100423491

WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES’ COURT

PARTIES CAROL PENN

CLAIMANT

 -v-

 PATRICIA EDWARD OF VERSCHUER EDWARD

RESPONDENT

CORAM MAGISTRATE RH BURTON

DATE FRIDAY, 18 JUNE 2004

CLAIM NO M 63 OF 2004

CITATION NO. 2004 WAIRC 11793

_______________________________________________________________________________

Representation

Claimant Mr D Clarke of Senate Pty Ltd

Respondent Ms V Symons (of Counsel) instructed by Verschuer Edward, Barristers and Solicitors

_______________________________________________________________________________

Reasons for Decision

The Claim

1         This is claim under the Minimum Conditions of Employment Act 1993 (the Act).  It relates to a claim by the Claimant against the Respondent for annual leave.  It is made pursuant to section 23(1) of the Act.  The Claimant completed her law degree as a mature age student.  She was in her late forties.  It is proper to record that the Respondent felt sorry for and assisted the Claimant.  When she decided to leave the Respondent there was a serious falling out.

2         The Claimant was first employed as an articled clerk from 26 June 2001 to 17 July 2002 and then as a solicitor during her restricted practice year until 17 July 2003.  She was employed pursuant to several letters dated 25 June, 26 June and 5 July 2001 that provided for four weeks annual leave with the condition that it be included in the Christmas period when the office was closed other than for public holidays.  There was a limitation on when the annual leave had to be taken.

Legislation

3         The relevant sections of the Act are set out hereunder.

5.   Minimum conditions implied in awards etc.

(1) The minimum conditions of employment extend to and bind all employees and employers and are taken to be implied — 

[(a) deleted]

(aa)   in any employer‑employee agreement;

(b)   in any award; or

(c)   if a contract of employment is not governed by an employer‑employee agreement or an award, in that contract.

(2)  A provision in, or condition of, an employer‑employee agreement, an award or a contract of employment that is less favourable to the employee than a minimum condition of employment has no effect.

(3)  A provision in, or condition of, an agreement or arrangement that purports to exclude the operation of this Act has no effect, but without prejudice to other provisions or conditions of the agreement or arrangement.

(4)  A purported waiver of a right under this Act has no effect.

(5)   …

7.   Enforcement of minimum conditions

A minimum condition of employment may be enforced — 

(a) under section 102 of the Labour Relations Reform Act 2002;

(aa) where the condition is implied in an employer‑employee agreement, under section 83 of the IR Act;

(b) where the condition is implied in an award, under Part III of the IR Act; or

(c) where the condition is implied in a contract of employment, under section 83 of the IR Act as if it were a provision of an award, industrial agreement or order other than an order made under section 32 or 66 of that Act.

17D.   Authorised deductions from pay

(1)  Despite section 17C, an employer may deduct from an employee’s pay — 

(a) an amount the employer is authorised, in writing, by the employee to deduct and pay on behalf of the employee;

(b) an amount the employer is authorised to deduct and pay on behalf of the employee under the employer‑employee agreement, award or contract of employment; and

(c) an amount the employer is authorised or required to deduct by order of a court or under a law of the State or the Commonwealth.

(2)  The employee is entitled to have any amount so deducted paid by the employer in accordance with the employee’s instructions or in accordance with the requirements of the employer‑employee agreement, award, contract of employment, court order or law of the State or the Commonwealth (as the case may be).

(3)  Nothing in this section requires an employer to make deductions requested by an employee.

(4)  An employee may, by giving written notice to the employer, withdraw an authorisation under subsection (1)(a).

23.   Paid annual leave, entitlement to

 (1) An employee, other than a casual employee, is entitled for each year of service, to paid annual leave for the number of hours the employee is required ordinarily to work in a 4 week period during that year, up to 152 hours.

 (2)  An entitlement under subsection (1) accrues pro rata on a weekly basis.

 (3)  In subsection (1), “year” does not include any period of unpaid leave.

 (4)   …

Jurisdiction

4         It is first claimed that this matter has been previously adjudicated before the Western Australian Industrial Relations Commission.  Apparently a very similar matter was before the Commission constituted by Commissioner SJ Kenner and the Claimant (the applicant in those proceedings) applied to discontinue her application, partly because she was then in the north of the State.  Because of that application the Respondent then made an application for costs.  In dealing with that matter the Commissioner came to the conclusion that the application was frivolous or vexatious and ordered costs by way of disbursements in favour of the Respondent.  I am asked to find that that means the issue here before me has been previously litigated and is the subject of the doctrine of res judicata.  I find that there has not been any determination of the issues on their merits and therefore there is no issue estoppel or res judicata.

5         I am also invited to find that the issue of annual leave entitlements for an articled clerk is not justiciable before the Industrial Magistrate’s Court. I have been referred to Yarwood v Hoffman 77 WAIG 3189 a decision of the Western Australian Industrial Appeal Court delivered on 23 October 1997.  In that case it was held that in a matter relating to the alleged unfair dismissal of an articled clerk the Industrial Relations Commission did not have jurisdiction.  I notice that Commissioner CB Parks who heard the matter at first instance made certain monetary orders in favour of the applicant and these were not disturbed on appeal.  I decide that that authority should be distinguished as that case was dealing with an unfair dismissal situation and I am here dealing with minimum entitlements to annual leave.

