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 Thursday, 25 September 2008

DELIVERED Thursday, 25 September 2008

CITATION NO. 2008 WAIRC 01569

Result Payment of pre-judgment issued ordered

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

Further Supplementary Reasons for Decision

(Given extemporaneously at the conclusion of submissions, extracted from the transcript of proceedings and edited by His Honour)

1          These matters have been remitted to me following appeals to the Full Bench of the Western Australian Industrial Relations Commission and the Western Australian Industrial Appeal Court. 

2          When I decided these matters I concluded that I did not have the power to order the payment of interest with respect to the amounts found to have been underpaid.  On appeal the Full Bench determined that regulation 12(4) of the Industrial Magistrates Courts (General Jurisdiction) Regulations 2005 is valid.  That finding has not been disturbed by the Industrial Appeal Court.  Indeed His Honour Le Miere J observed that even if it were the case that regulation 12(4) was not valid, then in any event section 12(1) of the Magistrates Court (Civil Proceedings) Act 2004 would empower this Court to award interest.  The effect of His Honour's decision is that interest is applicable and payable.

3          Given the finding of the Full Bench of the Western Australian Industrial Relations Commission that regulation 12(4) is valid and that finding has not been disturbed by the Western Australian Industrial Appeal Court, I am required to follow what has been decided by the Full Bench.  Indeed it flows from what has been said by the Full Bench and the Industrial Appeal Court that I have power to order payment of interest.

4          Notwithstanding that, the difficulty that arises here is that the matters before the Full Bench and the Industrial Appeal Court proceeded on the basis that the Industrial Magistrates Courts (General Jurisdiction) Regulations 2005 applied and that interest was payable pursuant to those regulations.  Although not argued before those Courts it is now suggested that those regulations may not have been applicable.  In my view, based on what was said above, the fact that interest was payable is now clear, whether it be under the Industrial Magistrates Courts (General Jurisdiction) Regulations 2000 or the Industrial Magistrates Courts (General Jurisdiction) Regulations 2005.  All the Industrial Magistrates Courts (General Jurisdiction) Regulations 2005 did with respect to the interest issue in my view was to provide a different formula for the calculation of interest.  In fact it could be said that they changed the method of calculation to give this Court scope to exercise its discretion in relation to interest and the calculation thereof.  If anything, those regulations are of greater benefit to the Respondents than the former regulations.

5          As at the date of judgment in these matters the Industrial Magistrates Courts (General Jurisdiction) Regulations 2005 applied to the Court, to facilitate the appropriate calculation in respect to interest.  As I said earlier, it seems to me that the decisions of the Full Bench of the Western Australian Industrial Relations Commission and the Western Australian Industrial Appeal Court make it clear that interest is payable.  It seems to me, with respect, that the Respondents are seeking to re-litigate the issue that has already been decided by the superior jurisdictions.

6          In addressing some of the issues raised by the Respondents with respect to calculation of interest, I take the view that interest cannot be calculated as commencing from when this Court determined the claim but rather from the end of each pay period, that is, from the time that the Respondents failed to pay Mr Sladden his correct pay.  In my view that is in keeping with what was implicitly said by both the Full Bench of the Western Australian Industrial Relations Commission and the Western Australian Industrial Appeal Court.

7          As observed by the Full Bench of the Western Australian Industrial Relations Commission and the Western Australian Industrial Appeal Court, the payment of interest makes more effective the recovery of underpayment in that it is directed to putting the employee in a position where that employee would have been had he been paid when required by the award.  The employee, if he had that money, may have placed it into an interest bearing bank account and earned interest.  Furthermore, there is a corresponding benefit to the Respondents by not paying.  They retained the money that they would not have otherwise had, which they could have themselves invested.  The payment of interest simply brings everything back into balance.

8          In view of what I said earlier concerning the applicability of the Industrial Magistrates Courts (General Jurisdiction) Regulations 2005 as being the appropriate basis for calculation, I accept that the schedules which accompany the applications dated 4 December 2007 with respect to these matters correctly set out the appropriate calculations of interest payable,  I adopt those schedules.  Interest payable by Christine Anne Miles and Richard Glinton Miles in matter M 15 of 2007 is in the sum of $4052.51, and interest payable by Melrose Farm Pty Ltd in matter M 99 of 2006 is in the sum of $3621.82.

9          In my view, those matters referred to by Mr McCorry at paragraph 52 of his written submissions and on which he has addressed me today on behalf of the Respondents do not amount to good cause as to why the orders for interest should not be made.  With respect to the Respondents, the employee's tax situation is a matter for him and the Australian Taxation Office, which may be dependent upon his particular circumstances.  His particular circumstances are unknown to me and this Court simply cannot proceed in an evidentiary vacuum in that regard.  The other matters to which I have also been referred appear to be irrelevant.

10      I will now make the orders with respect to interest.

G Cicchini

Industrial Magistrate