WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

PARTIES warren graham milward, department of consumer & employment protection

   CLAIMANT

-v-

melrose farm pty ltd t/as milesaway tours

  RESPONDENT

CLAIM NO. M 99 OF 2006

PARTIES warren graham milward, department of consumer & employment protection

CLAIMANT

-v-

CHRISTINE ANNE MILES AND RICHARD GLINTON MILES T/AS milesaway tours

  RESPONDENT

CLAIM NO. M 15 OF 2007

CORAM INDUSTRIAL MAGISTRATE G. CICCHINI

HEARD WEDNESDAY, 21 FEBRUARY 2007, THURSDAY, 22 FEBRUARY 2007,

 WEDNESDAY, 2 MAY 2007

DELIVERED Wednesday, 23 May 2007

CITATION NO. 2007 WAIRC 00504

CatchWords Industrial Inspector; Appointment of Industrial Inspector; Proof of Appointment of Industrial Inspector; Presumption of Regularity; Doctrine of De Facto Officers; Transport Workers (Passenger Vehicles) Award 1978; casual; “bus driver”; “tour guide”; Particulars of Claim; Accuracy of Calculations.

Legislation  Industrial Relations Act 1979, sections 83 and 98.

Public Sector Management Act 1994, Part 3.

Interpretation Act 1984.

Transport Workers (Passenger Vehicles) Award 1978.

Industrial Magistrates Courts (General Jurisdiction) Regulations 2005.

Cases Cited Australian Shipbuilding Industries (WA) Pty Ltd v Maritime Workers Union

(1977) 57 WAIG 458

WA Carpenters and Joiners, Bricklayers and Stoneworkers Union v Terry

Glover Pty Ltd (1970) 50 WAIG 704

Metals and Engineering Workers Union v Centurion Industries Ltd

(1996) 76 WAIG 1287

Briginshaw v Briginshaw [1938] 60 CLR 336

Lake Macquarie Shire Council v Aberdare County Council

[1970] 123 CLR 327

GJ Coles & Co Ltd v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503

Luff v Oakley (1985) 82 FLR 91

Federated Miscellaneous Workers Union v Arpad Security Agency Pty Ltd (1989) 69 WAIG 1899

Jones v Dunkel and Another [1958-1959] 101 CLR 298

Cases Referred to in Decision

Yamasa Seafood Australia Pty Ltd v Watkins [2000] VSC 156

Cassell v The Queen [2000] 201 CLR 189

United Transport Services v Evans [1992] 1 VR 240

Project Blue Sky Inc and Others v Australian Broadcasting Authority [1998] 194 CLR 355

Jamieson v McKenna [2002] WASCA 325

Federated Clerks’ Union v Cary (1977) 57 WAIG 585

Doropoulos v TWU (1989) 69 WAIG 1290

Greg Logan-Scales, Department of Consumer and Employment Protection v Eco Tours Pty Ltd T/As Western Travel Bug (2004) 84 WAIG 2584

TWU v DB & B Adams and Others (1980) 60 WAIG 870

Parker and Son v Amalgamated Society of Engineers (1926) 29 WALR 90

TWU v Pinnacle Services Pty Ltd (1999) 79 WAIG 3567

Silberschneider v MRSA Earthmoving Pty Ltd 68 WAIG 1004

James Turner Roofing Pty Ltd v Peters 83 WAIG 427

Result Claims in each instance made out.

Representation 

Claimant  Mr A Shuy (of Counsel) instructed by the State Solicitor’s Office appeared

for the Claimants.

Respondent  Mr G McCorry of Labourline – Industrial and Workplace Relations

Consulting appeared as agent for the Respondents.

REASONS FOR DECISION

What are the Claims about?

1         The Claimant asserts that the Respondents have failed to comply with the Transport Workers (Passenger Vehicles) Award 1978 (the Award) by not paying their employee, Gregory John Sladden, his correct rate of pay.  It is alleged that at all material times Mr Sladden was employed as a casual bus driver being a calling in the industry to which the Award relates.

2         The Respondents deny that Mr Sladden was a casual bus driver and say that he was employed as, and carried out the duties of, a tour guide and that his employment was not subject to the provisions of the Award.  They also take issue with the Claimant’s capacity to bring the claims.

Background

3         In about December 2000 the business of Milesaway Tours was carried on in partnership by Christine Anne Miles and her husband Richard Glinton Miles.  They continued to carry on that business until 31 July 2002 at which time Melrose Farm Pty Ltd (Melrose Farm) took it over.  One of Melrose Farm’s directors is Christine Anne Miles.  Her husband has never been a director of the company.  On 15 May 2006 Melrose Farm ceased to carry on the business.

4         There is a dispute as to the nature of the business carried on by Milesaway Tours during the material period.  The Claimant asserts that the business provided tour and charter bus services.  The Respondents on the other hand say that they conducted a tour business.

