100315473

WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATE’S COURT

PARTIES CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

CLAIMANT

 -v-

 CARL ANTHONY PERROT & SANDRA LEE PERROTT TRADING AS C & S PERROTT

RESPONDENT

CORAM MAGISTRATE G CICCHINI IM

DATE WEDNESDAY, 17 JULY 2002

FILE NO/S M 18 OF 2002

CITATION NO. 2003 WAIRC 07653

_______________________________________________________________________________

Representation

Claimant Ms E Peak of counsel

Respondent Mr O Moon as agent

_______________________________________________________________________________

Reasons for Decision

The Claim

1         The Claimant alleges that the Respondents intermittently employed its member, namely John Hayes, during the period June 1995 to 11 May 2001.  It is alleged that during the relevant periods of employment, Mr Hayes was employed as a builder’s labourer.

2         The Claimant contends that Mr Hayes’ employment by the Respondents was during the period 15 August 1997 to 11 May 2001 governed by the CS Perrott Industrial Agreement No AG 191 of 1997 (the Agreement) registered by the Western Australian Industrial Relations Commission on 15 September 1997.

3         The Agreement, an enterprise bargaining agreement, was entered into by the Claimant’s predecessors on the one hand and the Respondents on the other.  The Respondents retired from and ceased to be a party to the Agreement with effect from 8 June 2001 (see 81 WAIG 1182).

4         Clause 8 of the Agreement provided that the Agreement was to be read wholly in conjunction with the Building Trades (Construction) Award No 14 of 1978 (the Award) and that where there was conflict between the two, the higher rate was to apply.

5         The Claimant alleges breaches of the Agreement as follows:

• Breach of clause 8 as constituted by various alleged breaches of the Award.
• Breach of clause 11 constituted by the alleged failure to pay site allowance.
• Breach of clause 12.1 constituted by a failure to pay correct redundancy entitlements.
• Breach of clause 15 in failing to apply the “first on - last off” requirement.
• Breach of clause 16 constituted by the failure to pay accrued sick leave on termination.
• Breach of clause 18 resulting from the failure to pay an extra $6.15 per day in respect of the daily allowance for fares and travelling payable pursuant to the Award.

6         The breaches of clause 8 of the Agreement are made up by the following alleged breaches of the Award:

• Breaches of clause 12A(2) by failing to pay fares and travelling allowance.
• Breaches of clause 13(1)(e) arising from non-payment of the correct rate of pay for work performed on rostered days off.
• Breaches of clause 17(1) arising from the non-payment of wages on public holidays.
• Breach of clauses 22(4) and 22(7)(b) constituted by the failure to pay proportionate leave and annual leave loading upon termination.
• Breach of clause 28(6) resulting from the failure to provide time and wages records as requested.
• Breach of clause 35 with respect to presenting for work but not required to work for the whole day.

7         In the alternative the Claimant says that if the Agreement did not apply, then the Respondents are in breach of the Award in any event.

8         The Claimant seeks to recover $6822.95, which it says constitutes the total underpayment to its member.  Interest is claimed on that amount.  The Claimant also applies for the imposition of a penalty and seeks costs.

Response

9         The Respondents, by their amended outline of defence filed on 31 May 2002, rejected the claim, ostensibly on the basis that the worker, namely John Hayes, was not an employee but rather a subcontractor.  The Respondent denied that Mr Hayes was engaged pursuant to the Agreement.  They deny that they were liable to pay him site allowance, redundancy entitlements and sick leave pursuant to the Agreement.

10     The Respondents also maintained that they were not in breach of the fares and travelling provisions of the Agreement.  Indeed, they contended that they had overpaid Mr Hayes for fares and travelling.  Furthermore, it is alleged that they overpaid into Mr Hayes’ superannuation fund.  The Respondents also contend that they overpaid Mr Hayes on 1 May 2001, a day that he did not work due to strike action.

