WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

CITATION : 2012 WAIRC 00314

DELIVERED : wednesday, 23 may 2012

CLAIM NO. : M 40 OF 2011

CLAIMANT

-and-

Morris Corporation (WA) Pty Ltd

      RESPONDENT

CatchWords : Allegation of a contravention of s. 182 of the Workplace Relations Act 1996 by failing to pay all time worked; Claim for outstanding wages; Whether Industrial Magistrates Court has jurisdiction to hear and determine the claim.

Legislation : Workplace Relations Act 1996, s. 162

  Fair Work Act 2009, s. 12, s. 45

  Industrial Relations Act 1979, s. 81A(1), s. 81A(2), s.82, s. 83A

  Magistrates Court (Civil Proceedings) Act 2004

  Industrial Magistrates Courts (General Jurisdiction) Regulations 2005

Industrial Instruments: Industrial Catering, Cleaning and Incidental Services (AWU and LHMU) Award 2000

Cases Cited :  Christos Triantopoulos -v- Shell Company of Australia Ltd ([2011] WAIRC 0004)

Result : Claim struck out for want of jurisdiction

Claimant : Mr S Banovich of the Australian Workers’ Union appeared as agent for the Claimant.

 :

Respondent : Mr A Cameron of the Australian Mines and Metals Association appeared for the Respondent

REASONS FOR DECISION

Background

1         On 2 November 2011, the Claimant lodged an Originating Claim alleging that her employer, in breach of the Australian Workplace Agreement (AWA) that governed her employment, underpaid her $39,454.26.

2         Since the claim was lodged the parties have discovered that the Claimant’s AWA had never been lodged for approval. The parties now agree that the un-lodged AWA has the status of a common law contract of employment.

3         In the circumstances, I have been asked to determine, by way of preliminary issue, whether this Court has jurisdiction to hear and determine this claim.

Determination

4         An Industrial Magistrates Court has the jurisdiction conferred upon it by s. 81A of the Industrial Relations Act 1979  (IR Act) which provides:

“81A. Jurisdiction under this Act

An industrial magistrate’s court has the jurisdiction conferred on it by sections 77, 80(1) and (2), 83, 83A, 83B, 83D, 83E, 96J, 97V(3), 97VJ(3), 97YC, 97YG, 110, 111 and 112.”

5         In the IR Act, sections 77, 80(1) and (2) deal with breaches by officers of organisations. Sections 83 and 83A relate to the enforcement of certain statutory instruments and orders made by the Western Australian Industrial Relations Commission (WAIRC). Section 83B is concerned with the enforcement of unfair dismissal orders. Section 83D deals with offences under the IR Act. Section 83E is concerned with the contravention of civil penalty provisions. Section 96J relates to compliance with freedom of association provisions. Sections 97V(3), 97VJ(3), 97YC and 97YG all deal with statutory Employer-Employee Agreements. Section 110 is concerned with disputes between an organisation and its members. Section 111 prohibits the taking of premiums for employment.  Section 112 is concerned with the recovery of monies paid under invalid organisational rules.

6         The Claimant submits that the un-lodged AWA constitutes an Employer-Employee Agreement for the purposes of s. 83 of the IR Act and that this Court therefore is able to make orders remedying the underpayment in accordance with s. 83A of the IR Act. With respect, I disagree. An Employer-Employee Agreement as defined in s. 7 of the IR Act not only requires the agreement to be in conformity with the requirements of Divisions 2, 3 and 4 of Part VID of the IR Act, but also to have been registered in accordance with Division 5 of Part VID of the IR Act. If the agreement is not registered it ceases to have effect (see section 97UZ of the IR Act). The AWA has not been registered and therefore is not an Employer-Employee Agreement for the purposes of s. 83 of the IR Act. The agreement properly characterised is a common law contract of employment.

7         It will be obvious from the review of the aforementioned provisions that there is no jurisdiction conferred on this Court by the IR Act to deal with common law contracts of employment. Indeed that power is specifically conferred on the WAIRC by s. 29(1)(b)(ii) of the IR Act. It provides that an employee may refer to the WAIRC a claim “that he has not been allowed by his employer a benefit, not being a benefit under an award or order, to which he is entitled under his contract of employment.”

8         An employee is, in the alternative, entitled to initiate proceedings in a court of competent jurisdiction to recover entitlements said to be owed under a common law contract of employment. The Claimant contends that the Industrial Magistrates Court at Perth is, by virtue of s.  81CA(2) of the IR Act, such a court. 

9         Section 81CA(2)  of the IR Act provides:

“81CA. Procedure, enforcement etc.

 …

 (2) Except as otherwise prescribed by or under this Act or another law –

       (a)  the powers of an industrial magistrate’s court; and

(b) the practice and procedure to be observed by an industrial magistrate’s court,

when exercising general jurisdiction are those provided for by the Magistrates Court (Civil Proceedings) Act 2004 as if the proceedings were a case within the meaning of that Act.”

10      The Claimant argues that s. 81CA(2) expands the powers of this Court to the extent that an underpayment arising from a party’s failure to comply with the provisions of an instrument can be treated as a claim for an outstanding debt, and dealt with in accordance with s.  6(1)(a)(ii) of the Magistrates Court (Civil Proceedings) Act 2004.  With respect, I disagree.

