METAL TRADES (GENERAL) AWARD 1966

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES ALAN CHARLES JONES

APPLICANT

-v-

LENNY'S COMMERCIAL KITCHENS PTY LTD

RESPONDENT

CORAM INDUSTRIAL MAGISTRATE G. CICCHINI

DATE THURSDAY, 17 FEBRUARY 2005

FILE NO. M 166 OF 2004

CITATION NO. 2005 WAIRC 01528

REPRESENTATION 

APPLICANT MR D McLANE OF STRATEGIC ADVOCACY INSTRUCTED BY WORKCLAIMS AUSTRALIA

RESPONDENT MR D JONES OF THE CHAMBER OF COMMERCE AND INDUSTRY OF WESTERN AUSTRALIA (INC).

REASONS FOR DECISION

The Claim

1         By his claim filed on 22 June 2004 the Claimant alleges that the Respondent has breached various provisions of the Metal Trades (General) Award 1966 (the Award) by failing to give five week’s notice of termination contrary to clause 6 and further by failing to make payment of severance pay, contrary to clause 32A.  The Claimant therefore claims $9,227.92 being the totality of the alleged underpayment flowing from the breaches of the Award.

Response

2         The Respondent by its notice of response filed on 21 July 2004 rejects the claim and says that at all material times it employed the Claimant as an Engineering Tradesperson Level 1 pursuant to the terms of the Sheet Metal Workers’ Award No 10 of 1973 (S.M.A.) being the specific award which bound the Respondent.  It denies that it is obliged to observe the provisions of the Award.  In the alternative it says that in the event that the latter award is also binding on the Respondent the S.M.A. overrides the Award.

3         The Respondent contends that there is no provision in the S.M.A., which sustains a claim for redundancy.  Further it says that the Claimant was given adequate notice of termination in accordance with clause 16 of the S.M.A.

Outline of Claim

4         In his outline of claim filed on 3 September 2004 the Claimant introduced two further causes of action.  He alleged therein that the Respondent had failed to comply with section 41 of the Minimum Conditions of Employment Act 1993 (M.C.E. Act) in that it failed to have discussions with him to minimise the effects of his redundancy.  Further he also contends that the Respondent has breached section 170CM of the Workplace Relations Act 1996 (W.R.A.) by failing to give five week’s notice of termination.  The Claimant therefore seeks to recover severance pay, pay in lieu of notice, and penalties for breaches of the Award, W.R.A. and the M.C.E. Act.  He also claims interest and costs.

Points of Defence

5         In addition to those matters outlined in its response the Respondent denied the further claims made pursuant to section 170CM of the W.R.A. and section 41 of the M.C.E. Act.

The Facts

6         The Claimant is a qualified electrician, plumber and gasfitter. He was throughout the material period engaged by the Respondent as a service technician responsible for servicing kitchen equipment that the Respondent had manufactured and/or installed for its clients.  He commenced working for the Respondent on 28 February 1998 and remained with the Respondent until 21 May 2004 at which time his services were terminated.  Although his employment was terminated on that date he was paid until 28 May 2004.

7         The Respondent is and was at all material times the manufacturer and vendor of commercial kitchens for restaurants, hotels, cafeterias, takeaway food outlets and the like.  It manufactured its product in stainless steel sheet metal.  Its products included stainless steel benches with or without sinks, trolleys, serving counters, front benches and bain maries.  The kitchens were usually custom built and included both loose and fixed equipment.  The kitchens also often included ovens, cook tops, bain maries and refrigeration units which were sourced elsewhere but which were incorporated and integrated into the kitchen manufactured by the Respondent.  In its own advertising material (see exhibit 14) the Respondent described what its business does.  It holds itself out to be in the business of design, custom manufacture, supply, installation, commissioning and on-going service of commercial kitchens.

8         The Claimant was employed to commission and service equipment manufactured and sourced elsewhere but which was integrated into the finished kitchen produced by the Respondent.  Mr Peter Lenny, the Respondent’s director, testified that although the Claimant was based at the Respondent’s Osborne Park factory he would inevitably spend most of his time outside the factory.  He said that the Claimant’s major purpose was to service equipment after sale.  The major percentage of the Claimant’s work was electrical with some plumbing and gas work, which was carried on outside the factory.  However there were occasions when he carried out the wiring of electrical equipment manufactured at the Respondent’s factory.  Mr Lenny testified that the mainstay of the Respondent’s operations was the manufacture of product at its Osborne Park factory.  Outside contractors would usually be contracted to install the kitchens it manufactured.  The Respondent’s own employees would commission the kitchens and provide ongoing service and maintenance.

