLANEOUS WORKERS' (Hostel Domestics and Supervisors).


1.—Title. This award shall be known as the Miscellaneous

Workers' (Hostel Domestics and Supervisors) Award and shall replace Awards No. 19 of 1977, 6 of 1978 and 5 of 1976 insofar as that Award applies to Aged or Disabled Persons' Homes providing hostel care or personal care services and shall replace Award No. 29 of 1974 insofar as that Award applies to approved Private Psychiatric Hostels.

2.—Arrangement. 1. Title. 2. Arrangement. 3. Scope. 4. Area. 5. Term. 6. Contract of Service. 7. Definitions. 8. Hours. 9. Rosters. 10. Overtime. 11. Shiftwork. 12. Spread of Shifts. 13. Higher Duties. 14. Part-Time Employees. 15. Under-Rate Employees. 16. Public Holidays. 17. Annual Leave. 18. Sick Leave. 19. Long Service Leave. 20. Maternity Leave. 21. Compassionate Leave. 22. Weekend Rates. 23. Location Allowance. 24. Special Conditions. 25. Deductions for Board. 26. Accommodation. 27. Uniforms. 28. Laundry. 29. Representatives Interviewing Employees. 30. Notices. 31. Record. 32. Payment of Wages. 33. No Reduction. 34. Wages. 35. Call Allowance. 36. Fares and Motor Vehicle Allowances.

Schedule I—Respondents. Schedule II—Liberty Reserved

3.—Scope. This award shall apply to employees employed by

establishments which qualify for the payment of a personal care subsidy, or are otherwise subsidised under the provisions of the Aged or Disabled Persons' Homes Act, 1954 providing accommodation and personal care services for frail aged or handicapped persons, or approved Private Psychiatric Hostels.

4.—Area. This award shall have effect throughout the State of

Western Australia.

5.—Term. The term of this award shall be for a period of one

year as from the beginning of the first pay period commencing after the 22nd October, 1984.

6.—Contract of Service. (1) The contract of service shall be by the week and

shall be terminable by one week's notice, except in the case of a casual employee when one hour's notice shall be given. If the required notice is not given either by the employer or the employee, one week's or one hour's pay shall be either paid or forfeited as the case may be.


(2) The provisions of this clause do not affect the right of an employer to dismiss an employee without notice for misconduct in which case wages shall be paid up to the time of dismissal.

7.—Definitions. "Casual Employee" means an employee engaged for

a period of less than one week. "Domestic" means a female employee not otherwise

classified in this award. "Laundry Worker" means an employee employed in

a laundry. "Orderly" means a male employee who is not other-

wise classified in this award. "Personal Care Services" includes services to help

frail residents with bathing and dressing, cleaning rooms, personal laundry and oversight of medication and at all times to assist in case of emergency.

"Supervisor" means an employee whose duties include the overseeing of the daily activities of residents.

"Union" means the Federated Miscellaneous Workers' Union of Australia, Hospital, Service and Miscellaneous, W.A. Branch.

8.—Hours. (1) 40 hours shall constitute a week's work; provided

that 80 hours may be worked in 10 days each fortnight at the option of the employer with a maximum of eight hours per day.

(2) Every employee shall be entitled to a meal break of not less than one-half nor more than one hour, after not more than five hours of work. Provided that such meal breaks shad not be taken before completing 1 Zi hours' work. Where it is not possible for the employer to grant a meal break on any day, the said meal break shall be treated as time worked and paid for at the rate applicable to the employee for the day concerned, plus 50 per cent of the ordinary hourly rate, until such time as the employee is released for a meal.

(3) In addition to breaks for a meal, there may be one other break of at least two hours during each shift. Such break of two hours may include a meal break.

9.—Rosters. (1) A roster shall be posted in a convenient place

where it can be readily seen by the employees concerned. (2) Such roster shall denote the hours to be worked by

each employee and shall be open for inspection by a duly accredited representative of the Union at such times as the record is open for inspection.

(3) Such roster shall be posted at least one week before it comes into operation and shall only be altered in the case of sickness or absence from work, or if any contingency that the employer cannot reasonably prevent arises.

(4) No employee shall be rostered for duty until at least 10 hours have elapsed from when the previous shift ended.

10.—Overtime. (1) Overtime shall mean all time worked beyond or in

excess of the ordinary rostered hours of duty prescribed in Clause 8.—Hours of this award or Clause 14.—Part- Time Employees of this award on any day the employee is rostered on duty and except as hereinafter provided, shall be paid for at the rate of time and one-half for the first two hours and double time thereafter. Such rates shall be calculated on an employee's hourly award rates and shall be paid in addition to the weekend or shift work rates as the case may be.

(2) In lieu of payment for overtime and by agreement between the employee and the employer, time off equivalent to the time worked may be granted when overtime is occasioned through the failure of another employee to report for duty, except where a full additional shift is required when overtime rates shall apply.

(3) All work performed by employees on any day on which they are rostered off duty or days worked in excess of those provided in Clause 8.—Hours or Clause 14.—Part-Time Employees of this award, shall be paid for at the rate of aouble time.

(4) All overtime worked on a Saturday or a Sunday shall be paid for at the rate of double time.

(5) Where an employee is required to work overtime and such overtime is worked for a period of at least two hours in excess of the required daily hours of work, the employee shall be provided with a meal free of cost, or shall be paid the sum of $4.00.

This subclause shall not apply where the employee has been advised of the necessity to work overtime on the previous day.

(6) An employee who has completed his usual hours of duty and has left the job and who is recalled to work after the usual ceasing time shall be paid a minimum of three hours at overtime rates.

11.—Shift Work. (1) Subject to subclause (2) hereof, a loading of \2Zi

per cent of the ordinary wage shall be paid for time worked on afternoon or night shift as defined hereunder:

(a) Afternoon Shift—commencing between 12 noon and 6.00 p.m.

(b) Night Shift—commencing between 6.00 p.m. and 4.00 a.m.

(2) The second portion of a broken shift, where such second portion commences after 12 noon shall be regarded as an afternoon shift for the purposes of this subclause.

(3) Where an employee's rostered hours of duty on any day are extended by an early start or a late finish the shift work or weekend rates as the case may be, shall be paid for such additional time worked in addition to any overtime payable under Clause 10.—Overtime of this award.

12.—Spread of Shifts. (1) No more than three breaks shall be allowed in any

one shift, including meal breaks and the spread of the shift shall not exceed 10 hours, provided that a spread in excess of 10 hours but not exceeding 11 Zi hours may apply in cases where the shorter spread cannot be worked without additional staff and/or expense.

(2) "Spread of Shift" means the period of time which elapses from the time when an employee signs on duty for the day and the time when he signs off duty on that day or the day immediately following.

13.—Higher Duties. An employee who is required to do work which car-

ries a higher rate of pay than that which he or she usually performs shall be entitled to the higher rate whilst so engaged. Provided that if engaged in such higher grade of work for two hours or more he or she shall be paid at the higher rate for the day.

14.—Part-Time Employees. (1) Notwithstanding the provisions of Clause

8.—Hours of this award, employees may be engaged to work less than the ordinary hours prescribed by that clause.

(2) Employees employed under the provisions of this clause shall be paid wages and be entitled to annual leave, sick leave and long service leave on a pro rata basis in the same proportion as the number of hours ordinarily worked each week bears to 40.

15.—Under-Rate Employees. (1) Any employee who by reason of old age or in-

firmity is unable to earn the minimum rate of wage prescribed herein for his or her class of work, may be paid such lesser wage as may be agreed upon, in writing, between the Union and the employer.


(2) In the event of no agreement being arrived at, the matter shall be referred to a Board of Reference for decision.

(3) In the event of the matter being referred to a Board of Reference and pending the Board's decision, the employee may be employed at the proposed lesser rate.

16.—Public Holidays. (1) An employee who works on any public holiday

named herein shall be paid a loading of 50 per cent of the ordinary wage for the time worked in ordinary hours on that day.

(2) For the purposes of this clause the following days shall be considered as public holidays: New Year's Day, Australia Day, Good Friday, Easter Monday, Anzac Day, Labour Day, Foundation Day, Sovereign's Birth- day, Christmas Day and Boxing Day.

17.—Annual Leave. (1) (a) Except as hereinafter provided, a period of six

consecutive weeks' leave shall be allowed to all employees other than supervisors by the employer after each period of 12 months' continuous employment with such employer.

(b) A supervisor shall be allowed a period of seven weeks' leave by his employer after each period of 12 months' continuous employment with such employer.

(2) Prior to commencing leave, each employee shall be paid for that period of leave as follows:

(a) At the wage the employee would have received had he not proceeded on leave. In the case of rostered employees that wage shall include the shift work and weekend penalties that employee would have received had he not proceeded on leave.

Where it is not possible to calculate the shift and weekend penalties the employee would have received, the employee shall be paid the average of such payments made each week over the four weeks prior to taking the leave; or

(b) At the rate of wage shown in Clause 34.—Wages of this award for his class of work and in addition be paid a loading of YlVi per cent of that wage for two-thirds of any leave due in each year and for the remaining one- third of the leave due in each year, be paid according to subclause (2) (a) of this clause, whichever is the greater.

(c) Provided that employees to whom subclause (5) of this clause applies may be paid a loading of 17 Vi per cent for five-sevenths of any leave due in each year in lieu of the two-thirds of any leave due in each year.

(3) (a) Except as provided in paragraph (b) of this subclause if after one month's continuous employment, an employee lawfully terminates his employment or his employment is terminated by the employer through no fault of the employee, the employee shall be paid one- half of a week's pay at the rate prescribed by subclause (2) of this clause in respect of each completed month of continuous service for which annual leave has not already been taken.

Provided that employees to whom subclause (5) of this clause applies, shall be paid for such additional days' leave as have accrued due under that subclause at the date of such termination.

(b) An employee who is dismissed for a misconduct which occurred after the completion of a 12 month qualifying period, but before he has taken leave in respect of that qualifying period shall be given payment as prescribed in paragraphs (a), (b) and (c) of subclause (2) of this clause in lieu of that leave.

(4) The annual leave prescribed in subclause (1) of this clause may, by consent between the employer and the employee, be taken in two portions provided that no portion shall be less than two consecutive weeks.

(5) Shift employees (i.e. employees who rotate afternoon and/or night shift with day shift as defined in Clause 11.—Shift Work of this award) shall be granted an additional week's leave; provided that for employees whose shifts are not subject fo regular rotation one working day additional leave (with a maximum of five working days) for each 35 shifts actually worked on afternoon and/or night shift shall be granted provided further that employees who have completed 155 shifts on afternoon and/or night shift shall be granted the additional week.

(6) Any time in respect of which an employee is absent from work except time for which he is entitled to claim sick pay or time spent on annual leave as prescribed by this award shall not count for the purpose of determining annual leave.

(7) Before going on annual leave each employee shall be given at least two weeks' notice of the date such leave is to commence.

(8) The provisions of this clause shall not apply to casual employees.

18.—Sick Leave. (1) (a) An employee who is unable to attend or re-

main at his place of employment during the ordinary hours of work by reason of personal ill health or injury shall be entitled to payment during such absence in accordance with the following provisions.

(b) Entitlement to payment shall accrue at the rate of one-sixth of a week for each completed month of service with the employer.

(c) If in the first or successive years of service with the employer an employee is absent on the grounds of personal ill health or injury for a period longer than his entitlement to paid sick leave, payment may be adjusted at the end of that year of service, or at the time the employee's services terminate, if before the end of that year of service, to the extent that the employee has become entitled to further paid sick leave during that year of service.

(2) The unused portions of the entitlement to paid sick leave in any one year shall accumulate from year to year and subject to this clause may be claimed by the employee if the absence by reason of personal ill health or injury exceeds the period for which entitlement has accrued during the year at the time of the absence. Pro- vided that an employee shall not be entitled to claim payment for any period exceeding 10 weeks in any one year of service.

(3) To be entitled to payment in accordance with this clause the employee shall as soon as reasonably practicable advise the employer of his inability to attend for work, the nature of his illness or injury and the estimated duration of the absence. Provided that such advice, other than in extraordinary circumstances shall be given to the employer within 24 hours of the commencement of the absence.

(4) The provisions of this clause do not apply to an employee who fails to produce a certificate from a medical practitioner dated at the time of the absence or who fails to supply such other proof of the illness or injury as the employer may reasonably require provided that the employee shall not be required to produce a certificate from a medical practitioner with respect to absences of two days or less unless after two such absences in any year of service the employer requests in writing that the next and subsequent absences in that year, if any, shall be accompanied by such certificate.

(5) (a) Subject to the provisions of this subclause, the provisions of this clause apply to an employee who suffers personal ill health or injury during the time when he is absent on annual leave and an employee may apply for and the employer shall grant paid sick leave in place of paid annual leave.

(b) Application for replacement shall be made within seven days of resuming work and then only if the employee was confined to his place of residence or a hospital as a result of his personal ill health or injury for


a period of seven consecutive days or more and he produces a certificate from a registered medical practitioner that he was so confined. Provided that the provisions of this paragraph do not relieve the employee of the obligation to advise the employer in accordance with subclause (3) of this clause if he is unable to attend for work on the working day next following his annual leave.

(c) Replacement of paid annual leave by paid sick leave shall not exceed the period of paid sick leave to which the employee was entitled at the time he proceeded on annual leave and shall not be made with respect to fractions of a day.

(d) Where paid sick leave has been granted by the employer in accordance with paragraphs (a), (b) and (c) of this subclause, that portion of the annual leave equivalent to the paid sick leave is hereby replaced by the paid sick leave and the replaced annual leave may be taken at another time mutually agreed to by the employer and the employee or, failing agreement, shall be added to the employee's next period of annual leave or, if termination occurs before then, be paid for in accordance with the provisions of Clause 17.—Annual Leave of this award.

(e) Payment for replaced annual leave shall be at the rate of wage applicable at the time the leave is subsequently taken provided that the annual leave loading prescribed in Clause 17.—Annual Leave of this award shall be deemed to have been paid with respect to the replaced annual leave.

(6) Where a business has been transmitted from one employer to another and the employee's service has been deemed continuous in accordance with subclause (3) of Clause (2) of the Long Service Leave provisions published in volume 63 of the Western Australian In- dustrial Gazette at pages 1 to 5, the paid sick leave standing to the credit of the employee at the date of transmission from service with the transmitter shall stand to the credit of the employee at the commencement of service with the transmittee and may be claimed in accordance with the provisions of this clause.

(7) The provisions of this clause with respect to payment do not apply to employees who are entitled to payment under the Workers' Compensation and Assistance Act, 1981, nor to employees whose injury or illness is the result of the employee's own misconduct.

(8) The provisions of this clause do not apply to casual employees.

19.—Long Service Leave. The Long Service Leave provisions published in

volume 64 of the Western Australian Industrial Gazette at pages 1 to 4 are hereby incorporated in and shall be deemed to be part of this award.

20.—Maternity Leave. (1) Eligibility for Maternity Leave: An employee who

becomes pregnant shall, upon production to her employer of a certificate from a duly qualified medical practitioner stating the presumed date of her confinement, be entitled to maternity leave provided that she has had not less than 12 months' continuous service as a State Government employee and/or was employed under Part 11 of Award No. 8 of 1978, immediately preceding the date upon which she proceeds upon such leave.

For the purposes of this clause: (a) An employee shall include a part-time

employee but shall not include an employee engaged upon casual or seasonal work.

(b) Maternity leave shall mean unpaid maternity leave.

(2) Period of Leave and Commencement of Leave. (a) Subject to subclauses (3) and (6) hereof, the

period of maternity leave shall be for an unbroken period of from 12 to 52 weeks and shall include a period of six weeks' compulsory

leave to be taken immediately before the presumed date of confinement and a period of six weeks' compulsory leave to be taken immediately following confinement.

(b) An employee shall, not less than 10 weeks prior to the presumed date of confinement, give notice in writing to her employer stating the presumed date of confinement.

(c) An employee shall give not less than four weeks' notice in writing to her employer of the date upon which she proposes to commence maternity leave, stating the period of leave to be taken.

(d) An employee shall not be in breach of this order as a consequence of failure to give the stipulated period of notice in accordance with paragraph (c) hereof if such failure is occasioned by the confinement occurring earlier than the presumed date.

(3) Transfer to a Safe Job: Where in the opinion of a duly qualified medical practitioner, illness or risks arising out of the pregnancy or hazards connected with the work assigned to the employee make it inadvisable for the employee to continue at her present work, the employee shall, if the employer deems it practicable, be transferred to a safe job at the rate and on the conditions attaching to that job until the commencement of maternity leave.

If the transfer to a safe job is not practicable, the employee may, or the employer may require the employee to, take leave for such period as is certified necessary by a duly qualified medical practitioner. Such leave shall be treated as maternity leave for the purposes of subclauses (7), (8), (9) and (10) hereof.

(4) Variation of Period of Maternity Leave. (a) Provided the addition does not extend the

maternity leave beyond 52 weeks, the period may be lengthened once only, save with the agreement of the employer, by the employee giving not less than 14 days' notice in writing stating the period by which the leave is to be lengthened.

(b) The period of leave may, with the consent of the employer, be shortened by the employee giving not less than 14 days' notice in writing stating the period by which the leave is to be shortened.

(5) Cancellation of Maternity Leave. (a) Maternity leave, applied for but not commenc-

ed, shall be cancelled when the pregnancy of an employee terminates other than by the birth of a living child.

(b) Where the pregnancy of an employee then on maternity leave terminates other than by the birth of a living child, it shall be the right of the employee to resume work at a time, nominated by the employer which shall not exceed four weeks from the date of notice in writing by the employee to the employer that she desires to resume work.

(6) Special Maternity Leave and Sick Leave. (a) Where the pregnancy of an employee not then

on maternity leave terminates after 28 weeks other than by the birth of a living child then—

(i) she shall be entitled to such period of unpaid leave (to be known as special maternity leave) as a duly qualified medical practitioner certifies as necessary before her return to work, or

(ii) for illness other than the normal consequences of confinement she shall be entitled, either in lieu of or in addition to special maternity leave, to such paid sick leave as to which she is then entitled and which a duly qualified medical practitioner certifies as necessary before her return to work.


(b) Where an employee not then on maternity leave suffers illness related to her pregnancy, she may take such paid sick leave as to which she is then entitled and such further unpaid leave (to be known as special maternity leave) as a duly qualified medical practitioner certifies as necessary before her return to work, provided that the aggregate of paid sick leave, special maternity leave and maternity leave shall not exceed 52 weeks.

(c) For the purposes of subclauses (7), (8) and (9) hereof, maternity leave shall include special maternity leave.

(d) An employee returning to work after the completion of a period of leave taken pursuant to this subclause shall be entitled to the position which she held immediately before proceeding on such leave or, in the case of an employee who was transferred to a safe job pursuant to subclause (3), to the position she held immediately before such transfer.

Where such position no longer exists but there are other positions available, for which the employee is qualified and the duties of which she is capable of performing, she shall be entitled to a position as nearly comparable in status and salary or wage to that of her former position.

(7) Maternity Leave and Other Leave Entitlements: Provided the aggregate of leave including leave taken pursuant to subclauses (3) and (6) hereof does not exceed 52 weeks.

(a) An employee may, in lieu of or in conjunction with maternity leave, take any annual leave or long service leave or any part thereof to which she is then entitled.

(b) Paid sick leave or other paid authorised award absences (excluding annual leave or long service leave), shall not be available to an employee during her absence on maternity leave.

(8) Effect of Maternity Leave on Employment: Not- withstanding any award, or other provision to the contrary, absence on maternity leave shall not break the continuity of service of an employee but shall not be taken into account in calculating the period of service for any purpose of the award.

(9) Termination of Employment. (a) An employee on maternity leave may ter-

minate her employment at any time during the period of leave by notice given in accordance with this award.

(b) An employer shall not terminate the employment of an employee on the ground of her pregnancy or of her absence on maternity leave, but otherwise the rights of an employer in relation to termination of employment are not hereby affected.

(10) Return to Work After Maternity Leave. (a) An employee shall confirm her intention of

returning to her work by notice in writing to the employer given not less than four weeks prior to the expiration of her period of maternity leave.

(b) An employee, upon the expiration of the notice required by paragraph (a) hereof, shall be entitled to the position which she held immediately before proceeding on maternity leave or, in the case of an employee who was transferred to a safe job pursuant to subclause (3), to the position which she held immediately before such transfer. Where such position no longer exists but there are other positions available for which the employee is qualified and the duties of which she is capable of performing, she shall be entitled to a position as nearly comparable in status and salary or wage to that of her former position.

(11) Replacement Employees. (a) A replacement employee is an employee

specifically engaged as a result of an employee proceeding on maternity leave.

(b) Before an employer engages a replacement employee under this subclause, the employer shall inform that person of the temporary nature of the employment and of the rights of the employee who is being replaced.

(c) Before an employer engages a person to replace an employee temporarily promoted or transferred in order to replace an employee exercising her rights under this clause, the employer shall inform that person of the temporary nature of the promotion or transfer and of the rights of the employee who is being replaced.

(d) Provided that nothing in this subclause shall be construed as requiring an employer to engage a replacement employee.

(e) A replacement employee shall not be entitled to any of the rights conferred by this clause except where her employment continues beyond the 12 months' qualifying period.

21.—Compassionate Leave. An employee shall, on the death within Australia, of

a wife, husband, de facto wife or de facto husband, father, father-in-law, mother, mother-in-law, brother, sister, child, or stepchild be entitled on notice, of leave up to and including the day of the funeral of such relation and such leave shall be without deduction of pay for a period not exceeding the number of hours worked by the employee in two ordinary working days. Proof of such death shall be furnished by the employee to the satisfaction of the employer.

Provided that payment in respect of compassionate leave is to be made only where the employee otherwise would have been on duty and shall not be granted in any case where the employee concerned would have been off duty in accordance with his roster, or on long service leave, annual leave, sick leave, workers' compensation, leave without pay or on a public holiday.

22.—Weekend Rates. (1) An employee shall be paid for ordinary hours

worked between midnight on Friday and midnight on Saturday at the rate of time and one-half and between midnight on Saturday and midnight on Sunday at the rate of time and a half.

(2) The rates prescribed herein shall be in substitution for and not cumulative on the rates prescribed in Clause 10.—Overtime of this award.

23.—Location Allowance. (1) Subject to the provisions of this clause, in addi-

tion to the wages prescribed in Clause 34.—Wages of this award, a married employee shall be paid the following allowances when employed in the towns described hereunder.

TOWN $ Agnew 20.00 Argyle (See subclause 12) 49.30 Balladonia 18.00 Barrow Island (See subclause 13) 19.00 Boulder 7.70 Broome 31.20 Bullfinch 9.70 Carnarvon 15.70 Cockatoo Island 34.40 Coolgardie 7.70 Cue 20.00 Dampier 26.80 Denham 15.70


TOWN $

Derby 32.50 Esperance 6.60 Eucla 21.90 Exmouth 27.10 Fitzroy Crossing 38.50 Goldsworthy 19.90 Halls Creek 43.20 Kalbarri 6.10 Kalgoorlie 7.70 Kambalda 7.70 Karratha 31.00 Koolan Island 34.40 Koolyanobbing 9.70 Kununurra 49.30 Laverton 19.80 Learmonth 27.20 Leinster 20.10 Leonora 19.80 Madura 20.00 Marble Bar 45.70 Meekatharra 17.20 Mount Magnet 20.90 Mundrabilla 21.00 Newman 18.90 Norseman 15.70 Nullagine 45.40 Onslow 32.20 Pannawonica 25.30 Paraburdoo 24.90 Port Hedland 26.50 Ravensthorpe 10.80 Roebourne 35.40 Sandstone 20.10 Shark Bay 15.70 Shay Gap 19.90 Southern Cross 9.70 Teller 43.30 TeutonicBore 20.10 Tom Price 24.90 Whim Creek 30.90 Wickham 30.50 Wiluna 20.60 Wittenoom 40.80 Wyndham 47.30

(2) Except as provided in subclause (4) of this clause, a single employee shall be paid 50 per cent of the allowances prescribed in subclause (1) of this clause.

(3) An employee, whose spouse is employed by the same employer and who is entitled to an allowance of a similar kind to that prescribed by this clause shall be paid 50 per cent of the allowance prescribed in subclause (1) of this clause.

(4) Where an employee is provided with board and lodging by his employer, free of charge, such employee shall be paid 33 and one third per cent of the allowances prescribed in subclause (1) of this clause.

(5) Junior employees, casual employees, part-time employees, apprentices receiving less than adult rate and employees employed for less than a full week shall receive that proportion of the location allowance as equates with the proportion that their wage for ordinary hours that week is to the adult rate for the work performed.

(6) Where an employee is on annual leave or receives payment in lieu of annual leave he shall be paid for the period of such leave the location allowance to which he would ordinarily be entitled.

(7) Where an employee is on long service leave or other approved leave with pay (other than annual leave) he shall only be paid location allowance for the period of such leave he remains in the location in which he is employed.

(8) For the purpose of this clause a married employee includes:

(a) a person who has a de facto spouse, and (b) a person who is a sole parent with dependent

children.

(9) Where an employee is employed in a town or location not specified in this clause the allowance payable for the purpose of subclause (1) shall be such amount as may be agreed between Australian Mines and Metals Association, the Confederation of Western Australian Industry and the Trades and Labor Council of Western Australia or, failing such agreement, as may be determined by the Commission:

Provided that, pending any such agreement or determination, the allowance payable for that purpose shall be an amount equivalent to the district allowance in force under this award for that town or location on June 1, 1980.

(10) Nothing herein contained shall have the effect of reducing any district allowance currently payable to any employee subject to the provisions of this award whilst that employee remains employed by his present employer.

(11) Subject to the making of a General Order pursuant to section 50 of the Act, that part of each location allowance representing prices shall be varied from the beginning of the first pay period commencing on or after the 1st day of July in each year in accordance with the annual percentage change in the Consumer Price In- dex (excluding housing) for Perth measured to the end of the immediately preceding March quarter, the calculation to be taken to the nearest 10 cents.

(12) The allowance prescribed for Argyle is equated to Kununurra as an interim allowance. Liberty is reserved to the parties to apply for a review of the allowance for Argyle in the light of changed circumstances occurring after the date of this Order.

(13) The allowance prescribed for Barrow Island shall be the allowance prescribed by Clause 8 of the Hydrocarbons and Gas (Production and Processing Employees) Consolidated Award 1981, which at the date of this Order is $19.00 per week. The terms of this clause shall not apply where they are inconsistent with the terms of Clause 8 of the Hydrocarbons and Gas (Production and Processing Employees) Consolidated Award 1981.

24.—Special Conditions. (1) Employees who are required to wash dishes, clean

toilets or otherwise handle detergents, acids, soaps or any injurious substance, shall be supplied with rubber gloves free of charge by the employer.

(2) Where the conditions of work are such that employees are unable to avoid their feet becoming wet, they shall be supplied by the employer free of charge with suitable protective footwear.

(3) All knives, choppers, tools, brushes, towels and other utensils, implements and material which may be required to be used by the employee for the purpose of carrying out his duties, shall be supplied by the employer free of charge.

(4) (a) No female employee may be required to climb ladders or any substitute therefor, for any purpose whatsoever.

(b) No female employee under the age of 18 years shall be required to lift or carry weights in excess of 11 kilograms and no female employee over 18 years of age shall be required to lift or carry weights in excess of 16 kilograms.

(5) (a) Where an employee is detained at work until it is too late to travel by the last ordinary bus, train or other regular conveyance to his usual place of residence the employer shall provide conveyance free of charge.

(b) If an employee is required to start work before the first ordinary means of conveyance (hereinbefore described) is available to convey him from his usual place of residence to the place of employment, the employer shall provide a conveyance free of charge.

(c) The provisions of paragraphs (a) and (b) of this subclause do not apply to an employee who usually has his or her own means of conveyance.


(6) In each establishment the employer shall provide and continuously maintain at a place easily accessible to all employees an efficient first aid kit.

25.—Deductions for Board. (1) Where board and lodging are provided by the

employer, he shall be entitled to deduct $23.60 per week from the wages of the employee.

(2) Where only lodging is provided by the employer, he shall be entitled to deduct $13.30 per week from the wages of the employee.

(3) Where the employer provides a meal or meals to employees who are living out or who are not provided with board and lodging he shall be entitled to deduct $1.28 for each meal so provided from the wages of the employee.

(4) An accredited representative of the Union shall be entitled to inspect such food and accommodation at reasonable times.

26.—Accommodation. (1) Resident employees shall be provided with

suitable healthy accommodation. The Union Secretary or his nominee shall be permitted to inspect the accommodation at reasonable times and in the event of a dispute arising with respect to the suitability of the accommodation it shall be referred to a Board of Reference for decision.

(2) Whether an employee lives in or not shall be left to the decision of the employer.

(3) With respect to all establishments whose construction commenced after 1st June, 1978, a sitting room suitably furnished and sufficiently large to ac- commodate the resident staff shall be provided for the common use, provided that this shall apply only where there are four or more domestics employed and living in.

(4) Laundry facilities shall be available to all resident staff for the laundering of private clothes.

(5) With respect to all establishments whose construction commenced after 1st June, 1978, suitable dressing rooms shall be provided for all nOn-resident staff.

27.—Uniforms. (1) Where the employer requires a uniform to be

worn, a supply of four such uniforms shall be made available for use by each employee but such uniforms shall at all times remain the property of the employer.

(2) In lieu of the provision of uniforms, the employer may pay an allowance of $2.30 per week.

(3) The term "uniform" shall include all items of clothing and footwear which are specified by the employer according to type or colour or according to the exclusion of ordinary clothing or footwear, to be worn.

(4) Aprons shall be provided for all employees on the kitchen staff.

(5) Liberty is reserved to the parties to apply as to the amount of the allowance as prescribed in subclause (2) of this clause.

28.—Laundry. (1) All clothing forming part of a uniform shall be

laundered free of cost to the employee. (2) Where the uniform of any employee cannot be

laundered at the hospital an allowance of $2.00 per week shall be paid to the employee.

29.—Representatives Interviewing Employees. On notifying the employer or his representative, the

Secretary or any authorised officer of the Union: (1) Shall have the right to visit and inspect any

workplace at any time when work is being carried on, whether during or outside the ordinary working hours, and in connection with that inspection to interview any employee

covered by this award provided that he does not unduly interfere with the work in progress.

(2) Shall be permitted to interview an employee during the recognised meal hour on the business premises of the employer at the place at which the meal is taken but this permission shall not be exercised without the consent of the employer more than once in any one week.

30.—Notices. If the Union so requests, a copy of this award shall be

posted on a board of reasonable size in the place where it may be conveniently and readily seen by every employee concerned. The Union Secretary or his accredited representative may also post thereon such other notices relating to union matters as are reasonable.

31.—Record. (1) Each employer bound by this award shall keep a

record containing the following information: (a) The name and address given by each employee

subject to this award. (b) The date of birth of an employee if paid as a

junior employee. (c) The date on which each employee commenced

employment with that employer. (d) The classification and "year of employment"

of the employee and whether the employee is employed full time, part time or casual.

(e) The commencing and finishing time of work each day, together with any periods between those times when the employee was not required to work.

(f) The total number of ordinary hours and the total number of overtime hours worked each day.

(g) The wages and allowances paid to each employee each pay period and any deductions made therefrom.

(2) The employer may, if it is part of normal business practice, periodically send the record or any part of the record to another person, provided that the provisions of this paragraph shall not relieve the employer of the obligations contained elsewhere in this clause.

(3) (a) Subject to this clause, the record shall be available for inspection by any officer of the Union or other authorised representative of the Union between the hours of 9.00 a.m. and 5.00 p.m. Monday to Friday inclusive.

(b) The officer of the Union or other authorised representative of the Union shall be permitted reasonable time to inspect the record and take an extract or copy of any of the information contained therein.

(c) The employer shall permit each employee to inspect the record as it relates to that employee either at the time of payment of wages or at such other time as may be mutually convenient. The employer shall not unreasonably withhold the record from inspection by the employee.

(4) (a) If, for any reason, the record is not available for inspection at the time and date requested, the Union and the employer or his agent may fix a mutually convenient time for the inspection to take place.

(b) If a mutually convenient time cannot be fixed, the Union may advise the employer in writing that it requires to inspect the record in accordance with the provisions of this award and shall specify the period contained in the record which it requires to inspect.

(c) Within 10 days of the receipt of such advice: (i) employers who normally keep this record at a

place more than 35 kilometres from the G.P.O. Perth, shall send a copy of that part of the record specified to the office of the Union; and


(ii) employers who normally keep the record at a place less than 35 kilometres from the G.P.O. Perth, shall make the record available to the Union at a time specified by the Union,

(d) In the event of a demand made by the union which the employer considers unreasonable the employer may apply to the Industrial Commission for direction. An application to the Industrial Commission made by an employer for direction will, subject to the direction, stay the requirements contained elsewhere in this subclause.

32.—Payment of Wages. (1) An employee shall be entitled to receive his or her

wages in cash. (2) Notwithstanding the provisions of subclause (1)

and employee may reach written agreement with his or her employer to receive wages by cheque, or bank draft. In the event of such agreement, all fees and costs associated with that agreement shall be paid by the employer. The Union shall be notified by the employer of an intention to enter into such an agreement.

(3) Where payment is to be made by cheque, the employer shall provide encashment facilities, or shall allow the employee time off without loss of pay to enable the cheque to be cashed.

(4) Wages shall be paid during working hours. An employee shall be paid at overtime rates:

(a) for all time he or she is kept waiting for his or her wages beyond finishing time on any day;

(b) where an agreement pursuant to subclause (2) is reached and the employee's wages are not available on the regular pay day, in which case overtime rates shall apply from the anticipated time of payment until the wages are actually received.

(5) No deduction shall be made from an employee's wages unless the employee has authorised such deduction in writing.

(6) Each employee shall be provided with a pay advice slip on each day that wages are paid. The pay advice slip shall detail:

(a) the rate of wage (b) the hours worked, including overtime; (c) the gross wage; (d) the net wage; (e) any allowances paid; (f) any deductions made; (g) the composition of any annual leave payment; (h) the composition of any termination payment.

(7) Wages shall be paid fortnightly, provided that by agreement between the employer and the Union, wages may be paid at other intervals.

(8) Subject to subclause (9) hereof, upon termination of employment, the employer shall pay to the employee all moneys earned by or payable to the employee before the employee leaves the hospital or the same shall be forwarded to the employee by post on the following day.

(9) Where the employee terminates his or her employment without notice as required in subclause (1) of Clause 6.—Contract of Service of this award, the employer shall forward as soon as reasonably possible all moneys earned by or payable to such employee to that employee by post.