11     The Respondents denied that they failed to provide to the Claimant time and wages records relating to Mr Hayes.

Issues

12     At the commencement of the hearing I was told that the major issue to be determined was whether Mr Hayes was an employee or a subcontractor.  I was told that the Respondents conceded that they worked in the building and construction industry and that both they and Mr Hayes were engaged on construction work within that industry.  It was agreed that if the Award and the Agreement applied to Mr Hayes’ work that he would be classified a “Group 3 Labourer” as outlined in those instruments.  Further, quantum, as set out in the schedule to the outline of claim, was agreed.  The Respondents, however, deny liability to pay fares and travelling, superannuation and the claim made with respect to 1 May 2001.

13     The Respondent’s position as to its defence of the matter shifted significantly during the course of the hearing.  In his concluding submissions Mr Moon, on behalf of the Respondents, said at pages 128 and 129 of the transcript:

“ MR MOON:  Before we commence, I’ve taken some instructions, your Worship, and it may endeavour to shorten the proceedings somewhat.  My instructions are that we will not pursue the claim that Mr Hayes was a subcontractor even though the company believed that that was the case because of the ABN number but I’ve given them advice regarding the authorities that go to establishing whether the nature of the relationship is one of a subcontractor or an employee and on that basis their instructions to me is that we will not proceeding with arguing that Mr Hayes was a subcontractor.

HIS WORSHIP:  So there’s a concession that he was an employee in effect.

MR MOON:  Yes.  In effect, yes, with those qualifications, even though they genuinely believe that by signing exhibit 17, and him having an ABN number, automatically rendered him a subcontractor, but they acknowledge that it became - - it came down to a method by which the tax was being paid and that’s a situation that Mr Hayes will have to contend with.

HIS WORSHIP:  All right.

MR MOON:  So I thought that by that we may be able to shorten these proceedings somewhat and I have informed Ms Peak of that.

HIS WORSHIP:  So, what, do you need some time, do you - -

MR MOON:  No, no, no, no.  I’ve taken instructions - -

HIS WORSHIP:  All right.

MR MOON:   - - in that regard.

HIS WORSHIP:  All right.  Well, whenever you’re ready, I’ll hear your submissions in relation to this matter - -

MR MOON:  Okay.

HIS WORSHIP:   - - in view of those instructions.

MR MOON:  Yes.  Your Worship, it is our submission that, based on that and what I’ve just said, the company acknowledges that Mr Hayes was at all material time an employee of the company and that whilst he was during that period of time engaged under the C & S Perrott Industrial Agreement AG191 of 1975 we nevertheless submit that the evidence in this case has shown that there are substantial mitigating circumstances in relation to why he wasn’t paid – that is, Mr Hayes – in accordance with that Agreement. …”

14     At pages 133 to 137 of the transcript Mr Moon explained that the concession made related only to the employment of Mr Hayes on the Burswood Casino Convention Centre site between 3 January and 11 May 2001 inclusive.

15     The issue of whether or not Mr Hayes was an employee of the Respondents prior to that date remains live.  However, it is noted that such issue only impacts upon the determination of whether or not there has been a breach of clause 28(6) of the Award because all the other alleged breaches in the claim relate specifically to the period 3 January to 11 May 2001.

16     Notwithstanding the concessions made, the Respondents maintain that on a proper construction of the Agreement, no site allowance was payable to its employees.  If it was payable, then it has already been paid as part of an “all in” rate paid to its employees.  Similarly, it is argued that fares and travelling allowance was paid as a component of the “all in” payment made.  The Respondents maintain that the Claimant should not succeed on its claim for redundancy (claim 49/52 in the schedule), accrued sick leave (claim 50/52 in the schedule) and for the times that Mr Hayes failed to work on account of strike action.

Evidence

17     The Claimant called two witnesses, namely Rodney Reynolds and John Hayes.  Each of the Respondents elected to give evidence.  They called Mr Stephen Berndes, a bricklayer who from time to time was engaged by the Respondents and Mr Mark Mills, a bricklayer’s labourer who was similarly engaged by the Respondents.