9         In about late March or early April last year Mr Lynn Mayer, the Respondent’s financial controller, reported to Mr Peter Lenny that the service side of the business was performing poorly.  The service department accounted for only two to three percent of the business’ total turnover and the decision was made to outsource the provision of service and maintenance.  It was concluded that it would be more cost effective to do so.  It was decided therefore to close the service department.  The goodwill of the service aspect of the business was to be sold.  That inevitably was to result in the Claimant and his supervisor, Service Manager Phillipe Kaison losing their jobs.  They were the only employees engaged in the service department. 

10      After having in early April 2004 made the in-principle decision to close the service department, Mr Peter Lenny proceeded to approach prospective buyers.  It seems that he engaged in informal discussions with prospective buyer resulting in an in-principle agreement for the sale and purchase of the goodwill of the business being achieved in about mid April 2004.  The agreement was concluded on a handshake.  Soon thereafter the Respondent informed Mr Kaison of his decision with intention of also telling the Claimant as soon as practicable.

11      According to Mr Kaison, rumours about what was to happen began to circulate within the factory.  It was in that context that he told the Claimant that the service section was to close.  The Claimant on the other hand says that he found out only in passing from Mr Kaison as to what was happening, which resulted in him confronting Mr Peter Lenny on 23 April 2004.  Mr Lenny’s version, as supported by Mr Mayer and Mr Kaison, is that he caused the Claimant to be called into his office for the purpose of telling and explaining to him what was to transpire.

12      There is an obvious conflict in the evidence concerning the circumstances by which the meeting on 23 April 2004 came about.  There is also conflict in the evidence as to who was present at the meeting and what was said.  It suffices to say that the weight of evidence is against the Claimant on both issues.  The evidence of Mr Mayer is supportive of Mr Lenny and is generally (with some significant exceptions) corroborative of his evidence.

13      With respect to that meeting it was the Claimant’s evidence that after having been appraised of the fact that the service department was closing he obtained legal advice and then went to Mr Peter Lenny’s office and confronted him by asking,

“What’s going on”?

14      Mr Lenny explained that the service section of the business was being sold and that the person who was buying the business might be interested in speaking to him.  The Claimant then asked,

“What about redundancy?”

15      Mr Lenny did not respond but looked fairly shocked.  The Claimant then said,

“I will get it in writing, won’t I?”

He then left the room.

16      Mr Lenny’s version of what transpired is that he caused the Claimant to attend his office.  At the meeting that followed Mr Lenny informed the Claimant that given that the service side of the business was not going as had been hoped that he had decided to sell that aspect of the business.  He advised the Claimant that he had in fact arranged to sell the business and identified who the buyer was.  He said that he informed the Claimant that he anticipated finalising everything “by the end of May” and advised him that his services would not be required after that date.  Later in his evidence he said that he “definitely told him (Mr Jones) that after the 26th of May his service was - - would no longer be required” (Transcript page 109).  Mr Lenny went on to say that the Respondent had already established that it had an obligation to pay the Claimant four week’s notice with an additional week’s notice on account of his age.  Accordingly the five weeks notice given on 23 April 2004 complied with what was required.

17      Mr Mayer’s testimony about that meeting was that Mr Lenny informed the Claimant that the service department had been sold.  The Claimant was also told that the actual date of sale (settlement) had not been finalised, however Mr Lenny was very confident it would take place before the end of May and accordingly that the Claimant’s employment would be severed immediately.  The Claimant was informed that he was entitled to receive five week’s notice as required under the Sheet Metal Workers’ Award.  He was also told that if he found another job he would not be required to work out the five weeks.  It was Mr Mayer’s evidence that Mr Lenny informed the Claimant that his five week’s notice would take him through to 28 May 2004.  He further told the Claimant that no redundancy was payable pursuant to the Sheet Metal Workers Award.  Mr Jones thereafter left the room visibly upset.  It was Mr Mayer’s recollection that Mr Jones did not mention redundancy.  It was Mr Lenny who raised that issue.