(10) If an employee fails to collect his wages on the appointed day, such wages shall thereafter be available for collection at previously notified times during office hours.

(11) Employees whose day off falls on a pay day, shall be paid their wages upon a request from the employee to the employer prior to the employee taking the day off.

33.—No Reduction. Nothing contained in this award shall operate to

reduce the wages or conditions of any employee who at the date of this award is being paid a higher rate of wage than the minimum prescribed for his class of work.

34.—Wages. (1) The minimum rate of wage payable to employees

covered by this award shall be as follows: Group 1—Comprehends the following

classes of work: $ Cleaner Domestic Gardener (other) Handyman Ironer and Presser Kitchenmaid Kitchenman Laundry Worker Orderly (other) Pantrymaid Wardsmaid Waitress Yardman

1st year of employment 264.40 2nd year of employment 268.20 3rd year of employment and

thereafter 271.50 Group 2—Comprehends the following

classes of work: Gardener (only one employed) Head Gardener Orderly (handling patients) Seamstress Washing Machine Hand

1st year of employment 2nd year of employment 3rd year of employment and

thereafter

268.70 272.80

Group 3—Comprehends the following classes of work: Boiler Firing Orderly Seamstress (who cuts and fits garments) Shaving Orderly Storeman


thereafter Group 4—Drivers of Motor Vehicles:

(a) (i) Under 1.2 tonnes capacity 1st year of employment.. 2nd year of employment. 3rd year of employment

and thereafter (ii) Exceeding 1.2 tonnes

capacity but not exceeding 3 tonnes capacity

1st year of employment.. 2nd year of employment. 3rd year of employment and thereafter

(iii) Exceeding 3 tonnes capacity 1st year of employment.. 2nd year of employment. 3rd year of employment and thereafter

(b) Bus Drivers (i) Under 25 passengers

1st year of employment.. 2nd year of employment. 3rd year of employment and thereafter

276.00 279.80

283.30

286.00 289.00

292.10

288.70 291.80

294.80

291.90 294.90

296.20

290.90 294.00

296.60


(ii) 25 passengers and over 1st year of employment.. 296.80 2nd year of employment. 299.70 3rd year of employment and thereafter 302.40

Group 5—Junior Hospital Employees: The minimum rate of wage payable to junior hospital employees shall be the following percentage of the prescribed wage for an adult employee in his first year of employment doing the same class of work.

% Under 17 years of age 60 At 17 years of age 70 At 18 years of age 80 At 19 years of age 100

Group 6—Cooks: (a) Chef, where appointed as such


thereafter

(b) 1st Cook, where more than one employed

1st year of employment 2nd year of employment 3rd year of employment and thereafter

(c) 2nd Cook 1st year of employment 2nd year of employment 3rd year of employment and thereafter

(d) Cook, only one employed 1st year of employment 2nd year of employment 3rd year of employment and thereafter

(e) Cook (other) 1st year of employment 2nd year of employment 3rd year of employment and thereafter

(f) Provided that a cook who possesses recognised qualifications in the trade of cooking shall be paid not less than the following:

1st year of employment 2nd year of employment 3rd year of employment and thereafter

(g) Apprentices: Wages (per week) expressed as a percentage of the "Tradesman's Rate":

(i) Four-year Term First year Second year Third year Fourth year

(ii) Three-and-a-half year Term

First six months Next year Next following year... Final year

(iii) Three-year Term First year Second year Third year

348.60 353.80

359.00

319.10 323.00

299.90 304.00

307.50

283.50 287.10

279.30 283.30

286.30

326.70 332.20

336.30

(iv) For the purposes of this subclause the term "Tradesman's Rate" means the total rate payable to a "Chef", as prescribed by this clause.

(2) The minimum rate of wage payable to Supervisors covered by this award shall be as follows:

$ 1st year of employment 258.10 2nd year of employment 266.40 3rd year of employment and thereafter... 274.80

(3) General Conditions. (a) The ordinary wage of any employee placed in

charge of three or more other employees, shall be increased by $ 11.90 per week.

(b) Where the term "year of employment" is used in this clause, it shall mean all service whether full-time or part-time and regardless of the class of work with that employer. Such service shall be calculated in periods of calendar years from the date of commencement of work with the employer. Provided that in determining the rate of wage of an employee 19 years of age and over, service prior to attaining the age of 19 years shall not be counted in determining the total service of an employee for the purpose of this clause.

(c) The service referred to in paragraph (b) hereof may be increased by any similar service with hostels not covered by this award, and in the event of a dispute between an employer and the Union over the inclusion of such services for the purpose of determining the year of employment the dispute may be referred to a Board of Reference for determination.

(d) Employees shall, subject to Clause 14.—Part- Time Employees of this award be paid the rates shown in this clause according to their year of employment calculated in accordance with the provisions of this subclause. Proof of previous service if required by the employer, shall rest on the employee; provided that production of the certificate or certificates referred to in paragraph (e) hereof, shall be sufficient proof for the purpose of this paragraph.

(e) Each employee whose service terminates shall at the time of termination be given a certificate signed by the employer in which shall be stated the name of the employee, the period of service, whether the service was full-time or part- time and the classifications in this award in which work has been carried out. Provided that where an employee terminates without that employee having given the prescribed period of notice, the employer shall be under no obligation to provide the certificate at the time of termination. The employee shall, however, be entitled to request and receive the certificate at any time after the termination.

(f) Casual employees shall be paid at the rate of time and one-half, provided that this rate shall be increased to double time and one-half for all work performed on the holidays referred to in subclause (2) of Clause 16.—Public Holidays of this award.

35.—Call Allowance. An employee shall be paid 1814 per cent of one for-

tieth of the rate prescribed in the Nurses' (Private Hospitals) Award No. 1 of 1966 for a Registered General Nurse in her third year for each hour or part thereof she is on call.

36.—Fares and Motor Vehicle Allowances. (1) Where an employee is required during his normal

working hours, by his employer, to work outside his usual place of employment the employer shall pay the


employee any reasonable travelling expenses incurred except where an allowance is paid in accordance with subclause (2) hereof.

(2) (a) Where an employee is required and authorised to use his own motor vehicle in the course of his duties he shall be paid an allowance not less than that provided for in the schedules set out hereunder. Notwithstanding anything contained in this subclause the employer and the employee may make any other arrangements as to car allowance not less favourable to the employee.

(b) Where an employee in the course of a journey travels through two or more of the separate areas, payment at the rates prescribed herein shall be made at the appropriate rate applicable to each of the separate areas traversed.

(c) A year for the purpose of this clause shall commence on the first day of July and end on the 30th day of June next following.

Rates of hire for use of employee's vehicle on employer's business.

Schedule 1—Motor Car. Engine

Displacement (in Cubic

Area and Details Centimetres) Distance travelled during Over 1600cc a year on official business 1600cc and

Under c/km c/km

Metropolitan Area: First 8 000 kilometres 31.5 23.3 Over 8 000 kilometres 20.4 15.5

South West Land Division: First 8 000 kilometres 32.3 23.9 Over 8 000 kilometres 20.9 15.8

North of 23.5 degrees South Latitude:

First 8 000 kilometres 36.0 26.8 Over 8 000 kilometres 23.0 17.6

Rest of the State: First 8 000 kilometres 33.6 24.8 Over 8 000 kilometres 21.8 16.5

Schedule 2—Motor Cycles. All Areas of State: c/km

First 8 000 kilometres 9.1 Over 8 000 kilometres 5.7



Schedule I—Respondents. Catholic Homes for the Aged Inc., 18 Barrett Street,

Wembley 6014. Churches of Christ Homes Inc., 20 Plantation Street,

Mount Lawley, 6050. Uniting Church in Australia Aged Persons Homes

Board, 73 Mill Point Road, South Perth. League of Home Help for Sick and Aged (Inc.), 67

Cleaver Street, West Perth, 6005. Salvation Army, 48 Pier Street, Perth, Dale Cottages (Inc.), 16 Deerness Way, Armadale,

6112. Anglican Homes for the Aged, 216 Stirling Highway,

Cottesloe, 6011. Shire of Bayswater Aged Persons Homes (Inc.), Post

Office Box 27, Bayswater, 6053. Esperance Shire Council, Post Office Box 507,

Esperance, 6450. Fremantle City Council, 8 William Street, Fremantle,

6160. Mental After Care and Comforts Fund Association

(Inc.), 2-10 Woodville Street, North Perth, 6006.

Schedule II—Liberty Reserved. Liberty is reserved to the Union to apply to the Com-

mission in respect of:— 1. Wages for Supervisors. 2. 38-Hour Week. 3. Shift Work Penalties. 4. Weekend Penalties.

AWARDS—Variation of—

B.P. REFINERY (KWINANA) (Federated Engine Drivers'

Firemen's Union). Award No. 2 of 1981.


No. 245 of 1984.

Between B.P. Refinery (Kwinana) Pty Ltd, Applicant, and The Federated Engine Drivers' and Firemen's Union of Workers of Western Australia, Respon- dent.

Order. HAVING heard Mr S. J. Kenner on behalf of the applicant and Mr S. Pike on behalf of the respondent, and by consent the Commission pursuant to the powers conferred on it under the Industrial Arbitration Act, 1979 hereby orders—

That the B.P. Refinery (Kwinana) (Federated Engine Drivers' Firemen's Union) Award No. 2 of 1981 be varied in accordance with the following schedule and that such variation shall have effect as from the beginning of the first pay period commencing on or after the 6th day of April, 1984.

Dated at Perth this 2nd day of November, 1984.

(Sgd.) E. R. KELLY, [L.S.] Commissioner.

Schedule. Clause 37.—Wage Rates: Delete subclause (a) of this

clause and insert in lieu thereof: (a) The actual wage to be paid to an adult worker

of a classification specified in this clause shall, except as otherwise required elsewhere in this award, be at the rate hereinafter assigned to that classification.

Classification Rate per Week Base 6 mths 2 yrs 3 yrs Over Rate -2 yrs -3 yrs -5 yrs 5 yrs

Area Operator 405.10 409.50 413.90 418.70 423.50 Control Oper- ator Grade 1 387.40 391.70 396.00 400.50 405.30 Control Oper- ator 380.50 384.80 389.40 394.00 398.60 Unit Operator 364.50 368.90 373.40 377.80 382.30 Operator Grade 1 354.00 358.10 362.20 366.30 370.40 Operator 350.00 354.10 358.10 362.30 366.30 Mobile Crane Driver (Res- tricted Ccr- tificate 347.00 351.20 355.50 359.60 363.80 Mobile Crane Driver (Un- restricted Certificate 367.90 372.40 376.80 381.40 386.10


CHILD CARE (Lady Cowrie Child Centre).

Award No. 3A of 1984.


No. 616 of 1984.

Between the Federated Miscellaneous Workers' Union of Australia, Hospital, Service and Miscellaneous, W.A. Branch, Applicant, and the Lady Gowrie Child Centre (W.A.) Inc., Respondent.

HAVING heard Dr S. A. Kennedy on behalf of the applicant and Mrs J. F. Cameron on behalf of the respondent, and by consent the Commission, pursuant to the powers conferred on it under the Industrial Arbitration Act, 1979, hereby orders—

That the Child Care (Lady Gowrie Child Centre) Award No. 3A of 1984 be varied in accordance with the following schedule and that such variation shall have effect as from the beginning of the first pay period commencing on or after 17th August, 1984 with respect to Clause 23.—Wages and on and from 8th October, 1984 with respect to Clause 8.—Hours of Work.



Schedule. Clause 8.—Hours of Work: Delete this clause and in-

sert the following in lieu:

8.—Hours of Work. (1) The spread of hours shall be 7.00 a.m. to

6.00 p.m. (2) TtlVi hours shall constitute a week's work.

Not more than IVi hours shall be worked on any day without the payment of overtime. Such IVi hours shall be worked in an unbroken shift.

(3) The lunch break for full-time contact staff should be one hour, and on occasions when staff meetings or other exceptional circumstances in- trude into the lunch break, contact staff members should have at least 30 minutes of uninterrupted break. Part-time staff, pro rata.

Clause 23.—Wages: Delete subclause (6) of this clause and insert the following in lieu:

(6) (a) Child Care Aide 1st year of employment 246.10 2nd year of employment 249.10 Thereafter 251.40

(b) Junior Aides: Junior Aides shall be paid the following percentage of the rate prescribed for a Child Care Aide in her first year of employment—

% At or under 16 years of age... 50 At 17 years of age 60 At 18 years of age 75 At 19 years of age 85 At 20 years of age 95 Thereafter, the adult rate.

Immediately after subclause (6) (b) of this clause add the following new subclauses:

Cook 1st year of employment 246.10 2nd year of employment 249.10 Thereafter 251.40

Domestic Employee 1st year of employment 230.50 2nd year of employment 233.50 Thereafter 235.80

CLUB WORKERS'. Award No. 12 of 1976.


No. 961 of 1983.

Between the Federated Liquor and Allied Industries Employees' Union of Australia, Western Australian Branch, Union of Workers, Applicant, and Kalamunda Club (Inc.) and Others, Respondents.

Order. HAVING heard Mr E. L. Fry on behalf of the Appli- cant and Mr K. J. Farrell on behalf of the Respondents, the Commission, pursuant to the powers conferred on it under the Industrial Arbitration Act, 1979, having satisfied itself that the terms of the General Order of the Commission No. 461 of 1983, dated 2nd March, 1984, have been complied with, and by consent, hereby orders—

That the Club Workers' Award No. 12 of 1976 be amended in accordance with the following schedule with effect from the beginning of the first pay period commencing on or after 1st November, 1984.


(Sgd.)G. L. FIELDING, [L.S.l Commissioner.

Schedule. 1. Clause 14.—Meal Money: Delete the figures

"$3.15" and insert in lieu thereof the figures "$4.15". 2. Clause 21.—Wages: Delete this clause and insert in

lieu thereof the following:— 21.—Wages.

The following shall be the minimum rates of wages payable to workers covered by this award:—

(1) Classifications (total wage per week): $

(1) Chef 273.30 (2) Qualified Cook 251.30 (3) Cook Employed Alone .. 238.50 (4) Breakfast and/or Other

Cooks 235.60 (5) Supervisor 257.80 (6) Bar Attendant 238.00 (7) Cellarman 244.90 (8) Head Waiter/Waitress .. 251.30 (9) Head Steward/

Stewardess 251.30 (10) Hostess 251.30 (11) Waiter/Waitress 231.90 (12) Steward/Stewardess .... 231.90 (13) Housekeeper 257.80 (14) Night Porter 229.30 (15) Hall Porter 229.30 (16) Lift Attendant 229.30

37051 -3


238.00 231.90 251.30 229.30

229.30 251.30 238.00 235.60 229.30 229.30 229.30 251.30 229.30 229.30 229.30

(1) Classifications (total wage per week):

(17) Cashier (18) Snack Bar Attendant (19) Butcher (20) Kitchenhand (21) Commissionaire and/or

Car Parking Attendant.. (22) Security Officer (23) Timekeeper (24) Storeman (25) Housemaid (26) Laundress (27) Cleaner (28) Maintenance Man (29) Gardener (30) Yardman (31) General Hand

(2) In-Charge Rates—A worker (other than a Chef or Housekeeper) who is appointed and placed in charge of other workers by the employer shall be paid the following rates in addition to his or her normal wage—

(a) if placed in charge of less than six workers 6.60

(b) if placed in charge of six to 10 workers 8.90

(c) if placed in charge of 11 to 20 workers 10.20

(d) if placed in charge of more than 20 workers ... 17.10

3. Clause 28.—Workers' Equipment; Delete this clause and insert in lieu thereof the following:—

28.—Workers' Equipment. All knives, choppers, tools, brushes, towels and

other utensils, implements and material which may be required to be used by the worker for the purpose of carrying out his duties, shall be supplied by the employer free of charge.

Provided that where a worker is required by the employer to use his own knives he shall be paid an allowance of $4.00 per week.

4. Clause 42.—District Allowances: Delete subclause (1) from this clause and insert in lieu thereof the following:—

(1) Subject to the provisions of this clause, in addition to the wages prescribed in Clause 21.—Wages of this award, a married worker shall be paid the following allowances per week when employed in the towns described hereunder.

Town $ Agnew 19.30 Balladonia 17.20 Barradale 25.70 Boulder 7.40 Bremer Bay 10.40 Broad Arrow 7.40 Broome 30.00 Bulla Bulling 7.40 Bullfinch 9.40 Carnarvon 15.10 Carrabin 9.40 Cockatoo Island 33.10 Cocklebiddy 19.20 Coolgardie 7.40 Cue 19.20 Dampier 25.70 Day Dawn 19.20 Denham 15.10 Derby 31.20 Esperance 6.40 Eucla 21.10 Exmouth 25.90

Town Fitzroy Crossing 37.1 Fimiston 7.' Gascoyne Junction 15. Gibson 6.' Goldsworthy 19.- Grass Patch 6.< Halls Creek 41.: Hopetoun 10.' Kalbarri 5.: Kalgoorlie !.■ Kambalda 7.' Karratha 29.' Kookynie 10.' Koolan Island 33. Koolyanobbing 9.' Kumurina 19.' Kununurra 47.: Lake Argyle 47.: Laverton 19 J Learmonth 26.i Leinster 19.' Leonora 19J Madura 19.: Marble Bar 43.' Marvel Loch 9.' Meekatharra 16. Menzies 19J Moorine Rock 9.' Mount Magnet 20 J Mundrabilla 20.: Newman 18.: Norseman 15J Nullagine 43. Onslow 30. Pannawonica 24. Paraburdoo 23.' Paynes Find 20J Port Hedland 25. Ravensthorpe 10. Roebourne 33. Salmon Gums 6. Sandstone 19. Shark Bay 15. Shay Gap 19. Southern Cross 9. South Hedland 25. Telfer 41. Teutonic Bore 19. Tom Price 23. Wannoo 15. Westonia 9. Whim Creek 29. Wickham 29. Widgiemooltha 7. Wiluna 19. Windarra 19. Wittenoom 38. Wurarga 20. Wyndham 45. Yalgoo 20.1

COMMERCIAL TRAVELLERS AND SALES REPRESENTATIVES.



No. 794 of 1983.

Between Sales Representatives' and Commercial Travellers' Guild of W.A. Industrial Union of Workers, Applicant, and Leonard Industries Pty Ltd and Others, Respondents.


Order. HAVING heard Mr I. J. Sands on behalf of the applicant and Mr D. M. Jones on behalf of the respondents, and by consent the Commission, pursuant to the powers conferred on it under the Industrial Arbitration Act, 1979 hereby orders—

That the Commercial Travellers and Sales Representatives Award No. 43 of 1978 be varied in accordance with the following schedule and that such variation shall have effect as from the beginning of the first pay period commencing on or after the date hereof.


Schedule. Clause 7.—Allowances: Delete subclause (i) of this

clause and insert in lieu thereof the following:— (i) Where a serviceman is directed to be in charge

of a service vehicle for country servicing involving more than one day's absence from the metropolitan area, being that area within a radius of 24 kilometres of the General Post Of- fice, Perth, he shall receive an extra payment at the rate of $15.20 per week, provided always that the Board shall enjoy the absolute right to select such servicemen.


Schedule. Clause 8.—Special Rates: Delete this clause and insert

in lieu:— 8.—Special Rates.

(1) A worker required by his employer to attend the employer's show rooms, trade fairs, exhibi- tions, or agricultural shows or sales conferences, or attend for stock taking purposes after 6.00 p.m. Monday to Friday inclusive, shall be paid at the rate of $10.60 per hour with a minimum payment of three hours. Provided that the minimum payment of three hours shall not apply where the attendance at such functions is continuous with the usual hours of work.

(2) A worker required to work on a Saturday, Sunday or on a holiday prescribed in Clause 14.—Holidays of this Award shall be paid at the rate of $14.15 per hour, with a minimum of three hours payment.

GAS WORKERS (State Energy Commission).

Consent Award No. 6 of 1978.


No. 481 of 1980.

Between Australasian Society of Engineers, Moulders and Foundry Workers Industrial Union of Workers, Western Australian Branch, Applicant, and The State Energy Commission of Western Australia, Respondent.

Order. HAVING heard Dr J. Crouch on behalf of the applicant and Mr B. T. Duplock on behalf of the respondent, (and by consent) the Commission, pursuant to the powers conferred on it under the Industrial Arbitration Act, 1979 hereby orders—

That the Gas Workers (State Energy Commis- sion) consent Award No. 6 of 1978 be varied in accordance with the following schedule and that such variation shall have effect as from the beginning of the first pay period commencing on or after the date hereof.


(Sgd.)G.A. JOHNSON, Commissioner.

FIRE BRIGADE EMPLOYEES' (Servicemen Extinguisher and Hose Services Branch).



No. 248 of 1984.

Between West Australain Fire Brigade Employees In- dustrial Union of Workers, Applicant, and Western Australian Fire Brigades Board, Respon- dent.

Order. HAVING heard Mr K. J. Trainer on behalf of the applicant and Mr J. Miller on behalf of the respondent and by consent the Commission, pursuant to the powers conferred on it under the Industrial Arbitration Act, 1979 hereby orders—

That the Fire Brigade Employees' (Servicemen Extinguisher and Hose Services Branch) Award No. 3 of 1969 be varied in accordance with the following schedule and that such variation shall have effect as from the beginning of the first pay period commencing on or after the 6th day of April, 1984.


(Sgd.) E. R. KELLY, [L.S.f Commissioner.

Schedule. 1. Clause 2.—Arrangement: Rename "7.—Hours" to

"7.—Hours of Duty". After 22.—Wages add the number and words "23.—Payment of Wages".

2. Clause 7.—Hours: Delete this clause and insert in lieu:—

7.—Hours of Duty. (1) Subject to the provisions of subclause (2) of

this clause, 37'A hours, exclusive of Saturday and Sunday work, shall constitute a week's work. No day's work shall exceed seven and one-half hours without payment of overtime.

(2) Provided that, by agreement between the employer and unions party to this award, the ordinary hours may be worked over a fortnightly period of nine days, exclusive of work performed on Saturday, Sunday and the special day off, with each day consisting of eight hours and twenty minutes without payment of overtime.

(3) The ordinary hours of work shall be consecutive except for an unpaid meal break which shall not exceed one hour.

(4) The ordinary hours of duty shall be between the hours of 6.00 a.m. and 5.30 p.m. Monday to Friday inclusive.

(5) The ordinary hours of duty within the spread of hours provided in subclause (4) of this clause shall not be altered without consultation with the unions party to this award.


(6) For the purpose of computing time for which payment is to be made, calculations shall be made to the nearest one-quarter hour.

(7) For the purpose of meeting the needs of the industry, the employer may require any worker to work reasonable overtime, including work on Saturdays, Sundays, holidays and special days off, at the rate prescribed by this award, and unless reasonable excuse exists, the worker shall work in accordance with such requirement.

3. Clause 8.—Overtime: Delete subclause (7) of this clause and insert in lieu:

(7) (a) Subject to the provisions of this subclause, a worker who commences to work overtime at or after the usual ceasing time and before the usual starting time—

(i) shall, if the overtime exceeds two hours and is continuous with his days work, be supplied with a meal by his employer or be paid $3.90 for a meal and if, owing to the amount of overtime worked, a second or subsequent meal is required he shall be supplied with a meal by his employer or be paid $2.75 in respect of each meal so required; and

(ii) the continuity of work shall not be deemed to have been interrupted by any meal break allowed within the two hours period referred to but no such meal period shall be paid for.

(b) The provisions of subparagraph (i) of paragraph (a) hereof shall not apply—

(i) in respect of any period of overtime for which the worker has been notified on the previous day or earlier that he will be required; or

(ii) to any worker who lives in the locality in which the place of work is situated in respect of any meal for which he can reasonably go home.

(c) If a worker to whom subparagraph (i) of paragraph (b) hereof applies has, as a consequence of the notification referred to in that subparagraph provided himself with a meal or meals and is not required to work overtime or is required to work less overtime than the period notified, he shall be paid for each meal provided and not required, the appropriate amount prescribed above.

(d) For the purpose of paragraph (a) (i.e. the meal provision) hereof—

(i) the expression "usual starting time" and "usual ceasing time" mean, respectively, the time at which the worker usually commences and the time at which he usually ceases his ordinary hours of duty; and

(ii) time worked on Saturdays, Sundays, holidays or special days off between the usual starting time and the usual ceasing time shall be deemed not to be overtime.

(e) A worker shall not be compelled to work for more than five hours without a break for a meal.

4. Clause 9.—Annual Leave: Delete this clause and insert in lieu:—

9.—Annual Leave. (1) (a) Subject to the provisions of this clause, a

period of four weeks' leave, with payment of ordinary wages as prescribed, shall be allowed annually to a worker by the employer after a period of 12 months' continuous service with the employer.

(b) For the purpose of paragraph (a) hereof, "four weeks' leave" shall mean 150 hours' leave.

(c) If the worker so requests, the annual leave allowed in paragraph (a) hereof may be taken in two periods, provided that each period consists of a minimum of 412/i or 37'A hours, and that such

periods are taken in complete weeks in accordance with the recognised work pattern of the worker concerned.

(d) In taking leave, if a worker's leave entitlement expires part way through a day, the worker shall have the option of resuming duty for that full day or take the balance of the day as approved leave without pay.

(e) In addition to the payment for annual leave, a worker shall receive a loading calculated on the following basis—

(i) seventeen and one-half percent of the worker's "rate of wage" calculated at the date of accrual;

(ii) "rate of wage" shall comprise the wage a worker would have received in respect of the ordinary time he would have worked had he not been on leave during the relevant period;

but the loading prescribed in this paragraph shall not apply to proportionate leave on termination.

(2) If any holiday as prescribed by this agreement falls within a worker's period of annual leave and is observed on a day which, in the case of that worker would have been an ordinary working day, there shall be added to that period one day, being an ordinary working day, for each such holiday observed as aforesaid.

(3) (a) Subject to the provisions of paragraph (b) of this subclause, when computing the annual leave due under this clause, no deduction shall be made from such leave in respect of the period that a worker is on annual leave and/or holidays and no such deduction shall be made for any approved period or periods during which a worker is absent from duty through sickness with or without pay, unless the absence exceeds 13 weeks in the aggregate in which case deduction may be made for such excess only.

(b) Approved periods of absence from work caused through accidents sustained in the course of employment shall not be considered breaks in continuity of service but the first six months only of any such period shall count as service for the purpose of computing annual leave.

(4) Subject to the provisions of subclause (5) of this clause, a worker whose employment terminates in accordance with subclause (1) of Clause 5 of this agreement, shall, after one month's continuous service in any qualifying 12 monthly period be paid one third of a week's pay in respect of each completed month of continuous service in that qualifying period.

(5) A worker who is justifiably dismissed for misconduct shall not be entitled to the benefit of the provisions of this clause.

(6) For the purpose of subclause (1) of this clause, "ordinary wages" means the rate of wage the worker has received for the greatest proportion of the calender month prior to his taking annual leave.

(7) Annual leave shall be calculated to 30th June each year.

(8) Any annual leave entitlement accumulated to a worker as at 8th June, 1981 shall be adjusted in hours in the ratio of 37 Vi to 40.

(9) The provisions of this clause shall not apply to a casual worker.

5. Clause 10.—Holidays: Delete paragraph (b) of subclause (1) of this clause and insert in lieu:—

(b) When any of the days mentioned in paragraph (a) hereof falls on a Saturday or a Sunday, the holiday shall be observed on the next succeeding Monday, and if that Monday is a special day off, or if the holiday falls on a special day off, then that special day off shall

64 W.A.l.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE. 2159

be observed on the next succeeding Tuesday. Provided that when Boxing Day falls on a Sun- day or a Monday, the holiday shall be observed on the next succeeding Tuesday; provided further that where Boxing Day is so substituted and where the Monday immediately preceding that Tuesday is a special day off, then that special day off shall be observed on the next succeeding Wednesday. In each case, the substituted day shall be a holiday without deduction of pay and the day for which it is substituted shall not be a holiday.

6. Clause 11.—Payment for Sickness: Delete paragraph (b) of subclause (1) of this clause and insert in lieu:—

(b) The unused portion of the entitlement prescribed in paragraph (a) hereof, in any accruing year, shall be allowed to accumulate and may be availed of in the next or any succeeding year. Any such entitlement accumulated to a worker as at the 8th June, 1981 shall be adjusted in hours in the ratio of 37'Z to 40.

7. Clause 12.—Long Service Leave: Delete this clause and insert in lieu:—

12.—Long Service Leave. (1) The conditions embodied in the document

"Long Service Leave Conditions-—State Govern- ment Wages Employees" as consolidated in June, 1980, shall apply with the exception that on and from the first day of April, 1977 long service leave for the second period of service shall accrue at the rate of 13 weeks' leave for seven years of continuous service.

(2) For the purpose of subclause (1) of this clause, "13 weeks' leave" shall mean 4871/2 hours' leave.

(3) Any long service leave entitlement accrued to a worker as at the 8th June, 1981 shall be adjusted in hours in the ratio of 37 Yi to 40.

(4) In taking leave, if a worker's leave entitlement expires part way through a day, the worker shall have the option of resuming duty for that full day or take the balance of the day as approved leave without pay.

8. Clause 20.—Definitions: Delete subclause (1) of this clause and insert in lieu:—

(1) Casual Worker: Means a worker employed for less than one week continuously but does not include a worker who when work is available, leaves his employment before the expiration of one week. A casual worker shall be paid 20 per cent in addition to the minimum rate specified for 37 'A hours work.

9. Clause 21.—Bereavement Leave: Delete this clause and insert in lieu:—

21.—Bereavement Leave. (1) A worker (other than a casual worker) shall,

on the death within Australia of a wife, husband, father, mother, brother, sister, child or stepchild be entitled, on notice, to leave up to and including the day of the funeral of such relation, and such leave shall be without deduction of pay for a period not exceeding the number of hours worked by the worker in two ordinary working days. Proof of such death shall be furnished by the worker to the satisfaction of the employer.

(2) Provided that payment in respect of bereavement leave is to be made only where the worker otherwise would have been on duty, and shall not be granted in any case where the worker concerned would have been off duty in accordance with his roster, or on long service leave, annual leave, sick leave, workers' compensation, leave without pay, holiday, or a special day off.

10. Clause 2.—Wages: (a) Delete the words "A worker shall be paid the

rate per week and in addition the special payment assigned to his class of work." appearing in subclause (1) and insert in lieu the words:—

Subject to the provisions of this subclause, a worker, other than a junior worker, shall be paid the rate per week, and in addition the special payment, assigned to his class of work, for 37 Zi hours' work.

(b) Delete the words "Junior Workers Male wage per week expressed as a percentage of the Gas Meter Preparer rate." appearing in subclause (2) (a) and insert in lieu the words:—

Junior Workers' Male wage per 37Vi hours' work per week expressed as a percentage of Gas Meter Preparer rate

(c) Delete subclauses (2) (b), (2) (c) and (3) and insert in lieu:—

(2) (b) For the purpose of this subclause. Gas Meter Preparer rate means the appropriate rate for 37Vi hours' work for the classification Gas Meter Preparer in subclause (1) of this clause.

(c) Notwithstanding the provisions of paragraph (a) of this subclause, a junior worker over the age of 20 who has completed 12 months' service in the Gas Meter Shop and has been certified proficient in all aspects of the duties of a Gas Meter Preparer by the Engineer in Charge, shall be paid the adult rate for 37 Zi hours' work for the classification of Gas Meter Preparer as prescribed in subclause (1) of this clause.

(3) A leading hand (i.e. a worker placed in charge of three or more other workers or otherwise classified by the employer as a leading hand), shall be paid the additional margin set out hereunder for 37Vi hours' work—

$ (a) if placed in charge of not

less than three and not more than 10 other workers 13.10

(b) if placed in charge of more than 10 and not more than 20 other workers 20.00

(c) if placed in charge of more than 20 other workers 25.80

11. After Clause 22.—Wages add the following new Clause 23:—

23.—Payment of Wages. (1) Subject to the provisions of subclause (2) of

this clause, wages shall be paid fortnightly by cheque on each alternate Thursday at the worker's recognised work location.

(2) Where the worker elects in writing, the wages shall be paid into a bank account, building society or approved credit union; and the receipt of such bank, building society or credit union shall be a full and sufficient discharge for the amount paid thereto.

(3) Workers who, as at the 3rd July, 1981 had elected to be paid in cash shall, until they elect otherwise, continue to be so paid.

2160

GAS WORKERS' (State Energy Commission). Agreement No. 6 of 1978.


No. 972 of 1984.

Between Australasian Society of Engineers, Moulders and Foundry Workers Industrial Union of Workers, Western Australian Branch, Applicant, and State Energy Commission of Western Australia, Respondent.

Order. HAVING heard Dr J. Crouch on behalf of the applicant and Mr M. K. Hurley on behalf of the respondent, and by consent, the Commission in Court Session pursuant to the powers conferred on it under the Industrial Arbitration Act, 1979, hereby orders—

That the Gas Workers' (State Energy Commis- sion) Agreement No. 6 of 1978 be varied in accordance with the following schedule and that such variation shall have effect from the beginning of the first pay period commencing on or after the date hereof.

Dated at Perth this 21st day of November, 1984.


(Sgd.)B. J. COLLIER, [L.S.] Senior Commissioner.

Schedule. Clause 8.—Overtime: Re-number paragrpah (d) of

subclause (2) to become paragraph (e). Insert new paragraph (d) of subclause (2) to read:—

(d) Where a worker (other than a casual worker) is called in to work on a Sunday, holiday or special day off preceding an ordinary working day, he shall, wherever reasonably practicable, be given 10 consecutive hours off duty before his usual starting time on the next day. If this is not practicable, then the provisions of paragraphs (b) and (c) of this subclause shall apply mutatis mutandis.

GROCERY AND MATCH MANUFACTURING Award No. 11 of 1971.


No. 814of 1983. Between The Food Preservers' Union of Western

Australia Union of Workers, Applicant and Anchor Products Ply Ltd and others, Respondents.

Order. HAVING heard Mr. 1. Sands on behalf of the applicant and interventing on behalf of the Trades and Labor Council of Western Australia and Mr B. McCarthy on behalf of the respondents, and by consent, the Com- mission, pursuant to the powers conferred on it under the Industrial Arbitration Act, 1979 hereby orders—

That the Grocery and Match Manufacturing Award No. 11 of 1971 be varied in accordance with the following Schedule "A" and consolidated in accordance with Schedule "B" and that such variation and consolidation shall have effect as from the beginning of the first pay period commencing on or after the 1 si day of September, 1984.

