Hartigan v Forde Constructions - [1996] IRCA 314

DECISION NO: 314/96
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - ALLEGED UNLAWFUL TERMINATION - building labourer - WHETHER CASUAL EMPLOYEE - NOTICE PERIOD - ENTITLEMENTS TO ANNUAL LEAVE AND LEAVE LOADING UNDER RELEVANT AWARD
Industrial Relations Act 1988 ss 170CC, 170DB, 170DB(1), 170DB(2), 170DB(4), 170DE, 170DE(1), 170DE(2), 170EA, 170EDA, 170EDA(1)(b), 170EE(5), 430
Industrial Relations Regulations 1989, Reg. 30B(1)(d), 30B(3)
Building Trades (Construction) Award 1987, Cl. 7(2), 8, 12A, 12B, 13(1), 18(4), 22(1), 22(4), 22(7)(b)
Aitken v CMETSWU - WA Branch (1995) 63 IR 7.
AWA-FIME Amalgamated Union and Farrell v Conagra Wool Proprietary Limited (1995) AILR 3-015.
Byrne & Frew v Australian Airlines Ltd (1995) 131 ALR 422.
Fernandes v Comgroup Supplies Pty Ltd, unreported, Ritter JR, Industrial Relations Court of Australia No. 656/95, 11 December 1995.
Gregory v Philip Morris Limited (1988) 80 ALR 455.
Grout v Gunnedah Shire Council (1994) IRCR 160.
Mitchell Collins v La Trobe Council (1995) 60 IR 480.
Quality Bakers of Australia v Goulding (1995) 60 IR 327.
Walker v Ken Vidler Surfsports, unreported, RD Farrell JR, Industrial Relations Court of Australia No. 655/95, 30 November 1995.
Walsh v Wayne Motors, unreported, Ritter JR, Industrial Relations Court of Australia No. 92/96, 21 March 1996.
Kevin Gerard HARTIGAN v FORDE CONSTRUCTIONS -
WI 2500 of 1995

Before:                     Ritter JR
Place:                       PERTH
Date:                         16 July 1996.
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WI 2500 of 1995

B E T W E E N:
Kevin Gerard HARTIGAN
Applicant

A N D:
FORDE CONSTRUCTIONS
           Respondent
MINUTE OF ORDERS
16 July 1996             Ritter JR
THE COURT ORDERS AND DECLARES THAT:
1.The termination of employment of the applicant contravened Section 170DB of the Industrial Relations Act, 1988.
2.The respondent pay to the applicant damages in the sum of $360 for the contravention of Section 170DB of the Industrial Relations Act, 1988.
3.The respondent pay to the applicant the sum of $2,115 for annual leave and leave loading, which amounts ought to have been paid to the applicant upon the termination of his employment pursuant to the Building Trades (Construction) Award 1987.
5.The above amounts be paid to the applicant by the respondent within 21 days of the date of this order.

NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court
Rules
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WI 2500 of 1995

B E T W E E N:
Kevin Gerard HARTIGAN
Applicants

A N D:
FORDE CONSTRUCTIONS
           Respondent
REASONS FOR DECISION
16 July 1996           RITTER JR

This is primarily an application under Section 170EA of the Industrial Relations Act 1988 ("the Act") for compensation arising out of the termination of employment of the applicant, by the respondent in alleged contravention of a section or sections of Division 3 of Part VIA of the Act. Reinstatement is not sought.

In addition, there was a claim for amounts to be paid to the applicant which the applicant alleges ought to have been paid to him by the respondent. These payments were for holiday pay and leave loading. The Court had jurisdiction to hear these claims in its associated jurisdiction: Section 430 of the Act.
The respondent asserted that the termination of employment of the applicant was not in breach of the Act and that the applicant had been paid all entitlements pursuant to his contract of employment.

The applicant, who was represented by counsel, gave evidence in support of his case. No other witnesses were called on behalf of the applicant. Mr Kevin Forde, a director of the respondent, represented the respondent in Court. He gave evidence on behalf of the respondent and called two witnesses, being Mr Justin Probert and Ms Shelley Salter. Both of these people were former employees of the respondent.

