WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

CITATION : 2014 WAIRC 00324

DELIVERED : WEDNESDAY, 16 APRIL 2014

FILE NO. : M 38 OF 2011

CLAIMANT

AND

Director General, Department of Education

RESPONDENT

Catchwords : Failure to comply with Clause 10.3 of the Education Assistants’

(Government) General Agreement 2010 (the Agreement); one breach of Clause 10.3 of the Agreement admitted but multiple breaches denied; determination of the number of breaches committed.

Legislation  : Industrial Relations Act 1979

Instruments  : Education Assistants’ (Government) General Agreement 2010

Cases referred to

in Judgement  : United Voice WA v Director General, Department of Education

[2012] WAIRC 00446

    United Voice WA v Director General, Department of Education

[2012] WAIRC 00078United Voice WA v Director General, Department of Education

[2013] WAIRC - 00053

Director General, Department of Education v United Voice WA

[2013] WASCA 287

Result   : Adjourned for further hearing

Representation

Claimant : Mr S Millman (of Counsel) appeared for the Claimant

Respondent : Mr D Matthews (of Counsel) appeared for the Respondent

REASONS FOR DECISION

Background

1         On 18 August 2011, United Voice WA (the Claimant) initiated this proceeding in which it alleges that the Director General, Department of Education (the Respondent) had, in various ways, contravened or otherwise failed to comply with Clause 10 of the Education Assistants’ (Government) General Agreement 2010 (the Agreement).  The Respondent has admitted some allegations but the allegation concerning the failure to comply with Clause 10.3 of the Agreement was denied. Another allegation was discontinued.

2         The disputed part of the Claim concerning the alleged breach of Clause 10.3 of the Agreement was heard on 30 May 2012.  On 19 July 2012, I found that the allegation had not been proven (see United Voice WA v Director General, Department of Education [2012] WAIRC 00446).  On 1 August 2012, a hearing was conducted with respect to whether I should caution the Respondent or otherwise impose a pecuniary penalty with respect to the admitted breaches (Clauses 10.1 and 10.4 of the Agreement). On 23 August 2012, I determined that penalties ought to be imposed with respect to the 210 admitted breaches.  A total penalty of $21,000.00 was imposed.  I ordered that the penalty be paid to the Claimant (see United Voice WA v Director General, Department of Education [2012] WAIRC 00078). 

3         On 14 November 2012, the Full Bench of the Western Australian Industrial Relations Commission heard an appeal against my decision which dismissed the Claimant’s allegation with respect to the breach of Clause 10.3 of the Agreement.  On 31 January 2013, the Full Bench delivered its decision upholding the appeal (see United Voice WA v Director General, Department of Education [2013] WAIRC 00053).  On 8 October 2013, the Western Australian Industrial Appeal Court heard the Respondent’s appeal against the decision of the Full Bench.  On 18 December 2013, the Western Australian Industrial Appeal Court determined that although the grounds of appeal had been made out, the appeal ought nevertheless be dismissed because the Full Bench’s decision in upholding the appeal was correct, albeit for the wrong reason (see Director General, Department of Education v United Voice WA [2013] WASCA 287).

4         On 20 March 2014, the matter returned to me for directions.  At the directions hearing the Respondent admitted failing to comply with Clause 10.3 of the Agreement.  The Respondent admits one contravention.  The Claimant suggests that the Respondent has committed 70 breaches of Clause 10.3 of the Agreement. These Reasons concern whether the Respondent has committed one or alternatively multiple breaches of Clause 10.3 of the Agreement.

Issues

5         The issues to be determined are:

 (i)  whether there was one breach of Clause 10.3 of the Agreement, constituted by various omissions or alternatively, whether each separate omission constituted a separate breach; and

(ii)  whether the Respondent should be cautioned, or otherwise receive a pecuniary penalty for the breach or breaches of Clause 10.3 of the Agreement.

Determination

6         Clause 10.3 of the Agreement provides:

“10.3 Each district office is responsible for conducting inductions which are to be held twice each term during term time for new employees.  The Employer will notify the Union if there are no new employees requiring an induction and the required second induction in the term will not be necessary.”

7         At paragraphs 3.6(b) and 3.6(c) of its Amended Statement of Claim dated 17 May 2012, the Claimant particularised the Respondent’s breach of Clause 10.3 as follows:

“(b) From 31 January 2011 to 5 September 2011, the Respondent breached Clause 10.3 of the Agreement at least five times because the district offices were not responsible for conducting inductions:

(i) The period spans more than 2.5 terms and inductions are to be held twice each term during the term time (Clause 10.3);

(ii) The Applicant did not receive any notification that there were no new employees commencing in any term and that therefore the second induction in the term was not necessary;

(iii) The district offices were not responsible for conducting any inductions during this period.

  (c) From 31 January 2011 to 5 September 2011, the Respondent breached Clause 10.3 of the Agreement at least five times by failing to hold inductions for new employees twice each term during term time for new employees.

(i) The period spans more than 2.5 terms;

(ii) The Applicant did not receive any notification that there were no new employees commencing in any term and that therefore the second induction in the term was not necessary;

(iii) Inductions were not held twice each term during this period.”