Dated at Perth this 23rd day of November, 1984. [L.S.] Commissioner.

(Sgd.) G. A. JOHNSON,

64 W.A.I.G.

Schedule "A" 1. Clause 2.—Arrangement: Delete this clause and

insert in lieu:—

2.—Arrangement 1. Title. 2. Arrangement. 3. Scope. 4. Area. 5. Term. 6. Definitions. 7. Wages. 8. Incentive Schemes. 9. Hours of Work.

9A. Implementation of 38 Hour Week. 9B. Procedures for In-Plant Discussions. 10. Shiftwork. 11. Overtime. 12. Meal Interval. 13. Contract of Service. 14. Higher Duties. 15. Holidays. 16. Annual Leave. 17. Absence Through Sickness. 18. Payment of Wages. 19. Time and Wages Record. 20. No Reduction. 21. Under Rate Employees. 22. Junior Employees Certificate. 23. Limitation of Female Work. 24. Right of Entry. 25. Board of Reference. 26. Travelling Facilities. 27. General Conditions. 28. Posting of Award. 29. Long Service Leave. 30. Bereavement Leave. 31. Part Time Employees. 32. Maternity Leave.

Schedule of Respondents. 2. Clause 6.—Definitions: Delete subclause (5) of this

clause and insert in lieu:— (5) "Casual Employee" shall mean an employee

engaged and paid as such, provided that the maximum hours for a casual employee shall not exceed thirty eight in one week. An employee who is dismissed through no fault of his own within one month of commencing employment shall be paid as a Casual Employee for the period of his employment.

3. Clause 7.—Wages: (a) Delete subclause (5) of this clause and insert in lieu:—

(5) Casual Employees—all casual employees as defined shall be paid one thirty-eighth of the rate prescribed for their classification for each hour worked plus 20 per cent.

(b) After subclause (5) add the further new subclause (6):—

(6) Employees covered by Clause 9(2) (c)— Hours of this award shall be paid an additional 15 per cent per hour for all ordinary hours worked outside of the spread of hours referred to in Clause 9(2)(a) and (b)—Hours.

4. Clause 9.—Hours: Delete this clause and insert in lieu:-

9.—Hours of Work. (1) Subject to Clause 9A.—Implementation of 38

Hour Week and Clause 9B.—Procedures for In- Plant Discussions and subject to the exceptions



hereinafter provided, the ordinary hours of work which commenced from the first pay period on or after 1 September, 1984 shall be an average of 38 per week to be worked on one of the following bases:-

(i) 38 hours within a work cycle not exceeding seven consecutive days; or

(ii) 76 hours within a work cycle not exceeding 14 consecutive days; or

(iii) 114 hours within a work cycle not exceeding 21 consecutive days; or

(iv) 152 hours within a work cycle not exceeding 28 consecutive days.

(2) (a) The ordinary hours of duty shall be worked on Monday to Friday inclusive and subject to Clause 10.—Shift Work, between the hours of 7.00 a.m. and 5.30 p.m.

(b) In order to cover peak seasonal demands or for any other circumstances the starting or finishing times other than those prescribed in paragraph (a) of this subclause may, in any particular case be fixed by agreement between the employer and tbp

Union. (c) Notwithstanding paragraphs (a) and (b) of

this subclause the ordinary hours of work of employees engaged on duties as required preliminary to normal production shall be worked between such hours as so required.

(3) The starting and finishing times in any establishment shall only be altered by the employer giving seven days notice to the employees of such alteration, except where otherwise agreed between the employer and the union.

(4) Notwithstanding the provisions of this clause, in the case of employees employed by the Sani- tarium Health Food Company, the ordinary hours may be worked in five days between Sunday and Friday inclusive.

(5) (a) An employer, with the agreement of the majority of employees concerned, may substitute the day an employee is to take off in accordance with paragraphs (b)(iii) and (iv) hereof, for another day in the case of a breakdown in machinery or a failure or shortage of electric power or to meet the requirements of the business in the event of rush orders or some other emergency situation.

(b) An individual employee, with the agreement of his employer, may substitute the day he is to take off for another day.

(c) An employer may with the agreement of the majority of the employees concerned institute a banking system of Rostered Days Off in order to cover peak seasonal demands.

Employees would therefore work on what would normally have been their rostered day off and accrue an entitlement to bank a rostered day off to be taken at a mutually convenient time for both the employee and the employer; provided that no less than 14 days notice is given before taking the banked Rostered Day(s) off.

No payments or penalty payment shall be made to employees working under this substitute banked Rostered Day Off. However the employer will maintain a record of the number of Rostered Days banked and will apply the Average Pay System during the weeks when an employee elects to take a banked Rostered Day Off.

Employees termninating prior to taking any banked Rostered Day(s) Off shall receive the following: Average Weekly pay ^ Number of Banked

5 Substitute Days

5. After Clause 9.—Hours add the following new Clause 9A:

9A.—Implementation of 38 Hour Week. (1) In each plant, an assessment should be made

as to which method of implementation best suits the business and the proposal shall be discussed with the employees concerned, the objective being to reach agreement on method of implementation prior to the first pay period commencing on or after 1st September, 1984.

(2) Where an employer implements the 38 hour week at a date later than the first pay period commencing on or after 1st September, 1984, an employee shall become entitled to a payment at the date of implementation, which shall accrue at the rate of two ordinary hours pay for each week of 40 ordinary hours that is worked after 1st September, 1984. Provided that in any such week, where less than 40 ordinary hours are worked, then the rate of two ordinary hours pay shall be reduced proportionately, except where an employee is absent from duty in a circumstance that entitles him to payment for the absence pursuant to other provisions of the award.

(3) The method of implementation of the 38 hour week may be any one of the following:—

(a) by employees working less than eight ordinary hours on one day each week; or

(b) by fixing one week day on which all employees will be off during a particular work cycle; or

(c) by rostering employees off on various days of the week during a particular work cycle so that each employee has one weekday off during that cycle.

(4) Where the ordinary hours of duty are worked in accordance with subclause (3) (b) of this clause the day wherein an employee works less than eight hours shall be a Friday.

(5) Where such time off duty as prescribed in subclause (3) of this clause falls on a Public Hol- iday as prescribed in Clause 15.—Holidays, the next working day shall be taken in lieu of the time off unless an alternative day in that work cycle is agreed in writing between the employer and the employee.

(6) Each day of paid leave entitlements taken and any public holiday occuring during any cycle of work, shall be regarded as a day worked on accrual purposes.

(7) In cases where, by virtue of the arrangement of his ordinary working hours an employee, in accordance with paragraphs (3) (c) and (d) hereof, is entitled to a day off during his work cycle, such employee shall be advised by the employer at least four weeks in advance of the weekday he is to take off.

6. After Clause 9A.—Implementation of 38 Hour Week add the following new Clause 9B:—

9B.—Procedures for In-plant Discussions. (1) Procedures shall be established for in-plant

discussions between the employer and the Union, the objective being to agree on the method of implementing a 38 hour week and entailing an objective review of current practices to establish where improvements can be made and implemented.

(2) The procedures should allow for in-plant discussions to continue even though all matters may not be resolved by 1st September, 1984.

(3) The procedures should make suggestions as to the recording of understandings reached and methods of communicating agreements and understandings to all employees, including the overcoming of language difficulties.


(4) The procedures should allow for the monitoring of agreements and understandings reached in- plant.

(5) In cases where agreement cannot be reached in-plant in the first instance or where problems arise after initial agreements or understandings have been achieved in-plant, a formal monitoring procedure shall apply.

7. Clause 16.—Annual Leave: Delete subclause (4) (a) of this clause and insert in lieu:—

(4) (a) If after one month's contiuous service in any qualifying 12 monthly period an employee lawfully leaves his employment or his employment is terminated by the employer through no fault of the employee, the employee shall be paid 2.923 hours pay at his ordinary rate of wage in respect of each completed week of continous service.

8. Clause 17.—Absence Through Sickness: Delete subclause (1) of his clause and insert in lieu:—

(1) (a) An employee who is unable to attend or remain at his place of employment during the ordinary hours of work by reason of personal ill health or injury shall be entitled to payment during such absence in accordance with the provisions of this clause.

(b) An employee who works an average of 38 ordinary hours each week during a particular work cycle shall be entitled to pay during such absence calculated as follows:

durationjaf absence appropriate weekly rate ordinary hours normally x 3

worked that day An employee shall not be entitled to claim pay-

ment for personal ill health or injury nor will his sick leave entitlement be reduced if such ill health or injury occurs on the week day he is to take off duty occasioned by subclause (1) of Clause 9.—Hours of this award.

(c) Notwithstanding the provisions of paragraph (b) of ths subclause an employer may adopt an alternative method of payment of sick entitlements where the employer and the majority of his employees so agree.

(d) Entitlement to payment shall accrue at the rate of 1 /6th of a week for each completed month of service with the employer.

(e) If in the first or successive years of service with the employer an employee is absent on the ground of personal ill health or injury for a period longer than his entitlement to paid sick leave, payment may be adjusted at the end of that year of service, or at the time the employee's services terminate, if before the end of that year of service, to the extent that the employee has become entitled to further paid sick leave during that year of service.

9. Clause 18.—Payment of Wages: Delete this clause and insert in lieu:—

18.—Payment of Wages. (1) Wages shall be paid weekly on a weekday

other than Saturday and not more than two days pay shall be kept in hand.

(2) Employee who actually works 38 ordinary hours each week.

In the case of an employee whose ordinary hours of work are arranged so-that he works 38 ordinary hours each week, wages shall be paid weekly.

(3) Employee who works an average of 38 ordinary hours each week.

In the case of an employee whose ordinary hours of work are arranged so that he works an average of 38 ordinary hours each week during a particular work cycle, wages may be paid weekly according to

a weekly average of ordinary hours worked even though more or less than 38 ordinary hours may be worked in any particular week of the work cycle.

(4) Postered day off coinciding with pay day. In the event that an employee, by virtue of the

arrangement of his ordinary working hours, is to take a day off on a day which coincides with pay day, such employee shall be paid no later than the working day immediately following pay day.

(5) Commencement and Termination of Employ- ment.

(a) An employee who lawfully leaves his employment or is dismissed for reasons other than misconduct shall be paid all moneys due to him at the termination of his service with the employer, before leaving the employers premises or alternativey (except in the case of casual employees) a cheque for the amount due may be forwarded to the employees last known address within 48 hours of such termination.

(b) An employee who commences employment during a work cycle shall cither—

(i) receive payment for any Day Off duty occasioned by subclause (1) of Clause 9.—Hours of Work only for the hours accrued toward that day off during the work cycle;

(ii) be paid for the hours actually worked in that work cycle and not be granted a day off with pay.

(c) An employee who has not taken the Day Off due to him during the work cycle in which employment is terminated, the wages due to that employee shall include a total of hours accrued toward that day off during that work cycle for which payment has not already been made.

(d) Where the employee has taken a Day Off during the work cycle in which employment is terminated, the wages due to that employee shall be reduced by the total of hours for which payment has already been made but which have not accrued toward that Day Off during the work cycle.

(6) Payment for Day Off. (a) An employee who is absent from duty

other than on a public holiday or day in lieu thereof, paid sick leave, bereavement leave shall have his payment for any Day Off duty occasioned by subclause (1) of Clause 9.—Hours of Work of this award reduced proportionately.

10. Clause 25.—Board of Reference: Delete this clause and insert in lieu:—

25.—Board of Reference. The Board of Reference referred to in this Award

is that Board of Reference established by Section 48 of the Industrial Arbitration Act, 1979.

1 1. Delete Clause 30.—Preference to Unionists, and renumber Clauses 31, 32 and 33 as 30, 31, and 32 respectively.

12. Clause 31.—Part Time Employees: Delete this clause and insert in lieu:—

31.—Part Time Employees. (1) "Part Time Employees" shall mean any em-

ployees who work regularly from week to week for more than 15 hours and less than 38 hours each week.

Such a part time employee shall be paid at the rate of one thirty-eighth of the ordinary rate of wage prescribed by this award for the class of work performed for each hour worked each week during the hours prescribed in Clause 9.—Hours of Work of this award.

64 W.A.I.G

(2)(a) Payment of holidays, annual leave and absence through sickness for such part time employees pursuant to Clause 15.—Holidays, 16.—Annual Leave and 17.—Absence Through Sickness, of this award, shall be in the proportion that the hours regularly worked each week bears to 38 hours.

(b) For the purpose of calculating the payment for annual leave hereunder, the hours regularly worked each week shall be the weekly arithmetical average of the total ordinary hours worked during the qualifying period for such annual leave.

13. Where the word "worker" appears in the Award where not otherwise provided for in these amendments, reference to the word "worker" shall be changed to reference to the word "employee".

Schedule "B". Award No. 1 1 of 1971.

1.—Title. This award whal! be known as the Grocery and Match

Manufacturing Award No. 11 of 1971 as amended and consolidated.

2.—Arrangement. 1. Title. 2. Arrangement. 3. Scope. 4. Area. 5. Term. 6. Definitions. 7. Wages. 8. Incentive Schemes. 9. Hours of Work. 9A. Implementation of 38 Hour Week. 9B. Procedures for In-Plant Discussions. 10. Shiftwork. 11. Overtime. 12. Meal Interval. 13. Contract of Service. 14. Higher Duties. 15. Holidays. 16. Annual Leave. 17. Absence Through Sickness. 18. Payment of Wages. 19. Time and Wages Record. 20. No Reduction. 21. Under Rate Employees. 22. Junior Employees Certificate. 23. Limitation of Female Work. 24. Right of Entry. 25. Board of Reference. 26. Travelling Facilities. 27. General Conditions. 28. Posting of Award. 29. Long Service Leave. 30. Bereavement Leave. 31. Part Time Employees. 32. Maternity Leave.

Schedule of Respondents.

3.—Scope. This award shall apply to all employees employed by

the respondents in the classifications described in Clause 7.—Wages hereof, in the manufacture, preparation, packing or putting up of spices, condiments, coffee, chicory, cocoa, tea, jelly crystals, farinaceous foods, polishes, honey and other similar lines generally manufactured, packed, prepared or put up by manufacturing grocers, matches, margarine, cereal foods, macaroni or similar

2163

products, nuts, nut foods, nut products, potato chips, popcorn, polishing materials and such other products as are handled by the respondents.

4.—Area. This award shall have effect within the State of West-

ern Australia. 5.—Term.

The term of this award shall be for a period of three years as from the beginning of the first pay period commencing on or after the date hereof. The date of issue of this award was the 20th August, 1971.

6.—Definitions. (1) "Leading Hand" shall mean an employee who is

appointed as such by his employer and who, in addition to his ordinary duties, is required by the employer to supervise the work of other employees.

(2) "Mixer and/or Blender" means an employee engaged on the mixing and/or blending of ingredients for products covered by the award.

(3) "Automatic Machine Operator" shall mean an adult employee who sets up an automatic machine for one or more operations, controls, operates, attends and adjusts an automatic machine, and may be required to attend more than one machine.

(4) "Automatic Machine Attendant" shall mean an adult employee employed in attending, controlling and adjusting any of the automatic machines used in the manufacture, bottling and packaging of products.

(5) "Casual Employee" shall mean an employee engaged and paid as such, provided that the maximum hours for a casual employee shall not exceed thirty eight in one week. An employee who is dismissed through no fault of his own within one month of commencing employment shall be paid as a Casual Employee for the period of his employment.

7.-—Wages. The following shall be the minimum weekly rate of

wage payable to employees covered by this award. (1) Adult Employees—

Classifications— (a) Groceries. $

Employees Roasting and/or Grinding and Mixing Coffee or Chicory 244.80

Automatic Machine Operator 244.80 Steam Retort Operator 241.00 Other Grinders or Millers 239.30 Other Mixers or Blenders 239.30 Roaster of other Commodities 239.30

(b) Nut Food and Allied Products. Roaster of Nuts 244.80 Salter Cooker (potato chips and nuts)... 244.80 Automatic Machine Operator 244.80

(c) Cereal Foods. Cereal Cooker 243.90 Fillers, Pressman and Conveyor em-

ployees 237.50 (d) Macaroni.

Automatic Machine Operator 244.80 Employees Drying Macaroni, Vermi-

celli and allied products 241.00 Paste Makers 237.50 Press Operator 237.50

(e) Match Manufacturing. V.P.O. Dipper 241.00 Painting Machine Attendant

(including mixing of the paint) 239.30 Mixer (compo and adhesives) 239.30 Inner Machine Operator 235.60 Board Slitter (inner reels) 235.60

(f) All Sections. Automatic Machine Attendant 231.90 General Factory Hand 230.10



junior Employees (Per cent of rate for classification in which employed).

% Under 16 years of age 50 16 to 17 years of age 60 17 to 18 years of age 70 18 to 19 years of age 80 19 to 20 years of age 90 20 years and over 100

(3) Leading Hands (Per week extra). A Leading Hand in charge of: $

(a) Less than three other employees 7.30 (b) Not less than three and not more than

10 other employees 14.40 (c) More than 10 other employees 21.20

(4) Special Rates. (a) Employees engaged in the milling and/or

grinding of spices or employees employed bottling concentrated liquid food colour in small bottles and who are unable to avoid staining their hands shall be paid 40 cents per hour in addition to the rates herein prescribed.

(b) Where an employee is required to drive a fork lift in the performance of his duties he shall be paid an additional 30 cents per hour whilst so engaged.

(5) Casual Employees—all casual employees as defined shall be paid one thirty eighth of the rate prescribed for their classification for each hour worked plus 20 per cent.

(6) Employees covered by Clause 9(2)(c)—Hours of this award shall be paid an additional 15 per cent per hour for all ordinary hours worked outside of the spread of hours referred to in Clause 9(2)(a) and (b)—Hours.

8.—Incentive Schemes. (1) The particulars of the basis of incentive schemes

shall be supplied to the Union. (2) Adjustments and/or variations of the basis of in-

centive schemes shall be subject to mutual agreement between the employer and the employees concerned.

(3) In the event of any disagreement between the employer and the employees concerned, the matter may be referred to the Board of Reference by the employer or the Union.

9.—Hours of Work. (1) Subject to Clause 9A.—Implementation of 38

Hour Week and Clause 9B.—Procedures for In-Plant Discussions and subject to the exceptions hereinafter provided, the ordinary hours of work which commenced from the first pay period on or after Isl September, 1984 shall be an average of 38 per week to be worked on one of the following basis:

(i) 38 hours within a work cycle not exceeding seven consecutive days; or

(ii) 76 hours within a work cycle not exceeding 14 consecutive days; or

(iii) 114 hours within a work cycle not exceeding 21 consecutive days; or

(iv) 1 52 hours within a work cycle not exceeding 28 consecutive days.

(2) (a) The ordinary hours of duty shall be worked on Monday to Friday inclusive and subject to Clause 10.—Shift Work, between the hours of 7.00 a.m. and 5.30 p.m.

(b) In order to cover peak seasonal demands or for any other circumstances the starting or finishing times other than those prescribed in paragraph (a) of this subclause may, in any particular case be fixed by agreement between the employer and the Union.

(c) Notwithstanding paragraphs (a) and (b) of this subclause the ordinary hours of work of employees engaged on duties as required preliminary to normal production shall be worked between such hours as so required.

(3) The starting and finishing times in any establishment shall only be altered by the employer giving seven days notice to the employees of such alteration, except where otherwise agreed between the employer and the Union.

(4) Notwithstanding the provisions of this clause, in the case of employees employed by the Sanitarium Health Food Company, the ordinary hours may be worked in five days between Sunday and Friday inclusive.

(5) (a) An employer, with the agreement of the majority of employees concerned, may substitute the day an employee is to take off in accordance with paragraphs (b) (iii) and (iv) hereof, for another day in the case of a breakdown in machinery or a failure or shortage of electric power or to meet the requirements of the business in the event of rush orders or some other emergency situation.

(b) An individual employee, with the agreement of his employer, may substitute the day he is to take off for another day.

(c) An employer may with the agreement of the majority of the employees concerned institute a banking system of Rostered Days Off in order to cover peak seasonal demand.

Employees would therefore work on what would normally have been their rostered day off and accrue an entitlement to bank a Rostered Day off to be taken at a mutually convenient time for both the employee and the employer; provided that no less than 14 days notice is given before taking the banked Rostered Day(s) off.

No payments or penalty payment, shall be made to employees working under this substitute banked Rostered Day off. However the employer will maintain a record of the number of Rostered Days banked and will apply the Average Pay System during the weeks when an employee elects to take a banked Rostered Day Off.

Employees terminating prior to taking any banked Rostered Day(s) Off shall receive the following:

Average Weekly pay Number of Banked IT x Substitute Days

9A.—Implementation of 38 Hour Week. (1) In each plant, an assessment should be made as to

which method of implementation best suits the business and the proposal shall be discussed with the employees concerned, the objective being to reach agreement on method of implementation prior to the first pay period commencing on or after 1 September, 1984.

(2) Where an employer implements the 38 hours week at a date later than the first pay period commencing on or after 1 September, 1984, an employee shall become entitled to a payment at the date of implementation, which shall accrue at the rate of two ordinary hours pay for each week of 40 ordinary hours that is worked after 1st September, 1984. Provided that in any such week, where less than 40 ordinary hours are worked, then the rate of two ordinary hours pay shall be reduced proportionately, except where an employee is absent from duty in a circumstance that entitles him to payment for the absence pursuant to other provisions of the award.

(3) The method of implementation of the 38 hour week may be any one of the following:

(a) by employees working less than eight ordinary hours on one day each week; or

(b) by fixing one week day on which all employees will be off during a particular work cycle; or

(c) by rostering employees off on various days of the week during a particular work cycle so that each employee has one weekday off during that cycle.

(4) Where the ordinary hours of duty are worked in accordance with subclause (3)(b) of this clause the day wherein an employee works less than 8 hours shall be a Friday.


(5) Where such time off duty as prescribed in subclause (3) of this clause falls on a Public Holiday as prescribed in Clause 15.—Holidays, the next working day shall be taken in lieu of the time off unless an alternative day in that work cycle is agreed in writing between the employer and the employee.

(6) Each day of paid leave entitlements taken and any public holiday occurring during any cycle of work, shall be regarded as a day worked on accrual purposes.

(7) In cases where, by virtue of the arrangement of his ordinary working hours an employee, in accordance with paragraphs (3)(c) and (d) hereof, is entitled to a day off during his work cycle, such employee shall be advised by the employer at least four weeks in advance of the weekday he is to take off.

9B.—Procedures for In-Plant Discussions. (1) Procedures shall be established for in-plant dis-

cussions between the employer and the union, the objective being to agree on the method of implementing a 38 hour week and entailing an objective review of current practices to establish where improvements can be made and implemented.

(2) The procedures should allow for in-plant discussions to continue even though all matters may not be resolved by 1st September, 1984.

(3) The procedures should make suggestions as to the recording of understandings reached and methods of communicating agreements and understandings to all employees, including the overcoming of language difficulties.

(4) The procedures should allow for the monitoring of agreements and understandings reached in-plant.

(5) In cases where agreement cannot be reached in- plant in the first instance or where problems arise after initial agreements or understandings have been achieved in-plant, a formal monitoring procedure shall apply.

10.—Shift Work. (1) An Employer may, if he so desires, work his estab-

lishment on shifts, but before doing so shall give notice of his intention to the union, and of the intended starting and finishing times of ordinary working hours of the respective shifts.

(2)(a)Where any particular process is carried out on shifts other than day shift, and less than five consecutive afternoon or five consecutive night shifts are worked on that process, then the employees employed on such afternoon or night shifts shall be paid at overtime rates.

(b) The sequence of work shall not be deemed to be broken under the preceding paragraph by reason of the fact that work on the process is not carried out on a Saturday or Sunday or on any public holiday.

(3) A shift employee shall, in addition to his ordinary rate of wage, be paid at the rate of $6.64 per shift when on afternoon or night shift.

(4) Where an employee is not required to work a shift in accordance with his roster because of any of the holidays prescribed in Clause 15.—Holidays of this award, he shall be paid the loading prescribed in subclause (3) of this clause for that shift.

(5) Where three shifts are worked, a meal break of not less than 20 minutes shall be allowed in each shift and paid for.

11.—Overtime. (1) All time worked in excess of eight hours per day or

before the usual starting time, or after the usual finishing time on any day shall be paid for at the rate of time and a half for the first two hours and double time thereafter.

(2) (a) (i) Except in the case of employees employed by the Sanitarium Health Food Company all work performed on Saturdays after 12 noon or on Sunday shall be paid for at the rate of double time.

(ii) Work performed by employees employed by the Sanitarium Health Food Company on Saturdays shall be paid for at the rate of double time, except for shift work commencing at or before 10.00 p.m. on Saturdays,

(b) Work done on any day prescribed as a holiday under this award shall be paid for at the rate of double time and a half.

(3) (a) An employee required to work overtime for more than two hours without being notified on the previous day or earlier that he will be so required to work shall be supplied with a meal by the employer or paid $3.50 for a meal.

(b) If the amount of overtime required to be worked necessitates a second and subsequent meal, the employer shall, unless he has notified the employees concerned on the previous day or earlier that such second or subsequent meal will also be required, provide such meals or pay an amount of $2.75 for each second or subsequent meal.

(c) No such payments need be made to employees living in the same locality as their workshop who can reasonably return home for such meals.

(d) If an employee in consequence of receiving such notice has provided himself with a meal or meals and is not required to work overtime or is required to work less overtime than notified, he shall be paid the amounts above prescribed in respect of the meals not then required.

(4) (a) Rest period after overtime. When overtime work is necessary, it shall, wherever reasonably practicable, be so arranged that employees have at least eight consecutive hours off duty between the work of successive days.

(b) An employee (other than a casual employee) who works so much overtime between the termination of his ordinary work on one day and the commencement of his ordinary work on the next day that he has not at least eight consecutive hours off duty between those times shall, subject to this subclause, be released after completion of such overtime until he has had eight consecutive hours off duty without loss of pay for ordinary working time occurring during such absence.

(c) If, on the instructions of his employer, such an employee resumes or continues work without having had such eight consecutive hours off duty, he shall be paid at double rates until he is released from duty for such period and he shall then be entitled to be absent until he has had eight consecutive hours off duty without loss of pay for ordinary working time occurring during such absence.

(5) When an employee is required to report for work (and so reports) on a public holiday or on a day other than an ordinary working day, he shall be paid for at least three hours at the appropriate rate for each such occasion, but not more than once in respect of any period of time.

(6) (a) Notwithstanding anything contained in this award, an employer may require any employees to work reasonable overtime at overtime rates and such employee shall work overtime in accordance with such requirement.

(b) No organisation, party to this award, or employee or employees covered by this award shall in any way, whether directly or indirectly, be a party to or concerned in any ban, limitation or restriction upon the working of overtime in accordance with the requirements of this subclause.

12.—Meal Interval. (1) Not less than 30 minutes nor more than one hour

shall be allowed for a meal each day. (2) An employee shall not be compelled to work for

more than 5Vi hours without a break for a meal.


(3) When an employee is required for duty during any meal time whereby his meal time is postponed for more than one hour, he shall be paid at overtime rates until he gels his meal.

1 3.—Contract of Service. (1) (a) Except in the case of a casual employee, the

contract of hiring of every employee shall be a weekly contract terminable by one week's notice on either side given on any working day or in the event of such notice not being given by the payment of one week's pay by the employer or the forfeiture of one week's pay by the employee. Provided this shall not effect the right of an employer to dismiss an employee without notice for misconduct,

(b) (i) The contract of service for a casual employee shall be by the hour terminable at any moment by one hour's notice on either side or in the event of such notice not being given, by the payment of one hour's pay by the employer or the forfeiture of one hour's pay by the employee.

(ii) Provided that the employment of casual employees shall not exceed one month.

(2) The employer shall be under no obligation to pay for any day not worked upon which the employee is required to present himself for duty, except where such absence from work is due to illness and comes within the provisions of Clause 17.—Absence Through Sickness, or such absence is on account of holidays to which the employee is entitled under the provisions of this award.

(3) The employer shall be entitled to deduct payment for any day of portion of a day upon which the employee cannot be usefully employed because of any strike by the union or unions affiliated with it, or by any other association or union, or through the breakdown of the employer's machinery or any stoppage of work by any cause which the employer cannot reasonably prevent.

(4) Where the provisions of subclause (3) of this clause apply and an employee after having been stood down is required to report for work and so reports, he shall be paid for a minimum of three hours at the appropriate rate.

14.—Higher Duties. (1) An employee engaged for more than half of one

day or shift on duties carrying a higher rate than his ordinary classification shall be paid the higher rate for such day or shift. If employed for half of one day or shift, or less, he shall be paid the higher rate for the time so worked.

(2) A worker's regular rate of wage shall not be reduced whilst he is temporarily employed on work classified with a lower minimum rate.

1 5.—Holidays. (l)(a) The following days or the days observed in lieu

shall, subject as hereinafter provided be allowed as holidays without deduction of pay namely: New Year's Day, Australia Day, Good Friday, Easter Monday, Anzac Day, Labour Day, Foundation Day, Sovereign's Birthday, Christmas Day and Boxing Day. Provided that another day may be taken as a holiday by arrangement between the parties in lieu of any of the days named in the subclause.

(b) Except as provided in paragraph (c) hereof when any of the days mentioned in paragraph (a) hereof falls on a Saturday or a Sunday the holiday shall be observed on the next succeeding Monday and when Boxing Day falls on a Sunday or a Monday the holiday shall be observed on the next succeeding Tuesday. In each case the substituted day shall be a holiday without deduction of pay and the day for which it is substituted shall not be a holiday.

(c) In the case of employees employed by the Sani- tarium Health Food Company where a holiday prescribed in paragraph (a) hereof falls on a Saturday the holiday shall be observed on the next succeeding Monday. In such case the substituted day shall be a holiday without deduction of pay and the day for which it is substituted shall not be a holiday.

(2) On any public holiday not prescribed as a holiday under this award the employer's establishment or place of business may be closed in which case an employee need not present himself for duty and payment may be deducted, but if work be done ordinary rates of pay shall apply. Provided that the employees who ordinarily work on Sunday, any such public holiday which falls or is generally observed on a Monday may be observed on the preceding Sunday in lieu of the Monday.

16.—Annual Leave. (1) Except as hereinafter provided, a period of four

consecutive weeks' leave with payment as prescribed in subclause (2) hereof shall be allowed annually to an employee by his employer after a period of 12 months' continuous service with that employer.

(2) (a) (i) An employee before going on leave shall be paid the wages he would have received in respect of the ordinary time he would have worked had he not been on leave during the relevant period,

(ii) Subject to paragraph (b) hereof an employee shall, where applicable, have the amount of wages to be received for annual leave calculated by including the following—

(aa) The rate applicable to him as prescribed in Clause 7.—Wages,

(bb) Subject to paragraph (b)(ii) the rate prescribed for work in ordinary time by Clause 10.—Shift Work of this award according to the employee's roster or projected roster including Saturday and Sunday shifts,

(cc) Any other rate to which the employee is entitled in accordance with his contract of employment for ordinary hours of work,

(b) During a period of annual leave an employee shall receive a loading calculated on the rate of wage prescribed by paragraph (a)(ii)(aa) of this subclause. The loading shall be as follows:—

(i) Day Employees—An employee who would have worked on day work had he not been on leave—a loading of 1 7i/2 per cent.

(ii) Shift Employees—An employee who would have worked on shift work had he not been on leave—a loading of 1 7Id per cent.

Provided that where the employee would have received Shift loadings prescribed by Clause 10.—Shift Work had he not been on leave during the relevant period and such loadings would have entitled him to a greater amount than the loadings of 17Id per cent, then the shift loadings shall be added to the rate of wage prescribed by paragraph (a)(ii)(aa) of this subclause in lieu of the MVi per cent loading.

Provided further, that if the shift loadings would have entitled him to a lesser amount than the loading of 17'72 per cent, then such loading of MVi per cent, shall be added to the rate of wage prescribed by paragraph (a)(ii)(aa) of this subclause in lieu of the shift loadings.


The loading prescribed by this subclause shall not apply to proportionate leave on termination.

(3) If any award holiday falls within an employee's period of annual leave and is observed on a day which in the ease of that employee would have been an ordinary working day there shall be added to that period one day being an ordinary working day for each such holiday observed as aforesaid.

(4)(a) If after one month's continuous service in any qualifying 12 monthly period an employee lawfully leaves his employment or his employment is terminated by the employer through no fault of the employee, the employee shall be paid 2.923 hours pay at his ordinary rate of wage in respect of each completed week of continuous service.

(b) In addition to any payment to which he may be entitled under paragraph (a) hereof, an employee whose employment terminates after he has completed a 12 monthly qualifying period and who has not been allowed the leave prescribed under this award in respect of that qualifying period shall be given payment in lieu of that lave or, in a case to which subclause (7) of this clause applies, in lieu of so much of that leave as has been allowed unless—

(i) He has been justifiably dismissed for misconduct; and

(ii) The misconduct for which he has been dismissed occurred prior to the completion of that qualifying period.

(5) Notwithstanding anything else herein contained an employer who observes a Christmas closedown for the purpose of granting leave may require an employee to take his annual leave in not more than two periods but neither of such periods shall be less than one week.

(6) Any time in respect of which an employee is absent from work except time for which he is entitled to claim sick pay or time spent on holidays or annual leave as prescribed by this award shall not count for the purpose of determining his right to annual leave.

(7) In the event of an employee being employed by an employer for portion only of a year he shall only be entitled subject to subclause (4) of this clause, to such leave on full pay as is proportionate to his length of service during that period with such employer, and if such leave is not equal to the leave given to the other employees he shall not be entitled to work or pay whilst the other employees of such employer are on leave on full pay.

(8) In special circumstances and by mutual consent of the employer, the employee and the union concerned, annual leave may be taken in not more than two periods, but no such period shall be less than one week.

(9) An employee shall be given at least two weeks' notice that he is to take his annual leave.

(10) The provisions of this clause shall not apply to casual employees.

I 7.—Absence Through Sickness. (I )(a) An employee who is unable to attend or remain

at his place of employment during the ordinary hours of work by reason of personal ill health or injury shall be entitled to payment during such absence in accordance with the provisions of this clause.

(b) An employee who works an average of 38 ordinary hours each week during a particular work cycle shall be entitled to pay during such absence calculated as follows:

duration of absence appropriate weekly rate ordinary hours normally ' 5

worked that day An employee shall not be entitled to claim payment

for personal ill health or injury nor will his sick leave entitlement by reduced if such ill health or injury occurs on the week day he is to take off duty occasioned by subclause (1) of Clause 9.—Hours of this Award.