TERMINATION OF EMPLOYMENT

There was no dispute that the respondent terminated the employment of the applicant on 11 October 1995. On this date Mr Forde told the applicant that his employment would be terminated at the end of the following day. There was some misunderstanding of this by the applicant in that, although 11 October 1995 was a Wednesday, he had in his mind that he was being told that his employment would finish at the end of the week. Therefore, the applicant continued to work not only on 12 October 1995 but also Friday 13 October 1995. The applicant was paid for working on 13 October 1995.

The applicant was told that his employment was being terminated because there was not enough work. The applicant's case was that this was not the real reason motivating the termination of employment. The applicant contended that his employment was terminated because he had taken time off work to seek physiotherapy treatment for a shoulder injury which the applicant injured in an accident at work on or about the first or second week of March 1995.

The respondent is a company involved in construction. The applicant commenced his employment with the respondent in January 1995 after he responded to an advertisement displayed on a notice board in a CES office. The advertisement offered full time casual work as a driver/labourer. The applicant applied for this position and was successful. The applicant's work involved driving and doing labouring work at building sites where the respondent was working.
As stated above, the applicant injured his shoulder in the first or second week of March 1995. The applicant told Mr Forde about the injury to his shoulder. Mr Forde noted what the applicant told him and said that the applicant should "see how it goes". The applicant took this to mean that he should persevere with his work at that stage. The applicant then continued to work. However, he continued to get pain in his shoulder and awoke at times at night with pain in his shoulder and pins and needles in his hands. One time at work the symptoms became so bad that he telephoned a Dr Nathan. He made an appointment to see Dr Nathan that afternoon after work. Dr Nathan attempted to treat the shoulder injury with acupuncture but this was not successful. Dr Nathan then referred the applicant to a physiotherapist at the Southcare Physiotherapy Centre. The physiotherapist commenced treatment on the applicant's shoulder. After the applicant had been seeing the physiotherapist for treatment for a few weeks, the physiotherapist apparently wrote to Dr Nathan stating that the applicant was required to be off work for two weeks to assist in the treatment of the shoulder. Dr Nathan then certified the applicant unfit for work for two weeks. During these two weeks the applicant was paid workers' compensation.
After the two weeks off work, the applicant went back to work. However, the applicant was still having problems with his shoulder and was certified unfit for work for a further two weeks after that. The applicant was again paid workers’ compensation for this period.
At the completion of this period of two weeks the applicant went back to work, at first on the basis of three days per week and after that for four days per week.
The applicant continued to have physiotherapy treatment. The applicant explained that there were disagreements between himself and Mr Forde about the timing of the applicant's physiotherapy treatment. The applicant said that they had heated arguments on the subject. However, at no time was the applicant prevented from going to his physiotherapy treatment or not paid for any time he took off from work to obtain physiotherapy treatment. Mr Forde explained his position in his evidence by saying that when the applicant was working a three day week he could not see why the applicant couldn't get his physiotherapy treatment on one of his days off from work. The applicant said in evidence that it was not always possible to obtain physiotherapy appointments on days when he was not working, because of the other commitments of the physiotherapist.
On 11 October 1995 the applicant was working at a site at the Gosnells Primary School. It was in the afternoon on that date that Mr Forde told him that his employment was being terminated. The applicant agreed in cross-examination that work was being done to pack up the Gosnells Primary School site for hand-over prior to the applicant's termination of employment. For example, the applicant agreed that a fence had been dismantled which had been erected to keep the school children away from the site.

TERMINATION OF EMPLOYMENT IN CONTRAVENTION OF THE ACT?

The applicant contended that the termination of employment was in contravention of Sections 170DE and Section 170DB of the Industrial Relations Act. In relation to the alleged breach of Section 170DE, Ms Peters, for the applicant, rightly pointed out that the onus is on the employer under Section 170EDA of the Act to prove that there was a valid reason of a kind referred to in Section 170DE(1), for the termination of employment. Section 170DE(1) provides that an employer must not terminate an employee's employment unless there is a valid reason or valid reasons connected with the employee's capacity or conduct or based on the operational requirements of the undertaking, establishment or service.
The respondent's position was not clearly articulated, initially, although this was understandable given that Mr Forde has no legal training or experience. However, the respondent's case as it emerged in evidence was either that there was a valid reason for the termination of employment on the basis of the operational requirements of the respondent or, alternatively, that the applicant was an employee to whom the Act did not apply, as the applicant was a casual employee.

