WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

PARTIES FERNANDO FERRANTE

CLAIMANT

-v-

Chem Centre

RESPONDENT

CORAM INDUSTRIAL MAGISTRATE G. CICCHINI

HEARD Thursday, 3 September 2009

DELIVERED Thursday, 10 September 2009

FILE NO. M 19 OF 2009

CITATION NO. 2009 WAIRC 00659

CatchWords: Alleged breach of cl 13 of the Public Service Award 1992 (“the PSA”) and/or cl 21 of the Public Service General Agreement 2008 (“the PSGA”); application to determine as a preliminary issue whether the Industrial Magistrates Court has jurisdiction to hear and determine a claim relating to employer’s alleged breach of the PSA and/or PSGA with respect to purchased leave; whether employer’s decision not to grant purchased leave can be regarded as a breach of the relevant provision of the PSA and/or the PSGA.

Legislation:  Industrial Relations Act 1979, s 83

Public Service Award 1992, cl 13(1) and cl 13(2)

Public Service General Agreement 2008, cl 21.1 and cl. 21.2

Industrial Magistrates Courts (General Jurisdiction) Regulations 2005,

reg 5

Cases Cited:  Nil

Cases Referred to

in Judgement: Nil

Result Jurisdiction determined

Representation: 

Claimant Mr F. Ferrante was unrepresented

Respondent Mr J. Misso instructed by State Solicitor for Western Australia appeared for the Respondent

REASONS FOR DECISION

The Claim

1         On 8 May 2009 Mr Fernando Ferrante lodged a claim seeking that this court:

“grant (his) application for purchased leave as applied (for) on the

29-07-2008.”

2         The claim is based on the following grounds:

“(The Respondent) failed to comply with Chem Centre agreement between Employer and Employee in that I was discriminated against in the matter of Purchased Leave.  This leave was given to other employees (but) my application was refused.”

Background

3         In a letter from the Chief Executive Officer of the Respondent to employees dated 28 July 2008 the following policy announcement was made relating to purchased leave:

“Purchased leave is not an automatic right but an arrangement by mutual agreement.  I have asked the Chiefs and SBMs to be less liberal in approving requests for purchased leave and I now ask you, the staff, to consider the implications for the organisation and your colleagues before applying for purchased leave.  I have no intentions of refusing all future requests for purchased leave because it does have a place in our employment regime.  I do, however, see purchased leave as being a response to an extra-ordinary situation rather (than)(sic) a normal event.”

4         On 29 July 2008 the Claimant made his application for an extension of purchased leave but did not supply any reasons in support of it.  Subsequently on 8 August 2008 the Respondent informed the Claimant that his application to purchase leave was unsuccessful.  The note made by the officer who considered the application was that it was refused because no compelling reason had been given as to why it should be allowed.  On 12 August 2008 by email to his superior, the Claimant asked that the decision not to allow him purchased leave be reconsidered.  He said, in part:

“I feel that I have personal and compelling reasons that I don’t wish to disclose at this stage.  Suffice it to say that I consider the need to purchase leave is compelling I would therefore, request purchased leave as already applied for.”

5         In that regard the Respondent says that it has invited the Claimant to resubmit his application supported by reasons as to why the application should be allowed, however such has not been forthcoming.  The Respondent therefore says that the issue remains undetermined.  It can only consider and determine the application on its merits when the Claimant provides reasons in support of it. 

6         The Respondent denies that it has failed to comply with the award, agreement, instrument or order forming part of the Claimant’s conditions of employment, or that it has discriminated against the Claimant in its initial consideration of his application to purchase leave.  The Respondent points out that cl 13(1) of the PSA and cl 21.1 of the PSGA provide that an employer may enter into an arrangement whereby the employees can purchase leave.  The Respondent therefore has discretion as to whether or not it enters into a purchased leave arrangement.  The Claimant has not been conferred a legal right to be allowed purchased leave.  Further, the Respondent says that cl 13(2) of the PSA and cl 21.2 of the PSGA provide that the employer will assess each application on its merits and give consideration to the personal circumstances of the employee seeking the arrangement.  Therefore in those circumstances, it was entirely appropriate for the Respondent to seek the Claimant’s reasons for applying to purchase leave.  The Claimant was required to provide sufficient information to support his application to purchase leave so as to enable the Respondent to consider and assess his application on its merits.

7         In further and better particulars filed by the Claimant, he asserts that in rejecting his application, the Respondent has acted with bias and has discriminated against him.  He points out that other employees have been granted purchased leave without having to give reasons, however in his instance the Respondent seeks reasons in support.  He asserts that he has been singled out and suggests capriciousness on the part of his employer.  He asserts also that there are times when privacy is paramount.  Some matters are of such a personal nature that no employer is entitled to know them.  Such a consideration should take precedence in any application.