18      Given that I have no particular reason to disbelieve Mr Mayer, I do accept that he was present at the meeting that took place on 23 April 2004.  As to whether his recollection of events is accurate, that is another matter.  It is the case that neither Mr Mayer nor Mr Lenny made any notes of the conversation but Mr Jones on the other hand did make some brief notes.  It is of importance that although the evidence of Mr Lenny and Mr Mayer is generally consistent there are aspects of their evidence that differ.  They differ on the issue of the actual termination date and they also differ on the issue of redundancy.  It suffices to say that neither of them has a word perfect recollection of what was said.  It is apparent that there has been some reconstruction of events.  Neither Mr Lenny nor Mr Mayer in their initial thrust of evidence testified that the Claimant was given a specific date of termination.  Later they said that he was but were inconsistent as to the date of termination.  The first tranche of Mr Lenny’s evidence on point is inconsistent with his second tranche of evidence on the same issue.

19      He initially said (at page 109 of the transcript):

“I would have given him details as to whom I’d - - I’d made an arrangement with and that I would anticipate that finalising everything would be somewhere towards the end of May and that I was therefore advising him that his services would no longer be required after that date.”

And later, at the same page, he said:

“I noticed you’ve used the words “would have told him”.  Do you - - do you recall whether you definitely told him this?---Yes.  I definitely told him that after the 26th of May his service was - - would no longer be required.”

20      Given the inconsistencies in Mr Lenny’s evidence and between Mr Lenny’s evidence and that of Mr Mayer I am not at all satisfied that there was any particular date given as to when termination would take place.  All I can be satisfied about, on the balance of probabilities, is that the Claimant was advised that his services would no longer be required with effect from “somewhere towards the end of May”.  I am fortified in that view given the delay in confirming the details of the discussion.  That in my view is indicative of the fact that the arrangement for the take over of that arm of the business was still in a state of flux.  Indeed the formal sale agreement was not concluded until 14 May 2004.  That explains Mr Lenny’s letter to the Claimant dated 18 May 2004 (exhibit 3) setting out the precise details of termination.  Up until then nothing was certain.  Having said that, I am nevertheless satisfied that the Claimant was informed that he was being terminated.  That in turn caused him to raise the issue of redundancy, which I am satisfied, he did.  Redundancy was not an issue considered by Mr Lenny or Mr Mayer until raised by the Claimant.  It follows from what I have said that I both accept and reject aspects of each witnesses’ evidence concerning who was at the meeting and what was said.  In the end I find that the Claimant was on 23 April 2004 told that his employment would be coming to an end some time at the end of May 2004.  However I find there was no specificity given to the Claimant until he received the letter dated 18 May 2004. 

21      It was Mr Kaison’s evidence, which I accept, that the Claimant was, following the April 23 meeting, unco-operative and difficult.  He was clearly upset at what had happened.  On 10 May 2004 the Claimant went to Mr Lenny and asked him for a month’s holiday to commence 7 June 2004.  He recorded in his diary entry that in response to his request Mr Lenny said “Err-yes-OK”.  Mr Lenny seemed taken aback by the approach for holidays.  In my view the Claimant’s conduct following receipt of advice regarding the termination of his employment was aimed at strengthening his position with respect to future action to be taken.  His application for holidays was mischievous.  He knew that he would not have a job sometime after late May and accordingly must have known that holidays would not be an issue but took advantage of the fact that the Respondent had not nominated a specific termination date.  He seeks to rely on Mr Lenny’s response to support his contention that he was not on 23 April 2004 given notice of termination.  However, in my view, Mr Lenny’s response uttered in a state of bewilderment does not assist the Claimant.  The effect of the response was nugatory given that it was well understood by all concerned that the Respondent would not employ the Claimant after late May 2004.  As previously stated I am satisfied that the Claimant was informed on 23 April 2004 of the fact that he was to be terminated however whether or not such notice of termination was adequate or appropriate is quite another matter.  In my view the notice given on 23 April 2004 was inadequate in that it did not specify the date of termination.  It was simply an indication that termination would occur and that it would occur some time in late May.  The lack of specificity made the notice ineffective.  The Claimant was entitled to know with some specificity as to when his employment was to end.  To be told that your employment will end somewhere at the end of May is not good enough.  It follows that the Claimant was not given sufficient notice of termination.