CASUAL EMPLOYEE

Section 170CC of the Act states that the regulations may exclude specified employees from the operation of specified provisions of Division 3 of Part VIA of the Act.
Regulation 30B excludes certain employees from subdivisions B, C, D and E of Division 3. These include a casual employee engaged for a short period within the meaning of subregulation 30B(3); see Regulation 30B(1)(d).
Regulation 30B(3) states that for the purposes of paragraph 30B(1)(d), a casual employee is taken to be engaged for a short period unless:
(a)the employee is engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment during a period of at least six months; and
(b)the employee has, or but for a decision by the employer to terminate the employee's employment, would have had, a reasonable expectation of continuing employment by the employer.
Whether or not the applicant was a casual employee of the respondent, I am satisfied that he was not a casual employee engaged for a short period. This is because, firstly, the applicant's employment with the respondent was on a regular and systematic basis for a sequence of periods of employment during a period of at least six months. The evidence which was not disputed was that the applicant worked each work day (Monday to Friday) except public holidays for the respondent between the period from when his employment commenced in January 1995 to the date of the cessation of his employment on 13 October 1995. The applicant also said that he worked some weekend days. This was not disputed by the respondent.
Secondly, the applicant had a reasonable expectation of continuing employment by the employer, under Regulation 30B(3)(b). This expectation was formed, in the first instance, by the use of the expression "full time" employment in the advertisement seen at the CES office. Further, after about two weeks' employment, Mr Forde told that the applicant that he was doing a good job and increased his pay from $100 per day to $120 per day gross. From this amount was deducted 20% for income tax. The applicant said that after receiving the increase in pay, he thought that he had permanent employment and had a job for as long as he wanted it. I accept that this was a reasonable basis for forming the expectation of continuing employment. Whilst there was some evidence by Mr Forde that he told the applicant that he may have to terminate his employment prior to the actual termination because of the downturn in the respondent's work, I am not satisfied that this was such as to mean that the applicant did not have a reasonable expectation of continuing employment within the meaning of the subregulation referred to above, up to the time when termination occurred.
Therefore, the applicant was not a casual employee for a short period and therefore of a category of employee that is excluded from the operation of the Act by reason of Section 170CC of the Act.

THE ALLEGED BREACH OF SECTION 170DB OF THE ACT

Section 170DB(1) of the Act states that an employer must not terminate an employee unless the employee has been given either the period of notice required by subsection (2) or compensation instead of notice. In this instance, the period of notice required by Section 170DB(2) is at least one week.
In this instance, the applicant was only given, at most, two days' notice.
In the respondent's statement of facts, prepared by the former solicitors of the respondent, it was asserted that "it was an express term of the contract of employment that in consideration of being paid casual rates no notice period shall apply and no holiday pay or leave loading shall be paid".
In his evidence, Mr Forde did not assert that it had been expressly agreed that no notice period would apply. Even if it had been so agreed, such an agreement would not override the provisions of the Act. The respondent's statement of facts does not suggest any legal or factual basis for an express agreement being able to oust what is clearly stated in Section 170DB of the Act.
Whilst not being able to point to any particular section of the Act in support of the proposition, Ms Peters submitted that one cannot "contract out" of the notice requirements contained in Section 170DB of the Act. I agree with this submission. The section is stated in general terms. If the notice periods required by the section could be ousted by express agreement, one would expect this to be specifically stated. This is especially so in what is a beneficial piece of legislation; see Grout v Gunnedah Shire Council (1994) IRCR 143 at page 160.
The applicant was given, at most, two days' notice of the cessation of his employment. Therefore, I think the applicant ought to have been given at least seven days' notice or paid the amount of compensation equalling or exceeding the total of all amounts that, if the employee's employment had continued until the end of the required period of notice, the employer would have been liable to pay to the employee because of the employment continuing during that period; Section 170DB(4) of the Act. The applicant was paid $600 per week on the basis of a five day working week. This was a gross figure. The applicant was paid $240 (gross) for the two days that he worked after being advised of the termination of his employment. Therefore, the applicant has not received an amount of $360 which he would have been paid had he been given the required period of notice under Section 170DB(2).
Section 170EE(5) of the Act states that in respect of a contravention of Section 170DB constituted by the termination of employment of an employee, the Court may make an order requiring the employer to pay to the employee an amount of damages equal to the amount of the compensation which, if it had been given by the employer to the employee when the employment was terminated, would have resulted in the employer not contravening that section. As set out above, this amount in this instance is $360.
Therefore I will make an order requiring the respondent to pay the amount of $360 to the applicant for the contravention of Section 170DB of the Act.
I hasten to add that having listened to Mr Forde give evidence, I think it is clear that he did not deliberately breach Section 170DB of the Act. He was simply unaware that he was required to give the applicant the period of notice which is stipulated by Section 170DB of the Act.