5         On 7 December 2000 Milesaway Tours advertised in the Busselton-Margaret River Times for the services of a “Tour Guide Driver”.  The text of the advertisement is set out hereunder.

Tour Guide Driver

Must have ‘F’ class licence, Senior First

Aid Cert.  Casual position involving

weekend work.  Past applicants need not apply.

(Phone) 9754 2929 evenings

Milesaway Tours

6         Mr Gregory John Sladden responded to the advertisement and was interviewed by Richard Miles.  Mr Miles during that interview confirmed that the advertised position was a casual one.  Mr Sladden was advised also that in order to secure the position he would have to, at his own expense; undertake a trial run plus three training runs.  He was informed that if successful in attaining the position his rate of pay would be that provided by the award which at that time was about $13.00 per hour.

7         A few days after his interview Mr Sladden received a telephone call informing him that he had been successful in his application.  He was asked whether he was interested in doing the trial run to which he replied he was and accordingly a trial run was arranged.  Subsequently when he turned up for his trial run it was agreed that the trial run would be dispensed with and that his training runs would commence immediately.  He thereafter accompanied tour guide drivers on their respective runs.  Each run was different.  Mr Sladden concluded from his observations during the training runs that the job entailed the driving of a bus, being responsible for it and providing a commentary to passengers undertaking tours.  He thereafter commenced paid employment driving buses that seated twenty or twenty-one passengers.

Evidence of Gregory John Sladden

8         Mr Sladden testified that although the Respondents conducted both winery tours and canoe tours he was only ever involved in the winery tours.  The winery tours included two half day tours, known as the Southern Tour and the Northern Tour, and the full day tour known as the Margaret River Wine Lovers Tour.  Each half day tour was an afternoon tour commencing just after midday and concluding between 5.30 pm and 6.00 pm.  The Southern Tour included visits to four or five boutique wineries in the southern section of the Margaret River region, whereas the Northern Tour included visits to wineries in the northern sections of the region, closer to Busselton.  The all day tour, which commenced just after 9.00 am and concluded at about 5.30 pm included visits to a cheese factory, chocolate factory, lunch at the Leeuwin Estate and visits to five or six wineries in the region. 

9         Mr Sladden described his duties in the performance of his job.  They included checking the bus prior to departure, organising the sequence of picking up passengers from their respective pick up points, checking the booking sheets to ensure that passengers had paid for the tour and collecting tour fees from those passengers who had not prepaid their tour fees.  He was also required to prepare a cheeseboard for consumption during the tour.  When the tour was underway he was required to provide a commentary on the region, the wine industry local history, and on any point of interest.  At each winery stop Mr Sladden would assist passengers from the bus and then mingle with them during the stop.  He would also join his passengers for afternoon tea or lunch as the case may be.  At the conclusion of the tour, after having dropped off his passengers, he would return to the depot where he would clean the interior and exterior of the bus.  He would also clean the cheeseboard and make a record of wine sales.  He would also record details as to hours worked.  Having completed those tasks he would then contact Christine Miles seeking instructions as to what he would be doing the next day or on the next shift.

10      From time to time Mr Sladden was instructed to do a “charter” which was different to a tour in that it usually involved a singular pickup point and the driving of passengers from that pickup point to the destination without commentary.  Charter work amounted to “shifting people”.  Such included the Casino run in which passengers were driven from Busselton to the Burswood Casino and return therefrom.  He was also required to do “transfers”.  That involved picking up passengers and taking them to a predetermined point to meet their particular bus tour.  On occasions he would be called in solely for the purpose of cleaning buses or for the purpose of doing a brochure run, which would entail topping up brochures at venues.

11      During the course of his employment Mr Sladden, as a consequence of comments made to him by passengers, suggested to Christine Miles that Milesaway Tours should consider conducting a scenic tour.  Mrs Miles told him to formulate his proposal, which he did in his own time.  His proposal was rejected.  Subsequently Mrs Miles created another version of the scenic tour proposed and instructed Mr Sladden to conduct it.  It was to be a morning tour commencing at about 8.15 am and concluding in the early afternoon.  The scenic tours were subsequently conducted by Mr Sladden each Thursday unless there were more than twenty-one people booked for the tour in which case another driver would conduct it.  For some reason unknown to Mr Sladden he was not permitted to drive the bigger buses operated by his employer.

12      Mr Sladden testified that his rate of pay remained the same irrespective of the day of the week he worked.  He was never paid penalty rates for weekend work and the like notwithstanding that he worked weekends.  His hours of work varied from week to week but increased during school holiday periods.  Sometimes he only worked for twenty hours per week; however, on average he would work about thirty-five hours each week mainly concentrated on weekends.  He never worked on Wednesdays.

