Fair Work Ombudsman v D'ADAMO Nominees Pty Ltd (No 2)
[2012] FMCA 1217
•21 December 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FAIR WORK OMBUDSMAN v D'ADAMO NOMINEES PTY LTD (NO. 2) | [2012] FMCA 1217 |
| PRACTICE AND PROCEDURE – No case to answer – where adjournment sought to consider no case to answer submissions and whether to make election – whether adjournment to be granted – whether election required to be made – whether no case to answer – whether award applies – whether evidence employer in electrical contracting industry – whether evidence employee an electrical assistant – whether evidence employee directly assisting any other employee under award – whether evidence of apprenticeship – whether apprentice an employee – whether requirement to work overtime. |
| Electrical Contracting Industry Award 1978 (WA), cll.3, 5, 12, First Schedule Evidence Act 1995 (Cth), s.48(1) Industrial Arbitration Act 1912 (WA), ss.4, 58 Industrial Relations Act 1979 (WA), ss.7(1), 37, 38, 47, 85 Industrial Training Act 1975 (WA), ss.29, 29A, 30(1), 32A(1), 34(1) Interpretation Act 1984 (WA), s.56(2) Workplace Relations Act 1996 (Cth), ss.5, 6, 7, 16, 204(1), 208(1), 824 |
| Airlite Cleaning Pty Ltd v The Australian Liquor, Hospitality & Miscellaneous Workers’ Union, Western Australian Branch (2001) 103 IR 241; [2001] WASCA 19 Balding v Ten Talents Pty Ltd (2007) 162 IR 17; [2007] FMCA 145 Electrical Trades Union of Workers of Australia (Western Australian Branch) Perth v Signlite Pty Ltd (1989) 69 WAIG 2658 Fortron Automotive Treatments Pty Ltd v Jones & Ors (2008) 222 FLR 1; [2008] FMCA 622 Freshwest Corporation Pty Ltd v Transport Workers Union, Industrial Union of Workers, WA Branch (1991) 71 WAIG 1746 Grunwick Processing Laboratories Ltd v Advisory, Conciliation & Arbitration Service [1978] AC 655 Nudrill Pty Ltd v La Rosa [2010] WASCA 158 Rasomen Pty Ltd v Shell Company of Australia Ltd (1997) 75 FCR 216 Richardson v Sedemuda Pty Ltd trading as Southwest Ceramics Jaschke (1985) 65 WAIG 2229 RJ Donovan & Associates Pty Ltd v Federated Clerks Union of Australia, Industrial Union of Workers, WA Branch (1977) 57 WAIG 1317 Shenton Enterprises Pty Ltd trading as John Shenton Pumps v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Workers Union of Australia, Engineering and Electrical Division, WA Branch (2000) 80 WAIG 2842; [2000] WAIRComm 148 Western Australian Carpenters and Joiners, Bricklayers and Stoneworkers Industrial Union of Workers v Glover (1970) 50 WAIG 704 |
| BC Cairns, Australian Civil Procedure (7th Edition) (Pyrmont: Law Book Co, 2007) SC Marantelli, The Australian Legal Dictionary (Caufield East: Edward Arnold (Australia), 1984) |
| Applicant: | FAIR WORK OMBUDSMAN |
| Respondent: | D'ADAMO NOMINEES PTY LTD |
| File Number: | PEG 60 of 2010 |
| Judgment of: | Lucev FM |
| Hearing date: | 16 & 18 November 2010 |
| Date of Last Submission: | 18 November 2010 |
| Delivered at: | Perth |
| Delivered on: | 21 December 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr R L Hooker |
| Solicitors for the Applicant: | Sparke Helmore |
| Counsel for the Respondent: | Mr D Howlett |
| Solicitors for the Respondent: | Westmont Legal |
ORDERS
The matter be adjourned to a directions hearing at 9.15am on 29 January 2013.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 60 of 2010
| FAIR WORK OMBUDSMAN |
Applicant
And
| D'ADAMO NOMINEES PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction and issues
The applicant, the Fair Work Ombudsman,[1] alleges that the respondent, D’Adamo Nominees Pty Ltd,[2] employed Steven Motherwell in an electrical contracting business under the terms of the Electrical Contracting Industry Award 1978 (WA),[3] which, under the provisions of the Workplace Relations Act 1996 (Cth),[4] became a Notional Agreement Preserving a State Award,[5] with effect from 27 March 2006. It is alleged that Mr Motherwell commenced employment as an electrical assistant with D’Adamo Nominees on 20 August 2007, and as an apprentice on 4 February 2008 until 30 January 2009, that he was employed under the ECI Award, and was underpaid various wages and entitlements during the period of his employment.
[1] “FWO”.
[2] “D’Adamo Nominees”.
[3] “ECI Award”.
[4] “WR Act”.
[5] “NAPSA”. Generally in these Reasons for Judgment reference will be made, as it was at the hearing, to the “ECI Award” rather than the “NAPSA”.
On the third day of the hearing, at the completion of the evidence for the FWO, Counsel for D’Adamo Nominees indicated that D’Adamo Nominees intended to make a no case to answer submission. Consequently, a number of issues arose, as follows:
a)whether or not an adjournment would be granted to allow Counsel for D’Adamo Nominees time to examine the transcript, and make the no case to answer submissions following examination of the transcript;
b)on the refusal of the abovementioned adjournment application (for reasons which follow hereunder), whether or not D’Adamo Nominees was required to elect whether or not to call evidence; and
c)in relation to the substantive no case to answer submissions:
i)whether D’Adamo Nominees was bound by the area and scope clause of the ECI Award;
ii)if the area and scope clause of the ECI Award applied to the electrical contracting industry as a common rule award; and
iii)whether there was any evidence that D’Adamo Nominees was in the electrical contracting industry, as referred to in the ECI Award;
iv)whether there was any evidence that D’Adamo Nominees employed any employees as at the date the ECI Award became a NAPSA, namely, 27 March 2006;
v)whether there was any evidence that Mr Motherwell was employed in the role of electrical assistant, including whether or not he was an employee directly supervised by a person covered by the ECI Award;
vi)whether there was any evidence of Mr Motherwell entering into an apprenticeship, or the date of the apprenticeship agreement; and
vii)whether there was any evidence that Mr Motherwell was required to work overtime by D’Adamo Nominees.
Each of the above issues is addressed below.
Adjournment
At the close of the case for the FWO, Counsel for D’Adamo Nominees indicated that he wished to submit that D’Adamo Nominees had no case to answer. Before making the no case to answer submission, however, an adjournment was sought. The basis for the adjournment was variously expressed, but primarily came down to the following points:
a)that Counsel wished to review the transcript of the proceedings, which D’Adamo Nominees had ordered but which was not yet available, so as to make an assessment of the evidence to determine on what basis or bases to run the no case to answer submission; and
b)with or without the transcript, Counsel wished to review and consider the evidence, because Counsel indicated that he was not in a position to make a judgment on whether or not to make an election as to whether or not to go into evidence.
The adjournment application was opposed by the FWO.
The Court did not grant the adjournment, except to the extent of the luncheon adjournment which was taken early.
The Court did not grant the adjournment for several reasons, namely:
a)the no case to answer submission had been extensively foreshadowed by D’Adamo Nominees in its outline of submissions, filed three weeks before the hearing, and to the extent that any further preparation to run it was necessary it ought to have been done by Counsel and D’Adamo Nominees’ solicitors before making the adjournment application and during the course of the hearing, especially bearing in mind that the third day of the hearing was only 65 minutes old when the evidence for the FWO was completed;[6]
b)the basis for the no case to answer submission, and the law with respect to there being a case to answer or otherwise, was set out in detail in D’Adamo Nominees’ outline of submissions, and, apart from marginal matters, it was difficult to see what more could, or needed to, be put on behalf of D’Adamo Nominees;
c)the no case to answer submission was sufficiently discernable to be capable of being summarised by the Court, again save for minor or marginal matters, during the course of the adjournment argument;[7]
d)there was no indication that D’Adamo Nominees was prepared to pay the costs of any adjournment,[8] assuming that such costs were payable;[9]
e)the usual course for a no case to answer submission is that it be made forthwith upon the close of the case for the applicant;[10] and
f)an adjournment over the luncheon break was sufficient in the above circumstances.
[6] Transcript, 18 November 2010, page 24.
[7] Transcript, 18 November 2010, page 32.
[8] Transcript, 18 November 2010, page 34.
[9] WR Act, s.824.
[10] BC Cairns, Australian Civil Procedure (7th Edition) (Pyrmont: Law Book Co, 2007) page 468; SC Marantelli, The Australian Legal Dictionary (Caufield East: Edward Arnold (Australia), 1984) page 167 (definition (2) of “No Case to Answer”).
Election
The question of whether D’Adamo Nominees was required to make an election as to whether or not to go into evidence arose in this matter.
A preliminary issue arose as to whether or not by reason of D’Adamo Nominees’ tendering into evidence of Exhibit 3, being the Department of Education’s Record Management Policy, D’Adamo Nominees had already gone into evidence. In the Court’s view that evidence was not directly on the point in issue in relation to the no case submission that was put by D’Adamo Nominees, and therefore need not be part of the material to be considered in considering a ruling upon the no case submissions. Exhibit 3 was not central to those submissions, and in the Court’s view D’Adamo Nominees did not relevantly go into evidence.[11]
[11] Rasomen Pty Ltd v Shell Company of Australia Ltd (1997) 75 FCR 216 at 225 per von Doussa, Drummond and Finn JJ.