Rodney Reynolds

18     Mr Reynolds, the Industrial/Research Officer of the Claimant, testified that on 24 July 2001 he sent a letter (exhibit 5) to the Respondents seeking all time and wages records covering the full period of Mr Hayes’ employment with the Respondents.  I set out the letter:

“24 July 2001

C & S Perrott

343 Knutsford Avenue 

KEWDALE  WA  6105

Dear Sir / Madam

TIME & WAGE RECORDS REQUEST

The Western Australian Builders’ Labourers, Painters & Plasterers Union of Workers has recently received complaints in relation to the wages paid to John Hayes previously employed by you.  On the basis of these complaints the Secretary of the Union has reason to suspect that breaches of the Building Trades (Construction) Award 1987, R14 of 1978 (“the Award”) may have been committed.  Clause 28(6) of the abovementioned Award requires that, under these circumstances, you make your time and wages records available.

I therefore request that you forward all time and wage records and documentation specified in Clause 28 of the award, covering the full period of Mr Hayes employment with you, to the Union office within 48 hours.  I should point out that failure to provide these records could result in the Union taking legal action.

Yours sincerely

ROD REYNOLDS

Industrial / Research Officer”

19     The Respondents engaged an agent to respond to the Claimant in respect to the letter other matters.  Subsequently correspondence passed between Mr Kim Richardson on behalf of the Respondents and Mr Reynolds concerning the issue of the production of time and wages records.  Notwithstanding that, the only record that was eventually produced by the Respondents was that relating to Mr Hayes’ work for the period 3 January 2001 to 11 May 2001 at the Burswood Casino Convention Centre.  No time and wages records were supplied for periods of employment prior to 3 January 2001.

John Hayes

20     Mr Hayes testified that he is a member of the Claimant union and is employed as a bricklayer’s labourer.  He has been doing that work for about twenty years.

21     He said that in 1995 he responded to an advertisement placed in The West Australian newspaper by the Respondents.  He said that he spoke to Mr Perrott who informed him he had a job at King’s Park and that he was paying $120.00 per day, which equated to $15.00 to $16.00 per hour.

22     He commenced to work for him as a bricklayer’s labourer.  He worked a forty hour week, eight hours per day starting at 7.00 am and finishing at 3.30 pm with a half hour break for lunch.  Upon commencement he was asked to sign a “Prescribed Payments System” (PPS) tax form.  He was also asked to provide the Respondents with his superannuation and long service leave details.  Mr Hayes worked for the Respondents during the financial years ending 30 June 1996, 1997, 1998, 1999, 2000 and 2001.  In fact, the Respondents in respect to Mr Hayes in relation to those periods made superannuation payments.  Further, the Respondents in respect of Mr Hayes made payments to the Construction Industry Long Service Leave Payments Board over the same periods.

23     Mr Hayes told the Court that during the period 1995 to 2001 he worked intermittently for the Respondents on various jobs, including those at King’s Park, the Burswood Casino lift shaft, Booragoon units, Edgegate Shopping Centre, FAL at Canning Vale, Peters Ice Cream in Balcatta, Rydges Hotel in Perth, St Anne’s Hospital, Sling Rig Welshpool and University of Western Australia at Nedlands.  On some of the jobs, generally but not always the longer ones, he was paid wages and all related award benefits.  On other jobs he was paid a flat hourly rate without benefits such as sick leave for example.

24     During the entire period that he worked for the Respondents, whether designated to be on wages or otherwise, he carried out his work in exactly the same manner.  His work circumstances did not change.  He was instructed as to what to do by Carl Perrott or his leading hand/foreman.  They supervised him at all times.  He used tools supplied by the Respondents and was not required to supply tools or materials.  If unable to work on account of sickness, he would let the Respondents know.  He was paid weekly.  He did not render any invoices for payment.  When he worked on flat rate payments he did not receive sick pay, penalty rates, rostered days off (RDO’s), annual leave and the like.

25     The cross-examination of Mr Hayes was, in the end result, uneventful.  I say that because much of it was aimed at establishing that Mr Hayes was a subcontractor whilst working at Burswood between January and May 2001.  It is now conceded that he was not.  Mr Hayes was, however, asked questions concerning the issue of PPS deductions pre-January 2001.  He was asked whether or not he understood the benefits of PPS tax deduction.  He replied that he did not.  He said:

“I just put my tax in to my accountant and he does it”.