ALLEGED CONTRAVENTION OF SECTION 170DE OF THE ACT

As stated above, the applicant alleged that there was a breach of Section 170DE(1) of the Act in that there was no valid reason connected with the employee's capacity or conduct or based on the operational requirements of the undertaking, establishment or service.
The respondent asserted that there was a valid reason, being the operational requirements of the respondent. That was that, due to a downturn in the work of the respondent, it could no longer reasonably afford to employ the applicant.
It is clear that the "operational requirements" of the business may include a redundancy of this type; see Quality Bakers of Australia v Goulding (1995) 60 IR 327.
Mr Forde explained the reasons why the applicant was, as he put it, "laid off". Mr Forde said that after the completion of the work by the respondent at the site at the Gosnells Primary School, the respondent then only had two sites left that it was working on. One of these was a small bathroom project at a private home, which did not provide work for someone in the applicant's position. The other was a commercial structure in Willagee at the Carawatha Primary School. This was a commercial steel structure which the respondent was doing for the Building Management Authority. Mr Forde said that there was also no work at this site for the applicant.
Mr Forde explained that at the time when the applicant was first employed, the respondent was working on at least twelve different sites. However, this had shrunk to the two sites referred to above at the time when the applicant's employment was terminated. At this time, apart from the applicant, the only other employees of the respondent were Mr Forde himself, his wife, Ms Chris Forde, who did administrative work, Mr Gary Mottram who was a carpenter who was acting as a supervisor at the Gosnells Primary School site and another labourer at the Gosnells Primary School site, who was called James. It was not clear from the evidence whether James continued to be employed after the applicant's employment ceased.
Mr Forde in his evidence said that he genuinely had no further work for the applicant after the completion of the Gosnells Primary School site.
Mr Forde admitted that after the applicant's employment was terminated, he did employ another person called Mr Tom Lydon. However, Mr Lydon was employed to supervise the job at Willagee. He was not employed as a driver/labourer, which was the position which the applicant had held. Mr Forde said that Mr Lydon was employed because of his technical ability, which was required for work on the Willagee job. Mr Lydon had considerable construction experience and had almost obtained his builder's certificate. He had approximately 15 to 17 years experience in big commercial construction jobs. I am satisfied from the evidence that Mr Lydon was not employed, in effect, as a replacement for the applicant; the applicant did not possess the technical abilities which Mr Lydon did and which were required for the Willagee job.
In her opening, Ms Peters said that she relied on the employment of another employee after the termination of employment of the applicant to support the submission that the real reason why the applicant's employment was terminated was because of his injured shoulder, and Mr Forde being unhappy about the applicant taking time off work for treatment of the shoulder.
Having heard the evidence, I am not satisfied that this submission is borne out. I am satisfied from the evidence of Mr Forde, that the employment of Mr Lydon was unrelated to the termination of employment of the applicant.