(c) Notwithstanding the provisions of paragraph (b) of this subclause an employer may adopt an alternative method of payment of sick entitlements where the employer and the majority of his employees so agree.

(d) Entitlement to payment shall accrue at the rate of 1 /6th of a week for each completed month of service with the employer.

(e) If in the first or successive years of service with the employer an employee is absent on the ground of personal ill health or injury for a period longer than his entitlement to paid sick leave, payment may be adjusted at the end of that year of service, or at the time the employee's services terminate, if before the end of that year of service, to the extent that the employee has become entitled to further paid sick leave during that year of service.

(2) The unused portions of the entitlement to paid sick leave in any one year shall accumulate from year to year and subject to this clause may be claimed by the employee if the absence by reason of personal ill health or injury exceeds the period for which entitlement has accrued during the year at the time of the absence. Provided that an employee shall not be entitled to claim payment for any period exceeding 10 weeks in anyone year of service.

(3) To be entitled to payment in accordance with this clause the employee shall as soon as reasonably practicable advise the employer of his inability to attend for work, the nature of his illness or injury and the estimated duration of the absence. Provided that such advice, other than in extraordinary circumstances shall be given to the employer within 24 hours of the commencement of the absence.

(4) The provisions of this clause do not apply to an employee who fails to produce a certificate from a medical practitioner dated at the time of the absence or who fails to supply such other proof of the illness or injury as the employer may reasonably require provided that the employee shall not be required to produce a certificate from a medical practitioner with respect to absences of two days or less unless after two such absences in any year of service the employer request in writing that the next and subsequent absences in that year if any, shall be accompanied by such certificate.

(5)(a) Subject to the provisions of this subclause, the provisions of this clause apply to an employee who suffers personal ill health or injury during the time when he is absent on annual leave and an employee may apply for and the employer shall grant paid sick leave in place of paid annual leave.

(b) Application for replacement shall be made within seven days of resuming work and then only if the employee was confined to his place of residence or a hospital as a result of his personal ill health or injury for a period of seven consecutive days or more and he produces a certificate from a registered medical practitioner that he was so confined. Provided that the provisions of this paragraph do not relieve the employee of the obligation to advise the employer in accordance with subclause (3) of this clause if he is unable to attend for work on the working day next following his annual leave.

(c) Replacement of paid annual leave by paid sick leave shall not exceed the period of paid sick leave to which the employee was entitled at the time he proceeded on annual leave and shall not be made with respect to fractions of a day.

(d) Where paid sick leave has been granted by the employer in accordance with paragraphs (a), (b) and (c) of this subclause. that portion of the annual leave equivalent to the paid sick leave is hereby replaced by the paid sick leave and the replaced annual leave may be taken at another time mutually agreed to by the employer and the employee or, failing agreement, shall be added to the employee's next period of annual leave or. if termination occurs before then, be paid for in accordance with the provisions of Clause 16—Annual Leave.


(e) Payment for replaced annual leave shall be at the rate of wage applicable at the time the leave is subsequently taken provided that the annual leave loading prescribed in Clause 16.—Annual Leave shall be deemed to have been paid with respect to the replaced annual leave.

(6) Where a business has been transmitted from one employer to another and the employee's service has been deemed continuous in accordance with subclause (3) of Clause 2 of the Long Service Leave provisions published in Volume 59 of the Western Australian Industrial Ga- zette at pages 1-6, the paid sick leave standing to the credit of the employee at the date of transmission from service with the transmittor shall stand to the credit of the employee at the commencement of service with the transmittee and may be claimed in accordance with the provisions of this clause.

(7) The provisions of this clause with respect to payment do not apply to employees who are entitled to payment under the Workers' Compensation Act nor to employees whose injury or illness is the result of the employee's own misconduct.

(8) The provisions of this clause do not apply to casual employees.

18.—Payment of Wages. (1) Wages shall be paid weekly on a weekday other

than Saturday and not more than two days pay shall be kept in hand.

(2) Employee who actually works 38 ordinary hours each week. In the case of an employee whose ordinary hours of work are arranged so that he works 38 ordinary hours each week, wages shall be paid weekly.

(3) Employee who works an average of 38 ordinary hours each week. In the case of an employee whose ordinary hours of work are arranged so that he works an average of 38 ordinary hours each week during a particular work cycle, wages may be paid weekly according to a weekly average of ordinary hours worked even though more or less than 38 ordinary hours may be worked in any particular week of the work cycle.

(4) Rostered day off coinciding with pay day. In the event that an employee, by virtue of the arrangement of his ordinary working hours, is to take a day off on a day which coincides with pay day, such employee shall be paid no later than the working day immediately following pay day.

(5) Commencement and Termination of Employment. (a) An employee who lawfully leaves his employ-

ment or is dismissed for reasons other than misconduct shall be paid all monies due to him at the termination of his service with the employer, before leaving the employers premises or alternatively (except in the case of casual employees) a cheque for the amount due may be forwarded to the employee's last known address within 48 hours of such termination.

(b) An employee who commences employment during a work cycle shall either—

(i) receive payment for any Day Off duty occasioned by subclause (1) of Clause 9.—Hours of Work only for the hours accrued toward that day off during the work cycle;

(ii) be paid for the hours actually worked in that work cycle and not be granted a day off with pay.

(c) An employee who has not taken the Day Off due to him during the work cycle in which employment is terminated, the wages due to that employee shall include a total of hours accrued toward that day off during that work cycle for which payment has not already been made.

(d) Where the employee has taken a Day Off during the work cycle in which employment is terminated, the wages due to that employee shall be reduced by the total of hours for which payment has already been made but which have not accrued toward that Day Off during the work cycle.

(6) Payment for Day Off. (a) An employee who is absent from duty other

than on a public holiday or day in lieu thereof, paid sick leave, bereavement leave shall have his payment for any Day off duty occasioned by subclause (1) of Clause 9.—Hours of work of this award reduced proportionately.

19.—Time and wages record (1) The employer shall keep or cause to be kept a

record or records containing the following particulars: (a) Name of each employee. (b) Nature of his work. (c) The hours worked each day and each week. (d) The wages and overtime (if any) paid each

week. (e) The age of each junior employee.

Any system of automatic recording by machines shall be deemed to comply wih this provision to the extent of the information recorded.

(2) The time and wages record shall be open for inspection by a duly accredited official of the union during the usual office hours at the employer's office, or other convenient place and the representative may be allowed to take extracts therefrom.

20.—No Reduction Nothing herein contained shall entitle an employer to

reduce the wage of any employee who at the date of this award was being paid a higher rate of wage than the minimum prescribed for his or her class of work.

21.—Under Rate Workers (1) Any employee who by reason of old age or infirm-

ity is unable to earn the minimum wage may be paid such lesser wage as may from time to time be agreed upon in writing between the union and the employer.

(2) In the event of no agreement being arrived at, the matter may be referred to the Board of Reference for determination.

(3) After application has been made to the Board, and pending the Board's decision, the employee shall be entitled to work for and be employed at the proposed lesser rate.

22.—Junior Employee's Certificate. (1) Junior employees upon being engaged shall if

required furnish the employer with a certificate containing the following details:

(a) Name in full. (b) Age and date of birth.

(2) No employee shall have any claim upon an employer for additional pay in the event of the age of the employee being wrongly stated on the certificate. If any junior employee shall wilfully mis-state his age in the certificate he alone shall be guilty of a breach of this award, and in the event of an employee having received a higher rate than that to which he was entitled he shall make restitution to the employer.

The certificate shall be available for inspection by an accredited representative of the union in the manner in which the Time and Wages Record is open for inspection.

23.—Limitation of Female Work. No female employee shall be required to lift or carry

weights in excess of 16 kilograms.


24.—Right of Entry. (1) Accredited representatives of the Union shall be

permitted to interview the employees on the business premises of the employer during non-working times or meal breaks.

(2) In the case of a dispute between the union and an employer which is likely to lead to a cessation of work or to an application to the Commission and which involves the inspection of employees or of machines in the process of production on which such employees are engaged such union representative shall have the right of inspection at any time during which the employees or machines concerned are working but this permission shall not be exercised without the consent of the employer more than once in any one week.

(3) Provided that the duly accredited representative shall notify the employer beforehand of his intention to exercise his rights under this clause.

25.—Board of Reference. The Board of Reference referred to in this Award is

that Board of Reference established by section 48 of the Industrial Arbitration Act, 1979.

26.—Travelling Facilities. Where an employee is detained at work until it is too

late to travel by the last ordinary bus, train or other regular public conveyance to his usual place of residence, the employer shall provide proper conveyance to the employee's usual place of residence, free of charge. This clause shall not apply to an employee who usually has his own means of conveyance.

27.—General Conditions. (1) Where the conditions of work are such that em-

ployees are unable to avoid their clothing becoming excessively wet or dirty, they shall be supplied with suitable protective clothing or materials. Such protective clothing or material shall remain the property of the employer and shall be returned when required in good order and condition, fair wear and tear excepted.

(2) Where the conditions of work are such that employees are unable to avoid their feet becoming excessively wet, the employer shall, on request, supply free of charge, rubber boots, or alternatively, the employer may pay the allowance of 30 cents per week. Boots supplied by the employer shall remain the property of the employer and shall be returned when required, in good order and condition, fair wear and tear excepted. Provided that an employer shall not be obliged to supply rubber boots to casual employees but shall pay the allowance referred to above to any casual employee who regularly wears his own boots and needs to do so to avoid his feet becoming excessively wet.

(3) Where the conditions of the work being performed require the use of gloves, they shall be supplied by the employer free of cost.

(4) Where the employer requires a uniform to be worn, it shall be supplied by the employer free of cost. Such uniform shall remain the property of the employer and shall be returned when required in good order and condition, fair wear and tear excepted, or paid for at replacement cost.

(5) Where and when practicable, suitable seating accommodation shall be provided for female employees unless it is physically impossible to carry out the work required in a sitting position.

(6) Adequate first aid equipment shall be provided in all establishments.

28.—Posting of Award. The employer shall allow a copy of this award if

supplied by the union, to be posted in a place easily accessible to the worker.

29.—Long Service Leave. The Long Service Leave provisions set out in Volume

59 of the Western Australian Industrial Gazette at pages 1-6 inclusive are hereby incorporated in and shall be deemed to be part of this award.

30.—Bereavement Leave. (1) An employee shall, on the death within Australia

of a wife, husband, father, mother, borther, sister, child or stepchild be entitled on notice of leave up to and including the day of the funeral of such relation and such leave shall be without deduction of pay for a period not exceeding the number of hours worked by the employee in two ordinary working days.

Proof of such death shall be furnished by the employee to the satisfaction of his employer.

(2) Payment in respect of the compassionate leave is to be made only where the employee otherwise would have been on duty and shall not be granted in any case where the employee concerned would have been off duty in accordance with his roster, or on long service leave, annual leave, sick leave, employees' compensation, leave without pay or on a public holiday.

(3) For the purposes of this clause, the pay of an employee employed on shift work shall be deemed to include the allowance set out in Clause 10.—Shift Work.

31.—Part-Time Employees. (1) "Part-time Employees" shall mean any employees

who work regularly from week to week for more that 15 hours and less than 38 hours each week.

Such a part time employee shall be paid at the rate of one thirty eighth of the ordinary rate of wage prescribed by this award for the class of work performed for each hour worked each week during the hours prescribed in Clause 9.—Hours of Work of this award.

(2) (a) Payment of holidays, annual leave and absence through sickness for such part time employees pursuant to Clause 15.—Holidays, 16.—Annual Leave and 17.—Absence Through Sickness, of this award shall be in the proportion that the hours regularly worked each week bears to 38 hours.

(b) For the purpose of calculating the payment for annual leave hereunder the hours regularly worked each week shall be the weekly arithmetical average of the total ordinary hours worked during the qualifying period for such annual leave.

32.—Maternity Leave. (1) Eligibility for Maternity Leave. An employee who becomes pregnant shall, upon pro-

duction to her employer of a certificate from a duly qualified medical practitioner stating the presumed date of her confinement, be entitled to maternity leave provided that she has had not less than 12 months' continuous service with that employer immediately preceding the date upon which she proceeds upon such leave.

For the purposes of this clause: (a) An employee shall include a part-time em-

ployee but shall not include an employee engaged upon casual or seasonal work.

(b) Maternity leave shall mean unpaid maternity leave.

(2) Period of Leave and Commencement of Leave. (a) Subject to subclauses (3) and (6) hereof the

period of maternity leave shall be for an unbroken period of from 12 to 52 weeks and shall include a period of six weeks' compulsory leave to be taken immediately before the presumed date of confinement and a period of six weeks' compulsory leave to be taken immediately following confinement.


(b) An employee shall, not less than 10 weeks prior to the presumed date of confinement, give notice in writing to her employer stating the presumed date of confinement.

(c) An employee shall give not less than four weeks' notice in writing to her employer of the date upon which she proposes to commence maternity leave, stating the period of leave to be taken.

(d) An employee shall not be in breach of this order as a consequence of failure to give the stipulated period of notice in accordance with paragraph (c) hereof if such failure is occasioned by the confinement occurring earlier than the presumed date.

(3) Transfer to a Safe-Job. Where in the opinion of a duly qualified medical prac-

titioner, illness or risks arising out of the pregnancy or hazards connected with the work assigned to the employee make it inadvisable for the employee to continue at her present work, the employee shall, if the employer deems it practicable, be transferred to a safe job at the rate and on the conditions attaching to that job until the commencement of maternity leave.

If the transfer to a safe job is not practicable, the employee may, or the employer may require the employee to, take leave for such period as is certified necessary by a duly qualified medical practitioner. Such leave shall be treated as maternity leave for the purposes of subclauses (7), (8), (9) and (10) hereof.

(4) Variation of Period of Maternity Leave. (a) Provided the addition does not extend the ma-

ternity leave beyond 52 weeks, the period may be lengthened once only, save with the agreement of the employer, by the employee giving not less than 14 days' notice in writing slating the period by which the leave is to be lengthened.

(b) The period of leave may, with the consent of the employer, be shortened by the employee giving not less than 14 days' notice in writing stating the period by which the leave is to be shortened.

(5) Cancellation of Maternity Leave. (a) Maternity leave, applied for but not commenced,

shall be cancelled when the pregnancy of an employee terminates other than by the birth of a living child.

(b)Where the pregnancy of an employee then on maternity leave terminates other than by the birth of a living child, it shall be right of the employee to resume work at a time nominated by the employer which shall not exceed four weeks from the date of notice in writing by the employee to the employer that she desires to resume work.

(6) Special Maternity Leave and Sick Leave. (a) Where the pregnancy of an employee not then

on maternity leave terminates after 28 weeks other than by the birth of a living child then—

(i) she shall be entitled to such period of unpaid leave (to be known as special maternity leave) as a duly qualified medical practitioner certifies as necessary before her return to work, or

(ii) for illness other than the normal consequences of confinement she shall be entitled, either in lieu of or in addition to special maternity leave, to such paid sick leave as to which she is then entitled and which a duly qualified medical practitioner certifies as necessary before her return to work.

(b) Where an employee not then on maternity leave suffers illness related to her pregnancy, she may take such paid sick leave as to which she is then entitled and such further unpaid leave (to be known as special maternity leave)

as a duly qualified medical practitioner certifies as necessary before her return to work, provided that the aggregate of paid sick leave, special maternity leave and maternity leave shall not exceed 52 weeks.

(c) For the purposes of subclauses (7). (8) and (9) hereof, maternity leave shall include special maternity leave.

(d) An employee returning to work after the completion of a period of leave taken pursuant to this subclause shall be entitled to the position which she held immediately before proceeding on such leave or, in the case of an employee who was transferred to a safe job pursuant to subclause (3), to the position she held immediately before such transfer.

Where such position no longer exists but there are other positions available, for which the employee is qualified and the duties of which she is capable of performing, she shall be entitled to a position as nearly comparable in status and salary or wage to that of her former position.

(7) Maternity Leave and Other Leave Entitlements. Provided the aggregate of leave including leave taken

pursuant to subclauses (3) and (6) hereof does not exceed 52 weeks.

(a) An employee may, in lieu of or in conjunction with maternity leave, take any annual leave or long service leave or any part thereof to which she is then entitled.

(b) Paid sick leave or other paid authorised award absences (excluding annual leave or long service leave), shall not be available to an employee during her absence on maternity leave.

(8) Effect of Maternity Leave on Employment. Notwithstanding any award, or other provision to the

contrary, absence on maternity leave shall not break the continuity of service of an employee but shall not be taken into account in calculating the period of service for any purpose of the award.

(9) Termination of Employment. (a) An employee on maternity leave may

terminate her employment at any time during the period of leave by notice given in accordance with this award.

(b) An employer shall not terminate the employment of an employee on the ground of her pregnancy or of her absence on maternity leave, but otherwise the rights of an employer in relation to termination of employment are not hereby affected.

(10) Return to Work After Maternity Leave. (a) An employee shall confirm her intention of

returning to her work by notice in writing to the employer given not less than four weeks prior to the expiration of her period of maternity leave.

(b) An employee, upon the expiration of the notice required by paragraph (a) hereof, shall be entitled to the position which she held immediately before proceeding on maternity leave or. in the case of an employee who was transferred to a safe job pursuant to subclause (3), to the position which she held immediately before such transfer. Where such position no longer exists but there arc other positions available for which the employee is qualified and the duties of which she is capable of performing, she shall be entitled to a position as nearly comparable in status and salary or wage to that of her former position.

(11) Replacement Employees. (a) A replacement employee is an employee

specifically engaged as a result of an employee proceeding on maternity leave.


(b) Before an employer engages a replacement employee under this subclause, the employer shall inform that person of the temporary nature of the employment and of the rights of the employee who is being replaced.

(c) Before an employer engages a person to replace an employee temporarily promoted or transferred in order to replace an employee exercising her rights under this clause, the employer shall inform that person of the tempor ary nature of the promotion or transfer and of the rights of the employee who is being replaced.

(d) Provided that nothing in this subclause shall be construed as requiring an employer to engage a replacement employee.

(e) A replacement employee shall not be entitled to any of the rights conferred by this clause except where her employment continues beyond the 12 months qualifying period.

Schedule of Respondents Anchor Products Pty Ltd. D. & J. Fowler (Aust) Ltd. Robert Harper & Co. Ltd. Flavoured Products Pty Ltd. Food Products of Australia. Nabisco Pty Ltd. Sanitarium Health Food Company. Sunny Flo Apiaries. Golden West Macaroni Co. W.A. Match Co. Pty Ltd. W.A. Honey Pool. Pre-Pact Processors and Packers. W.J. Pascoe & Sons. Meadow Lea Margarine (WA) & Co. Pty. Ltd. Clifford Love & Co. Ltd. West & Co. Enterprises. Kiwi Home Products Pty Ltd. Reckitt & Coleman Pty Ltd. Hunters Products (W.A.) Pty Ltd. Coastal Agencies.

Dated at Perth this 20th day of August, 1971.

HOSPITAL LAUNDRY AND LINEN SERVICE

(Government). Award No. 36 of 1981.


No. 497 of 1984.

Between Metropolitan Laundry Employees' Industrial Union of Workers, Applicant, and Board of Management, The Lakes Hospital, Respondent.

Interim Order. HAVING heard Dr S. A. Kennedy on behalf of the applicant and Miss M. H. Kuhne on behalf of the respondent, the Commission, pursuant to the powers conferred on it under the Industrial Arbitration Act, 1979 hereby orders—

That the Hospital Laundry and Linen Service (Government) Award No. 36 of 1981 be varied in accordance with the following schedule and that

such variation shall have effect as from the beginning of the first pay period commencing on or after the 6th April, 1984.



Schedule. Clause 13.—Allowances and Special Provisions:

Delete this clause and insert the following in lieu:— 13.—Allowances and Special Provisions.

(1) Any employee who in the course of the laundry procedure is required to come into contact with foul linen shall be paid an allowance as follows:—

(a) Sorting of foul linen. 47 cents per hour. (b) Drivers or other employees who regularly

deal with bags containing foul linen, 18 cents per hour.

(2) The employer shall, when practicable, appoint an employee with either first aid knowledge or holding first aid qualifications from St. John Ambulance, or a similar body, to carry out first aid in the employer's premises. Such employee so appointed shall, in addition to first aid duties, be responsible under general supervision of the Manager, for maintaining the contents of the first aid kit.

Employees so appointed shall be paid the following rates in addition to their prescribed rate of pay:

(a) unqualified employee, 23 cents per day; (b) qualified employee, $1.08 per day.

Provided that any employee holding a first aid qualification of "Third-year St. John Ambulance Medallion" and being required by the employer to exercise that training will be paid $1.25 per day or $6.25 per week.

HOSPITAL SALARIED OFFICERS. Award No 39 of 1968.


No. 837 of 1982.

Between Hospital Salaried Officers Association of Western Australia, Applicant, and Royal Perth Hospital and Others, Respondents.

Order. HAVING heard Mr G. N. Hocking on behalf of the applicant and Mr G. Moore on behalf of the respondents, and by consent, the Commission, pursuant to the powers conferred on it under the Industrial Arbitration Act, 1979, hereby orders-—

That the Hospital Salaried Officers Award No. 39 of 1968 be varied in accordance with the following schedule and that such variation shall have effect on and from the 17th day of July 1984.



Schedule. Schedule A—Salaries—Clerical and Administrative

Division: 1. In paragraphs (i) and (j) of subclause (1) of Clause

6.—Efficiency Allowances—Tables A3 and A4, delete the word "clause" and insert the word "subclause" in lieu thereof.

37051—4


2. Insert a new subclause after subclause (1) of Clause 6.—Efficiency Allowances—Table A3 and A4, as follows:—

2. A Medical Typist or Medical Secretary shall be paid a medical terminology allowance of $343.00 per annum.

For the purposes of this subclause, "Medical Typist" and "Medical Secretary" shall mean those workers classified on Table A3 of Table A4 who spend at least 50 per cent of their time typing from tapes, shorthand and/or Doctor's notes of case histories, summaries, reports or similar material involving a broad range of medical terminology.

MINERAL SANDS MINING AND PROCESSING (Engineering and Building Trades).



No. 827 of 1984.

Between Amalgamated Metal Workers' and Ship- wrights' Union of Western Australia, Applicant, and Allied Eneabba Pty Ltd and Others, Respondents.

Order. HAVING heard Mr B. P. Proctor on behalf of the applicant and Mr A. J. Collins on behalf of respondents, and by consent, the Commission, pursuant to the powers conferred on it under, the Industrial Arbitration Act, 1979 hereby orders—

That the Mineral Sands Mining and Processing (Engineering and Building Trades) Award No. 6 of 1977 as varied be further varied in accordance with the following schedule and that such variation shall have effect as from the beginning of the first pay period commencing on or after the 21st day of November, 1984.


(Sgd.)G. J. MARTIN, [L.S.] Commissioner.

Schedule. 1. Clause 9.—Overtime: Delete the amounts "three

dollars and sixty five cents" and "two dollars and fifty five cents" appearing in paragraph (g) of subclause (3) of this clause and insert in lieu the amounts "three dollars and ninety five cents" and "two dollars and seventy five cents" respectively.

2. Clause 13.—Special Rates and Provisions: (a) Subclause (1)—General Disabilities:

(i) Delete the amount of "$6.70" appearing in paragraph (a) of this subclause and insert in lieu the amount "$7.26".

(ii) Delete the amount of "6 cents" appearing in paragraph (b) of this subclause and insert in lieu the amount of "7 cents".

(iii) Delete the amount of "17 cents" appearing in paragraph (c) of this subclause and insert in lieu the amount of "18 cents".

(b) Subclause (11): Delete the amount "$9.90" appearing in this subclause and insert in lieu the amount of "$10.70".

3. Clause 24.—Travelling Allowance: Delete the amount of "$1.00" appearing in subclause (1) of this clause and insert in lieu the amount of "$1.08".

4. Clause 25.—Clothing Allowance: Delete the amount of "$1.15" appearing in subclause (1) of this clause and insert in lieu the amount of "$1.25".

5. Clause 26. — Wages: Subclause (6)—Tool Allowance: Delete the amount of "$6.80" appearing in paragraphs (a) and (b) of this subclause and insert in lieu the amount of "$7.40".

6. Clause 27.: For employees, subject to the provisions of this award and employed by Allied Eneabba Pty Ltd the following provision replaces that contained in subclause (1) of this clause:

(1) All workers, including apprentices shall be paid a Service and Attendance Allowance in conformity with the following scale:

Upon completion of 6 months' continuous service—$ 1.00 per week.

Upon completion of 12 months' continuous service—$6.30 per week.

Upon completion of 2 years' continuous service—$8.30 per week.




7. Overaward Payment: The Commission recom- mended at the hearing of this application that the existing overaward payment be indexed to a new level of $10.84 per week.

OUTSTATION PILOT CREWS- HARBOUR AND LIGHT DEPARTMENT.



No. 389 of 1984.

Between Merchant Service Guild of Australia. Western Australian Branch, Union of Workers and Maritime Workers' Union of Western Australia, Union of Workers, Applicants, and The Honourable Minister for Transport, Respondent.

Order. HAVING heard Mr T. Boronovskis on behalf of the applicant and Mr B. G. Arlow on behalf of the respondent, and by consent, the Commission, pursuant to the powers conferred on it under the Industrial Arbitration Act, 1979 hereby orders—

That the Outstation Pilot Crews—Harbour and Light Department Award No 4 of 1981 as varied be further varied in accordance with the following schedule and that such variation shall have effect on and from the 7th day of May, 1984.




Schedule. Clause 19.—Uniforms: Delete subclause (2) of this

clause and insert in lieu:— (2) All uniforms will be laundered by the

employer at no cost to the worker or an allowance of $7.90 per week shall be paid to the worker for the purpose of dry cleaning.

RAILWAY EMPLOYEES. Award No. 18 of 1969.


No. 830 of 1984.

Between Amalgamated Metal Workers and Shipwrights Union of Western Australia, Applicant, and Western Australian Government Railways Com- mission, Respondent.

Order. HAVING heard Mr J. Sharp-Collett on behalf of the applicant and intervening on behalf of the Trades and Labor Council of Western Australia and Mr C. Mit- sopoulos on behalf of the respondent, and by consent, the Commission in Court Session, pursuant to the powers conferred on it under the Industrial Arbitration Act, 1979, hereby orders—

That the Railway Employees Award No. 18 of 1969 be varied in accordance with the following schedule and that such variation shall have effect from the beginning of the first pay period commencing on or after the date hereof.



(Sgd.) B. J. COLLIER, [L.S.] Senior Commissioner.

STATE ENERGY COMMISSION SHIFT WORKERS (MUJA POWER STATION)

TRAVELLING ALLOWANCE. Award No. 45 of 1965.


No. 277 of 1982.

Between The Federated Engine Drivers' and Firemens' Union of Workers of Western Australia and The Federated Miscellaneous Workers' Union of Australia, Hospital, Service and Miscellaneous W.A. Branch, Applicant, and The State Energy Commission of Western Australia, Respondent.

Order. HAVING heard Dr S. Kennedy on behalf of The Federated Miscellaneous Workers' Union of Australia, Hospital, Service and Miscellaneous, W.A. Branch; Mr R. A. Keegan on behalf of The Federated Engine Drivers' and Firemen's Union of Workers of Australia and Mr B. Duploch on behalf of the respondent, and by consent the Commission, pursuant to the powers conferred on it under the Industrial Arbitration Act, 1979 hereby orders—

That The State Energy Commission Shift Workers (Muja Power Station) Travelling Allowance Award No. 45 of 1965 be varied in accordance with the following schedule and that such variation shall have effect as from the beginning of the first pay period commencing on or after the date hereof.



Schedule. Clause 4.—Travelling Allowance: Delete this clause

and insert the following in lieu:— 4.—Travelling Allowance.

Each employee to whom this award applies and who resides outside a radius of 10 kilometres from the Muja Power Station shall be paid an allowance of $2.15 for each day on which he travels to and from work by private transport.

Schedule. Clause 16.—Workers Performing Higher Duties:

Delete this clause and insert the following in lieu:— 16.—Workers Performing Higher Duties. (1) A worker engaged on duties carrying a higher

rate than his ordinary classification shall be paid the higher rate for the time he is so engaged, but if so engaged for more than two hours of one day or shift, he shall be paid the higher rate for the whole day or shift: Provided, however, that acting time of less than 20 minutes in any one day or shift shall not be counted; Provided further that the conditions applicable to such higher duties shall apply.

(2) Should any worker be required to perform work in a lower grade, his wage shall not be reduced whilst employed in such capacity.

TRANSPORT WORKERS (General).



No. 557 of 1982.

Between Transport Workers' Union of Australia, In- dustrial Union of Workers, Western Australian Branch, Applicant, and Australian Glass Manufac- turers Co Pty Ltd and Others, Respondents.

Order. HAVING heard Mr J. J. O'Connor on behalf of the applicant and Mr D. M. Jones on behalf of respondents, and by consent, the Commission, pursuant to the


powers conferred on it under the Industrial Arbitration Act, 1979 hereby orders—

That the Transport Workers (General) Award No. 10 of 1961 as varied, consolidated and varied be further varied in accordance with the following schedule and that such variation shall have effect on and from the 15th day of September, 1984.



Schedule. 1. Clause 2.—Arrangement: Delete this clause and in-

sert in lieu:— 2.—Agreement.

1. Title. 2. Arrangement. 3. Scope. 4. Area. 5. Term. 6. Leave to Apply. 7. Wages. 8. Extra Rates. 9. Hours. 9A. Implementation of 38 Hour Week. 9B. Procedures for In-Plant Discussions. 9C. Hours Transition Provision.

10. Saturday and Sunday Time. 11. Night Work. 12. Overtime. 13. Distant Work, Board and Lodging. 14. Time and Wages Record. 15. Meals. 16. Holidays. 17. Annual Leave. 18. Sick Leave. 19. Contract of Service. 20. Payment of Wages. 21. Provision of Tools and Gear. 21 A. Handling Heavy Articles. 22. Mixed Functions. 23. Proportion of Juniors. 24. Junior Workers'Certificate. 25. Location Allowance. 26. Definitions. 27. Learning Round. 28. Long Service Leave. 29. Bereavement Leave. 30. Maternity Leave. 31. Air Conditioning. 32. Dispute Settlement Procedures.

Schedule of Respondents. Liberty to Apply.

2. Clause 9.—House; Delete this clause and insert in lieu:—-

9.—Hours. (1) Subject to the provisions of this subclause

and clauses 9A.—Implementation of 38 Hour Week, 9B.—Procedures for In-Plant Discussions and 9C.—Hours Transition Provision of this award the ordinary hours of work shall be an average of 38 per week to be worked on one of the following bases.

(i) 38 hours within a work cycle not exceeding seven consecutive days: or

(ii) 76 hours within a work cycle not exceeding 14 consecutive days; or

(iii) 114 hours within a work cycle not exceeding 21 consecutive days; or

(iv) 152 hours within a work cycle not exceeding 28 consecutive days.

(2) The ordinary hours of work may be worked on any or all days of the week, Monday to Friday inclusive, and shall be worked between the hours of

6.30 am and 6.30 pm. Provided that the spread of hours may be altered by agreement between the employer and the union.

(3) Notwithstanding the provisions of subclause (2), of this clause the ordinary hours of workers—

(a) engaged in connection with the transpor- tation of livestock; newspaper delivery; milk, cream, icream or dairy produce industries; pastrycooks' products; and ice- carting shall not exceed 38 hours per week, or an average of 38 hours per week in accordance with Subclause (1) of this clause, to be worked in continuous shifts (except for meal breaks) on. not more than six days of the week.

(b) engaged in driving over distances in excess of 321.8 kilometres (200 miles) in a complete journey (but only in respect of that journey), shall not exceed 38 hours per week, or an average of 38 hours per week in accordance with subclause (1) of this clause, to be worked in continuous shifts (except for meal breaks) on not more than six days of the week.

(4) (a) Where an employer desires to vary or change the starting and finishing time of ordinary hours of any worker or workers covered by subclauses (2) and (3) (a) of this clause, he shall give one week's notice of such variation or change to such worker or workers and post a notice of the intended change at the depot, garage or yard.

(b) The provisions of subclause (4) (a) of this clause do not apply to the milk and cream industry.

(5) The ordinary hours of work shall not exceed 10 hours on any day.

Provided that in any arrangement of ordinary working hours, where such ordinary hours are to exceed 8 hours on any day, the arrangement of hours shall be subject to the agreement between the employer and the majority of employees in the plant or section or sections concerned.

(6) Liberty to apply is reservd to either party to amend this clause for the purpose of making provision for shift workers.

3. After Clause 9.—Hours insert a new Clause 9A.—Implementation of 38 Hour Week in the following terms:—

9A.—Implementation of 38 Hour Week. (1) Except as provided in subclause (4) of this

clause, the method of implementation of the 38 hour week may be any one of the following—

(a) by employees working less than eight ordinary hours each day; or

(b) by employees working less than eight ordinary hours on one or more days each week; or

(c) by fixing one day of ordinary working hours on which all employees will be off duty during a particular work cycle; or

(d) by rostering employees off duty on various days of the week during a particular work cycle so that each employee has one day or ordinary working hours off duty during that cycle.

(e) Any day off duty shall be arranged so that it does not coincide with a holiday prescribed in subclause (1) of Clause 16.—Holidays of this award.

(2) In each plant, an assessment should be made as to which method of implementation best suits the business and the proposal shall be discussed with the employees concerned, the objective being to reach agreement on the method of implementation prior to 15th December, 1984.

WESTERN AUSTRALIAN INDUSTRIAL GAZETTE. 2175

(3) In the absence of an agreement at plant level, the procedure for resolving special anomalous or extraordinary problems shall be applied in accordance with Clause 32.—Dispute Settlement Pro- cedures of this award. The procedure shall be applied without delay.

(4) Different methods of implementation of a 38 hour week may apply to various groups or sections of employees in the plant or establishment concerned.

(5) Notice of Days Off Duty. Except as provided in subclause (6) of this clause,

in cases where, by virtue of the arrangement of his ordinary working hours, an employee, in accordance with paragraphs (c) and (d) of subclause (1) of this clause, is entitled to a day off duty during his work cycle, such employee shall be advised by the employer at least four weeks in advance of the day he is to take off duty.

(6) (a) An employer, with the agreement of the majority of employees concerned, may substitute the day an employee is to take off in accordance with paragraphs (c) and (d) of subclause (1) of this clause, for another day in the case of a breakdown in machinery or a failure or shortage of electric power or to meet the requirements of the business in the event of rush orders or some other emergency situation.