22      On 19 May 2004 the Claimant received an envelope, which was on his desk when he arrived at work.  It contained a letter from Mr Lenny dated 18 May 2004 (exhibit 3).  In essence the letter inter alia confirmed that the Claimant’s employment had been terminated and gave details as to the date that the Claimant was to cease work.  It was indicated therein that the Claimant was to cease work on 26 May 2004.  It was only then that the Claimant knew the precise details of his termination.  It follows therefore that the Claimant did not receive proper notice of his termination until 19 May 2004 when he received what is now exhibit 3.   Time with respect to notice of termination therefore commences to run from 19 May 2004. 

23      On Friday 21 May 2004, whilst at work, the Claimant was instructed by his employer to empty out from his van the equipment and materials belonging to the Respondent, which he did.  In the course of the emptying of the van a dispute arose concerning hand tools in the possession of the Claimant.  The Claimant regarded certain tools as his.  However it is common ground that they had been purchased by the Respondent.  Notwithstanding that fact, Mr Lenny permitted the Claimant to retain certain tools in an endeavour to diffuse what had become a heated situation.  Immediately thereafter Mr Paul Lenny drove the Claimant home.

24      A week later he received his pay.  Later still he received his other entitlements.

Determination

Section 170CM of the Workplace Relations Act 1996

25      Pursuant to section 170CM of the W.R.A. the Claimant is to be paid five week’s pay in lieu of notice.  However the entitlement pursuant to that provision can only be enforced by virtue of the code set out in Part VIA Division 3 of the W.R.A.  In particular, section 170CP(2) and (5) provides:

(2) Subject to subsection (5), an employee may apply under this section to the Court or to a court of competent jurisdiction as defined in section 177A for an order under section 170CR in respect of an alleged contravention of section 170CM by his or her employer.

(5) An application under subsection (1), (2), (3) or (4) in respect of an alleged contravention of section 170CK, 170CL, 170CM or 170CN may not be made to a court unless the applicant:

(a) has received a certificate under subsection 170CF(2) regarding conciliation of an application made wholly or partly on the ground of the alleged contravention; and

(b) has elected under section 170CFA to begin proceedings in that court for an order under section 170CR in respect of the alleged contravention.

26      It suffices to say that as a precondition to the making of a claim pursuant to section 170CM the Claimant must receive a certificate pursuant to section 170CF(2) and make an election under section 170CFA to bring proceedings under section 170CR.  In this matter the Claimant has not done any of those things, which are the necessary prerequisites for the making of an application or claim.  Accordingly the alleged breach of the provision is not properly before this Court and is not justiciable by it.

Section 41 if the Minimum Conditions of Employment Act 1993

27      The Claimant alleges that the Respondent well knew in its negotiations to sell part of its business that the Claimant was going to lose his job.  Section 41 of the M.C.E. Act obliged the Respondent to have discussions with the Claimant about the ways in which the effects of redundancy upon him could be minimised.  It is alleged that the Respondent has failed to do so.

28      Section 41 of the M.C.E. Act provides:

41.    Employee to be informed

(1)    Where an employer has decided to — 

(a)  take action that is likely to have a significant effect on an employee; or

(b)  make an employee redundant,

the employee is entitled to be informed by the employer, as soon as reasonably practicable after the decision has been made, of the action or the redundancy, as the case may be, and discuss with the employer the matters mentioned in subsection (2).

(2)    The matters to be discussed are — 

(a)  the likely effects of the action or the redundancy in respect of the employee; and

(b)  measures that may be taken by the employee or the employer to avoid or minimize a significant effect, as the case requires.

29      The provision is to be construed having regard to the interpretation provisions found in section 40 of the M.C.E. Act which provides inter alia:

40.    Interpretation in Part 5

(1)    In this Part — 

“employee” does not include a casual employee or an apprentice or trainee;

“redundant” means being no longer required by an employer to continue doing a job because the employer has decided that the job will not be done by any person.