I am satisfied that the termination of employment of the applicant was for the valid reason of redundancy. As stated by Beazley J in Quality Bakers of Australia v Goulding, page 332, "a redundancy will arise where an employer has labour in excess of the requirements of the business; where the employer no longer wishes to have a particular job performed; or where the employer wishes to amalgamate jobs". I am satisfied that the first two alternatives applied in this case and that the respondent has satisfied the onus under Section 170EDA of proving that there was, apart from subsection 170DE(2), a valid reason for the termination of employment.
Section 170DE(2) provides that a reason is not valid if, amongst other things, having regard to the operational requirements of the employer, the termination is harsh, unjust or unreasonable.
Cases decided under the Act have accepted that even where there is a genuine redundancy, the termination of a particular employee may be harsh, unjust or unreasonable. In particular, the cases have emphasised the need to consult an employee about the issue of redundancy and that the failure to do so may mean that a termination is harsh, unjust or unreasonable. In Walsh v Wayne Motors, unreported, Industrial Relations Court of Australia No. 92/96, 21 March 1996, I considered a number of these authorities at pages 8-12 of my judgment.
In this case, Mr Forde gave evidence of warning the applicant of the possibility of him being "laid off". Mr Forde said that prior to the termination of employment of the applicant, he worked closely with the applicant and Mr Mottram. He said that he had informed both of them that work was scarce. He informed both of them when the respondent had been successful in obtaining a tender for work. He said that when he obtained a tender he would tell the applicant. He said that the applicant was then happy because the applicant knew that if the respondent gained further work he would continue to be employed.
He also said that he informed the applicant of the possibility of him being laid off a number of times at the Gosnells site. He explained to the applicant that work was scarce because he had not been able to win tenders. He also said that this may have been discussed over drinks at his house or when he was having drinks with the applicant down at a pub they would go to sometimes on Fridays. He said that he specifically told the applicant that there may be no further work for him because there were possibly no more jobs for him to do.
During the cross-examination of the applicant, the applicant agreed that Mr Forde had told him that there was not much Building Management Authority work around. He was also asked whether he had been told in the weeks prior to his termination that things were tough and bad for the respondent. The applicant replied that he did not recall this but that he may have.
I am satisfied from the evidence that the applicant was either expressly or implicitly warned that because of the lack of work of the respondent, he may need to be laid off. I am satisfied that in his communications with the applicant, Mr Forde on behalf of the respondent acted as a reasonable employer would; see Gregory v Philip Morris Limited (1988) 80 ALR 455 at 457 per Jenkinson J as quoted with approval by Lee J in Aitken v CMETSWU - WA Branch (1995) 63 IR 1 at page 7 and Spender J in Mitchell Collins v La Trobe Council (1995) 60 IR 480 at page 491, both of which are cases dealing with whether terminations on the basis of redundancy had contravened the Act.
I accept, as RD Farrell JR did in Walker v Ken Vidler Surfsports, unreported, Industrial Relations Court of Australia No. 655/95, 30 November 1995, that the principles concerning redundancies need to be applied in a not unconsidered manner in relation to small workplaces (page 11). Taking this consideration into account, together with the evidence referred to above, I am not persuaded that the termination of employment was harsh, unjust or unreasonable within Section 170DE(2). I do not find that the applicant has proved, under Section 170EDA(1)(b), that the termination was not valid due to Section 170DE(2).
In her opening submissions, Ms Peters referred to the authority of AWU-FIME Amalgamated Union and Farrell v Conagra Wool Proprietary Limited (1995) AILR 3‑015 in support of the proposition that the reason for termination which the Court is to consider is "the reason which motivated the employer to terminate this employment and not merely the stated reason. The test is a subjective one" (page 1054). I accept this to be a correct statement of the law; see Fernandes v Comgroup Supplies Pty Ltd, unreported, Industrial Relations Court of Australia No. 656/95, 11 December 1995, page 21.
However, in this case I am satisfied that the real reason for termination of employment was the stated reason, that of a lack of work rather than as the applicant put it, the fact of the applicant's shoulder injury and his need to have the injury treated.
I am therefore satisfied that there has been no breach of Section 170DE of the Act.