6         I find that I do have jurisdiction to hear this matter.

Standard of Proof

7         The standard of proof is matters must be proved on the balance of probabilities.  The onus, of course, rests with the Claimant.

The Factual Situation

8         The Claimant produced a schedule (exhibit C) that stated she had taken 24 days leave and was owed a further 16 days at $173.07 per day resulting in a failure to pay $2769.12.  Suffice it to say that I accept that document and in the circumstances that follow it is unnecessary to set out the actual dates referred to therein.

9         The Claimant says that she worked on some days when she was on leave.  There was some argument about whether the Claimant had done additional work while she was at a conference.  I come to the conclusion that she did some work but that does not affect the ultimate outcome.  Neither do the other days even if she did the work. The letter of 5 July 2001 (exhibit B) under the heading of Miscellaneous Benefits provides in item 1 that the practice would pay the cost of enrolling in the Articles Training Programme and any costs associated with the attendance at courses relevant to the Claimant’s area of practice but only with the Respondent’s prior approval.

10     Item 2 reads:

“The practice will pay any costs associated with your application for admission as a Barrister and Solicitor of Western Australia including the cost of registration of your articles, your practice fee and the filing fee on admission.  However I reserve the right to require you to reimburse the practice pro rata all such fees including professional indemnity insurance with respect to any period in respect of which you are not in my employ in the event that your articles are transferred to another practitioner.”

11     The Respondent produced a document (exhibit 8) compiled from primary documents that showed the Claimant had had sixty-five days annual leave over the two year period of her employment. The Respondent calculates that the Claimant entitlement to annual leave was 41.22 days and the number of days taken as annual leave was 65.  The document claims that the claimant had taken 23.78 days in excess of her entitlement.  I decide that those figures are correct as they are supported by primary documents.

12     The practice was that the Claimant would approach the Respondent’s bookkeeper and put in leave applications.  The Respondent trusted the bookkeeper.  The bookkeeper never checked with the Respondent as the Claimant and Respondent got on so well together at that stage of the relationship.

13     Articled clerks are required to attend a 25-day training programme during their year of articles.  Here the Respondent paid for that programme. The Respondent told the claimant that she could have paid leave for the period, but that would be her annual leave.  I decide that attendance at the programme cannot be classed as annual leave.

14     I do not come to this decision lightly for I am aware of the price that must be borne by the practice, particularly by a single person practice. It is not a situation of paying for or allowing leave for a course relevant to an area of practice. It is a condition of admission.

15     I further decide that the Claimant must be given leave for the course but that it need not be paid leave. No doubt articled clerks are very pleased to have articles and no doubt often go without annual leave to complete the course

16     Accordingly the annual leave of 65 days shown to have been taken in exhibit 8 must be reduced by the 25 days taken in November 2001 and April 2002 for attendance at the Articles Training Programme.

17     The Claimant, therefore, has an entitlement to payment for 1.22 days of accrued annual leave.

18     That would normally dispose of this matter but there were several quite important matters, raised by each party, along the way, and I wish to make known my findings about those for the purposes of this claim and to assist for the future.

Minimum Conditions of Employment Act 1993

19     I come to the conclusion that the Act applies, for when looked at overall the terms of the Offer of Employment (exhibit 2) are the same in relation to annual leave as those prescribed in the Act.  Clearly the Act is a safety net that has very limited provision for contracting out.  I also specifically find that the limitation on when annual leave could be taken makes the contract of employment of the Claimant less favourable than the Act.  Also section 25 of the Act states that annual leave may be accrued for twelve months.

Deductions Authorised in Writing

20     I find that the authorisation for the deduction of the pro rata professional indemnity insurance annual premium for the period when the Claimant was not in the employ of the Respondent was in writing in the letters referred to above.

Counterclaim and or Set Off

21     I decide that there can be no counterclaim or set off by the Respondent.  I was referred to BGC (Australia) Pty Ltd v Phippard [2002] WASCA 191.  I decide that since that was a case involving unfair dismissal it does not apply to a claim made under the Act.

22     I rely upon the decision of Supreme Court Master Bredmeyer in two cases entitled Kwik & Swift and Co Pty Ltd v Shawyer.  The citation for the first is [2002] WASC 14 and was delivered on 1 February 2002 and the second is found at [2002] WASC 156 having been delivered on 21 June 2002.  Both are authority that there can be no offsetting or counter claim made against such claims.  Both expressly deal with annual leave.

Other submissions

23     Certain other submissions were made by the Respondent in writing; however it suffices to simply say that the employment is caught by the Minimum Conditions of Employment Act 1993.

24     The parties agreed on the payment in lieu of notice.

Conclusion

25     I should not make any comment about the liability of the Claimant to reimburse the Respondent pro rata the professional indemnity insurance annual premium as that would only be very oblique obiter to my decision and is a matter for another Court on the basis of my findings here.

26     I do not decide about the payment made for the practice certificate for the same reasons as set out in the previous paragraph.

27     The Claimant has an entitlement to payment of accrued annual leave of 1.22 days in the amount of $211.15 and an order will issue accordingly.

28     In the light of the facts of this matter I am not prepared to entertain any application for pre-judgment interest or a penalty.

RH Burton

Industrial Magistrate