Armando La Guidara v Antonino Tripolitano [2001] WAIRComm 4155 (1 November 2001)

CITATION NO. 2001 WAIRC 04155

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1. The abovenamed appellant, Mr Armando La Guidara was the complainant in proceedings in the Industrial Magistrate's Court at Perth, which were heard on 19 and 26 April 2001 and determined in that Court on 17 May 2001, wherein the Industrial Magistrate, having heard a submission of no case to answer on behalf of the defendant, the abovenamed respondent, who called no evidence, dismissed the complaint.
2. The complaint alleged various breaches of the Building Trades (Construction) Award 1987 (No R17 of 1978) (hereinafter referred to as "the award"). Mr La Guidara now appeals against the order dismissing the complaint.
3. There was no order as to costs and that part of the decision is not appealed against.

1. The appeal is made pursuant to s.84 of the Industrial Relations Act 1979 (as amended) (hereinafter referred to as "the Act") against that decision, on the following grounds, as amended:-

"The appellant seeks that the decision to dismiss the complaint before the Court be quashed, and that the original complaint be referred to the Industrial Magistrates Court for determination, save and except the finding that the complainant was an employee of the defendant, and that the complainant was employed in a calling to which the Award relates.

Grounds upon which the appeal is lodged are as follows;

1. His Worship erred by failing to acknowledge the Scope clause of the Award insofar as it states on whom the award shall apply, namely all employees, and all apprentices, and to the employers employing those employees and/or apprentices.

2. His Worship erred by finding clause 45(1) reduced the scope of the Award to eliminate a Junior over the age of 16 years engaged without the consent of the Union from a right to employment in the Industry under the Award.

3. His Worship erroneously found that the Unions consent was a precondition to the complainants employment under the award, and then finding that does not prevent the employment of a junior but rather regulates their employment.

4. His Worship erroneously found that the unions consent was a precondition to the complainants employment under the Award at all.

5. His Worship paid insufficient regard to the fact that the complainant was born on March 7th 1980, and became an adult at law during the periods of his employment.

6. His Worship paid insufficient regard to the fact that the complainant was initially engaged to be an apprentice when the consent of the union is not a precondition of employment under the award, regardless of age.

7. His Worship erred by not finding the award had application to the complainant at least from March 7th 1998, when clause 45 (1) of the Award became redundant owing to the complainant becoming an adult at law.

8. His Worship erroneously found that a full time employee under the Award is engaged on an hourly basis.

9. His Worship erred by finding clause 8(1), 8(4) and 35 suggests that employees be paid for only the hours worked.

10. His Worship applied insufficient weight to the evidence that the defendant determined that work would not be provided to the complainant nor payment in lieu when the defendant wished to attend to his own social activities such as tennis matches and annual leave.

11. His Worship erred by finding the complainant must establish that he worked 38 hours in any given 5 consecutive days of work to claim 38 hours pay for that full week.

13. His Worship erred by not placing sufficient weight on the evidence that the complainant was only paid for actual days of work performed.

14. His Worship failed to acknowledge the the (sic) 20th day in a 4 week cycle is a Rostered Day Off with Pay in accordance with the award.

15. His Worship placed insufficient weight on the fact that the complainant attended for work but was denied work on several occasions, was not paid for such days, and erred by finding there was a need for proof of working hours to be entitled to pay, contrary to clause 35.

17. His Worship failed to apply appropriate weight to evidence of the number of days and the days actually worked by the complainant, established from Bank and Taxation records.

18. His Worship failed to apply sufficient weight on the evidence of Brown which rationilised (sic) the evidence given by the complainant in relation to exhibits 1, 3 and 4.

19. His Worship erred by failing to find that an employee is entitled to 8 hours of employment or payment in lieu, and only in specified circumstances is there an entitlement to deduct pay for non working time.

20. His Worship erred by failing to find the complainant was entitled to annual leave either under the terms of the Award or the Minimum Conditions of employment Act, notwithstanding evidence of completed weeks of work.

21. His Worship erred by failing to find the complainant was entitled to be paid for days when no work was performed owing to the observance of a Public Holiday either under the Award or the Minimum Conditions of Employment Act.

22. His Worship erred by failing to find an employee engaged on weekend work, work on RDO's and work on Public Holidays is entitled to a minimum number of hours of work or pay at the relevant rate.

23. His Worship erred by not finding that daily fares are an award entitlement for each day or part thereof worked, and for RDO's taken, as well as days when or attending and not required, notwithstanding the evidence of being paid only for days on which work was actually performed.

25. His Worship erred by not finding the complainant was entitled to appropriate notice or payment in lieu on each occasion continuous employment was broken by the employer giving notice of no work being available after the commencement of employment on the day preceding the termination.

26. His Worship erred by finding the complainant was not entitled to severance pay."

1. Mr La Guidara was employed by the respondent from April 1997 to February 2000 as an assistant to a building tradesman and was paid at various rates of pay. Mr La Guidara claimed that he was not paid a total amount of $46,338.28, being amounts which the respondent failed to pay to him, in breach of various clauses of the award. In fact, the claims which he made, summarised, were as follows:-

• entitled to adult rates of pay for the period 1 July 1997 until termination.
• not paid in accordance with the award as a full time employee but was paid a lesser amount for each day worked over the period of continuous service.
• not paid as a casual and was not paid the appropriate minimum weekly rate for each week worked.
• not provided with annual leave and loading.
• not paid accrued annual leave upon termination.
• not paid for public holidays not worked.
• not paid the appropriate rate for public holidays worked.
• not paid the appropriate rate for weekends worked.
• not paid fares and travel allowance.
• not paid severance pay.
• not given the appropriate superannuation contribution.
• not given the appropriate payment in lieu of notice."