There is no question that this Court has the power to determine a no case to answer submission.[12]
[12] Fortron Automotive Treatments Pty Ltd v Jones & Ors (2008) 222 FLR 1 at 10 per Lucev FM; [2008] FMCA 622 at paras.46 and 48 per Lucev FM (“Fortron”).
The general rule in civil cases in Western Australia is to require a respondent wishing to make a submission of no case to elect whether to call evidence, and to decline to rule on the submission until that election is made.[13] There are generally recognised exceptions, such as where a question of law can be decided without the need to examine evidence, or where there is a jurisdictional issue, or where fraud has been alleged against a defendant.[14]
[13] Nudrill Pty Ltd v La Rosa [2010] WASCA 158 at para.44 per Murphy JA (“Nudrill”).
[14] Nudrill at para.46 per Murphy J.
In Fortron this Court did not require the defendants to make an election prior to putting a no case submission because of the seriousness of the allegations of deception there made, and the necessity to prove actual knowledge so as to establish intentional participation in the relevant contraventions of federal trade practices and state fair trading legislation.[15] Notwithstanding what this Court said in Fortron concerning the necessity, or possible lack of necessity, of a requirement to make an election before putting a no case submission in this Court, this is not a case in which other than the usual rule ought to apply. This case, which concerns allegations of underpayment of various wages and entitlements, is of a type that courts with industrial jurisdiction see daily, and is not a case which ought to be determined by anything other than the usual rules with respect to a no case to answer submission. There is nothing to take the case out of the ordinary run of such cases, notwithstanding the copious and diffuse no case submissions on behalf of D’Adamo Nominees. It was for those reasons that the Court put D’Adamo Nominees to its election at the hearing, and D’Adamo Nominees elected to lead no evidence.[16]
[15] Fortron FLR at 11 per Lucev FM; FMCA at paras.51-53 per Lucev FM.
[16] Transcript, 18 November 2010, page 61.
No case to answer
Is D’Adamo Nominees bound by the ECI Award?
D’Adamo Nominees argues that the ECI Award is not a common rule award, but an award binding only upon the named respondents to the ECI Award, and that as D’Adamo Nominees is not a named respondent, the ECI Award is not binding upon it.
The question of whether or not D’Adamo Nominees is bound by the ECI Award depends upon the meaning of clause 3 – Area and Scope of the ECI Award. The Area and Scope Clause provides as follows:
This award relates to the Electrical Contracting Industry within the State of Western Australia and to all work done by employees employed in the classification shown in the First Schedule – Wages and employed by the respondents in connection with the wiring, contracting, maintenance and the installation and maintenance of electrical light and power plants, and the installation of all classes of wiring, repair and maintenance of electric and electronic installations and equipment including switchboards and appliances carried out by the respondents as electrical contractors. Provided that the award shall not apply to the manufacturing section of the business of any of the respondents.[17]
[17] “Area and Scope Clause”.
Section 37(1) of the Industrial Relations Act 1979 (WA)[18] provides as follows:
[18] “IR Act”
(1) An award has effect according to its terms, but unless and to the extent that those terms expressly provide otherwise it shall, subject to this section —
(a) extend to and bind —
(i) all employees employed in any calling mentioned therein in the industry or industries to which the award applies; and
(ii) all employers employing those employees;
and
(b) operate throughout the State, other than in the areas to which section 3(1) applies.
D’Adamo Nominees’ case focuses upon the meaning of the words “unless and to the extent that those terms expressly provide otherwise” in s.37(1) of the IR Act.
D’Adamo Nominees asserts that decisions of the Full Bench of the Western Australian Industrial Relations Commission[19] in Electrical Trades Union of Workers of Australia (Western Australian Branch) Perth v Signlite Pty Ltd[20] and Shenton Enterprises Pty Ltd trading as John Shenton Pumps v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Workers Union of Australia, Engineering and Electrical Division, WA Branch[21] failed to consider the question of whether the ECI Award was expressly limited to the named respondents, and therefore “expressly provide[d] otherwise”, and was, therefore, not a common rule award for the purposes of s.37(1) of the IR Act.
[19] “WAIRC”.
[20] (1989) 69 WAIG 2658 (“Signlite”).
[21] (2000) 80 WAIG 2842; [2000] WAIRComm 148 (“Shenton Enterprises”).
The FWO submitted that D’Adamo Nominees was caught by the ECI Award applying as a common rule award within the area and scope defined in the Area and Scope Clause.
The FWO argued that Shenton Enterprises was correctly decided and that the Area and Scope Clause was a common rule to the extent that it applies to the electrical contracting industry, and to the extent that any employer was in that industry it would be bound by the ECI Award to the extent that the ECI Award applied to the electrical contracting industry. In this respect the FWO argued that Shenton Enterprises indicates that there are two limbs to the operation of the Area and Scope Clause, namely, that the ECI Award relates to the given industry, and then to the work done by employees employed in the classifications in the ECI Award who are employed by the respondents within the qualified description of the electrical contracting industry in the ECI Award.
In Shenton Enterprises the Full Bench of the WAIRC, unanimously, dismissed an appeal on a matter in relation to the Area and Scope Clause. In determining the appeal the Full Bench of the WAIRC made observations relevant to the Area and Scope Clause, and also referred (sufficiently for present purposes) to an earlier judgment of the Full Bench of the WAIRC in Signlite.
The President of the Full Bench of the WAIRC in Shenton Enterprises observed as follows:
The appellant employer was not an employer named in the schedule and, therefore, the question for decision was whether it employed the employee named in the complaint in a calling mentioned in the award, in the industry to which the award applied. The scope clause is, as Fielding C, as he then was, observed in the Signlite Case, a Donovan clause (see R J Donovan & Associates Pty Ltd v FCU 57 WAIG 1317 (IAC)).
I apply the ratio in the Signlite Case and make the following observations:-
(a) A fact finding exercise is necessary to determine what the electrical contracting industry is.
(b) The industry is defined as the electrical contracting industry.
(c) The "industry" is not defined in the award by the enterprises carried on by the named respondents.
(d) The award does not apply to the manufacturing section of the business of any respondents. That is an express exclusion.
(e) The award applies to the classifications and the work done by the employees employed in those classifications, Mr Michel being so employed.
(f) Since it is not evident, from the ordinary, natural meaning of the language of the award, what the electrical contracting industry is, then evidence is required and findings of fact are to be made.
(g) Whilst the award applies to persons who do certain work for the respondents as their employees, that part of the scope clause designates the employees as persons employed in connection with certain activities carried out by the respondents to the award, provided however that they are activities carried out by the respondents as electrical contractors.
(h) Thus, if those activities were not carried out by the respondents as electrical contractors, then the fact that they were performed by employees referred to in the classifications in the First Schedule would not mean that the award applied to the employees.
(i) The industry is clearly ascertainable only by the terms of the scope clause without reference to the activities of the named respondents to the award.
(j) Whether Mr Michel and the respondent are engaged in the same industry is to be determined by the common object which they seek to advance by their combined efforts (see Parker and Son v Amalgamated Society of Engineers [1926] 29 WAR 90).
I also refer to Freshwest Corporation Pty Ltd v TWU 71 WAIG 1746 (IAC) (hereinafter referred to as "the Freshwest Case"), particularly whether evidence as to the industry at the time when the award issued was required. That was a case where the industry could only be identified by ascertaining what were the industries carried on by the respondents.
At page 1748, His Honour, Franklyn J, said:-
"The clause speaks specifically of what might be called "the respondents' industries" and not generally of an industry or industries. (my underlining) Thus, for example, it is the industry or industries of a general carrier as carried on by the individually named respondents to which the award was directed and not a broad industry of general carrier which might include a business so different from those of the named respondents as not to be a relevant industry.
....
For the industries to which is [sic] applies to be determined with certainty - an essential to any award - it is necessary, in the absence of clear intention to the contrary, to define them by what they were at the date of the award."
The Freshwest Case was concerned with a clause which was entirely different and bears no relation to the scope clause in this case.
The scope clause in the Freshwest Case required the industry concerned to be ascertained in accordance with the industries carried on by named respondents.[22]
[22] Shenton Enterprises at 2844-2845 per Sharkey P.
The Chief Commissioner of the WAIRC observed as follows:
The scope clause in the Award has a particularisation which limits its application to electrical contractors engaged in the electrical contracting industry within the State of Western Australia and to their employees employed in specific classifications set out in the Award who perform the kind of work identified in the clause; but it does not extend to work of that kind which is undertaken in connection with manufacturing.
As the Full Bench (Sharkey P and Negus C) in the Electrical Trades Union of Workers of Australia (Western Australian Branch) Perth v Signlite Pty Ltd 69 WAIG 2658 at 2659 ("the Signlite Case") noted the "classic rule of determining the industry under an award was laid down by Burt J in WA Carpenters and Joiners, Bricklayers and Stoneworkers Industrial Union of Workers v Terry Glover Pty Ltd 50 WAIG 704 at 705 ("Glover's case") -
"Each and every award must relate to an industry and what the industry is, is in every case primarily a question of construction of a particular award. It may be that the question is not only primarily but finally a question of construction and it may be that the award as a matter of construction fails to give the final answer and requires for that purpose that findings of fact be made."