(2)    For the purposes of this Part, an action of an employer has a significant effect on an employee if — 

 (a)  there is to be a major change in the — 

(i)   composition, operation or size of; or

(ii)  skills required in,

the employer’s work-force that will affect the employee;

(b)  there is to be elimination or reduction of — 

(i)   a job opportunity;

(ii)  a promotion opportunity; or

(iii) job tenure,

for the employee;

(c)  the hours of the employee’s work are to significantly increase or decrease;

(d)  the employee is to be required to be retrained;

(e)  the employee is to be required to transfer to another job or work location; or

(f)  the employee’s job is to be restructured.

30      There can be no question that in mid April 2004 the Respondent decided to make the Claimant redundant.  I am further satisfied that on 23 April 2004 being very soon after that decision was made the Respondent called the Claimant into a meeting and informed him of the decision that had been made.  As a result of that meeting there could not have been any misapprehension on the part of the Claimant as to what was to occur.  Further, given the nature of the Claimant’s qualifications and having regard to the nature of the Respondent’s remaining business activities, it was axiomatic that the Claimant could no longer work for the Respondent.  There was simply no other job that the Claimant could do.  Accordingly the Claimant was told that by virtue of the sale of the service section of the business that he would become redundant as an employee of the Respondent.  At that time he was given details as to the prospective purchaser and was invited to discuss his position with the purchaser with a view to obtaining employment with the purchaser.  Further it was also the case that the Claimant was informed that he would be able to leave his job early and would not be held to the five week’s notice period in the event that he found an alternate job.  I am also satisfied that the Claimant used the Respondent’s telephone and facilities to contact prospective employers.  Indeed he was successful in that regard and was able, on 19 May 2004, to arrange an interview with his now employer Arcus with whom he commenced working immediately following his termination.  The question however remains as to whether all of that was enough.  What is required was discussed in Garbett v Midland Brick (2003) 83 WAIG 893 a decision of the Industrial Appeal Court of Western Australia.  At page 899 (paras 54 and 55) His Honour Hasluck J said:

31      It is significant that s 41(2) speaks of "the matters to be discussed".  This suggests that the employer has an obligation to raise the matters for discussion and to ensure that the relevant points are in fact covered.  Further, and in any event, in the case of remedial legislation of this kind which is obviously designed to ameliorate the effects of redundancy to some extent, the provision clearly requires that there be a discussion.

32      To my mind, if the employee remains silent, possibly because of shock or diffidence or ignorance about his statutory entitlement, it is not open to the employer to leave the matter in abeyance.  The employer must ensure that a discussion of the prescribed kind takes place, so that the employee will be able to draw the employer's attention to any considerations that may have been overlooked such as, adverse effects upon the employee or measures that might be taken to avoid or minimise the effect.

33      At page 905 (para 94) His Honour Heenan J said:

Accordingly, in the present circumstances, I consider that the term implied in all contracts of employment by s 41 of the MCEA that, where the employer has decided to take action that is likely to have a significant effect on an employee or make an employee redundant, the employee is entitled to be informed by the employer as soon as reasonably practicable after the decision has been made, of the action on the redundancy, as the case may be, and the obligation to discuss with the employee the various matters mentioned in s 41(2), actually requires the employer to bring that entitlement to the attention of the employee and to discuss the matters so arising, notwithstanding that the employee may not be aware of the existence of his or her entitlement to be so informed or of the obligation of the employer to discuss the matters provided.  In the absence of such an obligation, the statutory provision is likely to have haphazard and random effect depending upon the existence or otherwise of knowledge by the individual employee, at the relevant time, of the effect of s 41.  As the section applies to contracts of employment of all kinds, and the Act is designed to provide minimum conditions of employment which will, inevitably, involve many employees at the lower end of the employment scale whose knowledge and experience is likely to be limited, I consider that any different approach would fail to ensure that such employees receive the benefit of the statutory provision which its policy demonstrates is a necessary ingredient of their employment.

34      Further His Honour also commented at page 904 (paragraph 90) that compliance with section 41 of the M.C.E. Act also necessarily imports a requirement that the worker be told of his or her rights pursuant to section 43 of that Act that there is an entitlement to paid leave of up to eight hours for the purpose of being interviewed for further employment and that the eight hours need not be consecutive.