26     With respect to the Burswood Casino Convention Centre job, Mr Hayes conceded that he was paid a flat hourly rate known as the “all in” rate (see page 41 of the transcript).  He conceded that “all in” rates were generally considered to cover all entitlements.  Additionally, he was paid “the fruit”, a colloquial term referring to the payment by the employer of superannuation, redundancy and long service leave contributions.  Further Mr Hayes conceded that he was involved in stoppages and strike action whilst at that job.  With respect to the “first on - first off” issue, Mr Hayes told the Court that he was at home and available at all material times.  He rejected the contention that he had told the Respondents that he was going to Sydney.  His position was, in effect, that he was ready, willing and able to return to work for the Respondents but he was not called upon to do so following redundancy on 11 May 2001.

Carl Perrott

27     Mr Perrott is a bricklaying contractor.  Together with his wife, Sandra, they run the business C & S Perrott.

28     Much of Mr Perrott’s evidence related to the issue of whether Mr Hayes was a subcontractor whilst working on the Burswood Casino Convention Centre site.  That issue, of course, is now no longer in dispute.

29     Mr Perrott testified concerning the issue of how the “all in” flat rate payment was arrived at.  He said that the Claimant and its officials promoted the “all in” rate.  It was as a consequence of such promotion that he made payments in that form.  Such payments were inclusive of all entitlements and that was understood to be so by the workers.  Mr Perrott said Mr Hayes had never complained about his rate of pay.

30     Mr Perrott testified that he had not contacted Mr Hayes upon resumption of the work following the 11 May lay off.  He said attempts were made by both he and his wife to reach Mr Hayes by telephone.  When he could not get a hold of him, another labourer was contacted.  He said that that work was for only two days in any event.

31     Mr Perrott also testified as to the level of industrial disputation at the Burswood Casino Convention Centre site.  He said the disputes, in the main, related to the provision of a site allowance.  A site allowance was, however, never agreed to.

32     When cross-examined, Mr Perrott conceded that he is responsible for hiring and firing workers and that he sets rates of pay.  He told the Court that he did not have an accurate recollection of the circumstances of Mr Hayes’ engagement.  Indeed Mr Perrott was extremely vague on a number of specific issues raised by counsel for the Claimant during cross-examination.

33     Mr Perrott agreed, under cross-examination, that Mr Hayes worked set hours as set by the Respondents or the Respondents’ principal contractors, that the Respondents supplied all necessary tools, that Mr Hayes was not required to find a replacement in the event of being unable to attend work because of sickness, that he was paid at an hourly rate, that he did not have to supply invoices to generate payment, that payment of long service leave instalments, redundancy instalments and superannuation were all made by the Respondents in respect of Mr Hayes and that the Respondents paid workers compensation on behalf of its workers.

34     On the issue of the “all in” rate, Mr Perrott testified that the same was based on union advice as to what should be done.  He said that he told his workers that the “all in” rate included holiday pay, sick pay, travel and the like.  The calculation of those components was, however, left to his wife, who maintained the bookwork.

35     With respect to the Burswood Casino Convention Centre job, Mr Perrott agreed that if Mr Hayes did not work on public holidays, he would not be paid.  Further, if he failed to attend work on account of sickness he would not be paid.  Mr Perrott agreed that if Mr Hayes worked on a rostered day off or worked overtime, his pay for such would have been calculated at the set “all in” rate without penalties.  That rate was $19.00 per hour.

36     Mr Perrott was asked about the provision of time and wages records.  He said that he was under the impression that all that the Claimant wanted in that regard was the records appertaining to the Burswood Casino Convention Centre job.  Such records were supplied.

37     Mr Perrott conceded under cross-examination that he had never had any difficulty with Mr Hayes’ performance and was willing to take him on again if a commercial job came up.  He said that the other labourer from the Burswood Casino Convention Centre job has worked for him a few days on and off since 11 May 2001.

Stephen Berndes

38     Mr Berndes is a bricklayer who works for the Respondents.  He testified that he met Mr Hayes on the Sling Rig job.  He told the Court that he worked with Mr Hayes on the Burswood Casino Convention Centre job from the beginning of January last year.