Where is it necessary to make findings of fact, the particular course to be followed will be determined by the construction of the scope clause. In the circumstances of this Award the approach has already been considered by the Full Bench in the Signlite case. The electrical contracting industry means in plain words the industry involving those employers who contracted to do electrical work (op cit at 2660). As noted by Fielding C as he then was, it is solely identifiable by the terms of the scope clause without reference to the activities of the named respondents to the Award (op cit at 2661). Nothing determined by the Industrial Appeal Court in Freshwater [sic] Corporation Pty Ltd v Transport Workers' Union, Industrial Union of Workers, Western Australian Branch 71 WAIG 1746 ("the Freshwater [sic] Case") detracts from the approach taken by the Full Bench in the Signlite case. Indeed the distinction identified by the Industrial Appeal Court in the Freshwater [sic] Case (opcit at 1747) between ascertaining industries by reference to the "industries carried on by the respondents", "industries carried on by the respondents set out in the schedule" and those in which reference is made to "all workers employed ... by those employers named and engaged in the industry set out in Schedule A thereto" was recognised by the Full Bench in the Signlite case. The scope clause in the Electrical Contracting Industry Award was considered to be of the kind mentioned in the last category above and that type was reviewed in R.J. Donovan and Associates Pty Ltd v Federated Clerks Union of Australia, Industrial Union of Workers Western Australian Branch 57 WAIG 1317 ("Donovan's Case"). That was also the approach identified by the learned Industrial Magistrate in the first instance (Appeal Book p.10).[23]
[23] Shenton Enterprises at 2846-2847 per Coleman CC.
Commissioner Smith (as she then was) said as follows:
The scope of the coverage of the Award was considered by the Full Bench in Electrical Trades Union of Workers of Australia (Western Australian Branch) Perth v. Signlite Pty Ltd 69 WAIG 2658 ("Signlite"). In the Signlite case the Full Bench at 2659-2660 and at 2661 held that the industry to which the Award relates is solely identifiable by the terms of the scope clause without reference to the activities of the named Respondents to the Award. The Full Bench also held:
(a) It is not clear from the Award what is the exact nature of the electrical contracting industry. That is largely a question of fact.
(b) It is not the status of the employer which is determination of the industry, but rather the common object of the employer and employee.
Fielding C pointed out in Signlite that the scope clause is of the kind reviewed in RJ Donovan & Associates Pty Ltd v. Federated Clerks' Union of Australia, Industrial Union of Workers WA Branch 57 WAIG 1317 ("Donovan's case").
In the Donovan case the scope clause was in the following terms:
"This award shall apply to all workers employed in the clerical callings mentioned herein......by those employers named and engaged in the industry set out in Schedule 'A' hereto."
…
There is nothing in the reasons for decision of the Industrial Appeal Court in Freshwest in relation to which it could be concluded that Signlite was wrongly decided. It is notable that Signlite was considered by the Court in Freshwest in that the decision is cited in the headnote, although the Court did not refer to Signlite in its reasons for decision.
The Industrial Appeal Court in the Freshwest case distinguished a scope clause of the kind identified in Donovan's case from a scope clause of the kind considered by the Industrial Appeal Court in Western Australian Carpenters and Joiners, Bricklayers and Stoneworkers' Industrial Union of Workers v. Terry Glover Pty Ltd 50 WAIG 704 ("Glover's case"). The scope clause in Glover's case identified Respondents by reference to "the industries carried on by the Respondents". In Freshwest the scope clause provided:
"This award shall apply to all workers following the vocations referred to in the wages schedule.......and are employed in the industries carried on by the respondent's to this award in connection with the transportation of goods and materials."
At page 1747 of Freshwest, Franklyn J observed that it was common ground that the task of the Industrial Magistrate when determining whether the employment of a worker to which the award applies involved:
"(1) identification of the industries carried on by the named respondents to the award (the named respondents); (2) identification of the industry in which Drage was employed by the appellant, and (3) identification of the industry in which he was so employed as one of the industries carried on by the named respondents."
In this matter the task of the learned Industrial Magistrate was different, as the scope clause in the Award is a Donovan clause. Consequently, in this matter the Industrial Magistrate was required to determine whether the evidence before him established that the Appellant (Defendant) at the material time was engaged in the electrical contracting industry by carrying out electrical contracting in its Pool and Spa Service and Sales Division and/or in its Bore Service and Repair Division and employed Mr Michael in those divisions to perform work prescribed in an award classification.[24]
[24] Shenton Enterprises at 2847-2848 per Smith C.
Decisions of State industrial tribunals are not binding on this Court exercising the judicial power of the Commonwealth. In this instance however, a learned Full Bench of the WAIRC has examined the area and scope clause, and arrived at conclusions, by reference to judgments of the Western Australian Industrial Appeal Court,[25] and arrived at conclusions which, with respect, this Court agrees. There is, therefore, no point in re-examining the issues which have been dealt with by the Full Bench in Shenton Enterprises, and in which they arrived at a decision consistent with their earlier decision in Signlite, and a decision supported by reference to the various Industrial Appeal Court authorities to which the Full Bench referred. The ECI Award is, therefore, not an award restricted to the named respondents.
[25] The Industrial Appeal Court is a court composed of three Western Australian Supreme Court Justices to sit on appeals from the Full Bench of the WAIRC: IR Act, s.85.
D’Adamo Nominees also argued that s.37 of the IR Act could have no operation for the reasons set out in Airlite Cleaning Pty Ltd v The Australian Liquor, Hospitality & Miscellaneous Workers’ Union, Western Australian Branch.[26]
[26] (2001) 81 WAIG 769; [(2001) 103 IR 241;] [2001] WASCA 19 (“Airlite”).
Airlite, however, concerned an award with a completely different area and scope clause to that in the ECI Award, and one which actually restricted coverage to those employees “employed by the named respondents” in the relevant industry, and the award was, therefore, not a common rule award.[27]
[27] Airlite IR at 241 per Kennedy J; WASCA at para.4 per Kennedy J; IR at 245-246 per Parker J; WASCA at para.30 per Parker J (underlining added).
D’Adamo Nominees made reference to the fact that variations to the ECI Award had been made removing respondents, and that this would be unnecessary if it was a common rule award, and that this was an aid to interpretation. No evidence of the variations was tendered, but there is no reason to doubt that such variations occurred from time to time.[28]
[28] IR Act, s.47.
The FWO argues that Airlite is distinguishable because the scope clause in that case applied only to the “named respondents”. The FWO also says that if the ECI Award applied only to the named respondents it would be unnecessary for the phrase “carried out by the respondents as electrical contractors” to appear in the Area and Scope Clause. Furthermore, the words “as electrical contractors” and “Electrical Contracting Industry” are necessary, otherwise an enormously wide group of employees, and an enormously wide group of industries, might be caught by the classification shown in the wages schedule and the nature of the work otherwise referred to in the Area and Scope Clause.
Section 38 of the IR Act provides as follows:
(1) The parties to proceedings before the Commission in which an award is made, other than UnionsWA, the Chamber, the Mines and Metals Association and the Minister, shall be listed in the award as the named parties to the award.
(1a) If after the commencement of section 12 of the Industrial Relations Amendment Act 1993 1 —
(a) any party to proceedings in which an award is made, other than UnionsWA, the Chamber, the Mines and Metals Association and the Minister, is not listed in the award as a named party as required by subsection (1); and
(b) the Commission has not ordered that the party is not to be a party to the award,
the party is to be taken to be a named party to the award.
(1b) In subsections (1) and (1a) party does not include an intervener.
(2) At any time after an award has been made the Commission may, by order made on the application of —
(a) any employer who, in the opinion of the Commission, has a sufficient interest in the matter; or
(b) any organisation which is registered in respect of any calling mentioned in the award or in respect of any industry to which the award applies; or
(c) any association on which any such organisation is represented,
add as a named party to the award any employer, organisation or association.
(3) Where an employer who is added as a named party to an award under subsection (2) is, at the time of that addition, engaged in an industry to which the award did not previously apply and the scope of the award is varied by virtue of that addition, the variation shall for the purposes of section 37(1) be expressly limited to that industry.
(4) An employer is not to be added as a named party to an award under subsection (2) if that addition would have the effect of extending the award to employees to whom another award already extends.
Whether a party is a named party to an award, and whether or not it is removed from an award, does not, in the Court’s view, say anything about whether or not an award is a common rule award or not. All awards are potentially common rule awards, because this is the default position under s.37(1) of the IR Act, and only if, and then only, “to the extent that those terms expressly provide otherwise”, are awards, not common rule awards. The naming of a party to an award is not an indicator that the award is not a common rule award. The reason is that s.38(1) of the IR Act provides that the parties to the proceedings in which an award is made “shall be listed in the award as the named parties to the award.” The use of “shall” means that there is a mandatory obligation, a “function” which “must be performed”,[29] for the parties to the proceedings in which an award is made to be the named parties, whether or not the award is a common rule award. Thus, if XYZ Pty Ltd is a party to the proceedings in which an award is made, it is a named party to the award. Subsequently, if XYZ Pty Ltd goes out of business and is deregistered as a company, it is open to the WAIRC, if it “is of the opinion that a party to an award who is named as an employer is no longer carrying on business as an employer in the industry to which the award applies”[30] to “strike out that party as a named party to the award.”[31] Further, at any time after an award has been made the WAIRC may by order add any employer as a named party to an award. Thus, if ABC Pty Ltd is a new company it may be added as a named party to an award by order of the Commission.[32] Further, an employer who is added as a named party in those circumstances, and who “at the time of that addition, [is] engaged in an industry to which the award did not previously apply and the scope of the award is varied by virtue of that addition, the variation shall for the purposes of s37(1) be expressly limited to that industry.”[33]
[29] Interpretation Act 1984 (WA), s.56(2); see also Grunwick Processing Laboratories Ltd v Advisory, Conciliation & Arbitration Service [1978] AC 655 at 690 per Lord Diplock and 698 per Lord Salmon.
[30] IR Act, s.47(2).
[31] IR Act, s.47(2).