35      In the present matter the approach taken by the Respondent was haphazard.  There was no concerted attempt to discuss measures that might be taken to minimise the effects of the redundancy.  It was very much left to the Claimant to sort out.  The Claimant was not informed of his rights pursuant to section 43 of the M.C.E. Act.  Although it is the case that the Claimant used the Respondent’s facilities to arrange an interview, that occurred not at the suggestion of the Respondent but rather as a result of the Claimant’s proactive stance.  In the end there was not the strict compliance with section 41 as was required.  The amelioration of the impact of redundancy resulted more from the Claimant’s endeavours rather that any assistance gained in discussion with his employer.  Indeed the discussions had on 23 April 2004 failed to specifically address what was required.  Therefore there has been a breach of section 41 of the M.C.E. Act.  Fortunately for the Respondent, the Claimant, given that he was able to move immediately to find alternate employment, did not suffer loss or damage by virtue of its failure to comply with the provision.

Breach of the Metal Trades (General) Award No 13 of 1965

36      The Claimant asserts that the Award is binding upon the Respondent by virtue of the operation of section 37 of the Industrial Relations Act 1979.  In that section a “common rule” award is said to bind all employees employed in a calling mentioned therein, in the industry or industries to which the award applies and all employers employing those employees.

The area and scope clause found at clause 3 of the Award provides:

3. - AREA AND SCOPE

37      This award relates to each industry mentioned in the Second Schedule to this award and applies to all employees employed in each such industry in any calling mentioned in Clause 31. - Wages and Supplementary Payments (including the appendix thereto) of Part I - General or Clause 10. - Wages of Part II - Construction Work of this award but does not apply within the area occupied and controlled by the United States Navy at and in the vicinity of North-West Cape in relation to Increment 1 of the construction of the Communications Centre.

38      The Claimant must therefore prove, on the balance of probabilities, the following:

That the industry in which the Respondent is engaged is an industry to which the Award applies, and

That he was employed in a calling mentioned in the Award.

39      The Claimant asserts that, given that the Award is one where its scope can be determined by reference to the Award itself, it is unnecessary for the Claimant to call evidence to establish what the industries are which are covered by the Award.  It is a “Donovan clause” (See RJ Donovan and Associates Pty Ltd v Federated Clerks Union (1977) 57 WAIG 1317).  Therefore the clause can be construed by looking at the Award itself.  In that regard the Claimant says that there are two identifiable industries within the Second Schedule – Schedule of Respondents of the Award that apply to the Respondent.  They are specifically identified as being “Engineers – General” and “Plumbers & Sheetmetal Workers”.

40      The Claimant says that:

The Award relates to each industry mentioned in the Second Schedule – Schedule of Respondents including “Engineers – General” and/or “Plumbers & Sheetmetal Workers”, and

The Award applies to all employees employed in each such industry in the callings mentioned in clause 31. – Wages and Supplementary Payments of the Award, and

By virtue of the definition of the classifications found in clause 5. – Definitions and Classification Structure of the Award the Claimant falls into Wage Group C9 given that he qualifies as an Engineering Tradesperson (Electrical/Electronic) – Level II by reason of his qualification as an electrician, plumber and gasfitter.

41      The Claimant contends that the broad industry of the Respondent is the sale and installation of commercial kitchens wherein the Respondent would buy in equipment and manufacture sheet metal cupboards and benches and then install those into the clients’ kitchens.  That it is said brings it within each of the industries specifically previously identified.  It is also argued that in each instance the calling identified in the Award as fitting the description of what the Claimant did is that of Engineering Tradesperson – Level II.

42      The Respondent on the other hand submits that there is evidence before this Court to establish that the Respondent is a manufacturer of stainless steel kitchen furniture both fixed and mobile for use in commercial settings.  The service and maintenance aspect of the business was only a small and incidental part of its operations.  The Respondent says that it is the manufacturer of kitchen furniture taking it outside of the scope of the Award.  The Respondent says that it fits within the scope of the S.M.A. in that the scope clause of that Award provides at clause 4:

4. - SCOPE

43      This award shall apply to workers employed to do work in galvanised iron, sheet-tin and other sheet metal, including stove and oven making and repairing, canister making, gas meter making and repairing, manufacture of metal furniture, making and repairing circulating radiators, Porcelain Enamelling wet and dry.