39     He testified that there was general discussion amongst workers employed by the Respondents at that site concerning wanting to be on an ABN tax arrangement.  He said that Mr Hayes “wanted to go on the ABN” so that he paid less tax.  He said that the Respondents paid him an “all in” rate.  He said the rate included everything.  It covered basic pay, travel money and the like.  He had been paid on that basis for at least three years.

40     Mr Berndes said that there were a significant number of industrial meetings at the Burswood site, followed by strikes.  In the main they related to the failure of the principal contractor, Doric, to pay site allowance.  As he understood it, there was no such allowance payable for that job.

41     When cross-examined, Mr Berndes conceded that when he was engaged by the Respondents for the Burswood Casino Convention Centre job he was told by Mr Perrott:

“Look I’m paying $22.50.  Can you come on board?”

42     He could not recall Mr Perrott saying that the figure was an “all in” rate but he nevertheless understood it to be so.

43     Mr Berndes also confirmed that after having been stood down on 11 May 2001, he subsequently resumed working with the Respondents.  Mark, the other labourer employed by the Respondents on that job, also resumed working for the Respondents.

Mark Mills

44     The Respondents called Mr Mills.  He is a bricklayer’s labourer employed by them.

45     Mr Mills was employed on the Burswood Casino Convention Centre job along with Mr Hayes.  He has worked for the Respondents on and off for a year or so.

46     Mr Mills testified that he was under the impression that Mr Hayes was using his ABN whilst working at the Burswood Casino Convention Centre job.

47     When cross-examined, Mr Mills said that after commencing the Burswood job he was made aware that the money he was getting was $19.00 an hour -“take it or leave it”.

48     He said that he joined the job a couple of weeks after it had commenced and certainly was not there during the first week of January 2001.

49     Following his lay off in May he was called in to do a couple of days work.  He did “bits and pieces after that”.

Sandra Perrott

50     The final witness called was Mrs Perrott.  She is a partner in the Respondents’ firm C & S Perrott.

51     Mrs Perrott testified that she received a form from Mr Hayes authorising the Respondents to withhold tax with respect to work he performed by on the Burswood Casino Convention Centre job.

52     Mrs Perrott testified that Mr Hayes worked for the Respondents on eight or ten separate occasions over the last five years.  His method of remuneration differed from job to job.  He was paid either as a subcontractor or at an “all in” rate.  Mr Hayes decided how he was to be paid.

53     Mr Hayes was not paid a site allowance for the Burswood Casino Convention Centre job because there was no site allowance for that job.

54     When cross-examined Mrs Perrott conceded that the Respondents set the wages and informed workers as to what they were getting.  They were told their rate of pay.  They were also advised that the Respondents would pay superannuation, redundancy, long service leave and that they were covered for workers compensation and public liability.

Findings

Employee or subcontractor?

55     The pivotal position taken by the Respondents in defending the claim was that Mr Hayes was at all material times a subcontractor and not an employee.  It is now the case, however, that the Respondents accept that for the period 3 January to 11 May 2001 Mr Hayes was an employee.  Although in conceding the issue, Mr Moon made reference to his clients as “the company” it is obvious that he was in fact referring to the Respondents as partners.  Notwithstanding the concession, the issue remains live with respect to the period prior to 3 January 2001.  The matter needs determination because it is fundamental to the question of whether or not there has been a breach of clause 28(6) of the Award in its own right and as applied by virtue of clause 8 of the Agreement.

56     In determining whether Mr Hayes was an employee or subcontractor, there are a number of indicia or tests that the Court must look to (see The Western Australian Builders’ Labourers, Painters and Plasterers Union of Workers v RB Exclusive Pools Pty Ltd trading as Florida Exclusive Pools 77 WAIG 4).  It is the case that the nature of Mr Hayes’ employment and the way he carried out his tasks was essentially the same throughout the entire period that he worked for the respondents.

Control

57     The primary test to be considered is that of control.  In that regard it is obvious that Mr Hayes’ work was, at all times, subject to the direction of and control by Mr Perrott or another supervisor, namely Joe.  Mr Perrott set out the work and had control of the plans.  Mr Hayes was controlled as to the nature and extent of his work.  He was supervised daily.