(b) An employer and employee may by agreement substitute the day the employee is to take off for another day.

(c) An employer and employee may, by agreement, allow rostered days off work to accumulate, and such accumulated days shall be taken at a mutually convenient time.

4. After Clause 9A.—Implementation of 38 Hour Week insert a new Clause 9B.—Procedures for In-Plant Discussions in the following terms:

9B.—Procedures for In-Plant Discussions. (1) Procedures shall be established for in-plant

discussions, the objective being to agree on the method of implementing a 38-hour week in accordance with Clauses 9. — Hours and 9A.—Implementation of 38 Hour Week of this award and shall entail an objective review of current practices to establish where improvements can be made and implemented.

(2) The procedures should allow for in-plant discussions to continue even though all matters may not be resolved by 15th December, 1984.

(3) The procedures should make suggestions as to the recording of understandings reached and methods of communicating agreements and understandings to all employees, including the overcoming of language difficulties.

(4) The procedures should allow for the monitoring of agreements and understandings reached in- plant.

(5) In cases where agreement cannot be reached in-plant in the first instance or where problems arise after initial agreements or understandings have been achieved in-plant, a formal monitoring procedure shall apply. The basic steps in this procedure shall be as provided in Clause 32.—Dispute Settlement Procedures of this award.

5. After Clause 9B.—Procedures for In-Plant Discus- sions insert a new Clause 9C.—Hours Transition Provi- sion in the following terms:

9C.—Hours Transition Provision. (1) The concept of a 38-hour week shall operate

from 15th September, 1984, however in recognition of the difficulties associated with its introduction an employer may implement the 38-hour week after that date provided that such implementation shall occur no later than 15th December, 1984.

(2) Where an employer implements the 38-hour week at a date later than 15th September, 1984 an employee shall become entitled to a payment at the date of implementation which shall accrue at the rate of two ordinary hours' pay for each week of 40 ordinary hours that is worked after 15th September, 1984. Provided that in any such week where less than 40 ordinary hours are worked then the rate of two ordinary hours' pay shall be reduced proportionately except where an employee is absent from duty in a circumstance that entitles him to payment for the absence pursuant to other provisions of this award.

6. Clause 10.—Saturday and Sunday Time: Delete this clause and insert in lieu:—

10.—Saturday and Sunday Time. All ordinary time worked in accordance with

subclause (3) of Clause 9.—Hours of this award on Saturdays shall be paid for at the rate of time and one half, and all ordinary time worked on Sundays shall be paid for at the rate of double time.

7. Clause 12.—Overtime: Delete this clause and insert in lieu:—

12.—Overtime. (1) Subject to subclause (4) of this clause, all

time worked—

(a) outside the ordinary hours of work prescribed for any day in Clause 9.—Hours of this award; or

(b) outside the ordinary hours of work prescribed for any week by Clause 9.—Hours of this award but which time would not be outside the ordinary hours for any day,

shall stand alone and be paid for at the rate of time and a half for the first two hours and double time thereafter in addition to the ordinary weekly wage. Provided that all overtime worked on Sunday and Saturday after 12 noon shall be paid for at the rate of double time and provided further that the penalty rates prescribed in Clause 10.—Saturday and Sunday Time and Clause 11.—Night Work of this award shall not be regarded as part of the ordinary rate for calculating overtime.

For the purposes of this subclause, ordinary hours shall mean the hours of work fixed in an establishment in accordance with Clauses 9.—Hours, 9A.—Implementation of 38 Hour Week and 9B.—Procedures for In-Plant Discus- sions of this award.

(2) A worker required for work on a day other than his ordinary working day or recalled to work after leaving his employer's business premises shall be paid for a minimum of three hours' work at the appropriate rate.

(3) Notwithstanding anything contained in this award—

(a) an employer may require any worker to work reasonable overtime at overtime rates and such worker shall work overtime in accordance with such requirements;

(b) the union or any worker or workers covered by this award shall not in any way, whether directly or indirectly, be a party to or concerned in any ban, limitation or restriction upon the working of overtime in accordance with the requirements of this subclause.

(4) (a) (i) When overtime work is necessary it shall wherever reasonably practicable, be so arranged that workers have at least 10 consecutive hours off duty between the work of successive days.


(ii) A worker (other than a casual worker) who works so much overtime between the termination of his ordinary work on one day and the commencement of ordinary hours on the next day, that he has not had at least 10 consecutive hours off duty between those times, shall, subject to this subclause be released after completion of such overtime until he has had 10 consecutive hours off duty without loss of pay for ordinary working time occurring during such absence.

(iii) If, on the instruction of his employer, such a worker resumes or continues work without having had such 10 consecutive hours off duty he shall be paid at double rates until he is released from duty for such period and he shall then be entitled to be absent until he has had 10 consecutive hours off duty without loss of pay for ordinary working time occurring during such absence.

8. Clause 15.—Meals: Delete this clause and insert in lieu:—

15.—Meals. (1) A worker required to work overtime for two

hours or more shall be supplied with a reasonable meal by the employer or paid $3.95 for a meal.

(2) If the amount of overtime required to be worked necessitates a second or subsequent meal, the employer shall provided such meals or pay an amount of $2.75 for each second or subsequent meal.

(3) No such payments need to be made to a worker living in the same locality as his place of work who can reasonably return home for such meals.

(4) Every worker shall be allowed each day a meal break of not less than 30 minutes nor more than one hour, to commence at any time between the end of the third and end of the fifth hour of the day's employment, except where an alternative arrangement is entered into as a result of discussions as provided for in Clause 9B.—Procedures for In- Plant Discussions of this award.

(5) When a worker is required by his employer for duty during any meal time whereby his meal time is postponed for more than one half hour he shall be paid at overtime rates until he gets his meal.

9. Clause 17.—Annual Leave: Delete paragraph (b) of subclause (5) of this clause and insert in lieu: —

(b) If, after one month's continuous service in any qualifying 12 monthly period an employee lawfull leaves his employment or his employment is terminated by the employer through no fault of the worker the worker shall—

(i) if such termination occurs before 15th December, 1984, be paid 3.08 hours' pay at the rate of wage prescribed by subclause (1) of this clause, divided by 40, in respect of each completed week of continuous service; or

(ii) if termination occurs on or after 15th December, 1984, be paid 2.923 hours' pay at the rate of wage prescribed by subclause (1) of this clause, divided by 38, in respect of each completed week of continuous service.

64 W.A.I.G.

10. Clause 18.—Sick Leave: Delete this clause and insert in lieu:—

18.—Sick Leave. (1) (a) A worker who is unable to attend or re-

main at his place of employment during the ordinary hours of work by reason of personal ill health or injury shall be entitled to payment during such absence in accordance with the provisions of this clause.

(i) Worker who actually works 38 ordinary hours each week.

A worker whose ordinary hours of work are arranged in accordance with paragraph (a) or (b) of subclause (1) of Clause 9A.—Implementation of 38 Hour Week of this award so that he actually works 38 ordinary hours each week shall be entitled to payment during such absence for the actual ordinary hours absent.

(ii) Worker who works an average of 38 ordinary hours each week.

A worker whose ordinary hours of work are arranged in accordance with paragraph (c) or (d) of subclause (1) of Clause 9A.—Implementation of 38 Hour Week of this award so that he works an average of 38 ordinary hours each week during a particular work cycle shall be entitled to pay during such absence calculated as follows:

duration appropriate of absence weekly rate

ordinary hours 5 normally worked

that day A worker shall not be entitled to claim

payment for personal ill health or injury nor will his sick leave entitlement be reduced if such ill health or injury occurs on the week day he is to take off duty in accordance with paragraph (c) or (d) of subclause (1) of Clause 9A.—Implemen- tation of 38 Hour Week of this award.

(b) Notwithstanding the provisions of paragraph (a) of this subclause an employer may adopt an alternative method of payment of sick leave entitlements where the employer and the majority of his workers so agree.

(c) Entitlement to payment shall accrue at the rate of one-sixth of a week for each completed month of service with the employer.

(d) If in the first or successive years of service with the employer a worker is absent on the ground of personal ill health or injury for a period longer than his entitlement to paid sick leave, payment may be adjusted at the end of that year of service, or at the time the worker's services terminate, if before the end of that year of service, to the extent that the worker has become entitled to further paid sick leave during that year of service.

(2) The unused portions of the entitlement to paid sick leave in any one year shall accumulate from year to year and subject to this clause may be claimed by the worker if the absence by reason of personal ill health or injury exceeds the period for which entitlement has accrued during the time of the absence. Provided that a worker shall not be entitled to claim payment for any period exceeding 10 weeks in any one year of service.

(3) To be entitled to payment in accordance with this clause the worker shall as soon as reasonably practicable advise the employer of his inability to attend for work, the nature of his illness or injury and the estimated duration of the absence. Provided


that such advice, other than in extraordinary circumstances shall be given to the employer within 24 hours of the commencement of the absence.

(4) The provisions of this clause do not apply to a worker who fails to produce a certificate from a medical practitioner dated at the time of the absence or who fails to supply such other proof of the illness or injury as the employer may reasonably require provided that the worker shall not be required to produce a certificate from a medical practitioner with respect to absences of two days or less unless after two such absences in any year of service the employer requests in writing that the next and subsequent absences in that year if any, shall be accompanied by such certificate.

(5) (a) Subject to the provisions of this subclause, the provisions of this clause apply to a worker who suffers personal ill health or injury during the time when he is absent on annual leave and a worker may apply for and the employer shall grant paid sick leave in place of paid annual leave.

(b) Application for replacement shall be made within seven days of resuming work and then only if the worker was confined to his place of residence or a hospital as a result of his personal ill health or injury for a period of seven consecutive days or more and he produces a certificate from a registered medical practitioner that he was so confined. Provided that the provisions of this paragraph do not relieve the worker of the obligation to advise the employer in accordance with subclause (3) of this clause if he is unable to attend for work on the working day next following his annual leave.

(c) Replacement of paid annual leave by paid sick leave shall not exceed the period of paid sick leave to which the worker was entitled at the time he proceeded on annual leave and shall not be made with respect to fractions of a day.

(d) Where paid sick leave has been granted by the employer in accordance with paragraphs (a), (b) and (c) of this subclause, that portion of the annual leave equivalent to the paid sick leave is hereby replaced by the paid sick leave and the replaced annual leave may be taken at another time mutually agreed to by the employer and the worker or, failing agreement, shall be added to the employee's next period of annual leave or, if termination occurs before then, be paid for in accordance with the provisions of Clause 17.—Annual Leave of this award.

(e) Payment for replaced annual leave shall be at the rate of wage applicable at the time the leave is subsequently taken provided that the annual leave loading prescribed in Clause 17.—Annual Leave of this award shall be deemed to have been paid with respect to the replaced annual leave.

(6) Where a business has been transmitted from one employer to another and the employee's service has been deemed continuous in accordance with subclause (3) of Clause 2.—Long Service of the Long Service Leave provisions published in volume 64 of the Western Australian Industrial Gazette at pages 1-4. the paid sick leave standing to the credit of the worker at the date of transmission from service with the transmitter shall stand to the credit of the worker at the commencement of service with the transmittec and may be claimed in accordance with the provisions of this clause.

(7) The provisions of this clause with respect to payment do not apply to workers who are entitled to payment under the Workers' Compensation Act nor to workers whose injury or illness is the result of the worker's own misconduct.

(8) The provisions of this clause do not apply to casual workers.

11. Clause 20.—Payment of Wages: Delete this clause and insert in lieu:—

20.—Payment of Wages. (1) (a) Wages shall be paid in the worker's time

on a particular day to be determined by the employer. The day having been so determined shall not be altered more than once in three months. All wages shall be paid enclosed in an envelope, which shall be clearly endorsed on the outside with the particulars enumerated hereunder:—

(i) Name (ii) Hourly Rate

(iii) Overtime (iv) Allowance (v) Penalties

(vi) Gross Wage (vii) Deductions

(viii) Nett Wage Provided that at the option of the employer, the

particulars mentioned may be stated on a slip of paper and included in the envelope.

(b) All overtime, allowances and penalty rates prescribed by this award shall be paid within five days of the expiration of the week in which they accrue.

(c) Provided that workers employed on work north of the 27th parallel of south latitude shall be paid at least fortnightly.

(2) Each worker shall be paid the appropriate rate shown in Clause 7.—-Wages of this award. Subject to subclause (3) of this clause payment shall be pro rata where less than the full week is worked.

(3) From the date that a 38-hour week system is implemented by an employer wages shall be paid as follows:

(a) Actual 38 ordinary hours. In the case of a worker whose ordinary

hours of work are arranged in accordance with paragraph (a) or (b) or subclause (1) of Clause 9A.—Implementation of 38 Hour Week of this award so that he works 38 ordinary hours each week, wages shall be paid weekly according to the actual ordinary hours worked each week.

(b) Average of 38 ordinary hours. Subject to subclause (3) and (4) of this

clause, in the case of a worker whose ordinary hours of work are arranged in accordance with paragraph (c) or (d) of subclause (1) of Clause 9A.—Implemen- tation of 38 Hour Week of this award, so that he works an average of 38 ordinary hours each week during a particular work cycle, wages shall be paid weekly according to a weekly average of ordinary hours worked even though more or less than 38 ordinary hours may be worked in any particular week of the work cycle.

SPECIAL NOTE—Explanation of Averaging System. As provided in paragraph (b) of this subclause a

worker whose ordinary hours may be more or less than 38 in any particular week of a work cycle, is to be paid his wages on the basis of an average of 38 ordinary hours so as to avoid fluctuating wage payments each week. An explanation of the averaging system of paying wages is set out below:

(i) Clause 9A.—Implementation of the 38 Hour Week of this award in subclause (1) paragraphs (c) and (d) provides that in implementing a 38-hour week the ordinary hours of a worker may be arranged so that he is entitled to a day off, on a fixed day or rostered day basis, during each work cycle. It is in these circumstances that the averaging system would apply.


(ii) If the 38-hour week is to be implemented so as to give a worker a day off in each work cycle this would be achieved if, during a work cycle of 28 consecutive days (that is, over four consecutive weeks) the worker's ordinary hours were arranged on the basis that for three of the four weeks he worked 40 ordinary hours each week and in the fourth week he worked 32 ordinary hours. That is, he would work for eight ordinary hours each day, Monday to Friday inclusive for three weeks and eight ordinary hours on four days only in the fourth week—a total of 19 days during the work cycle.

(iii) In such a case the averaging system applies and the weekly wage rates for ordinary hours of work applicable to the worker shall be the average weekly wage rates set out for the worker's classification in Clause 7.—Wages of this award, and shall be paid each week even though more or less than 38 ordinary hours are worked that week.

In effect, under the averaging system, the worker accrues a "credit" each day he works actual ordinary hours in excess of the daily average which would otherwise be seven hours 36 minutes. This "credit" is carried forward so that in the week of the cycle that he works on only four days, his actual pay would be for an average of 38 ordinary hours even though, that week, he works a total of 32 ordinary hours.

Consequently, for each day a worker works eight ordinary hours he accrues a "credit" of 24 minutes (0.4 hours). The maximum "credit" the worker may accrue under this system is 0.4 hours on 19 days; that is, a total of seven hours 36 minutes.

(iv) As provided in subclause (3) of this clause, a worker will not accrue a "credit" for each day he is absent from duty other than on annual leave, long service leave, holidays prescribed under this award, paid sick leave, workers' compensation or bereavement leave.

(4) Absences from Duty. (a) A worker whose ordinary hours are ar-

ranged in accordance with paragraph (c) or (d) of subclause (1) of Clause 9A.—Implementation of 38 Hour Week of this award and who is paid wages in accordance with paragraph (a) of subclause (2) of this clause and is absent from duty (other than on annual leave, long service leave, holidays prescribed under this award, paid sick leave, workers' compensation or bereavement leave) shall, for each day he is so absent, lose average pay for that day calculated by dividing his average weekly wage rate by five.

A worker who is so absent from duty for part of a day shall lose average pay for each hour he is absent by dividing his average daily pay rate by eight.

(b) Provided when such a worker is absent from duty for a whole day he will not accrue a "credit" because he would not have worked ordinary hours that day in excess of 7 hours 36 minutes for which he would otherwise have been paid. Conse- quently, during the week of the work cycle he is to work less than 38 ordinary hours he will not be entitled to average

pay for that week. In that week, the average pay will be reduced by the amount of the "credit" he does not accrue for each whole day during the work cycle he is absent.

The amount by which a worker's average weekly pay will be reduced when he is absent from duty (other than on annual leave, long service leave, holidays prescribed under this award, paid sick leave, workers' compensation or bereavement leave) is to be calculated as follows:

Total of "credits" not average accrued during cycle x weekly pay

Examples (A worker's ordinary hours are arranged so that

he works eight ordinary hours on five days of each week for 3 weeks and eight ordinary hours on four days of the fourth week.)

1. Worker takes one day off without authorisation in first week of cycle. Week of Cycle Payment 1st week = average weekly pay

less one day's pay (ie. l/5th) 2nd and 3rd

weeks = average weekly pay each week 4th week = average pay

less credit not accrued on day of absence

= average pay less 0.4 hours x average weekly pay _

2. Worker takes each of the 4 days off without authorisation in the 4th week. Week of Cycle Payment 1st, 2nd and 3rd weeks = average pay each week

4th week = average pay less 4/5ths of average pay for the four days absent less total of credits not accrued that week

= I/5th average pay less 4 x 0.4 hours x average weekly pay

38 = l/5th average pay

less 1.6 hours x average weekly pay 38

(5) Alternative Method of Payment. An alternative method of paying wages to that

prescribed by subclauses (3) and (4) of this clause may be agreed between the employer and the majority of the workers concerned.

(6) Day Off Coinciding with Pay Day. In the event that a worker, by virtue of the ar-

rangement of his ordinary working hours, is to take a day off duty on a day which coincides with pay day, such employee shall be paid no later than the working day immediately following pay day. Pro- vided that, where the employer is able to make suitable arrangements, wages may be paid on the working day preceding pay day.

(7) Payment by Cheque or Deposit into Account. Where an employer and the union agree, wages

may be paid by cheque or by direct transfer of wages into an account nominated by the worker.

(8) Termination of Employment. A worker who lawfully leaves his employment or

is dismissed for reasons other than misconduct shall be paid all moneys due to him at the termination of his service with the employer.

Provided that in the case of a worker whose ordinary hours are arranged in accordance with paragraph (c) or (d) of subclause (1) of Clause 9A.—Implementation of 38 Hour Week of this award and who is paid average pay and who has


not taken the day off due to him during the work cycle in which his employment is terminated, the wages due to that worker shall include a total of credits accrued during the work cycle as detailed in the Special Note following paragraph (b) of subclause (2) of this clause.

Provided further, where the worker has taken a day off during the work cycle in which his employment is terminated, the wages due to that worker shall be reduced by the total of credits which have not accrued during the work cycle.

(9) Calculation of Hourly Rate. Except as provided in subclause (3) of this clause

the ordinary rate per hour shall be calculated by dividing the appropriate weekly rate by 38.

12. After Clause 31.—Air Conditioning insert a new Clause 32.—Dispute Settlement Procedures in the following terms:—

32.—Dispute Settlement Procedures. (1) Any grievance, complaint, claim or dispute,

or any matter which is likely to result in a dispute, between any party to this award, shall be subject to discussion procedures which ensure that the parties are promptly and fully informed of the issues involved, and any differences arising therefrom shall be discussed with a view to avoid industrial action.

(2) The employer shall advise the accredited representatives of the union of any proposed changes in the normal pattern of working ar- ranements affecting members and if the matter is not resolved the general machinery provisions of this clause shall apply.

(3) Where a worker or the job steward has submitted a request concerning any matter directly connected with employment to a foreman, or a more senior representative of management, and that request has been refused, the worker may, if he so desires, ask the job steward to submit the matter to management and the matter may then be submitted by the job steward to the depot or area supervisor.

(4) If not settled at this stage the matter shall be the subject of formal discussion between the union and the employer.

(5) Should the issue remain in dispute either party may refer the matter to the Western Australian Industrial Commission for determination.

(6) The settlement procedures provided by this clause shall be applied to all manner of disputes referred to in subclause (1) of this clause, and no party, or individual, or group of individuals, shall commence any other action, of whatever kind, which may frustrate a settlement in accordance with its procedures. Observance of these procedures shall in no way prejudice the right of any party, or individual, in dispute to refer the matter for resolution by the Western Australian Industrial Commission.

2179

AWARDS—Application for Variation of—No

Variation Resulting—

HOSPITAL WORKERS (Government),

Award No. 21 of 1966. and

ENROLLED NURSES AND NURSING ASSISTANTS

(Government). Award No. R7 of 1978.


No. 514 and 515 of 1984.

Between the Federated Miscellaneous Workers' Union of Australia, Hospital, Service and Miscellaneous, W.A. Branch, Applicant, and The Board of Management Royal Perth Hospital and others, Respondents.

Before Mr Commissioner G. G. Halliwell.

The 17th day of October, 1984. Dr S. A. Kennedy on behalf of the Applicant. Miss M. H. Kuhne on behalf of the Respondents.

Reasons for Decision. (Given extemporaneously at the conclusion of the sub-

mission.) HALLIWELL C: The fundamental hurdle necessary to be overcome by the applicant was to show that the possession of the sterilisation technology certificate was a prerequisite to employment in the CSSD area by the employers the subject of the present claim.

It has been demonstrated by the respondents, by way of evidence and submissions, that the possession of the sterilisation technology certificate is not a prerequisite to initial employment, nor is it a prerequisite for advancement in the CSSD area. Further, the evidence is that no change in duties or responsibilities for employees in CSSDs occurs as a result of the possession of the certificate.

Training in CSSD duties and responsibilities is presently supplied by in-hospital training by the respondents to these claims.

It is not the function of the Commission to require employers to employ persons holding any particular qualifications. Qualifications for particular employment are set by statute and/or by the employers concerned. These issues are plainly matters of managerial prerogative and they are thus outside of the jurisdiction of this Commission to determine.

As earlier stated, as the respondent employers do not require possession of the sterilising technology certificate for employment or promotion of employees in CSSDs, there is no determination presently to be made. Allowances of this nature are determined when the employer requires the attainment of particular qualifications for employment or advancement, not when the employee freely chooses to advance his or her knowledge or interest in their chosen area of employment.

For those reasons, the applications are refused.



Nos. 514 and 515 of 1984.

Between the Federated Miscellaneous Workers' Union of Australia, Hospital, Service and Miscellaneous, W.A. Branch, Applicant, and The Board of Management Royal Perth Hospital and Others, Respondents.

Order. HAVING heard Dr S. A. Kennedy on behalf of the applicant and Miss M. H. Kuhne on behalf of the respondents, the Commission, pursuant to the powers conferred on it under the Industrial Arbitration Act, 1979 hereby orders—

That the applications be dismissed.


(Sgd.) G. G. HALLIWELL, [L.S.] Commissioner.

PERMANENT BUILDING SOCIETIES (Administrative and Clerical Officers).



No. 588 of 1984.

Between Federated Clerks' Union of Australia In- dustrial Union of Workers, W.A. Branch, Appli- cant, and City Building Society and Others, Respondents.

Order. HAVING heard Mr C. D. Panizza on behalf of the applicant and Mrs P. E. Bentley on behalf of respondents, the Commission, pursuant to the powers conferred on it under the Industrial Arbitration Act, 1979, hereby orders—

That the application be dismissed.


(Sgd.) G. J. MARTIN, Commissioner.

AWARDS—interpretation of—

SALT PRODUCTION AND PROCESSING— DAMPIER SALT (Operations) PTY. LIMITED—

DAMPIER AM) LAKE McLEOD. Award No. A7 of 1983.


No. 426 of 1984.

Between Dampier Salt Operations Pty. Ltd., Applicant, and Amalgamated Metal Workers' and Ship- wrights Union of Western Australia and Others, Respondents.

Before Mr Commissioner G. J. Martin. The 8th day of November, 1984.

Mr L. A. Jackson of Counsel on behalf of the applicant.

Mr J. F. Brooksby of Counsel on behalf of the respondents.

Reasons for Decision. THE COMMISSIONER: This is an application made pursuant to section 46 of the Industrial Arbitration Act, 1979 for a declaration of the true interpretation of subclauses (1) and (2) of Clause 47.—Housing Subsidy of the Salt Production and Processing—Dampier Salt (Operations) Pty. Limited—Dampier and Lake McLeod Award No. A7 of 1983 as varied (63 W.A.I.G. p. 1151).

That award was issued on the 30th day of June, 1983 by the consent of the parties and Clause 47.—Housing Subsidy so far as it is relevant to this application reads as follows:

47.—Housing Subsidy. (1) Except for employees in accommodation pro-

vided by the employer, a subsidy of $55.00 per week shall be paid for accommodation purposes.

(2) The manner in which the subsidy is paid will be by arrangement between the parties.

(3) . . . (63 W.A.I.G. p. 1151 at p.1573.)

The questions posed by the applicant are as follows: 1. Is, on a true interpretation of Clause 47 of the

award, an employee who has been granted a mortgage pursuant to the Scheme, entitled to the housing subsidy prescribed in Clause 47?

2. Has, on a true interpretation of Clause 47 of the award, the applicant (employer) fulfilled its obligations pursuant to Clause 47 by the provisions of the scheme?

The applicant contends that the first question should be answered in the negative and the second in the affirmative.

The respondents take the contrary view to each of these questions.

The "scheme" referred to in both questions is in short a low interest housing purchase loan available ex- clusively to employees of the applicant employed at its Lake McLeod operations from Terminating Building Societies established with finance provided by the applicant and the State Government.

I first heard the application on the 19th day of July, 1984 when the applicant presented its submissions and evidence. Then due to my commitments and those of Counsel for the respondents the matter was adjourned to a date to be fixed. The proceedings resumed on the 23rd day of October, 1984 and on the 24th day of Oc- tober, 1984 I reserved my decision.

The background to the application is as follows: The applicant, has at least since 1975 been engaged in

the production and processing of salt at Dampier (see 56 W.A.I.G. p. 628). In December 1978 the applicant formally took over the operations of Texada Mines Pty.


Ltd., a company which was concerned with the production and processing of salt and potash (the latter substance never being fully developed) at Lake McLeod, near Carnarvon. (That company had been in operation since 1969 (see 49 W.A.I.G. p. 785 and 786).)

At that point the employees, engaged in the Lake McLeod operation resided either in:

The Hearn Place Flats owned by the employer and which consisted of 26 flats. These were occupied predominantly by staff members with very limited access to wages employees. The latter employees paid a rental of $20.00 per week.

Private accommodation (including owned properties).

State Housing Commission properties. Caravan Parks (a relatively high number).

As from the 1st day of December, 1978 employees not residing in Employer owned accommodation or in State Housing Commission accommodation were paid a housing subsidy of $28.00 per week—no such subsidy had previously been paid. That amount was increased to $34.00 per week in July 1979.

Between March 1979 and early 1981 the applicant's operations were effectively reduced to a care and maintenance status as a result of cyclone damage to the ship loading facilities and consequently the number of employees in the operation was reduced by transfer to Dampier or retrenchment.

The Housing Subsidy did not appear in the first document registered with the Commission applicable to the applicant's operations in the salt production and processing industry namely the Salt Production and Pro- cessing (Dampier Salt Ltd.) Agreement No. 16 of 1978 executed on the 30th day of June, 1978 (58 W.A.I.G. p. 994).

The "informal" arrangement made for a housing subsidy as from 1st December, 1978 is recorded in Ex- hibit 1—Folio 2A.

It is agreed between the parties that over the years the conditions under which the "Housing Subsidy" was paid, changed, for example as from the 1st day of July, 1980 the employees who had the benefit of State Hous- ing Commission accommodation became entitled to the Housing Subsidy (and which became $38.00 per week).

There was from the evidence references to qualifications relating to standards of accommodation and shared accommodation being shed as the Housing Sub- sidy evolved.

The July 1980 variation to the quantum and conditions attaching to the Housing Subsidy were reflected as Clause 46 of a document executed between the applicant and the respondents but not registered with the Com- mission. That document was known as the Salt Produc- tion and Processing—Dampier Salt (Operations Pty. Ltd.)—Dampier and Lake McLeod Agreement, 1980.

The existing award was the next documentation of the industrial relations practices of the parties.

During the life however, of the housing subsidy another sequence of events occurred which had in fact but not necessarily in law an effect on the qualifications to the entitlement of the Housing Subsidy and it is that sequence of events and the changes in qualifications resulting therefrom which give rise to these proceedings.

In 1979 the applicant indicated that it was considering a policy of assisting employees to purchase homes as an alternative to the applicant providing accommodation for employees at a nominal rental.

As a means to that end it opted for an independently operated source of finance and that was to be in the form of a Terminating Building Society.

The development of that concept went into motion and was ventilated from time to time during 1980, and during which year it was publicly announced in the

media on 2nd August, 1980 (Exhibit 1—Folio 6) when it was disclosed that the State Government had allocated $500 000 to support the applicant's housing project which it was financing from its own sources for eligible employees at Dampier and Carnarvon.

On 28th April, 1981 the applicant issued a memorandum to its employees employed at Lake McLeod (Ex- hibit 1—Folio 8) in the following terms:

I am pleased to be able to advise that progress on the proposed housing finance scheme has advanced to the stage where it is possible to release preliminary details.

Reduced interest housing loans will be available to Dampier Salt Lake McLeod Division employees who meet the qualifying conditions.

The loans will be available through a Ter- minating Building Society set up solely for that purpose.

There will be an independent Board of Directors to run the Society with one company representative.

The Society will obtain loan funds from the Company and the Government.

Loans will be approved at the discretion of the Board subject to the applicant meeting conditions of the rules. Typical of these conditions are:

(i) Only D.S.O. Lake McLeod employees may apply.

(ii) An employee must have two years of continuous service at Lake McLeod.

(iii) No other property is owned. (iv) The property is lived in by the borrower.

(v) No other finance (other than bridging) is involved.

(vi) The loan will only be operative whilst the borrower is employed by Dampier Salt, Lake McLeod Division.

Very broadly the intended loan structure is for 90 per cent of the property value (i.e. 10 per cent deposit required) at an interest rate of six per cent for a period not exceeding 25 years or such period as the Board determines. As with all societies the interest rate may vary.

At this time the rules and regulations have not been approved by the Registrar of Building Societies and as such cannot be released in full detail.

To provide Company finance for the scheme, the Hearn Place flats will be sold and it is intended to do this in May. The Company, as a condition of sale, will retain preferential rights to the rental of flats by employees for a period of 12 months.

The timing of the availability of the scheme is subject to approvals from the Registrar and the sale of the Hearn Place flats. However, 1 would op- timistically see June/July as a realistic date.

Exhibit 1— Folio 8A and directed towards employees of the applicant and tenants in the Hearn Place Flats indicated the effect upon them of the sale of the flats and the fact that upon the sale of the flats they would be paid the Housing Subsidy "as are all other company employees not accommodated in Company H ousing''.

The flats were sold at Auction on the 8th day of July, 1981 but settlement was not effected until six or seven months later due to financial difficulties experienced by the purchaser.

Finally all formalities were completed allowing the Terminating Building Societies to come into formal operation in November 1982.


Exhibit 1—Folio 8E being "Explanatory Memoran- dum of Carnarvon and Districts No. 11/No. 12 Building Societies Housing Scheme" set out the conditions of eligibility for loans as well as other relevant information and item 8 thereof (P5) contained the following:

8. Applicants will cease to receive assistance from the Company in the form of the accommodation subsidy and will incur normal shire rates, power, gas and water charges.

That condition of eligibility was reflected in the terms of the loan (advance) conveyed by the Building Society to applicants (Exhibit 1—Folio 18) and in which item (o) reads as follows:

(o) You must be employed by Dampier Salt (Operations) Pty. Ltd. at its Lake McLeod operation throughout the term of the Advance but must not be in receipt of any accommodation or similar benefit from that company. (P2.)

Six wages employees have taken part in the building society scheme. The first two loans were applied for in October 1982, one in March 1983, one on 13th May, 1983, one on 9th June, 1983 and the last in August 1983.

Each upon being accepted into the scheme ceased to be paid the Housing Subsidy.

In December 1983 a media report suggested that some of the applicant's employees were disenchanted with the housing scheme and particularly with the "loss" of the accommodation subsidy arising from participation therein (Exhibit 1—Folio 12).

That disenchantment manifested itself before this Commission by application for conference No. C178 of 1984 (April 1984), a complaint taken out before the In- dustrial Magistrate by one of the employees on 11th May, 1984, Application No. 357 of 1984 filed by the applicant in these proceedings on 2nd May, 1984 to add to Clause 47.—Housing Subsidy a new subclause (4) in the following terms:

(4) The provisions of this clause shall not apply to a worker who obtained a loan through the Car- narvon and Districts Number 11/Number 12 Building Societies Housing Scheme.

(and which application has not been listed for hearing, at the request of the applicant, pending the finalisation of the application now before me and because such a remedy has only prospective effect and cannot cover that which has transpired since 1982) and the present application for interpretation filed in the Commission on 21st May, 1984.

It is the contention of the applicant that: (a) the words "accommodation provided by the

employer" appearing in subclause (1) of the clause in question do not bear the simplistic meaning of "making available to an employee a place in which to live without charge to that employee or at a nominal rental"

(b) the provision by the employer of funds to create a building society which allows its employees relatively low cost loans for home purchase is accommodation provided by the employer.

(c) that wording in the award may require "tidy- ing up" because it can and has led to misunderstan- ding and the Commission should use its powers under paragraph (b) of subsection (1) of section 46 of the Industrial Arbitration Act, 1979 and remedy a defect or give fuller effect to the words of subclause (1) of the clause.

A better wording was suggested as "Ac- commodation provided by the employer or acquired by the employee using funds provided by the Carnarvon and Districts No. 11 or No. 12 Building Societies Housing Scheme" (Transcript Notes of Proceedings p. 101).

(d) that the wording of subclause (2) of the clause namely "the manner in which the subsidy is paid will be by arrangement between the parties"

having regard to the fact that the applicant had effected a change in the payment of the subsidy, by not paying it to those employees who participated in a building society loan without objection by the unions parties to the award, was an arrangement envisaged by that subclause.

It did not have to be an explicit agreement between the parties as the word "arrangement" is a looser word than agreement.

I note that when the Housing Subsidy was first set in- formally the word agreement and not arrangement was used (Exhibit 1—Folio 2A).