8         I observe that although paragraph 3.6(c) of the Amended Statement of Claim alleges a failure to comply with Clause 10.3 of the Agreement, its main concern is the failure to hold inductions.  To that extent it duplicates the alleged breaches of Clause 10.1 which have already been dealt with by admission. The allegations in paragraph 3.6(b) of the Amended Statement of Claim more closely reflect the Claimant’s current stance with respect to the failure to comply with Clause 10.3 of the Agreement.

9         In submissions made at the resumed hearing on 9 April 2014, the Claimant asserted that the Respondent had committed 70 breaches of the Agreement.  It says that between 31 January 2011 and 5 September 2011 (“the relevant period”), the Respondent breached Clause 10.3 of the Agreement by either failing to conduct the inductions at district offices, or by failing to notify the Claimant that there were no new employees requiring inductions and the required second inductions would not be necessary. It argues that during the relevant period there ought to have been either five inductions or notifications at each of the 14 district offices.  Each failure to hold an induction at the district office, or alternatively to notify that an induction was not necessary, constitutes a separate breach.

10      The Respondent argues that Clause 10.3 of the Agreement created an ongoing obligation, which if not complied with constituted only one continuing and compendious “offence”.  Clause 10.3 of the Agreement creates a sole obligation requiring that an induction be held at district offices which is something that the Respondent did not do on an ongoing basis.  That, she says, is supported by what His Honour Pullin J said at paragraphs 4 and 34 of his Industrial Appeal Court Judgment.  His Honour said:

“4 Particulars of the claim allege various contraventions, but relevantly allege a breach of cl 10.3 of the Agreement by ‘failing to provide induction sessions to new employees and redeployees within three months of commencement.. [and] by removing the responsibility for conducting inductions from the district offices and reallocating the responsibility to the line manager or principal of the individual schools.”

“34 It may be that in the light of these reasons that the parties agree that there has been a contravention because of the failure to comply with Clause 10.3 of the Agreement.”

11      I observe that when setting out the issues in paragraph 4, His Honour was referring to a breach of Clause 10.3 of the Agreement, as opposed to other breaches of Clause 10.  He was not suggesting that the Claimant has alleged a singular breach of Clause 10.3 of the Agreement.  Indeed, in its pleadings the Claimant has alleged “at least five breaches”.  The same is to be said for what His Honour said at paragraph 34.

12      Clause 10.3 of the Agreement creates an obligation upon the Respondent to ensure that each district office conducts inductions, held twice each term during term time for new employees.  There is an alternative obligation created for that the Respondent to inform the Claimant if there are no new employees requiring induction and the required second induction in the term will not be necessary. The obligations created by Clause 10.3 of the Agreement are positive obligations that each district office does one of those things.  In the event of either not being done, the Clause will have been breached.  In my view, Clause 10.3 does not create one compendious requirement.  There is a separate requirement created in each instance.  Non-compliance with Clause 10.3 of the Agreement can result from either the failure to conduct the inductions or the failure to inform.  Those omissions are differently constituted and may give rise to differing outcomes.  It will not be appropriate to simply consider the character of the Respondent’s conduct over the relevant period because the circumstances of each omission will be discrete, and will inevitably impact upon the outcome in the enforcement proceedings.

13      The Respondent’s acts cannot constitute one breach, albeit comprised of different omissions. Each alleged omission is very much dependant on its own circumstance.  Each omission is capable of a different outcome.  Consequently there may be inconsistencies between outcomes.  Certainty can only be achieved if there is a finding with respect to an identifiable particular allegation.  The finding with respect to each allegation will determine its outcome.  Given that there are two distinct ways in which Clause 10.3 of the Agreement may have been breached at each district office, it is imperative that a finding be made as to which occurred.

14      Mr Matthews, on behalf of the Respondent, submitted that the Claimant has failed to put evidentiary material before this Court which would establish each of the alleged breaches.  I agree with that submission.  The proceedings heard by me previously related to the construction of Clause 10.3 of the Agreement and to the imposition of penalties with respect of the admitted breaches.  There was no evidentiary material exhibited with respect to proof of each of the alleged breaches.

15      There is material before the Court which was received by consent for the purposes of dealing with the admitted breaches.  Those materials provide a list of inductees.  However, the materials do not designate particular district offices and do not otherwise provide assistance in respect to the issues to be resolved in this matter.  On 5 April 2012, the Claimant also lodged with this Court a bundle of documents.  Some of those documents were exhibited during the hearing on 30 May 2012.  None of the exhibited documents assist the Claimant in establishing the allegations. There were other documents lodged within that bundle, but not exhibited, which may be relevant to the issues which the Claimant is required to prove.  However, those documents are not formally before me and therefore cannot be considered. 

16      Given the circumstances, it is incumbent upon the Claimant to provide evidence of each particular alleged breach of Clause 10.3 of the Agreement.  Given that the Respondent has agreed that a breach of Clause 10.3 of the Agreement has occurred, constituted by various omissions, it is not appropriate to close the door on the Claimant’s ability to provide further evidence with respect to each alleged contravention.

17      In the circumstances, I invite the parties to consider reaching agreement on the contraventions.  Failing that, a further hearing will need to be conducted to enable receipt of evidence which will go to proving each and every allegation alleged by the Claimant in this matter.

18      It follows therefore, that the issue of whether cautions or a penalty should be imposed, cannot be determined until further evidence is received.

G CICCHINI

INDUSTRIAL MAGISTRATE