Work Times

58     Mr Hayes started at the same time every morning in accordance with instructions given to him by Mr Perrott.  He usually finished at 3.30 pm.  Again he was directed in that regard.

Obligation to Work

59     Mr Hayes was under a personal obligation to work for the Respondents on tasks selected by them.  He could not choose which days or which hours he worked.  He could not choose which tasks he did and in which order.  He had to personally attend work.  He could not call in a replacement worker to complete his tasks.

Tools and Materials

60     The Respondents supplied all tools, equipment and materials.  Mr Hayes brought nothing to the relationship except his skill and labour.

Remuneration

61     Mr Hayes was paid weekly.  He was paid an hourly rate of $17.50 for most of his employment.  The rate increased to $19.00 when he was working at the Burswood Casino Convention Centre site.

62     He was paid in accordance with times recorded on time sheets by the Respondents.

63     He did not work for profit.  He was paid according to the hours that he worked.  He did not quote a price for the job.  He was not aware of the nature or extent of the job prior to his attendance on the job.

Conducting a Business

64     Mr Hayes did not conduct his own business.  He was an individual supplying his skill.  He provided his labour exclusively to the Respondents.

Taxation

65     It is obvious that for significant periods of his employment Mr Hayes had his tax deducted using PPS.  At other times his tax was deducted on PAYE basis.  The method of tax deduction was generally determined by the Respondents dependant upon the nature and, in particular, the length of the job.  It appears however that for the Burswood Casino Convention Centre job Mr Hayes elected to be taxed at a reduced rate using his ABN.

66     Taxation treatment, in the circumstances, was not indicative of the true nature of the contract between the parties having regard to all the other indicia (see Florida Exclusive Pools supra).

Organization Test

67     Mr Hayes worked as a bricklayer’s labourer in a small team under the supervision of Mr Perrott.  His work was integral to the Respondent’s business.

Other Indicia

68     The Respondents’ claim that Mr Hayes was a subcontractor is in complete contradiction with their own conduct towards him.  Their own records of him refer to him as an employee.  They made regular payments of redundancy monies to the West Australian Construction Industry Redundancy Fund and also made regular payments to the WA Construction Industry Portable Long Service Leave Fund.  There would have been no obligation to pay into those funds had Mr Hayes been a genuine subcontractor.

Conclusion

69     It is up to the Court and not the parties to determine the true nature of the contract.  Just because the parties, or one of the parties, designated the relationship as being that of a contract for service does not necessarily make it so.  Indeed such is reinforced by section 114 of the Industrial Relations Act 1979 (the Act).

70     In this case the evidence overwhelmingly dictates, based on the indicia referred to above, that at all material times, Mr Hayes was an employee of the Respondents.  It is not surprising, therefore, that the concession was made in respect to the Burswood Casino Convention Centre job.  I cannot understand why the issue was not conceded in respect of his work preceding that job, given that the circumstances surrounding his work prior to the Burswood Casino Convention Centre job were exactly the same.  Nothing changed.  If he was an employee during the Burswood job he was surely an employee beforehand.

Award and Agreement Application

71     Mr Moon conceded the applicability of the Award and Agreement during the course of submissions (see pages 128 and 129 of the transcript).  Even if that had not occurred, the evidence overwhelmingly dictates that the Respondents were engaged on construction work and that all the work performed by Mr Hayes for the Respondents was on-site work in connection with the erection, repair, renovation or maintenance of buildings.  He performed such work as a bricklayer’s labourer, which is a classification within the Award.  Accordingly, Mr Hayes’ employment is within the scope of clause 3(1) of the Award.

72     The evidence also permits the finding that the Agreement applied to all work performed by Mr Hayes from 1 October 1997 to 11 May 2001.  The Agreement ceased to have effect after 11 May 2001.  The Agreement was, according to its terms, binding upon the Claimant and Respondents.  Mr Hayes, being a person eligible to be a member of the Claimant was entitled to receive the remuneration and benefits conferred by the Agreement.