[32] IR Act, s.38(2).
[33] IR Act, s.37(3).
The deletion and addition of employer parties to an award of the WAIRC is, therefore, not determinative of whether or not an award is or is not a common rule award, because parties can be added or deleted irrespective of the nature of the award.
The Court observes that even when allowance is made for the fact that the ECI Award may be the product of a non-professional draftsperson, it remains the case that if it had been, or was, intended to apply only to the named respondents:
a)the draftsperson would have drafted the Area and Scope Clause accordingly at the outset; and
b)the Area and Scope Clause might have been amended at any time:
i)since 1979; or
ii)after the decisions of the Full Bench of the WAIRC in Signlite and Shenton Enterprises.
D’Adamo Nominees’ further argument that s.37 of the IR Act has no operation beyond 27 March 2006 because of the provisions of s.16 of the WR Act is of no relevance. The area and scope of the, in this case, ECI Award has to be determined at 26 March 2006 because it is that scope of coverage which determines the relevant Australian Pay and Classification Scale for the employees previously under the ECI Award at the time it became a NAFMFPSA on 27 March 2006, at which time the pay rate, casual loading and frequency of payment provisions in the ECI Award were preserved in an Australian Pay and Classification Scale, which has the same coverage as the award from which it is derived.[34]
Is there evidence that D’Adamo Nominees is in an industry covered by the ECI Award, namely, the electrical contracting industry and, therefore, bound by the ECI Award if it is not common rule?
[34] WR Act, ss.204(1) and 208(1), particularly para.(g) which provides that the Australian Pay and Classification Scale includes “the coverage provisions” from the NAPSA, or ECI Award.
D’Adamo Nominees submitted that there was no evidence as to what the industry was or what the named respondents did on the date that the ECI Award began, namely, 27 February 1979, and that in accordance with the judgment of the Western Australian Industrial Appeal Court in Freshwest Corporation Pty Ltd v Transport Workers Union, Industrial Union of Workers, WA Branch[35] there needed to be such evidence to enable the industry to be determined by reference to the activity of the respondents at the time the ECI Award was made.
[35] (1991) 71 WAIG 1746 (“Freshwest”).
As the Court indicated at the time of argument Freshwest is distinguishable because there was no identification of a specific industry in Freshwest, and in order to determine the scope of the award it was therefore necessary to determine which industries it applied to. Although the scope clause in Freshwest referred to the “transportation of goods and materials” this was not the industry concerned, because the award in that case applied to “workers … employed in the industries carried on by the respondents to this award in connection with the transportation of goods and materials.” It was, therefore, necessary to determine what industries were carried on by the respondents to the award in order to determine the scope of the award. In that respect Freshwest was a case like Western Australian Carpenters and Joiners, Bricklayers and Stoneworkers Industrial Union of Workers v Glover[36] in which the relevant industries were identified as “the industries carried on by the respondents set out in the schedule” and which therefore necessitated the ascertainment of the industries carried on by the respondents to the award at the time of the making of the award.[37] Freshwest distinguished RJ Donovan & Associates Pty Ltd v Federated Clerks Union of Australia, Industrial Union of Workers, WA Branch[38] on the basis that the relevant scope clause in Donovan referred to “the industries set out in schedule A”, and in which the relevant industries were described by name.[39]
[36] (1970) 50 WAIG 704 (“Glover”).
[37] Freshwest at 1747-1748 per Franklyn J.
[38] (1977) 57 WAIG 1317 (“Donovan”).
[39] Freshwest at 1748 per Franklyn J.
In this case, the ECI Award specifically identifies the relevant industry as the electrical contracting industry, qualified by reference to the relevant classifications in the wages schedule, and by reference to particular work within the electrical contracting industry, and to its being carried out by respondents as electrical contractors, but excludes from its scope the manufacturing section of the business of any of the respondents.
Freshwest is therefore distinguishable, and inapplicable in the circumstance of this case.
D’Adamo Nominees appeared to argue that because the terms “electrical contracting industry” and “electrical contractor” are not defined in the ECI Award the scope of its coverage could not be determined. Whether a particular person (either natural or corporate) is an electrical contractor or in the electrical contracting industry, is, in this instance, a question of fact to be determined by the Court. The lack of a specific definition of the “electrical contracting industry” in the ECI Award does not therefore mean that this Court is unable to determine:
a)what the electrical contracting industry is;
b)whether D’Adamo Nominees is part of that industry; and
c)whether D’Adamo Nominees is part of that industry as specifically qualified in the Area and Scope Clause,
and likewise with respect to the lack of a definition of “electrical contractor”
D’Adamo Nominees submitted that in any event there was no evidence as to the nature of the business carried on by it, and therefore no evidence on which the award could apply. That is a submission which is contrary to the evidence. There is evidence which makes it arguable that D’Adamo Nominees is in the electrical contracting industry. That evidence includes:
a)a business name extract for L & A Electrics which is a business carried on by a corporation, namely D’Adamo Nominees, in respect of which from the date of commencement, 13 August 1995 and registration, 12 September 1995, and up until the last renewal date, 12 September 2010, the nature of the business was said to be “Electrical Contracting”;[40]
b)advice from the Electrical Licensing Board, part of the Department of Commerce in Western Australia, that D’Adamo Nominees trading as L & A Electrics has held an Electrical Contractor’s Licence number from 5 October 1989, then current until 31 May 2011, and including confirmation that during the period between 26 March 2006 and 20 February 2009 L & A Electrics’ licence was current to carry out electrical installing work under contract, and that Mr Luigi D’Adamo was registered as the person responsible for the management or conduct of the electrical contracting business, and was one of the electricians registered as a nominee authorised to sign Notices of Completion with respect to electrical installing work;[41] and
c)a copy of an Electrical Contractor’s Licence for L & A Electrics authorising L & A Electrics to carry on business as an electrical contractor in accordance with relevant regulations issued by the Electrical Licensing Board on 1 November 1991, being Licence No. EC 003836.[42]
[40] Affidavit of Ashley Paul Chapple, affirmed 21 September 2010, Exhibit K (“Mr Chapple’s September 2010 Affidavit”). Admissible as a business record under s.48(1)(e) of the Evidence Act.
[41] Mr Chapple’s September 2010 Affidavit, Exhibit M. Admissible as a business record under s.48(1)(e) of the Evidence Act.
[42] Affidavit of Ashley Paul Chapple, affirmed 12 November 2010, attaching a copy of documents produced under subpoena by D’Adamo Nominees at Attachment A (“Mr Chapple’s November 2010 Affidavit”). Admissible as a business record under s.48(1)(e) of the Evidence Act.
Having regard to the above evidence it cannot be said that there is no evidence of the nature of the business carried on by D’Adamo Nominees, and there is certainly sufficient evidence that D’Adamo Nominees carry on business as an electrical contractor, to defeat a no case to answer submission. Further, having regard to the affidavit and oral evidence of Mr Motherwell set out in detail below, there is more than sufficient evidence to argue that D’Adamo Nominees carried on business as an electrical contractor, and that Mr Motherwell worked for D’Adamo Nominees trading as L & A Electrics during the period that he worked with Mr Zampogna, and irrespective of whether Mr Zampogna was working as a sub-contractor to, or an employee of, L & A Electrics. In either case, Mr Zampogna was working for L & A Electrics doing work which was arguably that undertaken by an electrical contractor in the electrical contracting industry, and which the evidence suggests was being undertaken for L & A Electrics.
Was there evidence that Mr Motherwell was employed in the role of electrical assistant?
D’Adamo Nominees also submitted that there was no evidence that Mr Motherwell had a contract of employment as an electrical assistant or that he was employed in that role. The FWO submitted that Mr Motherwell was employed as an electrical assistant, and relied on the evidence.
The statement of claim pleads that:
From 20 August 2007 to 3 February 2008 the Employee [Mr Motherwell] was employed by the Respondent [D’Adamo Nominees] in the role of electrical assistant.
Particulars
Under Clause 5 of the NAPS, “Electrical Assistant” means an employee directly assisting any other employee covered by the award.
The Employee’s duties included accompanying a qualified electrician on site and providing assistance as required, carrying out some basic wiring under supervision, collecting and delivering wiring and other supplies, and basic sweeping and tidying tasks.
Clause 5(10) of the ECI Award defines “Electrical Assistant” as follows:
“Electrical Assistant” shall mean an employee directly assisting any other employee covered by this award.
Mr Motherwell’s evidence concerning his employment during the period 20 August 2007 to 3 February 2008 was as follows:
4.I came to be aware of L&A Electrics in 2006, when I undertook unpaid work experience with the business (one day a week for about ten weeks) during my final year of school at Prendiville High School.
5.In mid-August 2007, I telephoned Luigi D’Adamo (commonly known as Gino) (D’Adamo) and left a voicemail message enquiring about starting an electrical apprenticeship with L&A Electrics. I had not met D’Adamo during my work experience with L&A Electrics, but I was aware that he was the boss and the person to ask about apprenticeships. I also called about five other electrical contracting businesses.
6.D’Adamo called me back the next day and said that I should come in the next Monday for a two week trial.
7.I commenced work on Monday 20 August 2007, two days before my 18th birthday.
8.On the first day of work, D’Adamo said to me words to the effect, “You will be working with Mark, digging trenches”. I worked with Mark helping him to dig trenches for underground electrical mains to be laid for the whole of the initial two week trial period. During this time, we worked at different work sites, but Mark and I were the only people from L&A Electrics at each site.
9.While I worked with Mark, he explained to me that L&A Electrics primarily did underground electrical mains work and wiring of residential houses. As far as I am aware, L&A Electrics’s business continued in this way for the entire period I worked there.
