WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES’ COURT

PARTIES JEREMY JAMES INGHAM

CLAIMANT

-v-

EXPO GROUP AUSTRALIA PTY LTD

RESPONDENT

CORAM INDUSTRIAL MAGISTRATE G. CICCHINI

DATE WEDNESDAY, 22 SEPTEMBER 2004

CLAIM NO. M 219 OF 2002

CITATION NO. 2004 WAIRC 13651

Representation

Claimant Ms K Wroughton (of Counsel) instructed by Workclaims Australia appeared for the Claimant.

Respondent Mr A Cameron of Australian Mines and Metals Association Inc appeared as agent for the Respondent.

Reasons for Decision

Introduction

1         The Claimant was employed with the Respondent from 25 October 1999 until 12 April 2002.  On 12 April 2002 the Claimant was informed that due to operational reasons his casual contract of employment would not be renewed.  The Claimant’s conditions of service were at all material times determined by an Australian Workplace Agreement (the AWA) entered into between the parties on or about 25 October 1999 and duly signed by both parties.  The Office of the Employment Advocate duly registered the AWA on 22 December 1999.  The AWA still governed the casual employment relationship between the parties as at the date of termination.

The Claim

2         The Claimant alleges he worked for the Respondent on a full-time basis throughout the term of his employment.  He says that he was not in reality a casual employee and that consequently the provisions of a state law namely the Minimum Conditions of Employment Act 1993 (the MCE Act) were implied into his contract of employment.  He contends that the MCE Act in part governed the operation of the same.  He says that in accordance with the provisions of the MCE Act that he should have, upon termination on 12 April 2002, been paid $8,653.80 in lieu of ten week’s annual leave accrued during the currency of his employment and which had not been taken or previously paid.  He also claims an amount of $2,769.28 representing what is alleged to be due to him for the sixteen public holidays worked during the material time for which he has not been paid.  The Claimant therefore seeks to recover the sum of those two amounts totalling $11,423.08 plus interest thereon.  He also seeks the imposition of penalties for the breaches of the MCE Act and costs.

Response

3         The Respondent opposes the granting of the orders sought by the Claimant.  It says that the Claimant’s conditions of service were determined by the AWA, which was duly registered.  In that regard clause 6 of the Terms and Conditions of Casual Employment incorporated into the AWA provided inter alia that:

. . .“the salary contains a component in recognition of public holidays, intervals of leave . . .”

4         The Respondent argues that the clause creates no additional entitlement to annual leave or pay for work performed on public holidays.  It contends that the MCE Act, under which the claim is brought, has no application.  In the alternative the Respondent says that given that the Claimant was a casual employee that he is not entitled to that which he seeks pursuant to the MCE Act in any event.

Preliminary Issue

5         On 21 January 2004 the parties came before this Court and agreed that the issue of the jurisdiction of this Court to hear and determine this claim should be determined as a preliminary issue.  Although the parties were in agreement in that regard there is now some dispute as to what the resolution of the preliminary issue should entail.  In that regard the Respondent suggests that all preliminary issues touching upon the Court’s ability to hear and determine the matter should be considered and determined.  In particular the Respondent contends that the question of whether or not the Claimant was a casual employee for the purposes of the MCE Act should be finally determined at this stage as a preliminary issue.  The Claimant is against that and says that the only matter requiring determination is whether the AWA excludes the MCE Act.

6         I must say that it appears that the only appropriate approach is that suggested by the Claimant.  Indeed to attempt to determine the issue of whether the Claimant was an employee within the meaning of section 3 of the MCE Act for the purpose of section 5 thereof without the benefit of evidence other than that which has been agreed would be detrimental to the Claimant’s ability to properly argue his case and would be manifestly unfair.  Accordingly I do not propose to truncate the proceedings on that issue.  Whether or not that issue remains live will, in any event, be necessarily dependant upon the outcome of my determination of whether or not the AWA excludes the MCE Act.

Determination

7         The Respondent asserts that by virtue of the AWA there can be no additional entitlement to annual leave or pay for work on public holidays because clause 6 of the Terms and Conditions of Casual Employment incorporated into the AWA provides:

“This specified salary is all inclusive and takes into account all responsibilities, disabilities and other factors associated with the work, location and environmental factors, and includes payment for all hours necessary to undertake your assigned duties.

Further, the salary contains a component in recognition of public holidays, intervals of leave, time spent travelling to and from the facilities, and the cost of transport to and from your place of residence to your assembly point and return.”