CLAIM FOR HOLIDAY PAY AND LEAVE LOADING

The applicant claimed in paragraph 15(b) of the Applicant’s Further and Better Summary of Facts holiday pay for nine months' work “apportioned” at 15 days at $96 net per day, totalling $1,440. By paragraph 15(c) the applicant claimed leave loading at 17.5% of $1,440, totalling $252.
As stated above, the respondent in its summary of facts stated that it was an express term of the contract of employment that in consideration of being paid casual rates, no holiday pay or leave loading would be paid.
Mr Forde in his evidence said that the applicant was specifically aware that he was being paid casual rates and that he was not being paid holiday pay or leave loading. Mr Forde pointed to a conversation during the course of the applicant’s employment, in which this was discussed with the applicant. The applicant had no recollection of such a conversation. Whilst I am satisfied that the applicant's absence of recollection of this conversation is genuine, I nevertheless accept Mr Forde's evidence that such a conversation was held.
Therefore, I am satisfied that the applicant was aware that he was being paid casual rates and that he was aware that he was not being paid holiday pay or leave loading.
The applicant admitted that he was paid at the rate of $120 gross per day and that if he worked a four day week instead of a five day week because there was a public holiday, he would only receive $480 gross pay for that week and not $600. He agreed in cross-examination that he was paid for the actual days worked. An exception to this, which the respondent did not take issue with, was the requirement for the respondent to pay the applicant amounts of workers' compensation whilst he was absent from work due to the injury received in the accident at work, referred to earlier in these reasons.
Mr Probert gave evidence that he was employed as a labourer by the respondent. He worked during part of the period of time when the applicant was employed by the respondent. He said that he was paid casual rates which meant that he was paid for each day worked and was not paid for holidays or leave loading. He was paid at the rate of $100 per day less tax.
Ms Salter was also employed by the respondent for part of the period of time during which the applicant worked. She was employed in an administrative capacity and assisted Ms Chris Forde in doing administrative work. One of her functions was to make up the wages with Ms Forde. She said that the wages for each employee of the respondent were worked out by the number of days that they had worked. She understood that each employee of the respondent was paid casual rates. She explained in her evidence that this meant that people were paid for the days that they worked and were not paid sick pay or holiday pay.
I am satisfied from the evidence that the basis on which the applicant was employed was that he was to be paid $120 gross for each day that he worked. I am also satisfied that it was expressly or impliedly agreed that the applicant would not be paid for annual leave or leave loading.
The legal issue is whether such an agreement is valid in light of the relevant award and any statutory requirements.
Ms Peters stated that the entitlement to holiday pay and leave loading arose out of the award covering the applicant's employment. In her closing submissions, she stated that the award which governed the employment of the applicant was the Building Trades (Construction) Award 1987. The respondent agreed that this was the applicable award.
Ms Peters did not refer me to any particular clause of the award. However, Clause 22(1) of the award provides that subject to the provisions of subclauses 2, 4 and 5 of Clause 22, a period of 28 consecutive days, exclusive of any holiday occurring during the period, should be given and taken as leave annually to all employees other than casual employees after 12 months continuous service (less the period of annual leave) with an employer.
Clause 22(4) of the award provides that where an employee has given five working days' or more continuous service, inclusive of any day off as prescribed by Clause 13(1) - Hours or Clause 18(4) - Shift Work (exclusive of overtime), and he/she either leaves his/her employment or his/her employment is terminated by the employer, he/she shall be paid a twelfth of a week's wages for each completed five working days of continuous service with his/her current employer for which leave has not been granted or paid for in accordance with the award.
Subject to whether the applicant was a casual employee, Clause 22(1) as amplified by Clause 22(4), prima facie applies to the applicant.
Clause 7(2) of the award states that a "casual employee" means an employee who is employed for a period of less than five days (exclusive of overtime).
From the terms of Clause 22(1), if the applicant is a casual employee then he has no entitlement to annual leave under the award. The definition of a casual employee as referred to above, concerns an employee who is employed for a period of less than five days. The applicant was employed for a period of greater than 5 days unless one takes the view that he was employed via a series of contracts of employment, each being less than five days.