10.On or about Monday 27 August 2007, in the second week of the trial, D’Adamo told me to bring in my bank details because I would be paid for the trial period. I gave my bank details to D’Adamo the following day or the day after. I was paid at apprentice rates for the two week trial period.
11.On or about Friday 31 August 2007, D’Adamo gave me a piece of paper with an address and the name, Joe Zampogna (Zampogna) and said that I would be working with Zampogna from Monday at the address. I do not remember the exact address.
12.For about the next nine months, I basically worked every day with Zampogna and two apprentices: Joshua Houlihan (Josh), who was a 4th year apprentice, and Anthony, who was a 2nd year apprentice. I do not know Anthony’s surname.
13.Soon after I started working with him, Zampogna told me that he had been working in the trade as an electrician for about 30 years.
14.While I was working with Zampogna, I would normally meet Zampogna and the other apprentices at Zampogna’s house at approximately 7am. Zampogna would then drive us all to the work site for the day in a L&A Electrics van. The work site was always a partly built residential house. It was our job to do the wiring of the house. We would do the initial wiring of the houses, then the plasterers (from another company) would do the plastering and we would come back to the house a few weeks later to do the light fittings.
15.As far as I was aware, Zampogna provided his own tools for work. L&A Electrics provided supplies to be used on the job, such as cables and light fittings.
16.For about the first 3 months, Zampogna would specifically direct me what to do. After that time, I had learned what my tasks involved, and generally worked without Zampogna telling me exactly what to do. Josh and Anthony also told me what to do. For at least the first 5 months, I was doing fairly basic work because Zampogna also had the two other electrical apprentices (Josh and Anthony) working for him.
17.While working with Zampogna, my duties involved loading up the van with supplies, taking the electrical cabling from the van on to the site, taking tools and ladders from the van on to the site, chiselling out light switch fittings, drilling into brick walls, feeding cabling through cavity walls, finishing power points, cleaning the van and generally cleaning up after Zampogna, Josh and Anthony.
18.Josh and Anthony did more advanced work. Josh was a 4th year apprentice and basically did all the tasks a qualified electrician would do, such as installing fittings and wiring. Josh and Anthony would do the wiring for power points, lights and light switches. They would also fit the light switches and light fittings.
19.We would normally finish work at 3pm, but sometimes we would need to work overtime past then. If that happened, Zampogna would ask me and the other apprentices if we could stay to work overtime. I think this happened about once per week on average.
20.I filled out a timesheet every day, recording the hours I worked. Zampogna checked the timesheet at the end of each week.
21.Approximately once a week, Zampogna, Josh and Anthony and I would attend the L&A office/workshop at 54 Achievement Way, Wangara in Western Australia (the Workshop) to pick up supplies, drop off timesheets to the office and pick up our payslips.
22.Apart from when I attended the Workshop on these occasions, while I worked with Zampogna, I had almost no contact with anyone from L&A Electrics other than Zampogna, Anthony and Josh.[43]
[43] Affidavit of Steven Robert Motherwell, affirmed 20 September 2010, paras.4-22 (“Mr Motherwell’s Affidavit”).
Mr Motherwell also gave evidence that “For the entire period of my employment with L & A Electrics, I was paid about $6.70 when I started to about $8 per hour by the time I finished work with the company.”[44]
[44] Mr Motherwell’s Affidavit, para.49.
Mr Motherwell’s oral evidence was that:
a)Mr Zampogna, and the apprentices Joshua Houlihan and Anthony Rossi, wore L & A Electrics tee-shirts to work every day;[45]
b)he was told by Mr Zampogna that he (Mr Zampogna) was an employee, and was one of the tradesman that worked for Mr D’Adamo, and that he was told this not long after he had started working under Mr Zampogna’s supervision;[46]
c)he travelled in an L & A Electrics work ute for which Mr Zampogna used an L & A Electrics fuel card to purchase petrol for the vehicle;[47]
d)the employee named Mark drove a truck, operated an excavating machine, was not an electrician, and that when Mr Motherwell worked with him Mr Motherwell used a shovel to dig;[48]
e)otherwise, his work included driving, loading and unloading of the van, low level and simple jobs including cleaning and carrying;[49]
f)they drove the “work car” to and from work each day from Mr Zampogna’s house;[50]
g)Mr Zampogna had his own electrical business, and that at least on one occasion, Mr Motherwell went with him to a job which was “separate to L & A Electrical’s”;[51] and
h)Mr Zampogna was initially a contractor and later became an employee of L & A Electrics.[52]
[45] Transcript, 16 November 2010, pages 17-18.
[46] Transcript, 16 November 2010, page 19.
[47] Transcript, 16 November 2010, pages 19-20.
[48] Transcript, 16 November 2010, page 27.
[49] Transcript, 16 November 2010, page 28.
[50] Transcript, 16 November 2010, page 47.
[51] Transcript, 16 November 2010, pages 48-49.
[52] Transcript, 16 November 2010, pages 53-54.
In re-examination when asked what sort of things Mr Zampogna would direct him to do Mr Motherwell said:
Just very basic things. That’s when I had first started. So I was just cleaning, carrying out cable, getting tools as we needed them, loading up the van, unloading the van when we get to jobs, just floating around and asking, like, the rest of the guys if you need a hand and stuff.[53]
[53] Transcript, 16 November 2010, page 72.
Asked to identify who the “guys” were Mr Motherwell identified the other two apprentices, Anthony, and Josh Houlihan, and went on to indicate that he would work with them. He gave as an example that he would be directed to work with Anthony whilst Anthony chiselled along a wall for two metres and Mr Motherwell would go along behind him and sweep up.[54] Mr Motherwell also gave evidence that he was given specific directions by Mr Zampogna to assist the other two apprentices, for example by going and obtaining tools, and that he assisted them by fitting a light switch, a task he described in some detail in his evidence.[55] The fitting of the light switch related to the wiring which had been done by the other two apprentices to the point at which there was a light switch to be fitted.[56]
[54] Transcript, 16 November 2010, page 72.
[55] Transcript, 16 November 2010, pages 73-74.
[56] Transcript, 16 November 2010, page 74.
D’Adamo Nominees, on L & A Electrics’ letterhead, produced to the FWO Mr Motherwell’s “payslips, which show pay, holiday entitlements accrued at 2.9 hours per week and any overtime worked.”[57] As part of the documents produced there are pay advices for Mr Motherwell from “D’Adamo Nominees P/L T/as L & A Electrics” for the period in which he was alleged to have been an electrical assistant, which set out his hours, base hourly rate, amount paid, and where appropriate, overtime, as well as a tool allowance, and the amount of PAYG withholding tax deducted and the amount of the superannuation guarantee charge paid on Mr Motherwell’s behalf.[58] The documents are admissible as business records,[59] and as admissions of fact – that Mr Motherwell was paid by D’Adamo Nominees t/as L & A Electrics and accrued holiday entitlements – are relevant to whether or not Mr Motherwell was an employee.[60]
[57] Affidavit of Georgina Kate Mayman Rosendorff, affirmed 21 September 2010, Annexure H (“Ms Rosendorff’s September 2010 Affidavit”).
[58] Ms Rosendorff’s September 2010 Affidavit, Annexure H.
[59] Evidence Act 1995 (Cth), s.48(1)(e)(i) (“Evidence Act”).
[60] Evidence Act, s.48(1)(a).
Setting aside for the moment the first two weeks of the initial period of work in August 2007, it is apparent that Mr Motherwell:
a)carried out work which assisted other employees in connection with the installation of wiring of electric and electronic installations and equipment carried out by D’Adamo Nominees trading as L & A Electrical, and
b)assisted with work carried out by D’Adamo Nominees as an electrical contractor,
during the period from about 3 September 2007 to 3 February 2008.
There may be a dispute as to whether Mr Zampogna was an employee of D’Adamo Nominees at the relevant time, but there is some evidence to suggest that he may have been an employee at the relevant time, including evidence that he said he was, plus evidence of the use of equipment and supplies provided by L & A Electrics, including a vehicle, fuel for the vehicle, and some work clothing. With respect to the two apprentices, Anthony, and Josh Houlihan, it is arguable that they were employees. Apprentices are employees for the purposes of the ECI Award, having their own pay scale in the first schedule of that award at Part (4). Furthermore, apprentices were employees at the relevant time under the Industrial Training Act 1975 (WA)[61] which specifically provided for the employment of apprentices, as follows:
a)s.29 – “ … employed as an apprentice … shall be employed in the first instances on probation for a period of three months”;
b)s.29A(1) – “No employer shall employer a probationer unless the Director has approved of the employer and the employment of the probationer.”;
c)s.30(1)(c) – “… the parties to the agreement shall be the employer, the apprentice …”;
d)s.32A(1) – “… where a person who has been employed by an employer as a probationer after application duly made by that employer has been employed by that employer for two months after the expiration of the period of his probation or any extension of that period and apprenticeship agreement or industrial training agreement has not been entered into and duly executed and dealt with as prescribed …”; and
e)s.34(1) – “… where all parties agree, the employment of an apprentice or industrial trainee may be transferred from one employer to another employer.”
[61] “IT Act”.