In the applicant's submission it is open for me to find that the provisions under review are ambiguous because the parties ascribe different meanings to them and thus on the basis of the authorities it is permissible to have recourse to the history of the provision and the circumstances surrounding its application (63 W.A.I.G. p. 1159 at p. 1160 and 3(5 C.L.R. p. 1 at pp. 9 and 10).

To that end its exhibits and evidence were directed to demonstrating that the applicant's intentions and plans for the creation of the building society were well known to its employees and their union representatives, as was the intention not to pay employees participating in that society the housing subsidy provided by the awards (registered and otherwise); that the scheme had been in- augurated on that basis to the knowledge of all of those persons without objection and that the scheme had been participated in by employees without objection from them or their representatives until the chain of events leading to the present proceedings.

From that evidence and the evidence adduced by the respondents in rebuttal it is my view that the respondent's contentions outlined above are basically correct albeit that the knowledge of some of the union representatives on the "fine print" of the conditions of eligibility for participation in the building society was sketchy to say the least.

It is also my view however that there was never any agreement between the parties that participation in the building society would remove the obligation to pay a housing subsidy under the award or as the applicant's witness put it:

There was not an agreement to substitute a low interest scheme for housing subsidy. There was an agreement to replace the other alternative of company accommodation for a low interest housing scheme. (Transcript Notes of Proceedings p. 72, p. 75.)

In essence that latter sentence summarises the applicant's construction of its actions namely that it provided an alternative to making available to employees a place in which to live free of charge or at a nominal rental as has been its practice (Exhibit 1—Folio 2 and 2B) by supplying or partially supplying to employees funds from which they could purchase or build a place in which to live.

The respondents submitted that the purpose of section 46 of the Industrial Arbitration Act, 1979 is to interpret what the award says and if there is an ambiguity, if there is any uncertainty about the award then the Commission has the right to look behind it. It can look at history, it can look at customs in any particular industry.

In the respondent's submission there is no ambiguity at all in the wording of subclause (1) of the clause and it means what it says, namely that the applicant supplies its employees with accommodation without charge to the employees or at a nominal rental or charge or pays them the housing subsidy for accommodation they find and fund themselves. It submitted that the wording of subclause (2) of the clause may raise some doubts as to its precise meaning but contended that regardless of the actions of any individuals (i.e. the ultimate participants in the building society) there was certainly no explicit arrangement between the applicant and the unions parties to the award which was contrary to the wording of


subclause (1) or which displaced the obligation of the employee to pay a housing subsidy to employees for which the applicant did not provide accommodation and that a loan of funds to purchase accommodation was not the same as providing accommodation.

I have commented upon its evidence as confirming that latter submission as the evidence indicates an awareness by employees and most of their representatives of the details of the Building Society scheme but as the respondents put it awareness is not the same as explicit agreement or consent thereto. That action was not initiated against the Housing Subsidy disqualification for participants in the scheme by those persons is not fatal to the present position.

So far as I am concerned the rules governing the interpretation of awards in accordance with section 46 of the Industrial Arbitration Act, 1979 are as enunciated by the Full Bench in Matters Nos. 164 and 165 of 1984 (64 W.A.I.G.p. 862 at pp. 864 and 865) and in which it was said inter alia:

It is now trite law that when the meaning of language read in its ordinary and natural sense is obtained it is not necessary or indeed permissible to look to the intention of the parties. Furthermore the strict rules do not permit construction of any document by having regard to acts done under it, see Seamen's Union of Australia v. Adelaide Steamship Co. Ltd. and Others 46 F.L.R. 444 applying; L. Schuler A.G. v. Wickham Machine Tool Sales Ltd. (1973) 2 All E.R. 39. See also Amalgamated Engineering Union v. Adams and Co. Pty. Ltd. and Others 24 C.A.R. 63 at 67.

There are normally limitations on the permissible extent of considering matters extraneous to the award. The following are examples:—

We have referred to the provisions of the relevant clauses of the award and examined also the terms of the judgement accompanying it to see what the nature and circumstances of the industry were to which the clauses were addressed and what was the object appearing from the nature and circumstances of the industry which the tribunal in framing those clauses had in view. This is an authoritative and sound method of approach to the question of the proper interpretation of an award regulating the conditions of employment of employees in an industry as complex as iron and steel making. It should be pointed out, however, that nothing that has been said should justify a meaning being given to the words that they are not capable of bearing. (In re Iron and Steel Works Limited) Award (No. 2) (1943)42 Ar. 462 at 470.)

Again:— Where a provision has appeared in an award

or succession of awards for a lengthy period of time and been acted upon without challenge by parties in a certain manner then if the award is reasonably capable of bearing such a meaning the Court ought in the normal course to adopt it as its proper meaning (O'Donnel v. Walter Buchanan Limited (1947) N.Z.L.R. 906 at 910.)

It is not without precedent, of course, for this Commission to treat a long held practice as express- ing the true intention of an award but we think the fundamental rules of construction are normally applied unless it is necessary to seek out and apply the true meaning because the award when read is ambiguous or susceptible of more than one meaning. (64 W.A.I.G. p. 862 at p. 864.)

In my view there is no ambiguity in the provisions of subclause (1) of Clause 47.—Housing Subsidy of the award which I read as saying that the employer (applicant) shall pay its employees, a subsidy (assistance, support, money contributed to keep down or reduce the

2183

cost of) for accommodation (lodgings) except where any employee is in accommodation (lodgings) provided by the employer whether free of charge or for a nominal charge.

The provision of moneys by way of a loan to an employee for the purpose of purchasing or building accommodation in which to reside, involving as it does the repayment of that loan plus interest, however low, by an employee in no way fits in my view, within that meaning.

An alternative to providing accommodation (lodgings) in the physical sense it certainly is but it is not the same thing, which I consider the award to be referring to and I have found that there was no arrangement between the parties i.e. the applicant and the respondent unions pursuant to subclause (2) of Clause 47.—Hous- ing Subsidy of the award which were contrary to or in substitution for the manner in which that subsidy is payable, if that is how subclause (2) is to be construed and I am not sure that it can, as it seems to relate to the mechanics of payment rather than allowing for an alternative system which involves no payment at all.

I therefore answer the applicant's first question in the affirmative and its second question in the negative.

Having so concluded I do not have to respond to the applicant's invitation to make any order varying the award and I see no need to issue a separate declaration unless so requested under paragraph (b) of subclause (1) of section 46 of the Industrial Arbitration Act, 1979.

SECTION 23—

Applications Dealt with —


No. 910 of 1984.

Between Mt. Newman Mining Co. Pty. Limited, Appli- cant, and the Federated Engine Drivers' and Firemen's Union of Workers of Western Australia, Respondent.

Order. HAVING heard Mr O. L. Ihlein and with him Mr K. Paine on behalf of the applicant and Mr R. A. Keegan on behalf of the respondent the Commission pursuant to the powers conferred on it under the Industrial Ar- bitration Act, 1979, hereby orders—

That Mr M. Paton, Shovel Greaser employed by Mt. Newman Mining Co. Pty. Limited at Newman, be suspended from his employment without pay for a period of four weeks.


(Sgd.)O. K. SALMON, [L.S.j Commissioner.


SECTION 29(2)— Applications dealt with—


No. 584 of 1984.

Between Sandra Jacqueline Baer, Applicant and Federated Liquor and Allied Industries Employees Union of Australia, Western Australian Branch, Union of Workers, Respondent.

Order. HAVING heard Mr K. J. Trainer on behalf of the Ap- plicant initially, and later there being no appearance by her, and having heard Mr E. L. Fry on behalf of the Respondent, the Commission, pursuant to the powers conferred on it under the Industrial Arbitration Act, 1979, hereby orders—

That the Application be dismissed.


(Sgd.)G. L.FIELDING, [L.S.] Commissioner.

BEFORE THE WESTERN AUSTRALlkN INDUSTRIAL COMMISSION.

No. 737 of 1984.

Between Janet Ann Beck, Applicant, and Vence Pty. Limited trading as concept interiors, Respondent.

Order. HAVING heard the applicant on her own behalf and Mrs P. E. Bentley on behalf of the respondent, and by consent, the Commission, pursuant to the powers conferred on it under the Industrial Arbitration Act, 1979 hereby orders—

That the respondent herein shall pay to Janet Ann Beck the sum of $90 within seven days of the date hereof.


(Sgd.)G. A. JOHNSON, [L. S.] Commissioner.


No. 734 of 1984.

Between Martin Graham, Applicant and Hungry Jacks Pty. Limited, Respondent.

Before Mr Commissioner G. A. Johnson. The 16th day of November, 1984.

The applicant on his own behalf. Mr. P. G. Clifford (of Counsel) on behalf of the

respondent.

Reasons for Decision. THE COMMISSIONER: This application concerns a claim that an employee has not received the benefits of his contract of service and it comes about this way.

The respondent runs a number of fast food outlets in the Metropolitan area. In February this year, it advertis- ed and called for applications to fill vacancies in its trainee management area. Some 100 applications were received and from them ten were chosen for interview. The applicant was one of those interviewed. Subse- quently he was engaged to commence work on 13th March, 1984. He terminated his employment on 13th July, 1984. The applicant says in his claim that he was not paid the rate of pay contracted for during his service with the respondent.

He said in his evidence that when he was interviewed he asked what salary he would be paid and was told he would receive $260 per week during the seven week training period and $320 per week thereafter. After he commenced employment but before he received his first pay, he requested a letter from his supervisor setting out his rate of pay in the terms described as support for his application for housing finance, he was told that such letters are not given. No comment resulted from his reference to the particular rates of pay.

His first pay was $240 gross. He contacted his store manager who said that he would check. He next pay was $250 gross rather than $260 but he did not pursue the matter further. His training consisted of four weeks under supervision at an outlet and one week of inservice away from outlets, after which he was posted to Whit- fords outlet as an assistant manager Grade 3. He said he did not raise the matter of an increase to $320 per week for some weeks and, when he did, he was told by the outlet manager that an increase would not be possible because the outlet had a small turnover. He continued to receive $240 per week until his termination. On making his claim pursuant to the Industrial Arbitration Act, 1979 he sought payment for overtime worked and it was only as a result of discussions during the pre trial conference that the claim was changed to one in which he sought payment for the discrepencies between the alleg- ed agreed rate of pay and what was in fact paid.

For the employer, it was said in evidence by a District Manager that he had conducted the interview and when requested had outlined the pay structure which at that time ranged from $235-$260 for a trainee, and $260- $295 and $295-$320 for the two grades of assistant manager.

He went on to say that the rate for trainees was usually negotiated within the range at the second interview but there was no evidence to indicate that such negotiation took place then between the applicant and the District Manager. It would appear that the figure of $240 was fixed arbitrarily and the subsequent figure of $250 by offer and tacit acceptance.

The District Manager went on to say how he described the training programme as being four weeks in an outlet, one week away from outlets and a flexible period usually two weeks on trial under supervision at an outlet.


Another District Manager gave evidence and said that the applicant was under his control, that he was not satisfied with the applicant's response to training and that as a result he had not terminated the training period even though there had been some thirteen weeks of service. it was said that periods longer than the seven week optimum were not uncommon.

There was considerable evidence concerning the presence or otherwise of the second District Manager and the extent to which he participated in the interviews. In addition there was comment about the creation of a third level of assistant manager and whether or not the applicant had been appointed to that position.

Once again the Commission is faced with the consequences arising from the failure on the part of the parties to set down in writing the terms of a contract of service; a matter of importance when the work is award free. Had that action been taken in this case I am sure that the misconceptions held by the applicant would have been quickly dispelled at the beginning.

1 have said that the applicant misconceived the terms on his contract for the following reasons. It is unlikely that the first District Manager outlined the salary scale quoted by the applicant without being grossly irrespon- sible. The presence of the second District Manager at that interview is sufficient in my mind to indicate that the events as described by the applicant do not reflect the reality of the occasion.

It should be mentioned that both District Managers have had considerable experience with the employer and while they have conducted many interviews and may not be able to recall particular detail it is unlikely that they would deviate from the usual without good reason. None was evident in these proceedings and accordingly I find that the claim is not supported by the evidence and is dismissed.

Order Accordingly.


No. 848 of 1984.

Between Bruce John Heard, Applicant, and Yokine Pastoral Co Pty Ltd, Respondent.

Order. THERE being no appearance by the Applicant and having heard Mr N. O. Munns on behalf of the Respon- dent, the Commission, pursuant to the powers conferred on it under the Industrial Arbitration Act, 1979, hereby orders—

That the Application be dismissed for want of prosecution.




No. 762 of 1984.

Between Brian Hird, Applicant, and Minenco Pty. Ltd., Respondent.

Order. HAVING heard the applicant on his own behalf and Mr A. J. Collins on behalf of the respondent the Commis- sion, pursuant to the powers conferred on it under the Industrial Arbitration Act, 1979 hereby orders—

That this matter be dismissed.


[L. S.] (Sgd.)O. K. SALMON,

Commissioner.


No. 734 of 1984.

Between Martin Graham, Applicant and Hungry Jacks Pty. Limited, Respondent.

Order. HAVING heard the applicant on his own behalf and Mr P. G. Clifford (of Counsel) on behalf of the respondent the Commission, pursuant to the powers conferred on it under the Industrial Arbitration Act, 1979 hereby orders—

That the application be dismissed.


(Sgd.)G. A. JOHNSON, [L.S.l Commissioner.


No. 411 of 1983.

Between Virginia Ann Horwood, Applicant, and Jo Stanwell, Respondent.

Order. HAVING initially heard Mr S. V. Phillips (of Counsel) on behalf of the Applicant and Mr R. A. Mazza (of Counsel) on behalf of the Respondent, and later there being no appearance by the parties, the Commission, pursuant to the powers conferred on it under the In- dustrial Arbitration Act, 1979, hereby orders—



[L.S.] (Sgd.)G. L.FIELDING,

Commissioner.


BEFORE THE WESTERN AUSTRALIAN BEFORE THE WESTERN AUSTRALIAN INDUSTRIAL COMMISSION. INDUSTRIAL COMMISSION.

No. 781 of 1984. No. 685 of 1984.

Between Carl McCabe Jeffery, Applicant and Candis Between Janet Irene Menhennett, Applicant, and Flet- Pty. Ltd., Respondent. chers Family Fitness, Respondent.

Order. HAVING heard Mr H. N. H. Christie (of Counsel) on behalf of the Applicant and Mrs P. E. Bentley on behalf of the Respondent, the Commission, pursuant to the powers conferred on it under the Industrial Arbitra- tion Act 1979, hereby orders—



(Sgd.)G. L. FIELDING, [L. S.] Commissioner.


No. 755 of 1984.

Between William Henry Wesson Lummis, Applicant, and Alpha Print Pty Ltd, Respondent.

Order. HAVING heard the applicant on his own behalf and Mr J. Booth on behalf of the respondent, the Commission pursuant to the powers conferred on it under the In- dustrial Arbitration Act, 1979 hereby orders—

That the respondent pays to William Henry Wesson Lummis of 196 Ewen Street, Doubleview, the amount of $2 538.99 within seven days of the date hereof.



Before Mr Commissioner G. G. Hailiwell.

The 26th day of October, 1984.

Miss J. I. Menhennett on her own behalf. Mr R. De Vaurno on behalf of the Respondent.

Reasons for Decision. THIS is an application pursuant to section 29 (2) of the Act in which the applicant alleges unfair termination of her services by the respondent and seeks compensation.

The applicant was employed as a receptionist on or about 16th February, 1984 and the termination of her services occurred on or about 12th June, 1984. The reason advanced to the applicant by the respondent was that her attitude was unsatisfactory.

The respondent had spoken to the applicant on three occasions, firstly asking her not to wear jeans, secondly ugg boots and on the third occasion cautioning her with respect to her attitude to the job.

The Commission considers that the applicant was given a reasonable chance to improve her performance by the respondent and no unfairness was present in the final termination of her services and therefore compensation is refused.

As to the claim for payment, the work performed is award "free" thus the rate of pay offered and accepted constituted the contractual wage which was paid as agreed. Indeed that rate was increased by agreement between the parties. Thus it follows that no claim for a benefit under the contract arises because the contractual wage was paid throughout the employment.


No. 685 of 1984.

Between Janet Irene Menhennett, Applicant, and Flet- chers Family Fitness, Respondent.

Order. HAVING heard Miss J. I. Menhennett on her own behalf and Mr R. De Vaurno on behalf of the respondent, the Commission, pursuant to the powers conferred on it under the Industrial Arbitration Act, 1979, hereby orders—

That the application herein be dismissed.




No. 754 of 1984.

Between Allan Markland, Applicant, and Attwood Oceanics Australia Pty. Ltd., Respondent.

Order. HAVING heard Mr D. W. Skinner on behalf of the Ap- plicant and Mr H. J. Dixon (of Counsel) on behalf of the Respondent, the Commission, pursuant to the powers conferred on it under the Industrial Arbitration Act, 1979, and by consent, hereby orders—




Commissioner.


BEFORE THE WESTERN AUSTRALIAN INDUSTRIAL COMMISSION

No. 849 of 1984.

Between Hubert Cecil Vaux Miller, Applicant and Datronics Corporation Limited, Respondent.

Before Mr Commissioner G. L. Fielding. The 16th day of November, 1984.

Mr H. C. Vaux Miller in person. Mr H. C. Teuber on behalf of the Respondent.

Reasons for Decision. (Given extemporaneously at the conclusion of the submissions, taken from the transcript as edited by the

Commissioner.)

THE COMMISSIONER: The Applicant was employed by the Respondent from January 1981 until October of this year as a Customer Engineer. His task was, as I understand it, to service various computer products which the company sold. He chose for personal reasons to limit his activities to only some of the company's products, they being, as I understand it, electronic typewriters and the like.

On 2nd October, his contract of employment was terminated by payment of one week's wages in lieu of notice, with other outstanding contractual entitlements. He was terminated on the grounds that the company was trading unprofitably in Perth and had been doing so for some time. There was a need to reduce overheads and he, along with another Customer Engineer, was dismissed on the grounds of redundancy. The Respon- dent took other steps to reduce its overheads by relocating to less expensive premises, but that is not material.

The Applicant seeks to recover from the Respondent payment equivalent to one month's notice. He claims it was his understanding that under and by virtue of his contract of employment, it was to be terminated on one month's notice rather than one week. He seeks, as well, what he describes as a severance payment as compensation for his retrenchment.

There is little conflict in the evidence, but 1 am bound to say that I am satisfied that where there is a conflict between the evidence of Mr Teuber, the Respondent's Branch Manager, and that of the Applicant, I prefer the evidence of Mr Teuber. He sounded the more convinc- ing witness. Whereas the Applicant frequently spoke in the abstract or in generalities, the same cannot be said of Mr Teuber, who was much more specific in respect of matters material to this claim.

Having heard what Mr Teuber has had to say and, indeed, what the Applicant has said, I am quite satisfied that the Applicant was dismissed as the result of a bona fide restructuring of the Respondent's operations. Moreover, I am satisfied that there was good reason for the Respondent to embark upon that restructuring. More than that, I think there is every reason for the Respondent to have chosen to make the Applicant redundant rather than one or other of the two engineers who still remain in its employment. The Applicant has frankly conceded that from the beginning he wanted to maintain his quality of life and thus restrict his activities within the company. That being so, it is not the slightest bit surprising that the Respondent chose to keep on in its employ others with a broader knowledge of its products than has the Applicant.

I cannot in those circumstances think that the dismissal was, on balance, unfair, and I am not satisfied that it was. The Respondent acted according to the terms of its contract with the Applicant and, as I have outlined, with good reason. It is now well settled in the Commission that a dismissal effected in the name of a bona fide restructuring is not, prima facie at least, unfair. In my view, that applies in this case as it has in others which have come before the Commission.

The Applicant initially claimed to have been entitled, under and by virtue of his contract, to one month's notice of termination, but that is not so. The written letter of appointment by which he became an employee of the Respondent, clearly stipulates that termination will be on one week's notice. Those terms and conditions were accepted, in writing, by the Applicant. If he misunderstood them, that is unfortunate for him but not something for which the Respondent can be held liable.

The Applicant complains, too, that the redundancy came somewhat suddenly. However, I accept the evidence of Mr Teuber that, from time to time, there were staff meetings at which the need to increase pro- fitability and the possibility of dismissals or retren- chments was raised. I accept, in particular, his evidence that he suggested to staff that if another job came along, he would not feel slighted if they took it in preference to remaining in the employ of the Respon- dent. The Applicant does not dispute that those discussions took place, but rather says that he interpreted them differently and, in particular, thought that they were somewhat informal expressions of opinion. If that is his interpretation of them, again so be it, but it is not something which, having been told by the Respondent's Branch Manager at a company staff meeting, 1 think can be ignored in the way in which he would have me ignore them. Thus it is that I think there is little to support the Applicant's claim.

If what the Applicant seeks is a redundancy payment, so called, if what he is complaining about is the quantum of remuneration paid to him on termination, then, as I have pointed out to him, that is not something which is claimable under and by virtue of section 29 (2) of the Industrial Arbitration Act, 1979, unless he can first satisfy the Commission that his dismissal was unfair. For the reasons I have briefly outlined, I do not think that it was, and in those circumstances there is no alternative for me but to dismiss the claim, the Respon- dent having chosen not to accept my earlier recommendation.


No. 948 of 1984.

Between Hubert Cecil Vaux Miller, Applicant and Datronics Corporation Limited, Respondent.

Order. HAVING heard Mr H. C. Vaux Miller in person and Mr H. C. Teuber on behalf of the Respondent, the Commission, pursuant to the powers conferred on it under the Industrial Arbitration Act, 1979, hereby orders—



(Sgd.)G. L. FIELDING, [L.S.] Commissioner.

37051-5



No. 829 of 1984.

Between Andrew Steven Molnar, Applicant and Eliza Tinsley (Aust.) Pty. Ltd., Respondent.

Order. THERE being no appearance by the Applicant, and having heard Mrs P. E. Bentiey on behalf of the Respondent, the Commission, pursuant to the powers conferred on it under the Industrial Arbitration Act 1979, hereby orders—





No. 671 of 1984.

Between Ulrich Wolfgang Munz, Applicant, and Rohlig Australia Pty. Ltd. (Inc. in N.S.W.), Respondent.

Before Mr Commissioner G. L. Fielding. The 5th day of November, 1984.

Mr U. W. Munz in person. Mr A. D. Fitzgerald (of Counsel) on behalf of the

Respondent.

Reasons for Decision. (Given extemporaneously at the conclusion of the submissions, taken from the transcript as edited by the

Commissioner.)

THE COMMISSIONER: The Applicant was at all material times employed by the Respondent as its manager in this State. His employment ceased on 1st May or thereabouts this year, after slightly more than five years' service with the company. The Applicant claims that he has been denied a benefit under his contract of employment. That benefit is a payment for annual leave.

The claim arises in this way. On termination the Ap- plicant was paid for, as I understand it, only 12 days' leave. The Applicant says he should be entitled to a good deal more than that. He claims 47 days, based on an annual entitlement of 20 days per year and a pro rata entitlement for his last year of service of six days, less credit for the leave he has taken or otherwise been paid for.

The real problem has arisen because during the course of the Applicant's service with the company he was absent from work due to ill health on 32 days, 26 of which were in the one year. The company says that should be deducted from his annual leave entitlement. The Appli- cant, on the other hand, says that he had a cumulative sick leave entitlement of five days in the first year and eight days per year thereafter.

Unfortunately, the evidence supporting this matter from the Applicant's point of view has been scant. The Respondent has adduced little or no evidence, taking the view, as it is entitled to, that it is for the Applicant to prove his case. The Applicant says that he initially understood his entitlement to sick leave accrued because he thought it was a common requirement of the law that everyone was entitled to at least five days' sick leave each year, and that it was cumulative, just as is annual leave. He has since discussed the matter with the Respondent's former accountant, whom he suggests has indicated that it was the Respondent's policy to make the leave cumulative on the basis of five days for the first year and eight days thereafter. That revelation led the Applicant to amend his claim from one seeking payment for 32 days' leave to one seeking 47 days' leave.

The Respondent's answer in essence is that there was never any discussion about sick leave. Thus there was no condition in his contract of employment entitling the Applicant to sick leave, even less entitling him to accumulate it.

It is sufficient for me to say that so far as it goes I accept the Applicant's evidence, although he has simply assumed too much and made false assumptions on the law. The fact is that there is no basic entitlement to annual leave, let alone sick leave, and still less is there an entitlement to accumulate sick leave. It is a term of a contract which has to be settled between the parties, and in the absence of there being any settlement in that respect, it is simply wrong to assume that there is any entitlement to sick leave. I am certainly not satisfied to any degree that it was a term of the Applicant's contract of employment that he should be paid sick leave at the rate he claims, and still less that it be cumulative. In- deed, I think the position is that the Applicant was paid for his absences from work on an ad hoc basis. He was, after all, the company's manager in this State, and I think the probabilities are, given his evidence that when he was sick for 26 days in 1982 he was told not to worry as his pay would be forthcoming, notwithstanding his absences, as indeed it was, the company recognised his standing in its organisation and agreed to cover his il- lnesses on an ad hoc basis. That is not, I might say, an unusual arrangement with persons of his vocation. That it was so on this occasion is to some extent borne out by the copy of the telex tendered by the Respondent, which suggests that there was never any company policy in respect of sick leave, but rather it was simply paid on the basis of the employee's standing and performance, and was entirely discretionary. That really supports my view, that although there was no contractual entitlement to sick leave, it was covered on an ad hoc and discretionary basis.

However, I do not think that entitled the company to take the next step; that is, convert that payment into one on account of annual leave. An annual leave entitlement is something that is quite different and specific. The Respondent has conceded that the Applicant had a 20 day annual leave entitlement and, moreover, has conceded that it was cumulative. Without more it cannot lawfully deduct the payment made while the Applicant was sick, because absence through illness is not absence on annual leave.

It would follow from that that the Applicant is entitled, in my view, to 100 days' annual leave. The law is quite dear, that there is no entitlement to pro rata annual leave unless there is some specific agreement for that. There was no evidence placed before me to suggest that the Applicant's annual leave accrued other than annually; that is to say, it did not become due and owing until the end of the anniversary date. Thus the Appli- cant cannot claim the six days he seeks for the period of his employment during part of 1984. The evidence, so far as I have been able to glean, is that the Applicant took 47 days' annual leave during his five year period. He has since been paid, he concedes, for another 12 days, which would leave him an entitlement on my calculation to 41 days' annual leave. The Respondent has conceded that he is entitled to a 17'A per cent

WESTERN AUSTRALIAN INDUSTRIAL GAZETTE. 2189 64 W.A.I.G

loading, although I again say that is a fortunate concession for the Applicant, because there is no automatic entitlement to a loading. That is something special to one's individual contract, as is, I might say in passing,the right to accumulate leave, the common law position being that leave not taken shortly after the anniversary is lost unless there is an agreement to accumulate. But the concession here is that there was an agreement to accumulate, and I think having heard the Applicant it is not surprising that such a concession was made.

For the reasons I have announced the Applicant is entitled to 41 days' leave or payment therefor.


No. 671 of 1984.

Between Ulrich Wolfgang Munz, Applicant, and Rohlig Australia Pty. Ltd. (Inc. in N.S.W.), Respondent.

Order. HAVING heard Mr U. W. Munz in person and Mr A. D. Fitzgerald (of Counsel) on behalf of the Respon- dent, the Commission, pursuant to the powers conferred on it under the Industrial Arbitration Act, 1979, hereby orders—

That the Respondent pay to the Applicant the sum of $3 300.




No. 631 of 1983.

Between Anthony John Seddon, Applicant and Bun- bury Foods Pty. Ltd and James William Robert- son, Respondents.

Order. HAVING heard Mr A. D. Fitzgerald (of Counsel) on behalf of the Applicant, Mr S. R. Edwards (of Counsel) on behalf of the second-named Respondent and there being no appearance by the first-named Respondent, the Commission, pursuant to the powers conferred on it under the Industrial Arbitration Act 1979 and by consent, hereby orders—

That the Application be and is hereby withdrawn by leave.




No. 839 of 1984.

Between Angela Parry, Applicant, and W.A. Data Pro- cessing, Respondent.

Order.

HAVING heard Miss A. Parry in person and there being no appearance by the Respondent, the Commission, pursuant to the powers conferred on it under the In- dustrial Arbitration Act, 1979, and having considered the evidence, hereby orders—

That the Respondent pay to the Applicant the sum of $867.62.




No. 744 of 1984.

Between Laurence Cecil Turner, Applicant, and Hor- wood Bagshaw Limited, Respondent.

Before Mr Commissioner G. L. Fielding. The 2nd day of November, 1984.

Mr G. G. Young on behalf of the Applicant. Mrs P. E. Bentley on behalf of the Respondent.

Reasons for Decision. THE COMMISSIONER: The Applicant was dismissed from the Respondent's employ on 11th May, 1984. He claims his dismissal was unfair, and seeks reinstatement or, alternatively, compensation therefor.

The facts surrounding the Applicant's dismissal and relied upon to support his claim are not in dispute. His employment with the Respondent commenced on 30th June, 1980, when he was engaged as the Sales Con- troller. His duties were to control most of the Respon- dent's selling activities and "manage" its accounting processes in this State. He could fairly be described as an office manager, although that was not his formal title. Initially, he was responsible to a State Manager, but in March last, following a restructuring of the company's activities in this State, that position was abolish- ed and he became the Respondent's administrative officer in this State, answerable directly to the company's head office in Adelaide. Despite this restructuring, the Applicant was assured as recently as 30th April last, that his position was not in jeopardy. However, that was not to be, for on 11th May, 1984, he was handed a letter by one of the Respondent's sales staff returning from Adelaide, drawing his attention to the fact that "the marketing and sales emphasis of our Western Australian operations have, in recent times, changed significantly", and indicating that as a result of "this restructuring, your services in the capacity of Ad- ministration Clerk (Warehouse Records) are no longer required". He was paid all his contractual entitlements, and given one month's salary in lieu of notice.


There is no suggestion that the Applicant was other than a loyal and dutiful servant. The simple fact is, as he acknowledges, that as a result of restructuring, the position he once occupied no longer exists. The more senior or responsible tasks he performed, such as inventory control and the paymaster's work, is done from Adelaide. The remaining office duties are done by a secretary/receptionist, who was formerly employed on a part-time basis. The Applicant's dismissal can fairly and properly be described as one arising out of redundancy, as his advocate claims.

Although the Applicant seeks reinstatement, that claim was not pursued with any vigour. He does, however, say that had he been consulted about the matter, he would have taken the receptionist's position in preference to dismissal. 1 am not satisfied that that was a realistic option. As he acknowledged, the more senior tasks once performed by him are no longer performed in Perth, so that the receptionist is left to perform on a full time basis only the more elementary tasks he performed, together with the duties which she formerly performed on a part-time basis. Amongst those duties was typing. I cannot think it reasonable to expect that a person who can only type with one finger, as the Applicant suggested was the limit of his capacity in that respect, should be preferred in the new positon over one who has full typing skills.

The Respondent has not completely wound down its operations in this State, and it is not unreasonable to suppose that there will continue to be a need for secretarial, in particular typing, skills. Furthermore, I doubt that it is satisfactory either from the Respon- dent's or the Applicant's point of view, to have a person who was once effectively an office administrator fulfill- ing the role of secretary/receptionist at a lower rate of pay than he once received.

The Applicant's principal complaint is that he was dismissed without adequate compensation. Since the dismissal was brought about through-no fault of his, he claims he ought to be entitled to compensation for his redundancy, and the failure to so compensate him renders the dismissal unfair. He complains too that the letter of termination was delivered by a salesman rather than through the post, and came without warning, but it was not suggested that by themselves those happenings rendered the dismissal unfair. The Applicant claims compensation at least on the same basis as that allowed in Amalgamated Metal Workers' and Shipwrights' Union of Western Australia and Anor v. H. J. Ingle Pty. Limited (1979) 59 W.A.l.G. 400, but preferably on the basis of the formula recently established by the Australian Conciliation and Arbitration Commission in the Termination, Change and Redundancy Case (2nd August, 1984; Print F 6230).

The Respondent's answer was that the dismissal resulted from a bona fide restructuring of the company's activities in this State, and was therefore not unfair. It further submitted that proceedings under section 29 (2) of the Industrial Arbitration Act do not authorise the Commission to make redundancy awards where the dismissal was not unfair. Support for each of these propositions was said to lie in the decision of the Commis- sion in Ratcliffe v. P. C. Kerr & Associates (1983) 63 W.A.l.G. 1819.

In my opinion, the Respondent's argument is substantially correct. I am left in no doubt that the Ap- plicant's dismissal resulted from a bona fide restructuring of the Respondent's activities in this State. The in- dications are that the restructuring appears to have been directed at streamlining the management and administrative activities of the company "in order to provide a more efficient and effective liaison" with its dealers. The scheme seems to have been an attempt to bring the ultimate decision makers closer to the dealers. All that was apparently in an endeavour to improve the company's recent poor trading performance and reduce its overheads. I am quite satisfied that in reorganising its affairs in this State, the Respondent acted in good faith.

In those circumstances, I cannot think that it was unfair" of the Respondent to terminate the services of the Ap- plicant.

The question in these cases is whether there was a fair exercise of the right to terminate, which is as much a part of the contract of employment as anything else. The decision of the Commission in the often-quoted Hospital Employees' Industrial Union of Workers, W.A. v. Wongan Hills Hospital (1979) 59 W.A.l.G. 11, is not, as the Applicant's advocate inferred, authority for the proposition that an employee has the right to remain in employment so long as he does nothing wrong, and goes about his duties in a proper and workmanlike manner. If that were so there would be no point in providing at all for termination on notice. What that case and those which have followed it confirm, and the Act makes clear, is that if the contractual right of dismissal is shown to have been exercised unfairly, the Commis- sion has authority to interfere to protect the employee. A dismissal effected as part of a genuine or bona fide restructuring by an employer of its business, is a justifiable exercise of that right. That is well-illustrated in the case of Ratcliffe v. P. C. Kerr & Associates (supra). The circumstances reviewed in that case have many similarities with those now in question. The decision in that case is consistent with the views expressed by Olssen, P. in Soderini v. Kilmara School Board (1979) 46 S.A.I.R. 779, and with the approach by the English employment tribunals (cf. Moon v. Holmworthy Engineering (Northern) [1976] I.R.L.R. 298). I have no doubt that the dismissal will have unfortunate if not devastating consequences for the Applicant, particularly having regard to his age. But as has frequently been said, most recently in Ratcliffe v. P. C. Kerr & Associates (supra), that is not the test for determining whether a dismissal is fair or not. The dismissal has to be considered in light of all the circumstances, including the right of an employer to conduct its business in an efficient way. There may be occasions when a dismissal effected as a redundancy can properly be said to be unfair, as for example where the restructuring is not bona fide or where one employee is dismissed unjustifiably in preference to another, but this is not such an occasion.