13      Mr Sladden’s pay rate was increased from time to time but he did not bother to ascertain whether he was being paid correctly.  On one occasion a fellow employee remarked that they “all were being paid illegally” and that they should all be permanent employees and not casual.  Notwithstanding that, he did nothing about it.  Indeed he never spoke to his employer about his rate of pay.  He said he would not have been game to ask.  He wanted to avoid conflict with Mr and Mrs Miles.  Richard Miles was known to be very aggressive and to “fly off the handle”.  He had in fact been sworn at and abused by Mr Miles over an incident concerning the use of a wrong bus.

14      Mr Sladden testified that he was never formally advised that his employer had changed.  He only became aware of a change when on one pay day he noted that his pay cheque had been drawn by Melrose Farm.  At the time he did not know for how long that had been the case.  He had never entered into a written agreement and the employment relationship throughout was informal based on the discussions held during his interview.

15      In May 2004 Mr Sladden was caught driving with a blood alcohol level in excess of 0.08 percent which resulted in a court appearance in July 2004 when he was disqualified from driving.  Notwithstanding his disqualification he retained his job but his work was limited.  On one occasion he provided a commentary on a bus driven by Mrs Miles.  On other occasions he assisted in cleaning buses.  He also trained up another driver.  He eventually obtained an extra-ordinary licence and was able to undertake a transfer using his own vehicle.  However due to the insurance implications arising from his conviction and the increased cost thereof to Melrose Farm, it was decided by his employer that his employment should be terminated.  Consequently Mr Sladden sought from his former employer a separation certificate which was supplied to enable him to obtain unemployment benefits.  Mr Sladden ceased working for the Respondent company in October 2004.

16      Mr Sladden confirmed, during cross-examination, that he had nothing to do with the canoe tour aspect of the Respondent’s business.  He could not say what proportion of the business related to it.

17      He was also questioned about his knowledge of Margaret River, local and wine history and of the Australian wine industry generally.  He was challenged about his contention that he had picked up his knowledge concerning such matters from his training runs and from visits to wineries.  He conceded in that regard that his employer had given him a questionnaire to complete which addressed issues relating to the local history of the Margaret River region including its wine industry history and the wine industry generally.  He agreed that he completed the same as an aid to acquiring the requisite knowledge necessary to enable him to provide commentary during tours.

18      It was suggested to Mr Sladden that his position required him to host his passengers during luncheons and other breaks.  He rejected that contention by saying that the particular establishment conducting the lunch or afternoon tea was, in each instance, the host.  His role was merely to ensure that everyone was organised and seated.

19      During cross-examination Mr Sladden was asked to explain the course undertaken with respect to each tour.  It suffices to say that Mr Sladden explained that each tour would vary according to daily circumstances.  The nature of each day’s tour was particularly dependant upon passenger pickup points and whether particular wineries were open.

20      Mr Sladden was challenged about time travel estimates contained in a document produced by Industrial Inspector Mr Adam Howard for the purposes of establishing these claims.  Mr Sladden was not able to comment about the accuracy of the same nor the derivations extrapolated there from.  Nonetheless he conceded that the journeys between wineries were, in the main, of short distances and therefore of short duration.  He conceded that none of the journeys took more than twenty minutes despite that represented in Mr Howard’s schedule.  He readily conceded that some entries within the schedule were ostensibly incorrect.

21      When re-examined Mr Sladden informed that the Respondents’ canoe tours ceased some time in 2002.  Consequently from that time the same did not play a part in the Respondent’s business.

22      He also explained that “all day tours” including his pre and post tour responsibilities would require him to work a nine to nine and a half hour day.  “Half day tours” required him to work between six to seven hours with the Southern Tour usually taking an hour longer than the Northern Tour.

23      Mr Sladden was, in my view, a most impressive and credible witness.  He was precise, made all necessary concessions and was unwilling to speculate.

Other Evidence

Adam Howard

24      Mr Adam Howard was formerly employed as an Industrial Inspector.  He ceased that employment in June 2006.  In May 2005 he was allocated Mr Sladden’s complaint for investigation.  For the purpose of his investigation he produced various notices through which he obtained evidentiary material including the time and wages books, booking sheets, vehicle check sheets and other documents produced to the Court.

25      From the source materials Mr Howard concluded that Mr Sladden had been paid at a flat rate and that he had not been paid penalty rates for working on weekends and evenings.  He also concluded that for some periods of Mr Sladden’s employment he had been paid at below the award rate.  He therefore formed the view that Mr Sladden had been substantially underpaid. 

26      Mr Howard, in his investigation of the matter, gained the impression that Melrose Farm had been Mr Sladden’s sole employer throughout the material period.

27      Mr Howard was cross-examined at length concerning his investigations and conclusions.  In essence the cross-examination of him drew certain admissions that aspects of his methodology in examining the claim may have been inaccurate and/or incomplete.  He conceded also that the Respondents through their representative had made complaints about his handling of the investigation.