D’Adamo Nominees argued that apprentices were not employees at common law, and therefore not employees able to be covered by the ECI Award. Whatever the common law position might have been with respect to apprentices it was changed by statute in Western Australia in 1912. Under the Industrial Arbitration Act 1912 (WA)[62] “worker” was defined to include an apprentice.[63] The then Court of Arbitration had jurisdiction to settle and determine “any industrial dispute”,[64] with “Industrial dispute” being defined to mean a dispute in relation to “industrial matters” which was defined to include the “terms and conditions of apprenticeship”.[65] Likewise, the IR Act defines an “employee” to mean “any person employed by an employer to do work for hire or reward including an apprentice.”[66] There is nothing in the definition of “employee” or “employer” in ss.5 and 6 of the WR Act which excludes apprentices, and the definition of “employment” in s.7 of the WR Act, likewise, does not exclude apprentices. Indeed, bearing in mind that apprentices have been employees by reason of statute in Western Australia for a century, they meet the criterion of “usually employed” in s.5 of the WR Act, and there is no dispute that D’Adamo Nominees is a constitutional corporation employer for the purposes of s.6 of the WR Act.[67] Thus, when the ECI Award sets out pay rates for apprentices, it does so on the basis that they are employees for both industrial (IR Act) and employment and training purposes (IT Act). It is, therefore, clear that to the extent that Mr Motherwell was working with the two apprentices, Mr Houlihan and Anthony, he was assisting them in their capacity as employees, albeit that they were apprentices.
[62] “IA Act”.
[63] IA Act, s.4.
[64] IA Act, s.58.
[65] IA Act, s.4.
[66] IR Act, s.7(1) – definition of “employee”.
[67] Statement of Claim, para.3; Defence, para.4.
D’Adamo Nominees also submitted that there was doubt that Mr Motherwell, Mr Zampogna and Mr Houlihan were employed by D’Adamo Nominees trading as L & A Electrics. For reasons set out above there may be some doubt as to whether Mr Zampogna was an employee, but it is arguable that he was an employee, on the basis of the evidence as it stands. With respect to Mr Houlihan there is clear evidence that he may have been a fourth year apprentice, and for reasons set out above, employed as a fourth year apprentice. There was evidence of the employment of the apprentice, Mr Houlihan, during the period in which it is alleged that Mr Motherwell was an electrical assistant. That evidence was by way of L & A Electrics’ timesheets and pay advices for the relevant period.[68] There were also payslips for the relevant period for Mr Zampogna which showed him receiving a base salary, and holiday leave accrual, and the payment on his behalf of the superannuation guarantee charge and PAYG withholding tax by D’Adamo Nominees.[69]
[68] Mr Chapple’s November 2010 Affidavit, Annexure A. Admissible as business records under the Evidence Act, s.48(1)(4).
[69] Mr Chapple’s November 2010 Affidavit, Annexure A. Admissible as business records under the Evidence Act, s.48(1)(4).
With respect to Mr Motherwell, it was suggested that there was no evidence of a contract of employment per se, or as an electrical assistant. There can be no doubt that there was a contract of employment between Mr Motherwell and D’Adamo Nominees. He was offered employment, and accepted it, initially on the basis of a trial, for which he was apparently paid. Subsequently, that arrangement was varied, and he went to work, at the direction of D’Adamo Nominees with Mr Zampogna, doing, as the Court has found, the work of an electrical assistant. For that work Mr Motherwell was paid, accrued holiday entitlements, had PAYG withholding tax deducted from his pay, and had contributions made to superannuation in accordance with the superannuation guarantee charge, on his behalf. There were, for the relevant periods, pay advices for Mr Motherwell showing that he had been paid by D’Adamo Nominees. Subsequently, he would enter an apprenticeship agreement, which for reasons outlined above, is employment by an employer as an employee, albeit as an apprentice. The submissions made on behalf of D’Adamo Nominees with respect to the issue of whether or not Mr Motherwell was employed and had a contract of employment with D’Adamo Nominees sufficient to raise a case to answer, are utterly without merit. To submit in the face of the available evidence that there is no case to answer, at least in part, because there was no contract of employment, or contract of employment as an electrical assistant, was a wholly fruitless exercise. Even more so when D’Adamo Nominees’ Defence admits that Mr Motherwell “was employed by the Respondent from 20 August 2007 to 30 January 2009”.
In all of the above circumstances the Court is of the view that there is sufficient evidence to establish a case to answer that, save for the first two weeks of the relevant period, Mr Motherwell was an electrical assistant in as much as he was an employee who was “directly assisting any other employee”, and specifically in this case Mr Zampogna, and Mr Houlihan, who are arguably covered by the ECI Award. The Court observes that there is no requirement under the ECI Award for an electrical assistant to be assisting a qualified person as was perhaps suggested by some of the submissions for D’Adamo Nominees. It is sufficient if an electrical assistant, as defined in the ECI Award, is “directly assisting any other employee”. There is sufficient evidence that there is a case to answer that Mr Motherwell was an electrical assistant from 3 September 2007 to 3 February 2008.
The first two weeks of Mr Motherwell’s employment
The evidence in relation to the first two weeks of Mr Motherwell’s employment is that he was digging trenches for the laying of electrical mains with a person, Mark, who was described as a truck driver, but who also operated a backhoe excavator. It would appear that the purpose of Mark’s work, together with that of Mr Motherwell in the first two weeks of his employment, was to dig trenches for the laying of electric cables. There is no evidence that Mark was a person whose employment was covered by the ECI Award. There is no sufficient evidence to fit him within any of the defined categories of employee, or any of the categories of employee to whom wages are payable under the ECI Award.
In the circumstances, for the period from 20-31 August 2007, there is no evidence capable of sustaining a case that Mr Motherwell was employed as an electrical assistant under the ECI Award, because there is no evidence that he was directly assisting another employee covered by the ECI Award.
Was there evidence that Mr Motherwell was an employee directly supervised by a person covered by the ECI Award?
The evidence in relation to whether or not Mr Motherwell was employed in the role of electrical assistant embraces evidence that is sufficient to argue that he was an employee also directly supervised by a person covered by the ECI Award, again, arguably Mr Zampogna and Mr Houlihan, and that there is sufficient evidence to establish that there is a case to answer in this respect.
Were there any employees as at 27 March 2006?
D’Adamo Nominees asserted that there was no evidence of the claim that there was at least one employee whose terms and conditions of employment were covered by the award immediately before 27 March 2006 when the ECI Award became a NAPSA.[70]
[70] Statement of Claim, para.8.
The FWO says that this is a submission which is technical in the extreme, and given that there is evidence of employees who were paid for the week ending 31 March 2006 the Court can properly infer that those employees were employed as at 26 March 2006, that is, immediately before the ECI Award became a NAPSA. The FWO also points to the employment of the apprentice, Mr Houlihan, and says that there is evidence that he was an apprentice whose term commenced on 12 February 2004.[71]
[71] Ms Rosendorff’s September 2010 Affidavit, Annexure W. Admissible as a business record: Evidence Act, s.48(1)(e).
There is evidence that Mr Houlihan was still employed as an apprentice, at the time that Mr Motherwell commenced in August 2007. There is no evidence, and indeed no suggestion that the term of Mr Motherwell’s apprenticeship was broken, or that during the term of his apprenticeship, Mr Houlihan was transferred elsewhere, and it is reasonable for the Court to infer that he Mr Houlihan was a continuing employee, and therefore an employee as at 26 March 2006.
There is also evidence of electronic pay advices for various employees described in a letter from L & A Electrics to a representative of the FWO as being “payslips for employees of L & A electrics between the dates for 25/3/2006 to 28/3/2006.”[72] The copies of the electronic payslips attached are for 26 employees and are dated 5 April 2006 and are for the “Period Ending: 31/03/2006” and indicate that the employees concerned are “Paid: Weekly”. For an employee who is a weekly employee paid for a period ending on 31 March 2006, that is, on the face of it, evidence that those persons were employed by D’Adamo Nominees for the week from 25 March 2006 to 31 March 2006. The pay advices include a pay advice for Mr Houlihan for this period, thereby strengthening the inference that he was employed as at 26 March 2006. Put differently, and more starkly, it is in the highest degree improbable that an electrical contractor’s business which the evidence indicates had been operating as at March 2006 for at least a decade, would suddenly, as at 27 March 2006, employ 26 persons whom it had not previously employed. The degree of improbability is even higher in the case of Mr Houlihan whom the evidence indicates commenced with D’Adamo Nominees employees in 2004, was employed for the week ending 31 March 2006, and who in August 2007 was described by Mr Motherwell as being a fourth year apprentice. That is indicative of, at the very least, there being one continuing employee at D’Adamo Nominees as at 26 March 2006, and the probability, on the evidence, is that there were at least 26 continuing employees as at that date, but perhaps, not all covered by the ECI Award. For reasons otherwise set out above Mr Houlihan was, as an apprentice, an employee to whom the ECI Award applied. The payslips indicate that four of those employees, including Mr Houlihan, were paid the same base hourly rate of $11.04, and also paid a “Tool Allowance 3rd” indicating a third year tool allowance paid pursuant to the first schedule, clause 5(a) of the ECI Award. In each case, the weekly rate of pay for those four employees for their base hours is $419.52, which is within 10c of the amount payable to third year apprentices pursuant to the first schedule, clause 4 of the ECI Award for a four year term apprenticeship. It might be inferred that each of those persons were employed in the same capacity as Mr Houlihan, namely a fourth year apprentice.
[72] Mr Chapple’s September 2010 Affidavit, Annexure I. The letter and attached documents are admissible as business records: Evidence Act, s.48(1)(e); and the letter is also admissible as an admission of fact that there were the employees for whom payslips were provided, employed between 25 and 28 March 2006: Evidence Act, s.48(1)(a).
Finally, the covering letter from L & A Electrics, the trading name for D’Adamo Nominees, indicates that the payslips are for employees “between the dates for 25 March 2006 to 28 March 2006”, thereby indicating that there were “employees” employed by D’Adamo Nominees on 26 March 2006.