Breaches

73     The alleged breaches of the Award and Agreement relate solely to the Burswood Casino Convention Centre job, with the exception of the alleged breach of clause 28(6) of the Award.  The alleged breaches are outlined in the breach schedule.  The particulars of the alleged breaches are outlined in the Claimant’s particulars of claim.  The same were not specifically traversed by the Respondents in their outline of response and amended outline of response.  Their whole defence was predicated on the view that Mr Hayes was a subcontractor.

74     The evidence before me enables the following findings to be made with respect to breaches of the Award and Agreement:

• RDO’s – Mr Hayes was not paid the correct rate for work performed on a rostered day off.  Mr Hayes testified that there were no RDO’s on the Burswood Casino Convention Centre site.  Mr Hayes’ entitlement to RDO’s is evidenced by clause 13(1)(a) of the Award and the fact that he worked such days is evidenced by the documentary evidence in exhibit 9.
• Holiday Pay – The documentary evidence (see exhibit 9) together with the viva voce evidence of Mr Hayes, which I accept, permits a finding that Mr Hayes was not paid wages for public holidays.
• Annual Leave – Both the documentary evidence and the viva voce evidence establish that Mr Hayes was not paid proportionate annual leave and leave loading.  Indeed that is consistent with the Respondents’ view that he was a subcontractor.
• Time and Wages Record – The Respondents have failed to comply with the request made by Mr Reynolds on 24 July 2001 in that the Respondents failed to make available the time and wages records of Mr Hayes covering the full period of his employment.  Mrs Perrott conceded such during her testimony.
• Presenting for Work – The documentary evidence (see exhibit 9) establishes that clause 35 of the Award was not complied with in that Mr Hayes was not paid for eight hours when he presented for work but was not required to work the whole day.
• Fares and Travelling – The documentary evidence (exhibit 9) dictates Mr Hayes was not paid a fares and travelling allowance for the period that he worked for the Respondents on the Burswood Casino Convention Centre job.  It is contended by the Respondents that the same was paid as part of an “all in” rate of pay.  In my view, the evidence does not enable a finding to be made that the $19.00 per hour rate included a component in satisfaction of fares and travelling or any other award component for that matter.  Indeed, the Respondents’ continual assertion that Mr Hayes was a subcontractor is clearly inconsistent with a payment made in satisfaction of an award obligation.  Mr Hayes’ evidence, which I accept in preference to that of Mr Perrott, whom I found to be extremely vague on the issue, establishes that he was told:

“Its $19.00 and all the fruit.”

The evidence does not establish that the rate of $19.00 related to any specific amount.  Any information received by the Respondents from Mr Molina in relation to an “all in” rate postdated the agreement between the parties in any event.  That cannot be used to revisit the payment and say that the payment was made in satisfaction of those components.  Accordingly a set-off is inappropriate in those circumstances.  Neither set-off nor promissory estoppel apply in this case because what was required in each instance was a specific agreement that the payment made was an over award payment in specific satisfaction of specific entitlements.  That clearly did not occur.

• Site Allowance – The obligation of the Respondents to pay site allowance is clearly outlined in Appendix C of the Agreement.  The site allowance applies by virtue of the matrix in Appendix C.  The site allowance was set and determined pursuant to the Agreement.  It is payable irrespective of compliance or otherwise with clause 7 of the Appendix.  Clause 7 cannot and does not have the effect of vitiating the Respondents’ obligation to pay site allowance.  I reject Mr Moon’s arguments in that regard.  Further, all of the evidence concerning a site allowance being sought on the Burswood Casino Convention Centre job is entirely irrelevant.  The obligation of the Respondents was founded on the Agreement and not upon the principal contractor having a site allowance.  Quantum having been agreed, it follows that the claims in that regard are established.
• Correct Redundancy – There has been a clear breach in that regard.  A perusal of exhibit 14 in reference to the Agreement (see exhibit 2) substantiates the same.
• Sick Leave Payment – I find that there was no payment of accrued sick leave to Mr Hayes upon termination.  That was in breach of the Agreement.  That is consistent with the Respondents’ view that Mr Hayes was a subcontractor.
• Extra Fares and Travelling – There can be no doubt on the evidence before me that the Respondents failed to pay the extra $6.15 per day as provided for in the Agreement.
• Seniority – Clause 15 of the Agreement provides:

15.  Seniority

1. The parties agree the continuity of employment is desirable wherever possible, and that where it is not possible, employees will be retrenched in order of seniority.