28      In re-examination Mr Howard confirmed that the accuracy of source documents were fundamental to his calculations.

29      Mr Howard’s evidence was only relevant in so far as it related to the production of source documents.  His opinions and conclusions are not relevant.

Gregory Logan-Scales

30      Mr Gregory Logan-Scales is an Industrial Inspector.  He received the file concerning Mr Sladden’s complaint following the cessation of Mr Howard’s employment as an Industrial Inspector.  He was asked to recalculate the claim based on information received that Mr Sladden had two different employers during the course of his employment with Milesaway Tours.  He testified that Mr Howard’s calculation was, in the main, correct.  Only minor adjustments to his calculations were necessary.  He prepared a “corrections table” (exhibit 16) to reflect the adjustments made.

The Respondents’ Case

31      At the completion of the Claimant’s case the Respondents submitted that there was “no case to answer”.  They elected at that stage not to call evidence in the event of a finding against them on their no case to answer submission and accordingly the parties proceeded on the basis that their submissions would stand as their final submissions on the matter.  It follows that this decision will determine whether there is a case to answer and, if so, whether the Claimant has proved each of his claims.

Elements Requiring Proof

32      The Respondents submit that the Claimant has failed to prove the following:

1. That he had been duly appointed as an Industrial Inspector and thereby had the capacity to bring the claims;

2. That the Respondents operated a business providing tour and charter bus services;

3.            That Mr Sladden was employed by them as a casual bus driver; and

4.            That Mr Sladden’s employment with the Respondents was bound by the Award.

Did the Claimant have Capacity to bring the Claims?

Evidence with Respect to the Issue of Capacity

33      The Claimant called Mr Michael Lindsay Holmes, a team leader employed by the Department of Consumer and Employment Protection (the Department) to testify and produce records concerning the appointment of Mr Milward as an Industrial Inspector.  He testified that the Claimant was initially issued with an identification card dated

34      29 April 2004 which contains Mr Milward’s photograph and signature and the Director General’s certificate that Mr Milward was appointed as an Industrial Inspector.  Mr Holmes also produced other documents including a copy of a letter dated 15 August 2005 from the Executive Director of the Department confirming Mr Milward’s transfer to the position of Senior Investigation Officer.

35      Mr Warren Graham Milward was called to testify.  He told the Court that his substantive position with the Department is that of Senior Investigations Officer but he is currently the Acting Manager of the Building Industry and Special Projects Inspectorate (BISPI).  He said that he heads up a team of Industrial Inspectors.  To verify the fact that he is an Industrial Inspector he produced his identification card dated 7 October 2005 which contains the signature of the Department’s then Executive Director certifying Mr Milward’s appointment as an Industrial Inspector.

36      Mr Milward explained that “he wears two hats”.  By that I take him to mean that he contemporaneously engages in the positions of Acting Manager of BISPI and that of Industrial Inspector.  He said that he regularly performs the functions of Industrial Inspector in accordance with the powers conferred upon him by section 98 of the Industrial Relations Act 1979 (the IR Act).

37      His involvement in this matter arose out of his unofficial role as “prosecutions manager”.  In that role he supervises “prosecutions”.  It became necessary for him or another inspector to initiate the claims in these matters following the cessation of Mr Howard’s employment with the Department.  Other than being the nominal Claimant, he has had no other involvement in these matters.

38       When cross-examined Mr Milward maintained that the role of Industrial Inspector was not different to that of his substantive position as a Senior Investigations Officer.  Indeed the duties referred to in his job description for the Senior Investigations Officer position include those required of him as an Industrial Inspector.

Jeff Joseph Radisich

39       Leading up to February 2006, Mr Radisich was the Executive Director of Labour Relations within the Department.  He no longer works for the Department.

40       On 15 August 2005 he transferred Mr Milward to the position of Senior Investigations Officer in accordance with section 65(1) of the Public Sector Management Act 1994 (the PSMA).  He was empowered to do that by virtue of an instrument of delegation given to him by the Director General of the Department.  Thereafter, on 7 October 2005, he certified the appointment of Warren Graham Milward as an Industrial Inspector and caused him to be supplied with an identity card.  He said that he was empowered to do those things by virtue of an instrument of delegation (exhibit 25) issued to him by the Minister for Consumer and Employment Protection on 14 September 2001.

41       When cross-examined Mr Radisich was challenged concerning his ability to appoint Mr Milward as an Industrial Inspector.  Mr Radisich testified that he believed that he had the power to do so because of the delegated power given to him by the Minister.  The instrument of delegation gave him inter alia:

.” . . authority to deal with . . .

(c)   issuing identity cards certifying individuals as Industrial Inspectors

       in accordance with the provisions of S.98 of the Industrial Relations Act, 1979;”

42       He was asked whether he was an employing authority under the PSMA but he said he was not.  The Director General of the Department was the employing authority; however, he had been given the delegated authority to perform the Director General’s functions pursuant to the PSMA.

