WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

PARTIES LIQUOR HOSPITALITY AND MISCELLANEOUS UNION, WESTERN AUSTRALIAN BRANCH

CLAIMANT

-v-

Minister for Education

RESPONDENT

CORAM INDUSTRIAL MAGISTRATE G. CICCHINI

HEARD Wednesday, 25 August 2010

DELIVERED Wednesday, 25 August 2010

CLAIM NO. M 32 OF 2009

CITATION NO. 2010 WAIRC 00899

CatchWords 

Legislation           Industrial Relations Act 1979

Industrial  Instruments   Cleaners and Caretakers (Government) Award 1975 

Result        Caution issued

Representation 

Claimant                           Mr M Aulfrey instructed by the LHMU appeared for the Claimants

Respondent                      Mr A Shuy instructed by the State Solicitors

SUPPLEMENTARY REASONS FOR DECISION

(Edited by His Honour from the transcript of reasons delivered orally)

Order Made Pursuant to Section 83(4)(a)(i) of the Industrial Relations Act 1979

– The Respondent is Cautioned.

1         On 27 May 2010 I handed a decision in this matter following a hearing on 28 April 2010.  I found that the respondent, the Minister for Education, had breached the Cleaners and Caretakers Government Award 1975 (the Award) by not paying Mr Clements, his correct entitlements for each day worked. The Award was breached because the Respondent required Mr Clements to commence work at 5.30 am instead of 6.00 am as provided by the Award.

2         When the Respondent began to directly employ cleaners, it failed to properly appreciate the Award provisions.  An error by an administrative officer within the Respondent's office caused Mr Longman to deal with the employment of cleaners in the way in that he did.  I am satisfied that the breaches occurred by way of omission rather than an intention on the part of the Respondent or its employees to effect something that was contrary to the Award.  The Award breach resulted from a mistake. As a result of that mistake, Mr Clements ended up starting work half an hour before he was otherwise was required to do so.

3         The parties have agreed that that Mr Clements should be paid an amount of $3,800.00 which reflects his total underpayment occasioned by the breaches over the material period. 

4         I think it is of importance to note that Mr Clements became aware of a problem with the start time in 2007.  Notwithstanding that, it took about two years for the issue to be resolved.  To some extent, the Claimant failed to ensure the issue was addressed quickly.  Although it always remained the responsibility of the Respondent to ensure that the Award was complied with, the way in which the Claimant dealt with the matter did not assist. Another significant factor to be considered in mitigation is that the Respondent resolved the issue very quickly once the problem came to the fore. Indeed, the cleaners at the school including Mr Clements subsequently agreed to a regime facilitated by the Award which enabled a consensual start time of 5.30 am.

5         The breach of the Award is constituted by an error. Although that does not excuse the conduct of the Respondent, it reflects that the breach is at the lower end of the scale. There was no wilful attempt to avoid the provisions of the Award. The acts taken to remedy the breach were significant. They were taken quickly and the Respondent has corrected the error as soon as it could.  There is substantial mitigation.

6         The submission made by the Claimant is that the breaches are at the top end of the scale.  In my view, the breaches are at the lower end of the scale.  They are bordering on being technical breaches the Award, however I would not go quite that far, but are nevertheless right at the bottom end of the scale.

7         In view of the aforementioned, I would have thought that the appropriate way to deal with the matter is to impose a caution in relation to each of the breaches. That reflects that the Respondent has done wrong, but takes into account the substantial factors in mitigation to which I have referred.  In doing so I note that the Respondent has taken steps which will ensure that there will be no further breach of this type committed in the future.

G. Cicchini

Industrial Magistrate