Properly understood, however, I do not think that such an analysis accurately sets out the basis on which the applicant was employed.
As stated above, the applicant was first employed after seeing an advertisement for a "full time casual" employee. If the length of this contract of employment was for a period of less than five days, it would be difficult to say that the employment was "full time". Further, as the contract(s) of employment was/were performed, the applicant worked each week day other than public holidays between the time of his engagement until the time of his termination, approximately nine months. It is a little unrealistic, in my opinion, to view the period of service that the applicant had with the respondent as being a series of contracts of employment lasting less than five days. It seems to be more accurate to describe the applicant as being a full time employee who was paid at the rate of $120 per day for each day worked. The applicant was not paid for public holidays. The applicant did not claim that he should have been paid for public holidays during the hearing of this matter. Whether such a concession was correct in light of the award is not something that I need consider.
It is sufficient for me to state that the applicant was not a casual employee as defined by the award and is therefore entitled to holiday pay in accordance with Clause 22(1) and (4) of the award.
Clause 22(4) states that the applicant should have been paid one twelfth of a week's wages for each completed five working days of continuous service. The applicant worked for the respondent for approximately 36 five day weeks. The applicant was paid $600 gross per week. One twelfth of this amount is $50. Thirty six weeks at $50 per week is $1800 gross.
Clause 22(7)(b) of the award refers to annual leave loading. This clause states that the loading prescribed by the award applies to proportionate leave on termination. The subclause also states that the employee shall receive during a period of annual leave a loading of 17.5% calculated on the rates, loadings and allowances prescribed in Clause 8 - Rates of Pay and the leading hand rates prescribed in that clause if applicable and Clause 12A - Fares and Travelling (except plumbers) and Clause 12B - Fares and Travelling - plumbers only.
This clause of the award also applies to the applicant. The subclause states that the loading prescribed applies to proportionate leave on termination. In my opinion, the combined effect of Clauses 22(7)(b) and 22(4) of the award is that the applicant ought to have been paid 17.5% of the amount owed under Clause 22(4), as I have calculated it, as a "leave loading". The amount of the annual leave payment under Clause 22(4) is, as set out above, $1800 gross. 17.5% of this is $315.
I am therefore satisfied that the respondent has not paid to the applicant the total sum of $2,115 which ought to have been paid to the applicant pursuant to the award.
I will therefore make an order that the respondent pay this amount to the applicant.
Mr Forde stated repeatedly during his evidence and while conducting the case for the respondent that he believed that he had paid to the applicant all that was due under his contact of employment. Having heard Mr Forde give evidence, I unreservedly accept this. I also accept that Mr Forde may find it difficult to understand that the respondent is required to pay these amounts to the applicant when I have found that neither Mr Forde nor the applicant specifically agreed to the applicant being paid holiday pay as part of his contract of employment. Indeed, Mr Forde would go so far as to say that the applicant specifically agreed that he was not going to be paid holiday pay. However, one cannot contract out of the specific requirements of an award other than in accordance with the law. In this case there has been no contracting out of the provisions of the relevant award as permitted by the law. As a majority of the High Court said in Byrne and Frew v Australian Airlines Ltd (1995) 131 ALR 422, generally a right to the payment of the benefits set out in an award is imported by statute into the relevant contract of employment (page 426); and, although this comment was made about a Commonwealth and not a WA State award (see page 435), the same comment would be valid under WA Industrial Law; see Section 1141 of the Industrial Relations Act (WA)1979 (as amended). For this reason, therefore, the award applies and the respondent was in breach of it for failing to pay the applicant the amounts referred to above. The situation may have been different if there had been a Workplace Agreement in force under the Workplace Agreements Act 1993; see Section 114(3) and 7(e) of the Industrial Relations Act (WA)1979 (as amended).
As stated earlier, I accept that there was no deliberate breach of the award by the respondent.
I will make an order that the amounts ordered to be paid to the applicant by the respondent be paid within 21 days of the date of the order.
I certify that this and the preceding twenty (20) pages
are a true copy of the reasons for decision of
Judicial Registrar Ritter.
Associate:
Date:
APPEARANCES
Counsel for the applicant:  Ms D Peters
Solicitors for the applicant:  Peter J Griffin & Co
The Respondent was represented by       Mr K Forde.
Dates of Hearing:  15 April 1996
Date of Judgment:   16 July 1996