43       Finally Mr Radisich was asked whether there was any person within the Department appointed to the substantive position of Industrial Inspector.  He replied that there were but went on to say that not all Industrial Inspectors held their substantive position by that title.  Indeed they could be described differently.

Determination of the Capacity Issue

44       Section 83(1)(b) of the IR Act empowers an Industrial Inspector to apply to the Industrial Magistrates Court to enforce an award.  He can do so of his own motion and without Ministerial directive or approval (see section 102A(2)).

45       Usually the validity of the Industrial Inspector’s appointment will be presumed (see Yamasa Seafood Australia Pty Ltd v Watkins [2000] VSC 156 at paragraphs 95-101).  A person acting in a public office is presumed to have been duly appointed unless the contrary is shown (see Cassell v The Queen [2000] 201 CLR 189).  It is always open to the person challenging the presumption to seek to rebut it (see United Transport Services v Evans [1992] 1 VR 240).  Where however the party seeking to rebut the presumption produces no evidence which might rebut the presumption, the Court should draw the presumption (see Yamasa Seafood Australia Pty Ltd v Watkins (supra) at paragraph 97).

46       In Yamasa, Eames J said:

 99       Mr Lindeman submitted that the presumption of regularity could not be applied when the matter sought to be proved was a matter which was critical for the prosecution to prove.  He submitted that in this case the critical issue was the authority to prosecute.  In the first place, however, that is not the issue which is sought to be proved (although some of the cases suggest that that issue, too, could be proved by resort to the presumption).  The issue sought to be proved is that the informant had been duly appointed as an inspector, a matter which is not critical to proof of the prosecution case, but is a matter of formality only.

100      The extent to which the presumption of regularity will apply in support of acts taken by a public official has been said to depend both on the extent to which the acts are favoured, or not, by the law, and on the nature of the fact required to be presumed: Selby v Pennings, per Ipp J, citing Best on Evidence, 9th Ed, 308.  In the present case the fact to be proved - namely, the appointment of an inspector - and the act to which that fact relates - namely, the prosecution of a breach of workplace safety - would meet those criteria.  Ipp J held that the application of the presumption might be weakened where the material before the court, in itself, cast doubt on the fact sought to be presumed. That is not the case here.

101   The presumption of regularity applied in this case, and there being no evidence whatsoever to cast doubt on the presumption that Watkins had been appointed, the presumption, of itself, proved the appointment in this case, when taken with the oral evidence of Watkins.

47       It is argued by the Respondents that the material before the Court casts doubt on the fact sought to be presumed, ie that Mr Milward was validly appointed as an Industrial Inspector.

48       Section 98(1) of the IR Act, at the material time, provided:

Industrial Inspectors for the purposes of securing the observance of the provisions of this Act and of awards, industrial agreements and orders in force thereunder may be appointed under and subject to Part 3 of the Public Sector Management Act 1994.

49       Mr Milward’s identification card containing the certificate of appointment shows that he was purportedly appointed pursuant to section 98 of the IR Act.  It will be obvious however that his appointment as Industrial Inspector could only be made under and subject to the PSMA.  The Respondents say that for the Claimant to be an Industrial Inspector he must be appointed or transferred to the office, post or position of Industrial Inspector pursuant to section 64 of the PSMA.  The Respondents point out that there is no evidence which establishes that Mr Milward’s position of Senior Investigations Officer (Office No PLR 1107) is an Industrial Inspector’s office, post or position.

50       The Claimant submits that the Minister is responsible for appointing Industrial Inspectors.  Whilst the employing authority, pursuant to powers contained in the PSMA, can appoint a public service officer to the position of Industrial Inspector with the intention that that person later becomes appointed by the Minister as an Industrial Inspector under section 98(1) of the IR Act, the mere fact that the public service officer has been appointed to fill a vacancy in the position of Industrial Inspector is not sufficient to confer on him or her the functions and powers under the IR Act and any other written law.  All Industrial Inspectors (after appropriate training and a request for appointment being made) are appointed by the Minister as an Industrial Inspector under section 98(1) of the IR Act irrespective of whether or not their position title is Industrial Inspector for the purposes of the PSMA.  The Claimant submits that regard should be had to section 18 of the Interpretation Act 1984 which provides that the interpretation of the relevant provisions should promote the purpose or object of the relevant Acts.  Accordingly, having regard to section 98(1) of the IR Act and section 64(1) of the PSMA, the construction that would promote the purpose or the underlying object of both Acts would be one which finds that the Minister is responsible for appointing Industrial Inspectors under section 98(1) of the IR Act to perform the functions conferred upon them by the IR Act or any other written law subject to the requirement that they are public service officers appointed under and subject to Part 3 of the PSMA.  It would follow under that interpretation that the position, title or designation of public service officers under Part 3 of the PSMA would not be a mandatory direction.  It is submitted that such an approach is supported in what was said in Project Blue Sky Inc and Others v Australian Broadcasting Authority [1998] 194 CLR 355 at 384 per McHugh, Gummow, Kirby and Hayne JJ.