Application

8         On 30 July 2009 the Respondent made an application that this matter be listed for a preliminary hearing to determine whether this court has jurisdiction to hear the claim or grant the relief sought.  The Respondent says that the issue ought to be determined by way of a preliminary hearing so that the claim can be dealt with efficiently, economically and expediently (see regulation 5 of the Industrial Magistrates Court Regulations 2005).  When the application came before me on 3 September 2009 the parties agreed that I should there and then hear and determine the jurisdictional issue. As a consequence it was argued on that date and at the conclusion of the hearing I reserved my decision. 

9         In support of the application the Respondent argued that cl 13(1) of the PSA and cl 21.1 of the PSGA which governed the Claimant’s ability to apply for purchased leave provides that an employer and employee may enter into an arrangement whereby the employee can purchase leave.  Pursuant to subsections 83(1) and 83(2) of the Industrial Relations Act 1979 (“the IR Act”) this court only has jurisdiction to enforce a provision of an award, industrial agreement, employer-employee agreement or order of the Commission, where a person contravenes or fails to comply with such provisions.  It follows therefore that this court has no jurisdiction to enforce the relevant provisions of the applicable industrial instruments because they give the Respondent discretion.  They do not confer a right to an employee to be allowed purchased leave.  Consequently the Respondent, by declining to enter into an arrangement for purchased leave, cannot be said to be in a contravention of the PSA or PSGA.

10      In response the Claimant asserts that this court has jurisdiction to hear and determine the matter because the Respondent has, in dealing with his application for purchased leave, acted improperly, and/or has been biased and/or has been discriminatory.  He contends that the Respondent has acted unlawfully.  He asserts further that the Respondent has bullied him. This application to have the claim dismissed for want of jurisdiction is just another way in which the Respondent is attempting to bully him into submission.   The Claimant also points out that the advice given to him by various government instrumentalities indicates that this is the proper forum in which he can resolve the issue.

Determination 

11      Clause 13 of the PSA provides:

“13. - PURCHASED LEAVE - 44/52 SALARY ARRANGEMENT

(1) The employer and an employee may agree to enter into an arrangement whereby the employee can purchase up to eight (8) weeks additional leave.

(2) The employer will assess each application for a 44/52 salary arrangement on its merits and give consideration to the personal circumstances of the employee seeking the arrangement.”

12      Similarly clause 21 of the PSGA provides:

“21. PURCHASED LEAVE - 42/52 ARRANGEMENT

21.1  The employer and the employee may agree to enter into an arrangement whereby the employee can purchase up to ten weeks additional leave.

21.2  The employer will assess each application for a 42/52 salary arrangement on its merits and give consideration to the personal circumstances of the employee seeking the arrangement.”

13      It is obvious that both provisions give an employee a right to have his or her application for purchased leave considered.  The provisions however, do not confer a right to the employee to be allowed to purchase leave.  Purchased leave arrangements can only be made by agreement.  Such agreement cannot occur if the employer, having considered the application in accordance with either cl 13(2) of the PSA or cl 21.2 of the PSGA decides that it will not enter into an agreement.  If the employer has considered the employee’s application in accordance with the aforementioned provisions and decides against entering into an agreement then the employee can do nothing about it.

14      The Claimant in this matter however asserts that there has been a breach of the relevant provisions because the Respondent has failed to consider his application for purchased leave or alternatively even if his application was considered, that the Respondents’ bias, and/or discrimination, and/or capriciousness was such that it did not amount to proper consideration of the type required by the relevant provisions.  In effect what the Claimant is saying is that by the Respondent failing to act properly with respect to his application he was denied his right to have his application for purchased leave considered. Whether or not that occurred, is of course, a question of fact.

15      In my view there is force in the Claimant’s argument.  If the employer did not consider or did not properly consider his application, or alternatively acted capriciously, was biased or used discrimination in consideration of it then there would not have been compliance with the obligation to consider the Claimant’s application on its merits.  If the employer did not consider the Claimants application for purchased leave as required by the PSA and/or the PSGA then it will have breached those provisions.  In such circumstances section 83(1) of the IR Act will be available to the Claimant to enforce those provisions.  Accordingly, this court has jurisdiction to hear and determine the claim relating to the alleged breach.  It cannot however order the remedy sought.

16      I am of the view that a directions hearing will be beneficial in this matter and accordingly instruct the Clerk of Court, in consultation with the parties, to list the matter for a directions hearing.

G. Cicchini

Industrial Magistrate