44      It is suggested by the Respondent that its position in this matter is on all fours with the position of the Respondent in Patrick Louis v KDB Engineering Pty Ltd T/As K-Care (2003) 83 WAIG 3676.  Further it is said that when that decision is read with what was said in Bell-A-Bike Rottnest Pty Ltd v Automotive Food, Metal, Engineering, Printing and Kindred Industries Union (1982) 82 WAIG 2655 that the conclusion must inevitably be reached that the Award does not apply to it.

45      It is the case that the Claimant must establish by way of the facts whether the activities carried on by the Respondent are covered by the description of the industry and whether those have been established as a matter of fact (see Bell-A-Bike supra).

46      In my view the industry in which the Respondent operates is that of the design, custom manufacture, supply, installation, commissioning and ongoing service of commercial kitchens.  The core activity is that of the design and manufacture of stainless steel commercial kitchens.  The rest is ancillary.  It is unhelpful to attempt to characterise the Respondent’s industry by having regard to what the Claimant did in the application of his skills in carrying out work for the Respondent because the evidence dictates that his function in service and maintenance was ancillary to the Respondent’s core function.  Indeed he is in no different situation to the bike repairer in Bell-A-Bike (supra).

47      The onus rests with the Claimant to establish on the balance of probabilities that the activity carried on by the Respondent is covered by the description of the industry in the Award.  Whether that has been established is a matter of fact.  In my view there is a paucity of evidence on such issue.  Indeed the only way in which this Court can construe the particular industries entitled “Engineers – General” and “Plumbers & Sheetmetal Workers” identified in the Second Schedule – Schedule of Respondents to the Award is by having regard to the names of the respondents listed under each industry to ascertain what the industry is.  When that is done it is apparent that none of the named respondents under the heading “Engineers – General” are in the same industry as the Respondent.  They deal, as can be seen from their titles, with engineering, cranes and building.  None of those enterprises could be said to be in the same industry as that within which the Respondent operates.  Similarly under the heading “Plumbers & Sheetmetal Workers” the listed respondents are those, which carry out plumbing and air conditioning manufacturing.  So far as Astra Metal Products Pty Ltd is concerned, I simply do not know what it does.  In that regard the Claimant has failed to discharge the evidentiary burden that it has.

48      In the end the Claimant has failed to prove that the Award applied to the Claimant’s employment.  Consequently the Claimant has not made out its claims based on the operation of the Award.

Conclusion

49      Having failed to prove the operation of the Award the claims for redundancy and pay in lieu of notice based on the operation of the Award have not been made out.  Further the Claimant’s action pursuant to section 170CM of the W.R.A. is defective and therefore cannot be used as a vehicle for the recovery of pay in lieu of notice. That is so notwithstanding that there has been a clear failure to give the appropriate notice.  The Claimant would, it seems, be entitled to five week’s pay from 19 May 2004 less the amount payable for the period from19 May to 28 May 2004, which has already been paid.  Given that the claim herein is not one under the S.M.A. I have no power to make an order for the payment of the same.

50      The Claimant has only been successful in establishing a breach of section 41 of the M.C.E. Act.  That provision is enforceable by virtue of section 7(c) of the M.C.E. Act, which enables section 83 of the Industrial Relations Act 1979 to be used as the vehicle for enforcement.  Accordingly the only remedies available to the Claimant are those set out in section 83(4)(a) which provides:

(4)   On the hearing of an application under subsection (1) the industrial magistrate’s court may, by order —

(a) if the contravention or failure to comply is proved —

(i) issue a caution; or

(ii) impose such penalty as the industrial magistrate’s court thinks just but not exceeding $2 000 in the case of an employer, organisation or association and $500 in any other case;

51      The Claimant, in summing up, indicated that he seeks the imposition of a penalty for the Respondent’s failure to comply with Section 41 of the M.C.E. Act notwithstanding that such had not been indicated in the Claim itself or in the pleadings filed in this matter.  The Court is therefore required to consider the same particularly in the light of the decision in Carol Penn v Patricia Edwards of Verschuer Edward (2004) 84 WAIG 3474.

52      I will now hear from the parties regarding the orders to be made.

G Cicchini

Industrial Magistrate