2. When applying the “first on last off” principle it is agreed subject to the caveat of “all things being equal”, it is intended to apply on a state basis rather than a site by site basis

3. It is recognised that from time to time instances may arise where the employee’s individual skills may be subject to this caveat.  Where there is any disagreement as to the application of this the matter will be processed in accordance with Clause 6 – Dispute Settlement Procedure.

4. An employee who has been retrenched by the Company shall have absolute preference and priority for re-employment/re-engagement by the Company.  Where an employee is re-engaged within a period of six months the employee shall maintain continuity of services and all accrued entitlements with the Company.

75     The Claimant argues that the Respondents are in breach of the Award by failing to re-engage Mr Hayes prior to Mr Mills following their termination of employment on 11 May 2001.  It is argued that the provision is not just about when people are terminated, but also if they are terminated at the same time, as to when they are re-employed.

76     With all due respect to Ms Peak, I cannot agree.  Clause 15(4) does not dictate seniority in re-engagement amongst those retrenched at the same time.  Rather it gives preference and priority as against others who are not former employees.  Even if I am wrong in my interpretation of that provision, it nevertheless remains the case that Mr Perrott attempted to contact Mr Hayes for re-engagement.  He was, despite repeated attempts, not able to contact him by telephone, as was the custom, and therefore re-engaged Mr Mills instead.  I have no reason to disbelieve Mr Perrott in that regard.  Mr Perrott, in the circumstances, acted reasonably.  I find that a breach of clause 15 of the Agreement has not been established.

Calculations

77     The calculations for the various breaches of the Award have been based on the hourly rate of $19.00.  In my view that is the appropriate rate, which in reality constituted an over award payment.  The hourly rate was expressed to be a set sum of $19.00 “with fruit”.  Fruit being superannuation, redundancy and long service leave contributions.  It is obvious that the $19.00 did not even come close to the appropriate hourly rate for an “all in” payment.  The Agreement to pay Mr Hayes in excess of the Award and the Agreement does not conflict with the same.  It accordingly operates to its full force in its application to the calculations of the breaches.

Satisfaction

78     In respect to fares and travelling, the Respondents say that there has been satisfaction of the claim by virtue of payments already made to Mr Hayes comprised in the $19.00 per hour paid.  However, those payments were made to him, on the Respondents’ evidence, in his capacity as a subcontractor.  In such circumstances, where the Respondents have paid a sum to Mr Hayes, other than in satisfaction of the Award or Agreement, they cannot now say that they have met their award or Agreement obligations (see The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers v Centurion Industries Ltd 77 WAIG 319).  It is clear that the over award payment paid to Mr Hayes did not relate to a specific purpose and was certainly less than an amount that would have compensated him for all of his lost entitlements.  In any event section 114 of the Act expressly prohibits contracting out.

Respondents’ Claims

Overpayment of Superannuation

79     Mr Hayes’ records disclose no overpayment.  The allegation is unsupported by the evidence.

Overpayment of Fares and Travelling

80     There is no evidence of any overpayment.  The allegation is not supported by evidence.

Overpayment of Wages

81     The Respondents claim that Mr Hayes was overpaid when he did not work due to strike action.  There is no evidence to show that Mr Hayes went on strike on any particular day, let alone the ones particularised.  The schedule produced (exhibit 20) discloses when strikes occurred but does not establish that Mr Hayes participated in a strike on any particular day.  Further, if it is the case that Mr Hayes was paid for his time whilst on strike, that occurred because the Respondents’ chose to pay him.  They cannot now resile from that position.

Conclusion

82     I find each of the alleged breaches proved with the exception of the alleged breach of clause 15(4) of the Agreement.  I find that the Claimant’s member, John Hayes, has been underpaid a total of $6822.95.

83     I will now hear the parties as to the orders to be made.

G Cicchini

Industrial Magistrate