The submission that there is no evidence that employees were employed by D’Adamo Nominees as at 26 March 2006, and therefore no case to answer, is not just “technical in the extreme” as submitted by Counsel for the FWO,[73] but rather, wholly without merit. There is in fact significant evidence, including an admission from D’Adamo Nominees in a letter to a representative of the FWO, that there were employees employed as at 26 March 2006, or, at the very least, from which it is open to infer that there probably were such employees, and at least one of those employees, Mr Houlihan, was covered by the ECI Award.
[73] Transcript, 18 November 2010, page 56.
Was there any evidence of the apprenticeship?
D’Adamo Nominees submitted that there was no evidence that the document relied on as the apprenticeship agreement was executed properly or fully or as required by law, and therefore there was no evidence of when the apprenticeship started.
The FWO submitted that there was ample evidence that Mr Motherwell was an apprentice, and apprenticed to D’Adamo Nominees trading as L & A Electrics, and therefore entitled to be paid as an apprentice under the ECI Award.
Mr Motherwell’s affidavit evidence was that:
23.The first time I attended the Workshop after I started work with Zampogna was about two weeks after I had started working with Zampogna. At that time, I asked D’Adamo if I was going to be signed up as an apprentice. D’Adamo responded to me with words to the effect, “You were an apprentice the day you started”.
24.At that time, I wasn’t sure about the formal requirements of registering an apprenticeship. I asked Josh and Anthony about it a week or so after talking to D’Adamo. One of them told me (I can’t remember which one) that all apprentices have a 3 month probation and that I was on a 3 month probation. For the next 3 months, I believed that I was on probation, so I did not raise the issue of being signed up for an apprenticeship with D’Adamo during this time.
25.After 3 months, in early December 2007, I asked Zampogna about whether I was going to be signed up as an apprentice. He responded to me with words to the effect, “It’s not my call – you need to talk to Gino”. I remember asking Zampogna about this a couple of times in December 2007.
26.After this, I asked D’Adamo whether I was going to be signed up as an apprentice. I asked him 5 or 6 times because I thought that I needed to be signed up officially. All of these conversations took place at the Workshop, during my weekly visits to the Workshop. During each of these conversations, D’Adamo said to be words to the effect, “You’re signed up” and “you’re already an apprentice”. There were always other people present in the Workshop when I had these conversations with D’Adamo, but I don’t know if they were paying attention to the conversation.
27.In February 2008, D’Adamo organised for a woman from the Apprenticeship Board to come in to the Workshop. On or about 4 February 2008, we had a meeting at the workshop with this woman, four or five other apprentices who had recently started with L&A Electrics and D’Adamo. The woman explained about the apprenticeship. She said that there was a 3 month probation period, and that if your employer decides to keep you after the end of the probation period, your apprenticeship gets backdated to the start of the probation period. The woman did not ask any of us when we had started work with L&A Electrics.
28.We were all given documents to sign at the meeting. I knew that the document I signed said that my probation period started that day (4 February 2008). I did not say anything at the meeting about working for L&A Electrics for the previous six months because I thought that I would get in trouble from D’Adamo if I did. No-one at the meeting said anything about the time that they had already worked for L&A Electrics. I don’t think that D’Adamo said anything at all at the meeting.
29.About one month later, in early March 2008, I asked D’Adamo whether he could backdate my apprenticeship to include the first six months I had worked for L&A Electrics. He told me that we could talk about it at the end of the 3 month probation.[74]
36.On or about 30 April 2008, at the Workshop, D’Adamo called me over to the front desk, gave me a document and said “sign your apprenticeship papers”. The document appeared to be my Apprenticeship Agreement. I signed it. D’Adamo did not say anything about my parents needing to sign it.
37.When I signed the document, I asked D’Adamo if he was going to backdate my apprenticeship to the date that I started working for L&A Electrics. He told me that he was not going to backdate the apprenticeship, and said words to the effect, “No, that will not be happening”.[75]
41.On or around 30 May 2008, my mother and I typed a letter for D’Adamo to sign, saying that he agreed to backdate my apprenticeship to 3 September 2007 (the date I started work after my initial two week trial period). I signed it and both of my parents signed it. Annexed to this affidavit and marked “A” is a copy of the unsigned letter I printed off my computer today. I think that this copy is dated 10 September 2008 because we changed the date on the computer ahead of another conversation with D’Adamo about backdating my apprenticeship later in 2008.
42.The next work day (I think this was Monday 2 June 2008) I gave the letter to D’Adamo to sign. I told him that all he had to do was sign it and give it to me and I would send it in to the Apprenticeship Board. D’Adamo told me that he would not sign it, but then he said that he would keep the letter and think about it. He took the letter off me.
43.About a week later, my father came in to the Workshop again to ask D’Adamo if he still refused to sign the letter. I was present for the conversation. D’Adamo said that he would not sign the letter.
44.I asked D’Adamo again about one month later if he would sign the letter. He said words to the effect, “Definitely, no. Stop asking me”.
45.In the second half of 2008, I started looking for an apprenticeship somewhere else because I was frustrated that D’Adamo refused to backdate my apprenticeship to include the first six months that I worked. Then I found out that if I left L&A Electrics to work for another electrician, I would not get any credit for any time worked with L&A Electrics, unless D’Adamo consented. D’Adamo had previously told me, “if you leave, I’ll cancel your apprenticeship”.[76]
[74] Mr Motherwell’s Affidavit, paras.23-29.
[75] Mr Motherwell’s Affidavit, paras.36-37.
[76] Mr Motherwell’s Affidavit, paras.41-45.
Mr Motherwell gave two weeks notice that he was leaving L & A Electrics in January 2009, and worked out his notice period.[77]
[77] Mr Motherwell’s Affidavit, para.47.
Cross-examined Mr Motherwell gave evidence that:
a)he signed an apprenticeship agreement on 4 February 2008;[78]
b)Mr D’Adamo organised for a woman from the Apprenticeship Board to come to the workshop in February 2008 which was when he signed his apprenticeship papers;[79]
c)he saw a piece of paper indicating that his three months probation under his apprenticeship agreement had come to an end;[80] and
d)he made attempts to get Mr D’Adamo to back-date his apprenticeship.[81]
[78] Transcript, 16 November 2010, page 22.
[79] Transcript, 16 November 2010, page 38.
[80] Transcript, 16 November 2010, page 46.
[81] Transcript, 16 November 2010, page 58.
There was documentary evidence of:
a)an apprenticeship probation application for Mr Motherwell for an apprenticeship commencing on 4 February 2008 with D’Adamo Nominees, who are said therein to be in the business of being electrical contractors;[82]
b)an apprenticeship agreement signed on 30 April 2008;[83]
c)a copy of a letter from the co-ordinator of the ApprentiCentre to Mr D’Adamo at L & A Electrical Services advising that the apprenticeship agreement with Mr Motherwell had been registered;[84]
d)an application to cancel an apprenticeship by mutual agreement for the apprenticeship of Mr Motherwell to L & A Electrical with effect from 30 January 2009 on the basis that the employer (L & A Electrical) refuses to transfer the apprenticeship, or would not grant a transfer of the apprenticeship, signed by both the employer and the apprentice;[85] and
e)an “Extract of Apprenticeship” from the Government of Western Australia’s Department of Training and Workforce Development ApprentiCentre is also in evidence (admitted without objection), indicating that Mr Motherwell’s apprenticeship in electrical mechanics with L & A Electrical Services was cancelled with effect from 30 January 2009.[86]
Each of the above documents is admissible as a business record.[87]
[82] Affidavit of Georgina Kate Mayman Rosendorff, affirmed 12 November 2010, Annexure A.
[83] Mr Chapple’s September 2010 Affidavit, Annexure F.
[84] Ms Rosendorff’s September 2010 Affidavit, Annexure V.
[85] Ms Rosendorff’s September 2010 Affidavit, Annexure U.
[86] Exhibit 9.
[87] Evidence Act, s.48(1)(e)(i).
The evidence set out above is sufficient to enable the FWO to argue that there was an apprenticeship entered into by Mr Motherwell with effect from 4 February 2008. As the Court observed during the hearing “the evidence … almost clearly and unequivocally establishes that Mr Motherwell entered into an apprenticeship agreement on 4 February 2008.”[88] Once again, to suggest that there is no evidence that there was an apprenticeship from that date, or an executed apprenticeship agreement effective from that date, is wholly without merit. This aspect of the no case submission must therefore fail.
[88] Transcript, 18 November 2010, page 15.
Even if there is no evidence of an apprenticeship, and no case to answer on the basis that there is an apprenticeship, because Mr Motherwell was employed, and, given the nature of the duties that he says he performed during the period of the apprenticeship at L & A Electrics, there will still be an argument that absent an apprenticeship, he was an electrical assistant, and therefore entitled to, for example, annual leave accrued as claimed at para.19 of the Statement of Claim. In Richardson v Sedemuda Pty Ltd trading as Southwest Ceramics Jaschke[89] the Industrial Appeal Court found that the apprenticeship was void ab initio because of a failure to comply with the provisions of s.26 of the IT Act. Nevertheless, the employee concerned was still entitled to certain entitlements as a “junior worker” under another clause of the relevant award.[90]
[89] (1985) 65 WAIG 2229 (“Southwest Ceramics”).
[90] Southwest Ceramics at 2231 per Brinsden J; 2232 per Kennedy J and 2235-2236 per Olney J. Olney J’s judgment is useful as it gives a history of the law relating to apprenticeships in Western Australia from colonial foundations in 1873 through to the IT Act and IR Act: see at 2234-2236 per Olney J.