51       The Claimant says that the interpretation suggested by the Respondents would cause great inconvenience to the Department.  He says that in particular:

a) public service officers could not be transferred by an employing authority from one office, or position to the position of an industrial inspector under s 65(1) of the PSM Act (a “transfer” being different to an “appointment”: see s 67(f) of the PSM Act);

b) all of the industrial inspectors currently performing the functions of industrial inspectors under the IRA pursuant to appointments by the Executive Director of the Department (under delegation from the Minister) and who do not have the position title of industrial inspector would in fact not be industrial inspectors;

c) the acts of all of the putative industrial inspectors referred to in b), above, going back many years, would be called into question;

d) senior public service officers such as Directors employed in the Department would not be able to be given the powers of an industrial inspector without changing their position title to that of “industrial inspector”; and

e) newly appointed industrial inspectors would automatically be given substantial powers under the IRA without first being required to go through the appropriate training.

52       In the alternative the Claimant submits that if Mr Milward was not properly appointed as an Industrial Inspector, his act in commencing these proceedings was still valid under the “doctrine of de facto officers”.  That doctrine provides that where an office exists but the title to it of a particular person is defective, the acts of the de facto public officer done in the apparent execution of his duty cannot be challenged on the ground that he had no title to the office.

53       In Jamieson v McKenna [2002] WASCA 325 Anderson J, with whom Templeman J and Sheppard AUJ agreed, said at paragraph 13 that the essential conditions for the operation of the doctrine are:

1. That the office occupied and exercised was an office “de jure”, that is, one which existed in law.

2. That the acts carried out were within the scope of the office.

3. That the person carrying out the functions of the office had colourable title to the office.

54       His Honour went on to say at paragraph 14:

The doctrine is a strong one, its purpose being not to protect the de facto officeholder, but to protect the public interest. . . . the doctrine protects the public from the "chaos and uncertainty that would ensue if actions taken by individuals apparently occupying government offices could later be invalidated by exposing defects in the official's titles".

55       In this matter Mr Milward occupied and exercised the office of Industrial Inspector which was one which existed in law.  In bringing these claims he carried out an act which was within the scope of the office and, at all material times, he had colourable title to the office of Industrial Inspector as is indicated by the certificate of  his appointment (see exhibit 24).

56       There is considerable force in the Respondents’ argument.  However even if the Respondents were to be successful in their contention that Mr Milward was not validly appointed as an Industrial Inspector, the doctrine of de facto officers would operate so that his acts in bringing these claims cannot be challenged.

Was Mr Sladden’s Employment Subject to the Award?

57       It is not in dispute that the Respondents employed Mr Sladden.  For the Claimant to establish that his employment was subject to the Award it must be established that:

1. He was employed in a calling contained in the Award; and

2. The calling was in the industry or industries to which the Award applies.

Was Mr Sladden a Bus Driver?

58       The calling described in clause 10 of the Award is that of Bus Driver (including Service, Tour, Charter and School Bus drivers) driving a passenger vehicle having seating capacity for “under 25 adult persons” or “25 adult persons or more”.

59       The Respondents contend that a person who drives a bus in the course of his or her employment is not necessarily employed as a bus driver for the purposes of the Award.  The test is whether the work, the major and substantial duties of the employee, brought the employees within the scope of the Award (see Federated Clerk’s Union v Cary (1977) 57 WAIG 585 and Doropoulos v TWU (1989) 69 WAIG 1290).

60       The Respondents say that Mr Sladden’s primary function was not to drive a bus but to be a tour guide as is indicated by the requirement that he have knowledge of the wine industry and the requirement that he provide a commentary to passengers.  His role was to provide an enjoyable tour experience.  His continued employment after he lost his licence is indicative of the fact that his primary function was not that of bus driver but rather that of tour guide.

61       The Respondents also point out that the evidence does not establish that a bus driver’s licence was necessary, nor does it establish that time spent driving formed a substantial portion of Mr Sladden’s duties.  It submitted that the records produced to the Court are anomalous and that there is no real evidence of how much of Mr Sladden’s working time was spent driving.

62       With all due respect, I disagree with the Respondents’ contentions.  In my view Mr Sladden’s evidence overwhelmingly dictates that his major and substantial employment was to drive a bus and to do all things necessary to ensure that the bus was in good order for it to be driven.  There can be no denying that the provision of the knowledgeable commentary was an important part of his function but it was not his primary function.  His primary and substantial employment was to drive a bus upon which the provision of commentary was founded.  The driving of the bus was fundamental.  It was also substantial.  The entirety of his work was predicated on him being able to drive a bus.  Indeed when he lost his licence his position effectively became untenable.  Mrs Miles, in completing or adopting Mr Sladden’s separation certificate stated “Has lost his Drivers Licence thus unable to drive our Tour Coaches” (see exhibit 9).  It is obvious that Mrs Miles considered that the driving of a bus was fundamental to Mr Sladden’s duties and provided the major and substantial part of his employment.