In essence, what the Applicant complains of on this occasion is not so much the decision to dismiss him, but the absence of compensation for his lost job. But the need for compensation in the context of section 29 (2) arises only if the dismissal itself is unfair. Compensation in this context is a substitute for reinstatement, and for reinstatement to be justified it has to be shown that the act of dismissal was unfair. On this occasion, given the nature of the restructuring, it cannot sensibly be said that the Applicant should not have been dismissed, and for the reasons indicated it was not unfair. On the other hand, compensation for the loss of one's job simpliciter, in the nature of a redundancy payment, using the approach adopted by the Commission in Amalgamated Metal Workers' and Shipwrights' Union of Western Australia and Anor v. H. J. Ingle Pty. Limited (supra), or that suggested by the Australian Conciliation and Arbitration Commission in the recent Termination, Change and Redundancy Case (supra), does not depend on the fairness or otherwise of the dismissal. Compensation of that nature is made ir- respective of whether the dismissal is fair or not.

The same argument which the Applicant raised on this occasion was rejected with respect to the English legislation in Hinckley & Bosworth Borough Council v. Ainscough [1979] I.R.L.R. 254. In that case, the claim was that the employee's dismissal through redundancy was unfair because his circumstances were deserving of a larger sum in compensation than his employers were legally obliged to pay and in fact paid. The argument was rejected because the claim was concerned not with the dismissal itself, but the terms on which it was made. The real issue in cases of this nature is the propriety of the dismissal, and that is usually unaffected by considerations of compensation per se. That conclusion is equally true, perhaps more so, of section 29 (2) of the Industrial Arbitration Act. Indeed, this appears to have


been recognised by the Commission in Ratcliffe v. P. C. Kerr & Associates (supra), as the Respondent's advocate suggested.

In this case, although the Applicant complains somewhat of the decision to dismiss, it was at best a faint complaint. He appears to have accepted, and in my view should accept, that the dismissal was as a result of a bona fide restructuring of the Respondent's affairs in this State. In those circumstances, for the reasons outlined, there is little or no scope for him to complain about the decision to dismiss him. Likewise, I am not convinced that he can complain to any significant degree about the method of his dismissal. While it does little credit to the Respondent to have the letter of termination delivered by a fellow-employee rather than through the post, in the final analysis the method of transmission of the notice cannot be greatly material, as the Applicant's advocate sensibly acknowledged. Although the termination came without warning, and despite an earlier reassurance that his position was secure, there is nothing to suggest that prior consultation with the Applicant would have made any difference to the position in which he now finds himself.

For the reasons outlined, I am not satisfied that the dismissal was unfair. It may be that the Applicant is entitled, in conformity with recent decisions of the Com- mission to a redundancy-type payment. If that is so, section 29 (2) is not the vehicle by which it should be achieved, unless of course the dismissal itself is unfair. Section 44 (7) (iii) of the Industrial Arbitration Act might afford the Applicant the opportunity to obtain such a benefit, but that is not a matter for consideration on this occasion.

BEFORE THE WESTERN AUSTRALIAN INDUSTRIAL COMMISSION.,

No. 744 of 1984.

Between Laurence Cecil Turner, Applicant, and Hor- wood Bagshaw Limited, Respondent.

Order. HAVING heard Mr G. G. Young on behalf of the Ap- plicant and Mrs P. E. Bentley on behalf of the Respon- dent, the Commission, pursuant to the powers conferred on it under the Industrial Arbitration Act, 1979, hereby orders—




CONFERENCES— Matters Arising out of—


No. C493 of 1984.

Between Co-operative Bulk Handling Limited, Appli- cant, and Amalgamated Metal Workers and Ship- wrights Union of Western Australia; Australasian Society of Engineers, Moulders and Foundry Workers, Industrial Union of Workers, Western Australian Branch; Electrical Trades Union of Workers of Australia (Western Australian Branch), Perth; The Operative Painters and Decorators Union of Australia, West Australian Branch, Union of Workers; and Transport Workers Union of Australia, Industrial Union of Workers, Western Australian Branch, Respondents.

Order. HAVING heard Mr A. J. Heelan on behalf of the Ap- plicant, Mr B. Davey on behalf of the Amalgamated Metal Workers and Shipwrights Union of Western Australia; Mr T. Cook on behalf of the Australasian Society of Engineers, Moulders and Foundry Workers, Industrial Union of Workers, Western Australian Branch; Mr L. J. Benfell on behalf of the Electrical Trades Union of Workers of Australia (Western Australian Branch), Perth; Mr G. Bourke and later Mr F. Smith on behalf of the Operative Painters and Decorators Union of Australia, West Australian Branch, Union of Workers; and Mr N. Allgrove on behalf of the Transport Workers Union of Australia, Industrial Union of Workers, Western Australian Branch, and after conferences between the parties at which agreement was reached, the Commission, pursuant to the powers conferred on it under the Industrial Arbitration Act, 1979, having satisfied itself that the terms of the General Order of the Commission No. 461 of 1983, dated 2nd March, 1984, have been complied with, and by consent of all parties to the Award, hereby orders—

1. That the Grain Handling Maintenance Workers Award No. C477 of 1979 be amended by deleting subclause (4) of Clause 12.—Shiftwork, and substituting in lieu thereof the following:—

(4) A shift employee when on afternoon shift or night shift shall be paid, for such shift, 25 per cent more than his ordinary rate prescribed by this Award. Provided that, when an employee works sporadic afternoon shifts or sporadic night shifts in an establishment in which the majority of employees working such shifts are not subject to this Award, the provisions of this subclause do not apply and any employee to whom this Award applies shall be entitled to the shift loading, if any, which may be prescribed for the aforesaid majority.

2. That the above amendment operate with effect from the 1st November, 1984.



Commissioner.



No. C515 of 1984.

In the matter of the Industrial Arbitration Act, 1979; and in the matter of a conference held pursuant to section 44 of the said Act between Electrical Trades Union of Workers of Australia (Western Australian Branch), Perth, Amalgamated Metal Workers and Shipwrights Union of Western Australia and the Federated Engine Drivers' and Firemen's Union of Workers of Western Australia, Applicants, and James Watt (Electrical) Pty Ltd, Leighton Contractors Pty Ltd, Eglo Engineers (WA) Pty Ltd and Clough Engineering Group, Respondents.

Order. WHEREAS a conference was held in Perth on 19th November, 1984 pursuant to section 44 of the Industrial Arbitration Act, 1979; and whereas an agreement was reached between the abovenamed parties at the said conference; now therefore, I, the undersigned, being satisfied that the agreement conforms with the Prin- ciples enunciated by the Commission in Court Session in matter No. 461 of 1983, and pursuant to the powers conferred under the said Act, do hereby order:

That, notwithstanding the Electrical Contracting Industry Award No. 22 of 1978, the Metal Trades (General) Award No. 13 of 1965 and the Engine Drivers' (Building and Steel Construction) Award No. 20 of 1973 and in lieu of the provisions thereof which are of the nature prescribed in this Order, employees who are employed by the respondents on construction work at The Paddington Gold Mine shall be paid a site allowance of $ 1.10 for each hour worked as compensation for confined space, dirty work and wet underfoot, provided with a free issue of safety boots and paid a safety footwear allowance of 5 cents for each hour worked and a travelling allowance of $2.95 per day subject to transport being provided by the employer and utilised by the employee and shall apply from the beginning of the first pay period commencing on or after 12th November, 1984. This Order shall terminate on 31st July, 1985.




No. C495 of 1984.

In the matter of the Industrial Arbitration Act, 1979; and in the matter of a conference held pursuant to section 44 of the said Act, between Electrical Trades Union of Workers of Australia (Western Australian Branch), Perth and Amalgamated Metal Workers and Shipwrights Union of Western Australia, Applicants, and Westair Pty Ltd and C. W. Norris & Co Pty Ltd, Respondents.

Order. WHEREAS a conference was held in Perth on 2nd November, 1984 pursuant to section 44 of the Industrial Arbitration Act, 1979; and whereas an agreement was reached between the abovenamed parties at the said conference; now therefore, I, the undersigned, being

satisfied that the agreement conforms with the Prin- ciples enunciated by the Commission in Court Session in matter No. 461 of 1983, and pursuant to the powers conferred under the said Act, do hereby order:

That, notwithstanding the provisions of the Elec- trical Contracting Industry Award No. 22 of 1978 and the Metal Trades (General) Award No. 13 of 1965, members of the applicant unions who are employed by the respondent on construction work at Tom Price shall be paid a site allowance of 80 cents for each hour worked as compensation for all disabilities associated with such work from the beginning of the first pay period commencing on or after 2nd July, 1984. This Order shall terminate on the 31st March, 1985.



CONFERENCES— Matters Referred —


No. CR48 of 1984.

Between the Association of Draughting, Supervisory and Technical Employees, Western Australian Branch, Applicant, and Hamersley Iron Pty. Limited, Respondent.

Before Mr Commissioner G. G. Halliwell. The 28th day of September, 1984.

Mr J. C. Beedham on behalf of the Applicant. Mr J. J. Christian on behalf of the Respondent.

Reasons for Decision. THE COMMISSIONER: The matter referred for hearing and determination pursuant to section 44 of the Act is as follows:—

The Union claims that: (a) If the respondent requires the working of

time prior to normal start or finish times by foremen and supervisors, members of the applicant, all time so worked shall be paid for at overtime rates.

(b) Mr I. Broomhall be paid for his rostered shift of 4th May, 1983 at single time rates.

The respondent objects to and opposes both claims.

There is a written agreement between the parties dated 19th December, 1980 (Exhibit B-l) which provides inter alia:—

1.1 Hamersley Iron Pty. Limited (hereinater referred to as the Company) and your Union (hereinafter also referred to as AAESDA), on the basis of the matters listed herein, have each agreed with the other to in future maintain these arrangements in expression of the general conditions of employment applicable to the Company's staff employees, including members of AAESDA.


1.2 The Company will not act in the future to change any of the conditions of employment herein expressed in respect of those who are members of AAESDA without first having given one month's notice to AAESDA of its intention to so act.

In the event that AAESDA disagrees with the proposed change to these conditions of employment, it is acknowledged by the Com- pany that your Union has the right to refer any such issue (which is then in disagreement) to the Commission for determination, always provided that the issue then to be resolved is a matter proper for the Commission, in all of the then circumstances, to so determine.

4. Minimum Base Annual Salary 4.1 Adult permanent salaried staff employed in

the classified positions designated below at Dampier, Tom Price, or Paraburdoo will be paid a minimum base annual salary on commencement in that position which shall not be less than:

5. Overtime 5.1 Staff members employed in any of the posi-

tions designated in 4.1 hereof will be paid at overtime rates for hours worked in excess of the normal work requirement when such overtime work is done by direction of the Com- pany.

Overtime so worked will be paid for at the rate of double time on his base rate. The employee's base rate for the purpose of calculating his overtime rate will be:

His Base Annual Salary 1 x 2T 52x40

The classification of foreman, shift foreman, senior foreman and some specific supervisory positions are included in paragraph 4.1 and are thus "picked up" by the provisions of paragraph 5 and 5.1

The present dispute had its genesis in a memorandum, signed by Mr W. F. Beaumont dated 13th January, 1983 and headed Rolling Shift Change-Handover, wherein under the heading Staff the following appears:—

Staff This is to confirm that the current practice of cer-

tain shift staff handing over to oncoming shifts will continue. This handover will be pre-shift to enable the necessary organisation before the crew arrives.

In accordance with Company policy, as advised in my note dated 11th September, 1981, a quarter hour of the handover will be voluntary and any extra, authorised overtime actually worked can be claimed overtime. Submitted shift staff overtime sheets must reflect this non-claimed quarter hour.

From February, regular pre or post shift overtime by day work staff will cease.

In essence the applicant says that the 15 minutes "voluntary" work is work performed outside normal shift hours at the direction of the Company and is therefore overtime for which, pursuant to the agreement, double time should be paid.

The respondent's initial arguments are twofold and best summarized in Mr Christian's own words:—

Perhaps it is best if I deal with that particular matter now. If one were to go to the definitions of "normal" and "ordinary" in the dictionary, which one first of all does at law, one finds that they basically are synonymous. However, the difference between the two of them is that "normal" has the word "customary" pertaining to it and "ordinary" does not.

In that respect, I direct your attention to the agreement, 5.1, Overtime, where the word "normal" is used. I intend to link into this the words "custom" and "practice".

Changeover time. I would just halt there and go to Exhibit B-3, Changeover Time. If one reads that through—The President has found and his Honour, Kennedy J., has also agreed with that finding, that that was not subject to the agreement of 1980. Changeover time was not part of the overtime clause.

MR CHRISTIAN: So it is quite clear, in our submission, that what Mr Beedham has put up about changeover time is completely nullified by what the Full Court has found, as a question of fact and also as a question of law. They have found that it was not included in the agreement of 1980. We would assert from the bar table, as distinct from the applicant, that that is the fact. Overtime was never intended to be included, or rather the changeover time was never intended to be included as overtime per se. I think that is what the President is saying there. As a matter of fact, I am convinced that that is what the President is saying there.

The majority judgements of the Industrial Appeal Court (64 W.A.I.G. 852) delivered by the President and Mr Justice Kennedy contain the following passages (at page 854).

The two main complaints stressed by counsel for the Union before us related to changeover time and the splitting of long service leave. In respect of both these matters it was claimed the Company had unilaterally changed the conditions of employment. Insofar as a change was effected it was not contrary to the agreement because neither of these conditions appears in the agreement. The changeover time seems to have been something of a storm in a teacup. Originally one shift extended half an hour into the relief shift. For that half hour the earlier shift workers were paid for overtime. The Com- pany made two changes, firstly to reduce the time to 15 minutes then to organise the shifts so that there was no overlapping. Thus the Company removed the obligation to pay for overtime. I am completely unable to see how a legitimate grievance could have arisen over the Company's action. In any event it is noteworthy that when asked to supply a list of grievances the Union by letter dated 24th March, 1983 made no reference to this matter.

The respondent submits that the Commission is bound by the above quoted findings of fact and law that "changeover time" is not provided for in the agreement and in any event it is not to be regarded as overtime for purposes of the agreement.

From the submissions made and exhibits tendered, the following picture emerges. Exhibit B-3 shows that the respondent's Staff Overtime Claim form makes provision for a statement of "normal working hours" and on the four examples, normal working hours are shown as eight. However, whilst the actual time worked is shown as one half hour to three quarters of an hour in excess of normal working hours, a quarter of an hour is claimed where a half an hour is worked and half an hour is claimed where three quarters of an hour was actually worked.

It is plain from Exhibit B-3 (above quoted) that as the "handover will be pre-shift . . ." it is done outside the normal shift hours of the employees concerned. Fur- ther, Exhibit B-3 purports to direct employees to work but not claim overtime for one quarter of an hour on each "handover" worked. In effect, the respondent is directing employees to "volunteer" to work unpaid for one quarter of an hour for each shift worked, such time being outside the normal hours of that shift.

An examination of the record of proceedings in matter 619 of 1983 shows material now before the Commis- sion, particularly Exhibits B-2 and B-3, was apparently not before the Industrial Appeal Court in those proceedings. Further, the issue to be decided by the Com- mission is different from the issue then before the In- dustrial Appeal Court. In these circumstances the Com- mission does not consider itself bound to follow the judgement (64 W.A.I.G. 852).


In the result, the Commission is satisfied that when the respondent requires those foremen and supervisors, set out in Clause 4.1 of the agreement, to work outside their normal shift hours, overtime should be paid at the rate provided in Clause 5.—Overtime of the agreement.

I turn now to consider claim (b) of the schedule. Mr I. Broomhall was rostered to work a 21st shift

(overtime shift) on 4th May, 1983. However, he was ill on that day and submitted on 5th May, 1983 an application for sick leave which was apparently approved. However, no payment was made by the respondent as the policy is that staff are not paid for a 21st shift not actually worked. Wages employees, pursuant to their award are paid if sick leave is approved. The only reference to the 21st shift in the agreement is at Clause 6.2 which provides for payment at double time rates to staff working continuous shift work when they work a 21st shift. No reference is made to the position as to payment for a 21st shift not worked due to ill health.

It is said by the respondent that there is no obligation upon it to pay for a 21st shift not worked and with this contention the Commission concurs. Claim (b) is accordingly refused.


No.CR48of 1984.

Between the Association of Draughting, Supervisory and Technical Employees Western Australian Branch, Applicant, and Hamersley Iron Pty. Limited, Respondent.

Order. HAVING heard Mr J. C. Beedham on behalf of the applicant and Mr J. J. Christian and later, Mr A. N. Cameron on behalf of the respondent, the Commission, pursuant to the powers conferred on it under the In- dustrial Arbitration Act, 1979, hereby orders—

That in respect of Claim (a) notwithstanding the provisions of the Agreement, between the Associa- tion of Architects, Engineers, Surveyors and Draughtsmen of Australia (W.A. Division) and Hamersley Iron Pty. Limited which became operative on and from 1st January, 1981, whenever the respondent employer at Tom Price requires those foremen and supervisors, who are members of the applicant Union and are set out in Clause 4.1 of the agreement, to work outside their normal shift hours, overtime shall be paid at the rate provided in Clause 5.—Overtime of the Agreement.

In respect of Claim (b) that the claim be dismissed.



64 W.A.l.G.


No. CR267 of 1984.

Between Electrical Trades Union of Workers of Australia (Western Australian Branch), Perth, Ap- plicant, and Hamersley Iron Pty. Limited, Respon- dent.

Before Mr Commissioner G. G. Halliwell.

The 28th day of September, 1984.

Mr M. H. Beatty on behalf of the applicant. Mr A. N. Cameron on behalf of the respondent.

Reasons for Decision. THE matter referred to the Commission for hearing and determination pursuant to section 44 of the Act is as follows:—

The Union claims that Electrical Fitters and Elec- trical Installers may be requested but not compelled to carry out linesmen's duties but not to the exclusion of linesmen, as linesmen are considered to be a separate and distinct trade.

The Company claims that it has a right pursuant to Award 6 of 1983 to have Electrical Fitters and/or Installers perform the work of the classification of linesman.

The attitude of the respective parties is best summarized in their own words—

MR BEATTY: At the outset the union hopes to convince the commission that there is currently a need for the company to engage line workers at its Dampier operations. We will put forward submissions in relation to the classifications involved and we suggest that they are separate and distinct. We will put forward submissions on the past practices in relation to the work involved, the union's understandings and the intended operation of the applicable clauses within the agreement at the current time, and observations in relation to possible ramifications should the company continue to apply its present policy in relation to this issue.

Throughout the current dispute, I think it has been put forward by the company that the union fully accepts that electrical fitters and installers can be required by the company to carry out lineman's work. I would like to qualify that. I believe that while the reading of the words can give that intent, it was not the intent, at the time, of the union.

I was involved in the state council when decisions were made on that occasion. Our advocate at the time was Mr Tom Rynn. It was quite clearly expressed, to my memory, that it was not the intention of electrical workers to compete against linemen or to do lineman's work to the exclusion of those classifications. It was merely to meet the company on a one to one basis and to make an allowance for certain situations which arose at that time, whereby, whilst a lineman could not be employed full-time, there might be some kind of emergency situation arise or there might be a necessary maintenance situation which required workers to do some kind of line work so that the company's operations could be kept operational and in fact the town could keep running domestically, etc.

I think that was expressed by Mr Rynn at the time, to the extent that during the hearing he did say that whilst the classification was suggested to go into the award, it probably needed some closer scrutiny by the commission or the company to make sure a precise clause—subclause—went into the award which clearly outlined the duties that could be expected. I think all parties probably did at that time try to meet that requirement, but unfortunately over the period of time, as I said earlier, we found that the particular subclause just does not operate properly on the job.


MR CAMERON: My primary submission is that the commission should interpret the award in such a fashion that there is no contradiction contained within it. I have put forward submissions regarding such an interpretation which disclose no contradiction namely major and substantial duties covering the definitions; the work to be performed does not offend Clause 7 (1) (a) and clearly it is able to be performed under 30 (12) (a). It is my strenuous submission that that primary submission should be accepted by the commission.

I have made submissions to you, sir, that to accept the submissions of my friend leaves one with an award which is riddled with contradictions. I have put to you submissions as to how this award should be interpreted to leave it devoid of any contradictions whatsoever. It is my submission that that becomes an overwhelming argument for favouring the interpretation put forward by the company.

However, if the commission was mindful to hold that Clause 7 (10) (a), all of the definitions or both of them, in some way should be interpreted as precluding the company from having electrical fitters or electrical installers perform this work, then it would still remain my submission that the company would still retain the right, under Clause 30 (12) (a), to have the work performed by people so classified.

Clearly, sir, and I say this with the greatest of respect, it would be my submission that if the commission were to so hold—that either of those matters precluded the company from having this work done—then the commission would be falling into error.

The Award in Clause 3.—Definitions sets out a description of the major and substantial duties of the classifications electrical fitter, electrical installer and linesman and plainly, the classifications are to be seen as separate and distinct.

By Clause 7.—Contract of Employment subclause (10) (a) "A tradesman shall not be required to perform work outside the ordinary scope and practice of his trade".

Thus having regard to the separate definitions for each of the three classifications, electrical fitters and electrical installers could not ordinarily be compelled to perform the duties of the classification of linesman. However, the Award provides in Clause 30.—Special Rates and Provisions subclause (12) (a) as follows:

(12) (a) An Electrical Fitter or Installer who is required to carry out work of a Linesman on poles and above the ground shall be paid an allowance of $1.30 per day on which he is so employed. This provision shall, when the circumstances exist, apply in lieu of the allowance specified by subclause (11) and vice versa as the case may be. (Emphasis mine.)

On the plain words used, the classifications of electrical fitter and electrical installer may be required to perform the work of the classification of linesman "on poles and above the ground".

It may be readily seen that there is a clear conflict within the provisions of the Award. This conflict between the award provisions has already led to disputa- tion between the parties including industrial action by the applicant's members employed by the respondent at its Dampier operations. Within that frame work the Commission concludes that remedial steps should be taken to resolve the present situation by a determination of the merits of the issue.

Apparently the existing subclause (12) (a) resulted from the parties negotiations in January 1976. A transcript record of those negotiations was kept and was tendered by Mr Cameron (Exhibit C-4) in these proceedings. That transcript reads, as far as is relevant here, as follows:—

MR RYNN: Just before we get onto the Wages classification, in the log at Section G, subclause (g),

the reason that that is the same as there is that in the other States of Australia the linesman serves an apprenticeship to become such. In this State he goes through a period of training with incremental payments until he attains a certain level of experience, which is normally five years.

We maintain that if the company does not employ linesmen in any section and if an electrical fitter or installer is called upon to work on the lines off the ground, then he should receive a certain extra. Possibly the wording in that clause leaves a lot to be desired, but the actual wording we envisaged or meant to be there was; "Any electrical fitter or electrical installer who performs the work of a linesman on electrical poles off the ground shall, in addition to any allowance to which he is otherwise entitled under this clause, be paid 80 cents on any day on which he is so employed."

MR LYNCH: I had overlooked it, I'm sorry, Tom. We had considered it. We can understand the logic that is sought, particularly with the clarification where you are talking to work of the linesman off the ground. We would be prepared to ac- commodate the claim provided that it read so that he did not also get height money whilst he was working as a linesman. In other words, he would get 80 cents as a tradesman doing line work or if he qualified for height money but not both com- pounded. Does that make sense?

MR RYNN: I would agree with that, yes. The applicant maintains that:— "I believe that while

the reading of the words can give that intent, it was not the intent, at the time, of the union." (Transcript 19/20.) The applicant then explained that "there might be some kind of emergency situation arise or there might be a necessary maintenance situation ... so that the company's operations could be kept operational and the town could be kept running domestically" (Transcript pages 20 and 21).

In order to assess the relative merits of the claim the Commission has examined the position applying within the State Energy Commission of Western Australia as reflected in the Engineering Trades (State Energy Com- mission) Award No. 1 of 1969. The S.E.C. is the largest single employer of labour in the classifications under consideration here and the delineation of the work by that authority carries considerable weight in the Com- mission's consideration of this claim. Award No. 1 of 1969 provides in Clause 5.—Definitions a description of the major and substantial duties of electrical fitters, lineman—live line, lineman first grade and lineman second grade. From a consideration of this material the Commission concludes that it is reasonable that a linesman's duties are not appropriate for performance by employees in the classifications of electrical fitter or electrical installer against their will.

There are clear differences in the ordinary duties of the three classifications in issue and safety considerations alone would make it inadvisable for employees employed as electrical fitters or electrical installers to perform the work of a linesman unless they consider themselves competent to safely perform such duties.

To give effect to this conclusion, pursuant to section 44 (9) (b) of the Act the minutes of a proposed order will now issue. Those minutes provide for the deletion of existing subclause (12) (a) of Clause 30 of Award 6 of 1983 and its replacement by the following:—

(12) (a) An Electrical Fitter or Installer who elects in writing to carry out the work of a linesman on poles and above the ground shall be paid an allowance of $1.42 per day on which he is so employed. This provision shall, when the circumstances exist, apply in lieu of the allowances specified by subclause (11) and vice versa as the case may be.

Order Accordingly.



No.CR267of 1984.

Between Electrical Trades Union of Workers of Australia (Western Australian Branch), Perth, Ap- plicant, and Hamersley Iron Pty. Limited, Respon- dent.

Order. HAVING heard Mr M. H. Beatty on behalf of the applicant and Mr A. N. Cameron on behalf of the respondent, the Commission, pursuant to the powers conferred on it under the Industrial Arbitration Act, 1979, hereby orders—

That the Iron Ore Production and Processing (Hamersley Iron Pty. Limited) Award No. 6 of 1983 be varied in accordance with the following schedule and that such variation shall have effect as from the beginning of the first pay period commencing on or after the date hereof.



Schedule. Clause 30.—Special Rates and Provisions: Delete

subclause (12) (a) and insert in lieu: (12) (a) An Electrical Fitter or Installer who

elects in writing to carry out the work of a linesman on poles and above the ground shall be paid an allowance of $1.42 per day on which he is so employed. This provision shall, when the circumstances exist apply in lieu of the allowances specified by subclause (11) and vice versa as the case may be.


No. CR485 of 1984.

Between Boans Limited, Claimant, and Federated Clerks' Union of Australia Industrial Union of Workers, W.A. Branch, Respondent.

Order. WHEREAS the parties have resolved the matter of disagreement herein by conciliation the Commission, pursuant to the powers conferred on it under the In- dustrial Arbitration Act, 1979, hereby orders—

That the matter be struck out.




No. CR482 of 1984.

Between Hamersley Iron Pty Limited, Claimant, and Federated Engine Drivers and Firemens Union of Workers of Western Australia, Respondent.

Before Mr Commissioner O. K. Salmon. The 19th day of November, 1984.

Mr A. N. Cameron on behalf of the claimant. Mr C. G. Saunders on behalf of the respondent.

Reasons for Decision. THE COMMISSIONER: This matter comes by way of reference pursuant to section 44 of the Industrial Ar- bitration Act, 1979 and concerns an application by Hamersley Iron Pty Limited for a declaration that Mr Robert Cooke, a shovel operator at the Paraburdoo mine site, on the 9th October, 1984 failed'to obey certain instructions conveyed to him by Mr Robert Pope who is the senior foreman shift production at the site. On behalf of Mr Cooke the application is opposed by the Federated Engine Drivers and Firemens Union of Workers of Western Australia.

Clearly the matter involves a charge of misconduct. However, the company does not contemplate dismissal in the event it is successful. A declaration in this form is in practical terms approval for applying other disciplinary measures against Mr Cooke.

I think the best way of explaining the substance of the matter is to provide a resume of the evidence in chief of Mr Pope and Mr Cooke in that order.

From his position in a control tower which overlooks the various operation areas, and by using powerful binoculars, Mr Pope is able to see shovels loading ore into each truck and is able to give directions immediately by radio to shovel operators and truck drivers. He said that he heard one of the drivers complain on the radio of buffetting by a shovel. Through his binoculars he saw Mr Cooke trying to load a "big rock" in the back of the truck, this was approximately 10.30 p.m.; all of the shovel's lights were working and he had a good view. He said that Mr Cooke made several attempts but found that the rock could not be removed from the shovel. Mr Cooke then swung his shovel round and put the rock back on the ground in the face and then tried for some time to break it up without success—"he hardly marked it" after "it could have been five minutes". He said he told Mr Cooke "leave that rock alone, I don't want it loaded on the truck". Mr Cooke answered "It will fit through the bucket", whereupon he said to Mr Cooke "No, leave the rock alone. Push it to one side. I don't want it loaded".

At this stage I mention that it is an established practice that large rocks are sometimes pushed to one side, later drilled by mobile driller and then blasted into smaller parts.

Mr Pope went on to say that the next sequence of events began when another truck backed up under the shovel and was loaded by Mr Cooke with the rock in question. He said he became aware of this when the foreman instructor said on the radio that there was an "oversize rock" loaded on the next truck; this captured his attention. He looked through his binoculars to the point where the rock had been placed on the ground, noticed it was not there, then looked at the truck but could not see it there either. He listened to the radio conversation and he heard the radio controller advising men at the crusher that there was a big rock in the truck and to "get prepared for it".

No difficulty emerges from Mr Pope's inability to see the rock on the truck. This could be due to the manner in which large rocks are loaded. First, a bed of fine material is loaded in order to cushion the effects of loading the large rock and when loaded the large rock is covered by finer material.


Mr Pope went on to say that he went down to the primary crusher however, by the time he arrived the truck had tipped its load. The rock in question had blocked off one side of the crusher; it took approximately half an hour to clear it.

Mr Pope said that at approximately 8.00 a.m. on the following day (10th October, 1984) he informed Mr Jackson, Superintendent, of the events of the previous evening. Mr Jackson convened a meeting, to which Mr Cooke was called and asked to give an explanation. Mr Cooke said that since Mr Pope was not a "ticketed foreman" he was not going to take notice of his orders, and that was why he (Cooke) loaded the rock.

Before going on to outline Mr Cooke's evidence I will mention two other issues said to have a substantial bearing on the facts especially from the union's point of view.

First, there is a "rule of thumb" customarily applied by shovel operators that if a rock passes through the bucket of the shovel it is safe to load it. The union says this rule is not qualified with such descriptions as "within reason" and to support its attitude it draws attention to what is called "a tonsil" welded into the bucket. This tonsil has the purpose of further reducing the size of rocks able to pass through the bucket and thereby, at least in the union's view, removes any risk of loading a rock which is too big.

The applicant is less sanguine about this rule of thumb. It says that discretion is always necessary on the operators part because the angle an oversize rock may have in the bucket can cause it to pass through notwithstanding the tonsil.

The second issue concerns an agreement between the union and the respondent regarding foremen from whom shovel operators take orders in the actual operation of the shovel. My attention was drawn to Clause 12.10 of this agreement which is in the following terms:

Any foreman placed in charge of shovels will have an appropriate shovel operators ticket and two years direct operating experience, or will otherwise have been accepted by custom and practice.

I am told that the reference to custom and practice was included in the clause to cater for a person who has held the job of foreman for some time but who holds no ticket. Once this person is no longer on the job the reference to custom and practice is redundant.

Mr Cooke is a shovel operator of ten years standing, having also been a greaser before advancement to trainee operator. He has worked for the respondent for approximately ten years and six months. He has been a shop steward for the union and he played a part in finalising the shovel operating agreement.

Mr Cooke said that at the time of the incident he was having trouble with the shovel bucket. The door of the bucket would not stay closed so he called for a fitter to attend to it. He said that after the fitter left he proceeded to chip down a rock, he then moved into the face and began loading a truck. After placing a couple of buckets of dirt into the truck he then picked up the rock and tried to load it onto the truck. He said he played around for some time because the rock was caught up in the bail arm of the shovel. He said he placed the bucket in the back of the truck thus dropping the bail arm and releas- ing the rock dropping it into the truck. He then said Mr Pope rang saying "Bill, I don't want that rock. Put it to one side". He swung the shovel round and dropped the rock back into the face. He loaded the truck and tooted it out. He said that while this truck was on its way and the next truck was sitting in line waiting to be loaded he broke the rock down so that it would go through the bucket. He put two buckets of dirt on the next truck and loaded the rock on top of that, according to normal practice. He then placed two more buckets of dirt onto the truck and tooted it out. He said that the rock "went straight through the bucket".

Mr Cooke said that in his opinion he had carried out the instruction given to him by Mr Pope. He said that in breaking down the rock he was following normal

operating practice using methods he had used over ten years. He also said that in all of this time he had broken rocks where possible.

Mr Cooke said that he understood the rule of thumb about loading was "if it goes through the bucket it goes through the crusher". He thought the words "within reason" mentioned in the testimony of the applicant's witnesses were added on over the previous fortnight. In his opinion all shovel drivers believe that if the rock goes through the bucket it goes through the crusher.

Regarding the rock in question, Mr Cooke said that when he first tried to load it, it was pointing up because it had not actually gone into the bucket due to the angle of entry. That was why, unable to load it, he put it to one side. He said that when he did load it he heard the rock come through and hit the door of the shovel; he knew the rock was in the bucket and it did not protrude over the top. He said the rock was about 7 feet by 4 feet and "sort of tapered". He said it was not "enormous" or "gigantic" by comparison with rocks he has put through the bucket before—rocks which have gone through the crusher.

The Company's case is simple. Mr Pope gave Mr Cooke a lawful and reasonable command which he failed to carry out. Mr Pope said that he did not want the rock loaded and that he instructed Mr Cooke that it be put to one side. It was not open to Mr Cooke to load the rock onto the next truck even if he did break it down—which is vigorously disputed. The consequences of Mr Cooke's failure to carry out Mr Pope's instruction was a primary crusher out of action because it could not handle a rock of such proportions. The company further says that Mr Cooke cannot invoke the shovel agreement as grounds permitting him to disregard Mr Pope's direction because Mr Pope's position of senior foreman is not the classification of foreman embraced by Clause 12.10.

The company further says that Mr Cooke should have the incident recorded on his personnel file; also that he should spend a week on day shift in order that he become more familiar with the primary crusher and the rocks that will or will not go through it and the problems involved in freeing the primary crusher.