11      Section 81CA(2) does not enable this Court to exercise the civil jurisdiction of the Magistrates Court of Western Australia. If the Claimant’s contention were to be correct, then it would be possible for this Court to deal with a myriad of non-industrial matters such as contractual claims, claims in tort, residential tenancy claims, dividing fence claims, consumer-trader claims and so on. Industrial Magistrates Courts were created pursuant to s.  81 of the IR Act to specifically deal with industrial matters, whether they be general or criminal in nature.  They have a distinct and different jurisdiction to that of the Magistrates Court of Western Australia.

12      Subsection 81CA(2) of the IR Act is concerned with how, in the absence of any prescribed powers, practice and procedures, this Court exercises its general jurisdiction. It is not concerned with what it can do. Such is obvious when subsections 81CA(2)(a) and (b) are read together. The provisions do not expand this Court’s jurisdiction.

13      The employer and employee in this matter are in the national system (see sections 13 and 14 of the Fair Work Act 2009 (FW Act)). Section 26 of the FW Act excludes the application of the IR Act to national system employees and employers. However, s. 26 of the FW Act does not apply to a law of a State or Territory so far as the law deals with rights or remedies incidental to any non-excluded matters (see subsection 27(1)(d)(ii)). Non-excluded matters are listed in s.  27(2). They include claims for enforcement of contracts of employment except so far as the law in question provides for a matter  within subsection 26(2)(e). Subsection 26(2)(e) is of no relevance to the matter in issue in this case.  It is concerned with varying or setting aside rights and obligations under an employment contract found to be unfair.

14      The FW Act leaves in place the procedure for the enforcement before the WAIRC of common law contracts of employment founded in this state. Such is consistent with the findings of Acting Senior Commissioner P E Scott in Christos Triantopoulos -v- Shell Company of Australia Ltd ([2011] WAIRC 0004). It therefore appears that this claim could be tried in the WAIRC.

15      As an alternative, the Claimant alleges that the Respondent is in breach of the Industrial Services (AWU and LHMW) Award 2000 (the Award), by failing to pay the Claimant a basic periodic rate of pay for each of her guaranteed hours between 17 March 2009 and 1 July 2009, thereby exposing it to the imposition of a penalty pursuant to s. 182(1) of the Workplace Relations Act 1996 (WR Act). The Claimant argues that the alleged WR Act breach is actionable in this Court, an “eligible court” within the meaning of s. 12 of the FW Act, by virtue of the Fair Work (Transitional and Consequential Amendments) Act 2009.

16      It suffices to say however, that there is no evidence to suggest that the parties were bound by the Award. Consequently, the foundation for the exercise of jurisdiction by this Court as an “eligible court” does not appear to exist.

17      Further, the Claimant maintains that the alleged underpayment contravenes s. 323(1)(a) of the FW Act. This Court is empowered to deal with such a contravention. In that regard I observe that the alleged contravention of s. 323(1) of the FW Act was not specifically pleaded in the Claimant’s outline of claim.  The Claimant’s own case is that she was paid the agreed annualised salary. On that basis there cannot have been an underpayment or deduction. The real issue to be considered is whether the Claimant should have been paid for additional hours worked. That of course requires a construction of the common law contract, and as such, falls outside of this Court’s jurisdiction.

18      It is arguable that the claim of underpayment is intrinsically a claim for failure to pay minimum wages and is enforceable as a safety net contractual entitlement under s.  542(1) of the FW Act. If that is the case the Claimant may apply to the Federal Court or the Federal Magistrates Court to enforce her entitlement. This Court does not have jurisdiction to deal with it.

Conclusion

19      The Industrial Magistrates Court, Perth does not have jurisdiction to hear and determine the Claimant’s claim.

Remedy

20      The Claimant suggested that in the event of a finding of lack of jurisdiction the claim should, pursuant to Regulation 34(3) of the Industrial Magistrates Courts (General Jurisdiction) Regulations 2005, be transferred to the WAIRC.

21      Regulation 34 provides:

“34.  Court where case is to be tried

(1)  Except as provided in this regulation, a case must be tried at a Court chosen by the clerk when the case is listed for trial under regulation 22.

(2)  The clerk must choose a Court by determining in which Court the case can most conveniently and fairly be tried.

(3)  A Court may order that the trial of a case be transferred to another Court if -

(a)  a party makes an application to transfer the case to the other Court and the Court is satisfied that the case could more conveniently or fairly be tried in the other Court; or

(b)  the parties consent to the trial of the case being so transferred by lodging a memorandum of consent to that effect.

(4)  If the trial of a case is transferred to another Court the clerk of the Court from which the trial is being transferred must make arrangements for all the original documents relating to the case to be sent to the other Court as soon as practicable after the transfer.”

22      It is obvious that Regulation 34 relates to the transfer of a trial with respect to another Industrial Magistrates Court. By proclamation published in the Western Australian Government Gazette on 19 February 1992, separate Industrial Magistrates Courts were established in Bunbury, Geraldton, Kalgoorlie and Perth.  Regulation 34 simply facilitates the transfer of trials between those courts.

23      Regulation 34 does not facilitate the transfer of this matter to the WAIRC.  Further the WAIRC is not “a court” and is not within the contemplation of Regulation 34.

Result

24      It will be appropriate to strike out the claim for want of jurisdiction.

25      This claim is listed for further hearing at 9.30 am on 30 May 2012, at which time final orders will be made.

G. Cicchini

Industrial Magistrate