63       All of Mr Sladden’s duties were predicated on him being able to drive a bus.  Mr Sladden’s position was no different to the position of the bus driver in Greg Logan-Scales, Department of Consumer and Employment Protection v Eco Tours Pty Ltd T/As Western Travel Bug (2004) 84 WAIG 2584.

64       I have had no difficulty in arriving at the conclusion that Mr Sladden was a bus driver, being a calling within the Award.

Was Mr Sladden a Bus Driver in the Industry to Which the Award Applies?

65       The Respondents say that there is no evidence before the Court of the industry or industries to which the Award applies.  They say that the Claimant proceeds on the premise that the Award applies because Mr Sladden was a bus driver and nothing else is required.  That is that Mr Sladden’s vocation determines that the Award applies.  That however cannot be correct.

66       Further, it is argued that the Award is not one where the industry to which it applies can be determined unless by properly construing the Award.  The scope clause makes no or no implied reference to the industry or industries carried on by the named respondents but only to the type of bus being driven.  The decision that saw the creation of the Award makes it clear that there is more than one passenger vehicle industry (see TWU v DB & B Adams and Others (1980) 60 WAIG 870).

67       There is no evidence before the Court of what industry or industries the named respondents to the Award were engaged in or whether those industries are the same as that carried on by the Respondents to these proceedings.  An application of Parker and Son v Amalgamated Society of Engineers (1926) 29 WALR 90 requires a finding of fact as to the industry carried on by the named respondents as at the date of the award.  However there is no such evidence before the Court.  In the absence of such evidence the Court cannot know to what industry the Award applies and cannot conclude that the Respondents were engaged in an industry to which the Award applies.  They argue therefore that the Claimant has failed to show that Mr Sladden was engaged in a calling in the industry or industries to which the Award applies.

68       The Claimant’s case is that the Respondents were bound by the Award by reason of the scope clause and by virtue of section 37(1) if the IR Act which provides inter alia:

An award has effect according to its terms, but unless and to the extent that those terms expressly provide otherwise it shall, subject to this section — 

(a) extend to and bind — 

(i)   all employees employed in any calling mentioned therein in the industry or   industries to which the award applies; and

(ii)  all employers employing those employees;

69       Relevantly “industry” is defined in section 7 of the IR Act to mean:

           (c)   any calling, service, employment, handicraft, or occupation or vocation of employees,

70       The scope clause of the Award provides:

3. - SCOPE

This Award shall apply to all bus drivers (including Service, Tour, Charter and School Bus drivers) employed in the classifications described in Clause 10. - Wages of this Award, except those workers employed by the Western Australian Government Railways, the Eastern Goldfields Transport Board, and the Metropolitan (Perth) Passenger Transport Trust.

71       In TWU v Pinnacle Services Pty Ltd (1999) 79 WAIG 3567 the Full Bench of the Western Australian Industrial Relations Commission considered the “industry” to which the aforementioned clause relates.  His Honour President Sharkey said at pages 3568 and 3569:

What the industry is in every case is primarily a question of construction of the award.  It may be that the question is not only primarily but finally a question of construction.  Some awards, too, as a matter of construction, fail to give the final answer and require, for that purpose, findings of fact to be made.  In this case, the final answer was and is provided by the award both primarily and finally.

The award applies to an industry identified by and only by the vocation of bus drivers employed in the classifications contained in clause 10 of the award.  The classifications contained in clause 10 include tour bus drivers.  Mr Downsborough was undoubtably, on the evidence, a bus driver, and, indeed, a tour bus driver.

The construction, therefore, of clauses 3 and 10 of the award provide the final answer.  The industry to which the award applies is bus driver.  The award applied to Mr Downsborough whose vocation was bus driver in the industry of bus driver and in the classification of bus driver.  The award applied to his employer pursuant to s.37(1) of the Act.

72       On the evidence Mr Sladden was undoubtedly employed as a tour bus driver for the Respondents who were in the business of providing tour and charter bus services.  It follows that the Award applied to Mr Sladden whose vocation was a bus driver in the industry of bus driver in the classification of bus driver and that the Award applied to his employers pursuant to section 37(1) if the IR Act.  The aforementioned decision is on all fours with this matter and is one which this Court is bound to follow. 

Was Mr Sladden a Casual Employee?

73       Clause 14(5) of the Award defines “casual employee”.  It provides:

(5)     “Casual Worker” shall mean a worker engaged and paid as such.  A Casual Worker  shall receive a loading of 20 per cent in addition to the ordinary rate.