The union says that there is no case against Mr Cooke. He was instructed to put the rock to one side, which is what he did. The evidence, says the union, was that at first the rock would not go through the bucket but when broken down it did go through without being forced. It was in fact a different rock that Mr Cooke loaded onto the second truck.

There is nothing facile about this argument in the union's view. This is because it is common practice for shovel operators to break down large rocks in order that they can be loaded. Moreover, a rock is not too big if it passes through the bucket.

Finally, the union says that it is part of the initiative displayed by shovel operators that they break down rocks as explained and that to penalise Mr Cooke for what he did would be to penalise initiative.

At the close of proceedings in Paraburdoo I advised the parties that I would reserve my decision because of the amount of evidence called. I wanted to consider all of it in detail before reaching a conclusion. I have done so, however my conclusion is such that it will not be necessary for me to provide a summary of what was said and what was challenged.

First of all, I make an observation regarding the "rule of thumb" which figured largely in the union's case. I find it impossible to accept that such a rule would be applied by shovel operators without discretion and common sense. These are factors so obvious as to require no further comment.

It is not open to the union to challenge the respondent's expectation that Mr Cooke would put the rock to one side when told by Mr Pope. Nor is it ground for doing something else with the rock that what was done was done competently. What matters is what Mr Cooke intended.

2198

The evidentiary standard in these cases is the balance of probabilities. On the evidence of Mr Pope, Mr Cooke during cross examination and Mr Jackson, I have reached a conclusion on what I think is the most probable explanation for the events that occurred.

In my opinion Mr Cooke held a firm but incorrect view that the shovel agreement relieved him from taking instructions from Mr Pope who was not a ticketed man. In the circumstances of the moment, reacting to the instruction, Mr Cooke loaded the rock, modified though it may have been, onto the second truck. This was not a separate and distinct act to be judged in isolation from the reaction.

I agree that the consequences of loading the rock are not important, the issue turns on whether Mr Cooke intended to embark on his own course of action in spite of Mr Pope's instruction without justification. I find that he did.

Finally, it would be disastrous if employees' initiative was to be discouraged. More especially, I think, from an employee's point of view. Initiative is part and parcel of job satisfaction: a way by which employees express their personalities through work. Complex tasks allow greater initiatives. But the opposing issue in this case is a requirement to carry out a lawful and reasonable instruction. An employee may be required lawfully and reasonably to sit for an hour and do nothing when ordinarily very active during working hours; but it is no case to ignore the instruction on the grounds of being deprived of an opportunity to display skill. That would be a short deprivation of no consequence whatsoever. I can find no difference in principle or in the practical consequences of the instruction in this case where it was a momentary requirement in no way prejudicial to Mr Cooke.

A declaration will issue giving effect to the company's claim.


No.CR482of 1984.

Between Hamersley Iron Pty Limited, Claimant, and Federated Engine Drivers and Firemens Union of Workers of Western Australia, Respondent.

Declaration. HAVING heard Mr A.N. Cameron on behalf of the claimant and Mr C. G. Saunders on behalf of the respondent the Commission, pursuant to the powers conferred on it under the Industrial Arbitration Act, 1979 hereby declares—

That Mr Robert Cooke, shovel operator at the Paraburdoo mine site, on the 9th October, 1984, contravened an order of his senior foreman by loading an oversized rock onto a truck when instructed to do otherwise.


(Sgd.)O. K. SALMON, [L.S.] Commissioner.


No. CR487 of 1984.

Between The Federated Miscellaneous Workers' Union of Australia, Hospital, Service and Miscellaneous, W.A. Branch, Claimant, and The Administrator, St. Vincent's Hospital, Guildford, Respondent.

Order. HAVING heard Miss P. B. Kirwan on behalf of the applicant and Mr D. M. Jones on behalf of the respondent, and with the consent of the Chief Industrial Com-

64 W.A.I.G.

missioner, I, the undersigned Commissioner of the Western Australian Industrial Commission in pursuance of the powers contained in paragraph (t) of section 27 of the Industrial Arbitration Act, 1979 do hereby refer the abovementioned matter to the Commis- sion in Court Session for hearing and determination.




No. CR468 of 1984.

Between The Federated Miscellaneous Workers' Union of Australia, Hospital, Service and Miscellaneous, W.A. Branch, Claimant, and The Administrator, St. Vincent's Hospital, Bunbury, Respondent.

Order. HAVING heard Mr M. Williams on behalf of the applicant and Mr D. M. Jones on behalf of the respondent, and with the consent of the Chief Industrial Commis- sioner, I, the undersigned Commissioner of the Western Australian Industrial Commission in pursuance of the powers contained in paragraph (t) of section 27 of the Industrial Arbitration Act, 1979 do hereby refer the abovementioned matter to the Commission in Court Session for hearing and determination.



UNIONS—Application for Alteration of Rules—

In the matter of the Industrial Arbitration Act, 1979, and in the matter of an application by the Australian Railways Union of Workers, West Australian Branch for alteration of its rules.

Decision. HAVING read the application, there being no person desiring to be heard in opposition thereto, after con- sulting with the President, and upon being satisfied that the requirements of the abovementioned Act and the regulations made thereunder have been complied with, I have this day registered an alteration to rules 1, 19, 32 and 82 of the registered rules of the applicant union in the terms of the application as filed on 17th January, 1984.


T. POPE, Deputy Industrial Registrar.



CONFERENCES—Notation of—

2199

PARTIES NUMBER-

COM- MISSIONER

DATE MATTER RESULT

Amalgamated Metal Workers' Union and Australian Workers' Union Union

Cliffs Robe River Iron Associates

C434 of 1984 Halliwell C.

10/09/84 21/09/84 01/11/84

Demarcation dispute Concluded

Australian Workers' Union

Amalgamated Metal Workers' Union

C436 of 1984 Salmon C.

27/10/84 Coverage of trade assistants

Concluded


Westair Pty Ltd C495 of 1984 Collier C.

02/11/84 Claim for site allowance at Tom Price

Concluded


Hamersley Iron Pty Limited


08/08/84 14/08/84 17/08/84 03/09/84

Bans at the Train Load-out section of the Plant

Concluded


Co-operative Bulk Handling

C493 of 1984 Fielding C.

31/10/84 20/11/84

Dispute involving introduction of night shift provisions into the Grain Handling Maintenance Workers Award

Concluded


Hamersley Iron Pty Limited


29/11/84 Claim for disability allowance

Concluded


Foremost Pest Control Pty Ltd

C529 of 1984 Collier C.

27/11/84 Dispute over demolition of Wentworth Hotel site

Concluded


Western Mining Corporation Limited

C328 of 1984 Martin C.

16/07/84 Dispute over hours of work at Kambalda

Concluded

Electrical Trades Union

Mt Newman Mining Co Pty Limited


29/10/84 Utilization of contractors

Referred

Hospital Salaried Officers Association

King Edward Memorial Hospital


20/11/84 Dispute re payment of overtime for weekend shift work and changes in rosters

Concluded

Liquor Industries Union

Kings Park Restaurant


01/11/84 Dispute re dismissal of employee

Referred

Liquor Industries Union

Murlali Lodge C511 of 1984 Fielding C.

08/11/84 Dispute re dismissal of worker

Referred

Miscellaneous Workers' Union

The Administrator, Sir Charles Gairdner Hospital

C466 of 1984 Halliwell C.

12/10/84 Dispute over length of continuous service

Concluded

Miscellaneous Workers' Union

The Hon. Minister for Education

C215 of 1981 Johnson C.

12/05/81 Dispute over allowance payable to employees engaged in opening and closing of rooms after hours

Concluded

Printing and Kindred Industries Union

West Australian Newspapers Limited


27/11/84 Claim for increased wages

Concluded

Printing and Kindred Industries Union

Government Printer


03/09/84 Dispute over operation of offset press

Concluded

Transport Workers' Union

St Vincent De Paul Society


22/05/84 Dispute over furniture allowance payable

Concluded

United Furniture Trades Union

Aussie Doors C498 of 1984 Salmon C.

26/10/84 Conditions of work

Concluded



No. 960 of 1984.

Between R. Reveley, E. Deligeorges and R. Clark, Ap- plicants, and Allan Markland, Respondent.

Order. HAVING heard Mr H. J. Dixon (of Counsel) on behalf of the Applicants and Mr D. W. Skinner on behalf of the Respondent, the Commission, pursuant to the powers conferred on it under the Industrial Arbitration Act, 1979, and by consent, hereby orders—



(Sgd.)G. L. FIELDING, fL.S.l Commissioner,


No. 918 of 1984.

Between Attwood Oceanics Australia Pty. Ltd., Appli- cant, and Allan Markland, Respondent.

Order. HAVING heard Mr H. J. Dixon (of Counsel) on behalf of the Applicant and Mr D. W. Skinner on behalf of the Respondent, the Commission, pursuant to the powers conferred on it under the Industrial Arbitration Act, 1979, and by consent, hereby orders—



(Sgd.)G. L. FIELDING, [L.S.] Commissioner.


No. 1015 of 1984.

In the matter of the Industrial Arbitration Act, 1979 and in the matter of an application filed on 11th October 1984 by the Federated Clerks' Union of Australia Industrial Union of Workers, W.A. Branch and numbered 878 of 1984.

WHEREAS an application was made by Stateliner Pty. Ltd. that the time for filing answers and or counter proposals to the abovementioned application be extended to 23rd November 1984; and whereas the application was heard ex parte before me in chambers. Now therefore I the undersigned Chief Industrial Commis- sioner of the Western Australian Industrial Commission in pursuance of the powers contained in the said Act, do hereby order and direct—

That time within which answers and or counter proposals to application No. 878 of 1984 be filed at the Commission and a copy thereof served on the applicant by Stateliner Pty. Ltd. be extended to 23rd November 1984.



No. 1016 of 1984.

In the matter of the Industrial Arbitration Act, 1979 and in the matter of an application filed on 11th October, 1984 by the Federated Clerks' Union of Australia Industrial Union of Workers, W.A. Branch and numbered 879 of 1984.

WHEREAS an application was made by Stateliner Pty. Ltd. that the time for filing answers and or counter proposals to the abovementioned application be extended to 23rd November, 1984; and whereas the application was heard ex parte before me in chambers. Now therefore I the undersigned Chief Industrial Commis- sioner of the Western Australian Industrial Commission in pursuance of the powers contained in the said Act, do hereby order and direct—

That time within which answers and or counter proposals to application No. 879 of 1984 be filed at the Commission and a copy thereof served on the applicant by Stateliner Pty. Ltd. be extended to 23rd November, 1984.


(Sgd.) E. R. KELLY, fL.S.l Commissioner.


No. 1068 of 1984.

In the matter of the Industrial Arbitration Act, 1979 and in the matter of an application for a reduction of the time in which an answering statement to Ap- plication No. A28 of 1984 is to be filed in the Com- mission.

WHEREAS an application was made by Argyle Dia- mond Mines Pty Limited in accordance with the In- dustrial Arbitration Act, 1979. And whereas the application was heard ex parte before me, I, the undersigned Chief Industrial Commissioner of the Western Australian Industrial Commission, pursuant to the powers conferred upon me under the Industrial Arbitra- tion Act, 1979 do hereby order and direct:—

1. That the applicant shall forthwith serve a copy of Application No. 1068 of 1984, its accompanying statement and this order on the Amalgamated Metal Workers and Shipwrights Union of Western Australia; The Australian Workers' Union, West Australian Branch, In- dustrial Union of Workers; and the Electrical Trades Union of Workers of Australia (Western Australian Branch), Perth, respondents, with respect to the claim in matter No. A28 of 1984.

2. That an answer to the claim in matter No. A28 of 1984 filed with the Commission on the 23rd day of November, 1984, shall be lodged with the Commission and a copy thereof served on the applicant within seven days from the date upon which the documents mentioned in 1. above are served on respondents.


(Sgd.) E. R. KELLY, fL.S.l Commissioner.

[L.S.] (Sgd.) E. R. KELLY,

Commissioner.


AWARDS—Consolidation by Registrar—

CARETAKER-WATCHMEN'S (State Electricity Commission).


PURSUANT to section 93 (6) of the Industrial Arbitra- tion Act, 1979, the following award has been consolidated and is published hereunder for general information.


K. SCAPIN, Industrial Registrar.


1.—Title. This award shall be known as the Caretaker-

Watchmen's (State Electricity Commission) Award No. 3 of 1967 as amended and consolidated and replaces Award No. 29 of 1959 as amended.

2.—Arrangement. 1. Title. 2. Arrangement. 3. Term. 4. Scope. 5. Definitions. 6. Hours. 7. Overtime. 8. Shiftwork. 9. Public Holidays. 10. Annual Leave. 11. Time and Wages Sheets. 12. Right of Entry. 13. Notices. 14. Long Service Leave. 15. Sick Leave. 16. General Conditions. 17. Preference. 18. No Reduction. 19. Wages.

3.—Term. The term of this award shall be three years from the

date hereof. (The date of this award is the 10th day of March 1967.)

4.—Scope. This award shall apply to the designation of workers

specified in this award and employed by the State Elec- tricity Commission of Western Australia.

5.—Definitions. "Caretaker" shall mean a male person required to

reside on or in the vicinity of the premises of his employer and who is responsible to his employer for the supervision and/or the general cleaning of such premises and who is responsible for the safety of such premises after ordinary working hours. The employer shall grant a caretaker reasonable time off, such times to be mutually agreed upon between the caretaker and the employer.

"Premises'' shall include all property and buildings in occupation by the employer.

"Watchman" shall mean a male person required to watch and/or guard and/or patrol premises.

"Gatekeeper" shall mean a male person required to record and/or restrict entrance or exit to or from the premises, of persons, vehicles or goods.

"Cleaner" shall mean a worker mainly employed in cleaning work of any description on premises or in bringing into or maintaining premises in a clean condition but does not include cleaning of mechanical plant in power stations.

"Casual Worker" shall mean a worker who is engaged intermittently for a period not exceeding six consecutive days.

6.—Hours. (1) Forty hours exclusive of Saturday and Sunday

work shall constitute a week for day workers. No day's work shall exceed eight hours without the payment of overtime rates.

(2) The ordinary hours of duty shall be between the hours of 6.00 a.m. and 7.00 p.m. Monday to Friday inclusive.

(3) The ordinary working hours for shift workers shall be 40 hours per week, such hours shall be worked in not more than eight hours in any one shift and not more than one shift in any 24 hours. The employer may fix the number and duration of such shifts and the worker shall be given 48 hours notice of any change of such shift.

(4) There shall be no fixed spread of hours for caretakers who may be required to be on duty on any day of the week, but no caretaker shall be called upon to do cleaning work in excess of 40 hours per week. Caretakers provided with quarters shall not be deemed to be working on Sundays because they open and close premises of which they are in charge.

7.—Overtime. (1) Except as hereinafter provided, all time worked in

excess of or outside the usual hours shall be paid for at the rate of time and a half for the first two hours after the usual time for ceasing work and double time thereafter.

Provided that workers called upon to start within an hour and a half prior to the usual starting time shall be paid at the rate of time and one half until the usual starting time.

(2) When a worker, without being notified on the previous day is required to work overtime for more than two hours after his usual knock-off time, he shall be paid an allowance of $1.75 for the first meal and a further allowance of 60 cents for a meal for each four hours of overtime if he continues to work after such meal.

(3) Overtime on shift work shall be based on the rate payable for afternoon or night shift work; provided that double time, i.e. twice ordinary rate, shall be the maximum rate payable under the provisions of this award except as prescribed in Clause 9.—Public Holidays of the award.

(4) All time worked on Sunday, outside the ordinary hours of work, shall be paid for at the rate of double time.

(5) A worker shall not work more than 16 hours con- secutively in any one period of 24 hours.

8.—Shift Work. (1) Subject to subclause (2) and (3) hereof a loading

of 15 per cent of the ordinary wage shall be paid for time worked on afternoon or night shift as defined hereunder:

(a) Afternoon Shift—commencing between 12 noon and 6.00 p.m.

(b) Night Shift—commencing between 6.00 p.m. and 4.00 a.m.

(2) Time and a half shall be paid for shifts worked by continuous shift workers during ordinary working hours between midnight on Friday and midnight on Saturday.


(3) Double time shall be paid for shifts worked by continuous shift workers during ordinary working hours between midnight on Saturday and midnight on Sunday.

(4) The rates prescribed in (2) and (3) hereof shall be in substitution for and not cumulative on the rates prescribed in subclause (1) of this clause.

9.—Public Holidays. (1) (a) The following days or the days observed in lieu

shall, subject as hereinafter provided, be allowed as holidays without deduction of pay, namely: New Year's Day, Australia Day, Good Friday, Easter Monday, An- zac Day, Labour Day, Foundation Day, Sovereign's Birthday, Christmas Day and Boxing Day. Provided that another day may be taken as a holiday by arrangement between the parties in lieu of any of the days named in the subclause.

(b) When any of the days mentioned in paragraph (a) hereof falls on a Saturday or a Sunday the holiday shall be observed on the next succeeding Monday and when Boxing Day falls on a Sunday or a Monday the holiday shall be observed on the next succeeding Tuesday. In each case, the substituted day shall be a holiday without deduction of pay and the day for which it is substituted shall not be a holiday.

(2) (a) Whenever any holiday falls on a worker's ordinary working day and the worker is not required to work on such day, he shall be paid for the ordinary hours he would have worked on such day if it had not been a holiday.

(b) If any worker other than a shift worker is required to work on a holiday he shall be paid for the time worked at the rate of double time and a half i.e. two and a half times the ordinary rate.

(c) If a shift worker is required to work on a holiday, he shall be paid for the time worked at the rate of double time, i.e. twice the ordinary rate.

(3) A continuous shift worker who is not required to work on a holiday which falls on his rostered day off, shall be allowed a day's leave with pay to be added to annual leave or taken at some other time if the worker so agrees.

10.—Annual Leave. (1) (a) Except as hereinafter provided, a period of

four weeks leave with payment of ordinary wages as prescribed shall be allowed annually at the employer's convenience to a worker by the employer after a period of 12 months consecutive service with that employer.

(b) A seven day shift worker, i.e. a shift worker who is rostered to work regularly on Sundays and holidays shall be allowed one week's leave in addition to the leave to which he is otherwise entitled under this clause.

(c) Where a worker with 12 months continuous service is engaged for part of a qualifying 12 monthly period as a seven day shift worker, he shall be entitled to have the period of annual leave to which he is otherwise entitled under this clause increased by one-twelfth of a week for each completed month he is continuously so engaged.

(2) Annual leave may be taken in one or two periods provided that each period shall be in complete weeks and not less than one week.

(3) If any holiday under this award falls within a worker's period of annual leave and is observed on a day which in the case of that worker would have been an ordinary working day, there shall be added to that period one day being an ordinary working day for each such holiday observed as aforesaid.

(4) (a) Subject to paragraph (b) of this subclause, when computing the annual leave due under this clause, no deduction shall be made from such leave in respect of the period that a worker is on annual leave and/or holidays. Provided that no deduction shall be made for any approved period a worker is absent from duty

through sickness with or without pay unless the absence exceeds three calendar months, in which case, deduction may be made for such excess only.

(b) Approved periods of absence from work caused through accident sustained in the course of employment shall not be considered breaks in continuity of service, but the first six months only of any such period shall count as service for the purpose of computing annual leave.

(5) Subject to the provisions of subclause (6) of this clause, a worker whose employment terminates after one month's continuous service in any qualifying 12 monthly period, shall be paid one third of a week's pay in respect of each completed month of continuous service in that qualifying period.

(6) A worker who is justifiably dismissed for misconduct shall not be entitled to the benefit of the provisions of this clause.

(7) A worker whose employment terminates shall be entitled to payment for any complete period of annual leave due to him.

(8) "Ordinary Wages" for the purpose of subclause (1) hereof shall mean the rate of wage the worker has received for the greatest proportion of the calendar month prior to his taking the leave.

(9) Annual leave shall be calculated up to the end of each financial year.

(10) The provisions of this clause shall not apply to a casual worker.

(11) When work is closed for the purpose of allowing annual leave to be taken, workers with less than a full year's service shall be entitled to payment during such period for the number of days leave due to them.

(12) On and from the 1st day of July 1977, during a period of annual leave a worker shall receive a loading calculated on the following basis—

(a) Day Workers: Seventeen and a half per cent (171/2 per cent) of the worker's "rate of wage" calculated at the date of accrual.

(b) Shift Workers: Shift loadings and weekend penalties for ordinary time, as prescribed in Clause 8.—Shift Work, in accordance with the shift roster the worker would have worked had he not been on leave.

Where the amount paid for shift loadings and/or weekend penalties is less than \1Vi per cent of the worker's "rate of wage", a loading shall be added to give an amount equal to \1Vi per cent of the worker's "rate of wage" at the date of accrual.

(c) "Rate of Wage" shall comprise the wage a worker would have received in respect of the ordinary time he would have worked had he not been on leave during the relevant period.

(d) The loading prescribed by this subclause shall not apply to proportionate leave on termination.

11.—Time and Wages Sheet. The wages time sheets and cards for workers working

under this award shall be open for inspection by the Secretary of the Union upon reasonable notice of his desire to inspect same.

12.—Right of Entry. On notifying the officer in charge, any officer of the

union authorised in writing by the President and Secretary of such union, shall have the right to enter any place or premises during ordinary working hours wherein members of such union covered by this award are engaged for the purpose of conversing with or interviewing the workers in such places or premises. Provid- ed that such officer shall not hamper or otherwise hinder the workers in the carrying out of their work. The officer in charge shall determine whether workers are being hampered or hindered in their work.


13.—Notices. The Secretary or an authorised person may place

notices on the Wages Notice Board after obtaining permission from the General Manager.

14.—Long Service Leave. The conditions relating to full-time Government

wages workers generally as in force as at the date of this award and as may be amended from time to time shall apply to all workers employed under the provisions of this award.

15.—Sick Leave. (1) (a) A worker shall be entitled to payment for non-

attendance on the ground of personal ill-health for one- sixth of a week's pay for each completed month of service.

(b) The liability of the Commission shall in no case exceed two weeks' wages during each year in respect of each worker but the sick leave herein provided shall be allowed to accumulate and any portion unused in any year may be availed of in the next or any succeeding year.

(c) Payment hereunder may be adjusted at the end of each accruing year or at the time the worker leaves the service, in the event of the worker being entitled by service subsequent to the sickness in that year to a greater allowance than that made at the time the sickness occurred.

(2) This clause shall not apply where the worker is entitled to compensation under the Workers' Compensa- tion Act.

(3) No worker shall be entitled to the benefit of this clause unless he produces proof to the satisfaction of the Commission or its representative of such sickness, provided that the Commission shall not be entitled to a medical certificate for absence of less than three consecutive working days unless the total of such absences exceeds five days in any one accruing year.

(4) No payment shall be made for any absence due to a worker's own fault, neglect or misconduct.

16.—General Conditions. (1) (a) Subject to Clause 10.—Annual Leave (6) and

to Clause 15.—Sick Leave, any regular worker on a weekly engagement who may not have worked the maximum number of ordinary working hours in any one week, shall be paid not less than the minimum weekly rate of wages specified herein for his particular class of work. Provided that such worker has been available to work the maximum number of ordinary working hours.

(b) For the purpose of this subclause, time worked on statutory holidays within the limitations set out, shall be deemed hours in which a worker was available to work ordinary working hours.

(2) In the case of regular workers, one week's notice in writing must be given on either side when it is desired to terminate the engagement. The Commission may pay a week's wages in lieu of notice and, in the case of a worker leaving without notice or before such notice expires, he shall forfeit all wages accruing due to him for the current week's service. Such week's notice cannot be continued from week to week. Provided that this shall not apply in the case of misconduct when a worker shall be subject to instant dismissal and entitled only to the wages due to him up to the hour of dismissal. Provided also that the engagement of a casual hand may be terminated at any time.

(3) Where a worker is required by the employer to work in the rain, suitable protective clothing shall be provided free by the employer.

(4) (a) Travelling Time. When a worker is sent to work from the depot to which he is attached, he shall be paid for travelling time from the depot to the job and if he is required to return to his depot on the same day, he shall be paid travelling time for such return journey.

(b) A worker sent for duty to a place other than his regular place of duty shall be paid his excess travelling expenses.

(5) Change Room. Where practicable, suitable dressing accommodation shall be provided with facilities for boiling water.

(6) Cleaners who are required to work their ordinary hours each day in two shifts and where the break between the two shifts is not less than four hours, shall be paid an allowance of 50 cents per day.

(7) (a) A worker whose duties require him to enter the same buildings and/or who works in similar conditions as other workers who are paid a power house allowance shall be paid in addition to the rates prescribed in Clause 19.—Wages hereof, a power house allowance of $4.10 per week.

(b) The allowance prescribed in paragraph (a) of this subclause shall also be payable pro rata to a worker who is employed for more than 20 hours in any week in an area where the said allowance is payable.

17.—Preference to Unionists. No longer in force—see section 117 (1) (g) of In-

dustrial Arbitration Act, 1979.

18.—No Reduction. This award shall not in itself operate to reduce the

wage of any worker who is at present receiving above the minimum rate prescribed for his class of work.

19.—Wages. An employer on whom this award is binding shall not

increase the rate of wage payable to an employee on 24th December, 1983, or otherwise vary the conditions of employment applicable to an employee on that date so as to increase that employer's labour costs except to the extent that any such increase has been authorised by the Commission, after that date.

(1) The minimum total rate of wage payable under this award shall be as follows:

Wage Special per pay-

week ment $ $

Caretaker 248.40 37.80 Watchman 230.80 37.90 Gatekeeper 224.20 37.90 Cleaner 233.70 37.80

(2) Part time Cleaner. (a) The weekly rate for a Part time Cleaner shall

be calculated pro rata in proportion that the fortnightly hours of work bear to 75 hours.

(b) When regularly employed for less than 24 hours per fortnight a worker shall be paid a loading of 20 per cent in lieu of sick leave, annual leave and public holidays.

(3) Casual Workers: A casual worker shall be paid 20 per cent of the ordinary rate in addition to the ordinary rate prescribed for the designated class of work.

37051—6


NOTICES—Union Matters—

Number 1079 of 1984.

NOTICE is given of an application by The Federated Miscellaneous Workers' Union of Australia, Hospital, Service & Miscellaneous, W.A. Branch under the In- dustrial Arbitration Act, 1979 for an alteration to Rule 4.—Eligibility for Membership of its registered rules. The alteration sought is listed below. Add to the end of subrule (1), paragraph (t) in the following terms:—

(t) Persons employed by non government Aboriginal agencies.

As far as material to this application, the rule would then read:

(1) The Union shall consist of an unlimited number of persons who are employed or who are usually employed in or in connection with any of the following industries or callings within the State of Western Australia:—

(t) Persons employed by non-governemnt Aboriginal agencies.

This matter has been listed for hearing before the Full Bench on 19th February, 1985.

A copy of the rules of the proposed new union may be inspected at my office, 815 Hay Street, Perth.

Any union registered under the Industrial Arbitration Act, 1979, or any person who satisfies the Full Bench that he has a sufficient interest, or desires to object to the application may do so by filing a notice of objection in accordance with regulation 23 of the Industrial Com- mission regulations, 1980.

T. J. POPE, 30th November, 1984. Deputy Registrar.

COAL INDUSTRY TRIBUNAL- AWARDS—Amendment of—

1. COAL MINING INDUSTRY. (Miners' Western Australia).

Consolidated Award No. 4 of 1953.

2. ENGINEERS' COAL MINING. Award No. 1 of 1953.

3. COLLIERY STAFFS' AWARD. No. 62 of 1955.

4. COLLIE DEPUTIES' AWARD. No. 19 of 1954.

Before the Western Australian Coal Industry Tribunal held at Collie on the 7th day of November, 1984.

Application No. 13 of 1984.

Between The Coal Miners' Industrial Union of Workers of Western Australia, Collie; The Amalgamated Metal Workers' and Shipwrights' Union of Western Australia; The Australasian Society of Engineers, Moulders and Foundry Workers In- dustrial Union of Workers, Western Australian Branch; The Australian Collieries' Staff Associa- tion, West Australian Branch, Union of Workers, Collie; and The Collie District Deputies Union of Workers, Applicants, and Western Collieries Ltd and The Griffin Coal Mining Company Limited, Respondents.

In the matter of an application to increase the travelling allowances provided in each of the Awards affecting those employed at the Collie Coalfield.

Decision of the Tribunal. THIS is an application to increase in each of the Awards affecting the coal industry in this State, the travelling allowances payable thereunder. It is an allowance, the nature of which the Tribunal's wage fixing guidelines permit to be adjusted to meet increased costs which the allowance is assigned to reimburse.

As both advocates have indicated, there has over the years been a direct nexus with the State Public Service in this respect. As Mr Smith indicated and Mr Kenner rightly acknowledged, those travelling allowances in the Public Services were altered with effect from 1st September last. We are unanimous in our view that the application should be acceded to and by consent with effect from 3rd September, 1984.

Order. Having heard Mr B. G. Smith on behalf of the Ap-

plicants and Mr S. J. Kenner on behalf of the Respondents, the Tribunal, by consent, doth hereby award, order and prescribe:—

1. That the Coal Mining Industry (Miners' Western Australia) Consolidated Award 1981 as amended be further amended by deleting from subclauses 6 (f) (ii) and 6 (f) (iv) thereof the amounts of 23.1 cents and 31.5 cents and substituting therefor the amounts of 23.9 cents and 32.3 cents respectively.

2. That the Enginers' Coal Mining Award 1953 as amended be further amended by deleting from subclause 7 (d) (iii) thereof the amounts of 23.1 cents and 31.5 cents and substituting therefor the amounts of 23.9 cents and 32.3 cents respectively.

3. That the Colliery Staff's Award 1968 as amended be further amended by deleting from Clause 12 thereof the amounts of 23.1 cents and 31.5 cents and substituting therefor the amounts of 23.9 cents and 32.3 cents respectively.

4. That the Collie Deputies' Award 1968 as amended be further amended by deleting from subclause 9 (g) (ii) thereof the amounts of 23.1 cents and 31.5 cents and substituting therefore the amounts of 23.9 cents and 32.3 cents respectively.

5. That each of these amendments shall operate with effect on and from the 3rd day of September, 1984.

Dated at Collie the 7th day of November, 1984.

G. L. FIELDING, Chairman,

Western Australian Coal Industry Tribunal.

COLLIERY MANAGERS (Long Service Leave). Award No. 19 of 1956.



Between The Association of Colliery Management, Western Australia, Applicant, and The Griffin Coal Mining Company Limited and Western Col- lieries Ltd, Respondents.

In the matter of an application to amend the Colliery Managers (Long Service Leave) Award No. 19 of 1956 relating to classifications covered by that Award.


Decision of the Tribunal. THIS is an application brought by the Association of Colliery Management, Western Australia, to amend the Colliery Managers (Long Service Leave) Award No. 19 of 1956. It seems that recently the Association has had its constitution amended to broaden those over whom it has constitutional coverage. This application seeks to bring up to date or reflect, as Mr Kenner has said, modern day practices within the management classifications as adopted by each of the Respondents.

This application seeks to extend the operation of the Award to those for whom the Applicant now has constitutional coverage, and who occupy positions within that coverage currently maintained by either or both of the companies.

There is, as Mr Parks says, no increase in costs to the industry as a result of the amendment. It is very much a formal or modernising one, and the Tribunal is unanimously of the view that the claim should be granted.

By consent and with our sanction the amendment is to operate with effect on and from this date.

The amendment is to be made subject to ratification by the Trustees of the Coal Mining Industry Long Ser- vice Leave Trust Fund since it is they who will be required to pay out the moneys, not the companies. It is therefore only right and proper that the amendments be made subject to their ratification. That in my experience has been the normal practice of this Tribunal in any event.

Order. Having heard Mr C. B. Parks on behalf of the Appli-

cant and Mr S. J. Kenner on behalf of the Respondents, the Tribunal, by consent, doth hereby award, order and prescribe:—

1. That subject to ratification by the Trustees of the Coal Mining Industry Long Service Leave Trust Fund, the Colliery Managers (Long Ser- vice Leave) Award No. 19 of 1956 be further amended by deleting Clause (1) and inserting in lieu thereof the following:—

(1) This award shall be binding upon employers in the coal mining industry in the State of Western Australia with respect to the following classifications employed by such employers:

Colliery Manager, General Manager, Company Secretary, Superintendent, Deputy General Manager, Operations Manager, Laboratory Manager, Chief Mining Engineer, Industrial Relations/Personnel Manager, Mine Maintenance Manager, Commercial/Administration Manager.

2. That the abovementioned variation shall operate on and from this date.




COLLIERY MANAGERS (Long Service Leave). Award No. 19 of 1956.



Between The Association of Colliery Management, Western Australia, Applicant, and The Griffin Coal Mining Company Limited and Western Col- lieries Ltd, Respondents.

In the matter of an application to amend the Colliery Managers (Long Service Leave) Award No. 19 of 1956 relating to portability of long service leave.

Decision of the Tribunal. BY this application, the Association of Colliery Management seeks to amend the Colliery Managers (Long Service Leave) Award, being No. 19 of 1956, to add a new subclause to provide for portability of long service leave. As has been indicated by Mr Parks and acknowledged by Mr Kenner, portability of long service leave is already a fact of life in the other States. What is happening in this State is really bringing it into line with the existing conditions for the industry at large in the other States.

Although it has not been said, my understanding is that there will be no additional costs because the companies are already, through the royalty system, bound to contribute to the trust fund out of which the liability for long service leave is met. Therefore, since there are no additional costs, it is not a breach of the Tribunal's wage guidelines to grant the claim.

In the circumstances, the parties being in agreement, the Tribunal is unanimous in its view that the claim should be allowed, and it remains only to formally order that the Colliery Managers (Long Service Leave) Award No. 19 of 1956 be further amended in accordance with the terms of the application, with effect from this day, subject to ratification by the Trustees of the fund.

Order. Having heard Mr C. B. Parks on behalf of the Appli-

cant and Mr S. J. Kenner on behalf of the Respondents, the Tribunal, by consent, doth hereby award, order and prescribe:—

1. That subject to ratification by the Trustees of the Coal Mining Industry Long Service Leave Trust Fund, the Colliery Managers (Long Ser- vice Leave) Award No. 19 of 1956 be further amended by adding a new subclause (xi) to Clause 2 in the following terms:—

(xi) On and from the 19th June, 1949, service given and long service leave taken by an employee in the States of New South Wales, Queensland and Tasmania in the Coal Mining Industry, shall be deemed to be service given and long service leave taken under this award.

2. That the abovementioned variation shall operate on and from this date.




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