Was there any evidence that the employer required Mr Motherwell to work overtime?
D’Adamo Nominees submitted that there was no evidence that Mr Motherwell was required to work overtime, and that if he was not required to work overtime, then overtime was not payable under the ECI Award.
The submission on behalf of D’Adamo Nominees was that clause 12 – Overtime of the ECI Award only provides for overtime to be worked where it is “required”. D’Adamo Nominees says there is no evidence that there was a requirement for Mr Motherwell to work overtime. There was no dispute that Mr Motherwell gave evidence that he was requested to work overtime.
Clause 12 – Overtime of the ECI Award provides as follows:
(1) (a) Subject to the provisions of this subclause, all work done beyond the ordinary working hours on any day, Monday to Friday, inclusive, shall be paid for at the rate of time and one-half for the first two hours and double time thereafter.
For the purposes of this subclause, ordinary hours shall mean the hours of work fixed in an establishment in accordance with Clause 11. - Hours.
(b) (i) Work done on Saturdays after 12.00 noon or on Sundays shall be paid for at the rate of double time.
(ii) Work done on any day prescribed as a holiday under this award shall be paid for at the rate of double time and one half.
(iii) An employee who works on a Saturday, Sunday or holiday shall be paid for at least three hours at the appropriate overtime rate.
(c) Work done on Saturdays prior to 12.00 noon shall be paid for at the rate of time and one-half for the first two hours and double time thereafter, but this paragraph does not apply in a case to which paragraph (c) of subclause (1) of Clause 11. - Hours applies.
(d) In computing overtime each day shall standalone but when an employee works overtime which continues beyond midnight on any day, the time worked after midnight shall be deemed to be part of the previous day's work for the purpose of this subclause.
(2) (a) Except in the case of shifts to which Clause 13B. - Shift Work on Construction Work applies, overtime on shift work shall be based on the rate payable for shift work.
(b) (i) When overtime work is necessary, it shall wherever reasonably practicable, be so arranged that an employee have at least ten consecutive hours off duty between the work of successive days.
(ii) An employee (other than a casual employee) who works so much overtime between the termination of their ordinary work on one day and the commencement of their ordinary work on the next day that the employee does not have at least ten consecutive hours off duty between those times shall, subject to this paragraph, be released after completion of such overtime until the employee has had ten consecutive hours off duty without loss of pay for ordinary working time occurring during such absence.
(iii) If, on the instruction of the employer, such an employee resumes or continues work without having had such ten consecutive hours off duty the employee shall be paid at double rates until they are released from duty for such period and shall then be entitled to be absent until the employee has had ten consecutive hours off duty without loss of pay for ordinary working time occurring during such absence.
(iv) Where an employee (other than a casual employee) is called in to work on a Sunday or holiday prescribed under this award preceding an ordinary working day, they shall, wherever reasonably practicable, be given ten consecutive hours off duty before the usual starting time on the next day. If this is not practicable then the provisions of subparagraphs (ii) and (iii) of this subclause shall apply.
(v) The provisions of this paragraph shall apply in the case of shift employees who rotate from one shift to another, as if 8 hours were substituted for 10 hours when overtime is worked;
(aa) For the purpose of changing shift rosters; or
(bb) Where a shift employee does not report for duty; or
(cc) Where a shift is worked by arrangement between the employees themselves.
(vi) Overtime worked as a result of a recall shall not be regarded as overtime for the purpose of this paragraph when the actual time worked is less than three hours on such recall or on each of such recalls.
(c) When an employee is recalled to work after leaving the job -
(i) The employee shall be paid for at least three hours at overtime rates.
(ii) Time reasonably spent in getting to and from work shall be counted as time worked.
(d) When an employee is instructed by the employer to hold themselves in readiness at their place of residence or other agreed place of residence for a call to work after ordinary hours, the employee shall be paid at ordinary rates for the time they so hold themselves in readiness.
(e) (i) An employee required to work overtime for more than two hours without being notified on the previous day or earlier that they will be so required to work overtime shall be supplied with a meal by the employer or be paid $10.00 for such meal and for a second or subsequent meal if so required.
(ii) No such payments shall be made to any employee living in the same locality as their place of work who can reasonably return home for such meals.
(iii) If an employee to whom subparagraph (i) of paragraph (e) of subclause (2) hereof applies has, as a consequence of the notice referred to in that paragraph, provided themselves with a meal or meals and is not required to work overtime or is required to work less overtime than the period notified, they shall be paid for each meal provided and not required, $10.00.
(f) (i) An employer may require any employee to work reasonable overtime at overtime rates, and such employee shall work overtime in accordance with such requirement.
(ii) The union party to this award, or employee or employees covered by this award, shall not in any way, whether directly or indirectly, be a party to or concerned in any ban, limitation, or restriction upon the working of overtime in accordance with the requirements of this subclause.
(3) The provisions of this Clause do not operate so as to require payment of more than double time rates, or double time and a half on a holiday prescribed under this award, for any work except and to the extent that the provisions of Clause 18. - Special Rates and Provisions of this award apply to that work.
Read as a whole, as the clause must be, it does not establish that an employee must be required to work overtime before overtime is paid. Rather, it simply provides that any work done outside of the ordinary working hours on any day Monday to Friday is to be paid at particular overtime rates, and that work done on Saturdays and Sundays is also to be paid at particular overtime rates. No doubt the employer has the right to require overtime to be worked in certain circumstances, as a result of clause 12(2)(f)(i) of the ECI Award, but even then overtime need not only be worked as a result of an employer requiring an employee to do so. There is a mention of a requirement to work overtime in clause 12.2(e) which provided that an employee required to work overtime for more than two hours without the specified notification that they will be required to work overtime is to be supplied with a meal or paid for a meal. On its proper construction, the clause simply indicates that where overtime is required a meal must be provided, or money for a meal must be paid, if the overtime is required overtime for which the appropriate notice has not been given. It does not establish that all overtime worked by an employee under the ECI Award must be required to be worked as overtime. Clause 12 of the ECI Award does not preclude an employer from asking an employee to work overtime, and an employee agreeing to do so. Similarly, it does not preclude, in those circumstances, an employee not agreeing to do so, and the employer moving on to ask another employee.
Even if it could be said that overtime was only payable where it was required by the employer to be worked, there is, as was pointed out in an exchange between the Court and Counsel for D’Adamo Nominees, an arguably fine line between a request and a requirement when the former is addressed to a first year apprentice by a person in a seeming position of authority in relation to that first year apprentice (or electrical assistant, as the case may be), and there may be an argument that what is put as a request is in fact a requirement. Albeit in the context of an allegation of duress this Court has observed that:
55. Power disparity and the use of any power disparity, is a factor in assessing whether or not there has been duress: Bishop at [24]-[25] per Madgwick J; Canturi at [88] per Ryan J; and includes the potential for illegitimate economic pressure, which ought not be found lightly: Bishop at [25] per Madgwick J, citing the observation of Finn J in Australasian Meat Industry Employees' Union v Peerless Holdings Pty Ltd (2000) 103 FCR 577 at [54].
56 Rightly or wrongly (and it is not presently necessary for the Court to determine which), there is a view that the employer-employee relationship entails a power … disparity, or as it is often put, an inequality of bargaining power. It has long been thus. Blackstone considered the master-servant relationship to be one of status: William Blackstone, Commentaries on the Laws of England (1765) vol 1, pages 410-420. 245 years ago Lord Henley LC spoke of necessitous men not truly free (to exercise their will), but open to submission to any terms the crafty may impose: Vernon v Bethel (1762) (1762) 2 Eden 110 at 113. Modern Australian labour law academics and eminent legal writers have adverted to the inequality of employee bargaining power: Creighton & Stewart, Labour Law An Introduction (3rd ed) (Sydney: Federation Pres, 2000) pages 4-5; Macken, The Employment Revolution (Sydney: Federation Press, 1992) chapter 7; Ludeke, The Line in the Sand. The long road to staff employment in Comalco (Melbourne: Wilkinson Books, 1996) pages 1-2. That background simply reinforces the appropriateness of the consideration of power disparity as a possible factor in conduct allegedly causing duress.[91]
[91] Balding v Ten Talents Pty Ltd (2007) 162 IR 17 at 30 per Lucev FM; [2007] FMCA 145 at paras.55-56 per Lucev FM.
In the circumstances, the claim that D’Adamo Nominees has not paid overtime to Mr Motherwell is a claim for which there is sufficient evidence to enable it to be argued, and it follows that D’Adamo Nominees’ submission that there is no case to answer with respect to the payment of overtime must fail.
Conclusion
The no case to answer submission by D’Adamo Nominees has been successful, but only to the extent that it has established that there is no evidence, and therefore no case to answer, with respect to the first two weeks of Mr Motherwell’s employment at D’Adamo Nominees, that is, from 20 August 2007 to close of business on 31 August 2007. Otherwise, the no case to answer submission fails. Much of the no case to answer submission put by D’Adamo Nominees has failed in such a way as to raise in the Court’s mind the question of whether this might be an appropriate case for an award of costs, notwithstanding the terms of s.824 of the WR Act.
In the circumstances, and rather than make any declarations or orders of a substantive kind at this stage, the Court directs the parties to confer with respect to any appropriate declaration or orders, including possible costs orders, and future programming orders, including possible referral to mediation (even at this late stage). Otherwise, the matter will simply stand adjourned to a directions hearing at 9.15am on 29 January 2013, and there will be an order to that effect.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Lucev FM
Date: 21 December 2012
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