8         The Respondent says that the AWA comprehensively addresses the terms and conditions of employment leaving no room for the importation of extraneous considerations.  The document speaks for itself.  In that regard there is a clear inconsistency between the AWA and the MCE Act to which section 170VR of the Workplace Relations Act 1996 (the WR Act) applies.  Put another way, the issue is one of whether or not the AWA is capable of importing the provisions of the MCE Act and not one of whether the AWA excludes the operation of the MCE Act on constitutional grounds.

9         The Claimant on the other hand says that the AWA does not purport to be the exclusive and only record of the employment conditions between the parties.  He says that the AWA incorporates the minimum conditions provided for by the MCE Act and there is nothing in the AWA that negates the minimum conditions provided for in the MCE Act being implied into the employment contract.  Accordingly it will be necessary to determine whether there is any inconsistency between the AWA and the MCE Act as contemplated by section 109 of the Constitution of Australia.  The Claimant says that in determining the issue of inconsistency it will be necessary to discover the field, if any, which the Commonwealth Parliament intended to cover by its enactment of the WR Act

10     In that regard, the Respondent says that the Claimant’s approach is both misguided and misconceived because it is readily apparent from the WR Act itself that it is meant to co-exist with state laws on industrial matters.  Indeed section 170VR of the WR Act itself reflects that to be so.  That section provides:

170VR   Effect of AWA on other laws

(1)  Subject to this section, an AWA prevails over conditions of employment specified in a State law, to the extent of any inconsistency.

(2)  Provisions in an AWA that deal with the following matters operate subject to the provisions of any State law that deals with the matter:

(a) occupational health and safety;

(b) workers' compensation;

(c) apprenticeship;

(d) any other matter prescribed by the regulations.

(3)  If a State law provides protection for an employee against harsh, unjust or unreasonable termination of employment (however described in the law), subsection (1) is not intended to affect the provisions of that law that provide that protection, so far as those provisions are able to operate concurrently with the AWA.

(4)  To the extent of any inconsistency, an AWA prevails over prescribed conditions of employment specified in a Commonwealth law that is prescribed by the regulations.

(5)  In this section:

Commonwealth law means an Act or any regulations or other instrument made under an Act.

prescribed conditions means conditions that are identified by the regulations.

State law means a law of a State or Territory (including any regulations or other instrument made under a law of a State or Territory), but does not include a State award or State agreement.

11     Indeed the permissible co-existence of State and Commonwealth industrial laws is reflected in the recent decision of French J of the Federal Court of Australia in BGC Contracting Pty Ltd v The Construction Forestry Mining & Energy Union of Workers [2004] FCA 981 (29 July 2004).  The Respondent accepts the MCE Act and WR Act co-exist and says that a consideration of this matter based on constitutional considerations is wholly unnecessary given section 170VR of the WR Act.  The Respondent suggests that the only issue requiring determination in this matter is the question of fact of whether there is any inconsistency between the AWA and the MCE Act.  If such inconsistency is found then the AWA prevails by virtue of the operation of section 170VR.

12     In determining this preliminary issue I find myself in complete agreement with the approach suggested by the Respondent.  The parties agree that the Claimant’s conditions of service were at all material times determined by the AWA.  The AWA does not expressly or impliedly import the minimum conditions contained in the MCE Act.  The agreement speaks for itself.  The AWA is an entire agreement that governs the totality of the terms and conditions of the employment relationship.  I say that because clauses 1, 4 and 8 of the AWA together with various provisions of the annexure thereto entitled Terms and Conditions of Casual Employment forming part of the AWA expressly declare that the AWA forms the basis of the Claimant’s casual employment.  In those circumstances it is not permissible to look at extrinsic sources to explain or to give effect to aspects of the AWA.  The AWA is a comprehensive document that outlines the totality of the Claimant’s terms and conditions of employment including his entitlement to annual leave and public holidays as set out in clause 6 of the AWA.  There is simply no avenue by which the provisions of the MCE Act can be implied into the AWA given its express provisions.  Once the AWA passed the no-disadvantage test and was approved (see section 170VPB of the WR Act) it became the sole instrument which regulated the terms and conditions of the Claimant’s employment.  The Claimant is, in my view, now estopped from treating the AWA as not being an entire agreement.  If there is some disagreement between the parties concerning the interpretation of the terms of the agreement, recourse should be had to the dispute settlement procedure contained in clause 7 of the AWA.

13     I am in general agreement with the first limb of Mr Cameron’s submissions.  I find that the AWA and the relevant provisions of the MCE Act are inconsistent and that section 170VR of the WR Act operates to exclude the MCE Act.  It follows therefore that this claim made pursuant to the MCE Act and section 83 of the Industrial Relations Act 1979 cannot be heard and determined because this Court lacks the jurisdiction to do so by virtue of section 170VR of the WR Act.

14     I will now hear from the parties concerning the orders to be made.

G Cicchini

Industrial Magistrate