74       There can be no doubt that Mr Sladden was employed as a casual employee and paid as such.  He did not receive the benefits attendant upon an employee holding down a full or part time position.  Furthermore, notwithstanding that he was consistently employed, there was no guarantee of ongoing employment.  His hours varied dependant upon various contingencies.  Following each day’s work he would be instructed as to when next to work.  There was no certainty or regularity attaching to his employment.  It follows that he was a casual employee.

Breaches of the Award

75       The Respondents submit that there is no evidence of what any underpayment might be.  They point out that there are no calculations referred to in the particulars of claim.  Documents merely annexed to the particulars of claim do not form part of the particulars of claim.  Further, it is submitted that there is no evidence that the computer program by which the calculations were made produces an accurate result, nor for that matter is there any evidence that Mr Logan-Scales is an expert or has special competency in calculating payments under the Award.

76       The Respondents say that the Court cannot rely on any calculations being correct howsoever they are calculated because on Mr Howard’s evidence there were significant anomalies in the data used to perform the calculations.  Accordingly the Court can have no confidence that any calculations he derived from the data reflect any underpayment of wages.  In any event the two sets of calculations relied upon by the Claimant are said to be derived from the single set performed and there is no evidence before the Court that the process of obtaining the two derived sets maintained whatever integrity existed in the original calculations.

77       The spread sheets containing the calculations that support the claims in each instance are attached to the particulars of claim and form part of the same.  They are before the Court.  Even if it could be said that those documents have not in some technical way been properly introduced into evidence, the Court may still have regard to them pursuant to regulation 35(4) of the Industrial Magistrates Courts (General Jurisdiction) Regulations 2005.  I treat the same as part of the evidentiary material before me.  Indeed Mr Logan-Scales testified that he created those documents.

78       A perusal of the documents reveal that they reflect start and finish times consistent with the Respondents’ own records before the Court (see exhibits 5 and 12).  Mr Logan-Scales created two separate spread sheets relating to the two employers.  He went through the calculations, not in terms of the start and finish times or the hours worked, but rather the application of the Award to each of the days worked and the monetary values applying to each of the hours worked.  In the process he produced the spread sheets now annexed to the respective claims.  I accept that Mr Logan-Scales is an experienced Industrial Inspector whose function, in part, is to calculate underpayments.  Reliance may be placed on his calculations.  I accept that they are accurate.

79       The Respondents’ attack on the data from which the calculations are made is not maintainable in the light of the fact that the data derives from the Respondents’ own records which were used to pay Mr Sladden at first instance.  The concessions made by Mr Howard under cross-examination are of no particular significance given that they relate to his working document (exhibit 14.1) which in the main was with respect to the issue of Mr Sladden’s major and substantial employment.

80       The claim against Christine Anne Miles and Richard Glinton Miles with respect to the period leading up to 2 February 2001 is not maintainable because it relates to a period more than six years prior to the commencement of the proceedings (see section 82A of the IR Act).  With respect to M 15 of 2007 there is a finding that Mr Sladden was underpaid $19.33 less than that alleged making the total underpayment $12,344.39.  I also find that with respect to M99 of 2006 Melrose Farm underpaid Mr Sladden $15,478.01

81       Section 83 of the IR Act seemingly suggests that each separate failure to comply with a provision of an award will constitute a contravention of the award, however, its proper construction must be viewed in the light of what was said in Silberschneider v MRSA Earthmoving Pty Ltd (1988) 68 WAIG 1004 and James Turner Roofing Pty Ltd v Peters (2003) 83 WAIG 427.  His Honour Olney J. when dealing with an alleged breach of an award in Silberschneider said at page 1005:

The employer’s obligation under the award is normally to pay one sum of money for each pay period and that sum will be calculated according to the hours worked, the nature of the work and the other circumstances which give rise to an entitlement to be paid loadings, allowances and the like.  If the actual amount paid is not less than the minimum amount payable upon a proper application of the award provisions to the work done, then there can be no contravention of or failure to comply with the award and thus no occasion for the exercise of jurisdiction under either of subsections (1) or (4) of section 83.

82       In my view the aforementioned authorities support the Respondents’ contention that each breach is constituted by the failure at the end of each pay period to pay the correct rate of pay.  I accordingly find that on 77 separate occasions Mr and Mrs Miles failed, in the various ways alleged, to pay Mr Sladden his correct rate of pay and that on 88 separate occasions Melrose Farm Pty Ltd failed, in the various ways alleged, to pay Mr Sladden his correct rate of pay.

Conclusion

83       I find that the Respondents have a case to answer and that the claims in each instance have been made out.  I find that each breach of the Award is constituted by the failure, at the end of each pay period, to pay the correct rate of pay.

G Cicchini

Industrial Magistrate