(See pages 21-22 of the appeal book (hereinafter referred to as "AB").)

1. The respondent maintained that there was no employment relationship. The learned Industrial Magistrate found that there was an employment relationship and that finding was not in issue upon this appeal.
2. Further and alternatively, the respondent made the following allegations that Mr La Guidara was:-

• not engaged to perform work described by the terms of the award.
• not performing the work of a labourer assisting a tradesperson in the work of tiling on construction work.
• not entitled to adult rates of pay.
• not entitled to be paid as a full time employee.
• not entitled to be paid the minimum weekly rate for each week worked.
• not entitled to annual leave and loading and had no accrued leave on termination.
• not entitled to be paid for public holidays not worked.
• not entitled to be paid for public holidays allegedly worked.
• not entitled to reasonable pay in lieu of notice.
• not entitled to severance pay.
• not entitled to have superannuation contributions made."

1. The respondent also relied on Clause 45(1) of the award and s.5 of the Minimum Conditions of Employment Act 1993 (hereinafter referred to as "the MCE Act").

1. In about April 1997, when Mr La Guidara was aged 16 years old and was about to turn 17 years old, he was unemployed, having left his previous employment as a tiler's labourer, in which capacity he was employed for about one year. He wished to be employed and his parents wished him to enter into a tiling apprenticeship. His parents contacted the respondent, who comes from the same town in Italy as Mr La Guidara's mother. They asked the respondent to take their son on as an apprentice. The respondent agreed to take Mr La Guidara on trial for a two week period to assess his suitability as an apprentice. That trial period was successfully completed and the respondent agreed to take on Mr La Guidara as an apprentice and to obtain the necessary documents for execution to bring the apprenticeship into being. However, the respondent never did and no apprenticeship was ever entered into.
2. The undisputed evidence was that Mr La Guidara worked for the respondent on a weekly basis and that his only time off work was when he was sick or when the respondent was away on holidays. The work carried out by Mr La Guidara was the same work which he had carried out in his previous employment. The work was carried out at private houses, at houses under construction and other premises.
3. On some occasions, when Mr La Guidara presented himself at the respondent's home to go to work, he was told that there was no work available and would have to return home. He started work at 7.00 am and sometimes earlier at 6.00 am. When he started early, he finished at 2.30 pm, but later if he started at 7.00 am. He was absent from work a couple of times due to illness, but received no pay for sick leave.
4. Mr La Guidara was unable to recall whether he worked less than 8 hours on any day. He worked Mondays to Fridays and sometimes on weekends as well. He worked on some public holidays, but not all. He worked always under the control and direction of the respondent, never alone on site and he never laid tiles.
5. He was paid by cheque into his bank account, not always on time and sometimes a week late. Superannuation payments were made. Tax was deducted from the wages paid to him, but he was informed that the deductions were calculated on the wrong basis.
6. Mr La Guidara was clearly unable to remember when various breaks from work occurred, nor the days on which he was sick and off work. He was unable to testify to the number of hours which he worked on any one day, saying that he worked eight hours per day for over half the time and less than eight hours per day for a quarter of the time. He was unable to identify which Saturdays or Sundays he worked or how many hours which he worked on the weekend; nor could he identify which public holidays he worked.

1. The submission by the respondent, the defendant at first instance, to the Industrial Magistrate at first instance was that Mr La Guidara had not proved that:-

(b) He was employed in a calling to which the award applied;

(c) He was employed without the consent of the union;

(d) He was entitled to specific benefits under the award; and

1. The learned Industrial Magistrate, having heard the evidence of Mr La Guidara and his father, Mr Carmelo La Guidara, as well as Mr Brown, the agent for the appellant, as to certain calculations of wages and amounts not paid, in deciding that there was no case to answer, made the following findings:-

(b) That the work performed by Mr La Guidara was that of a labourer assisting a tradesman.

(c) That, notwithstanding the "validity" of Clause 45(1) of the award, the employee's claim could not succeed because of the failure to call evidence of the union's consent to the employment, given that the claim was entirely based on Clause 45(1) .

(d) That the requirement of the union's consent as a condition precedent to his employment under the award was not a condition of employment and was not affected by the MCE Act.

(e) That no "benefits" had proven to be due under the award.

1. The learned Industrial Magistrate found no merit in a number of submissions. He found that it was unnecessary for him to consider whether the complaint fell within the calling of "plasterer's labourer".
2. The learned Industrial Magistrate found significantly, too, that three months after the beginning of the employment relationship, the respondent made it clear that Mr La Guidara would not be taken on as an apprentice and that he would continue to work as a labourer, a position which was reluctantly accepted. The relationship changed at that point in time, in or about July 1997. Even then, neither party saw Mr La Guidara as being an apprentice.
3. The learned Industrial Magistrate also found that Clause 45 of the award was neither illegal nor discriminatory.

(1) Except as provided in subclauses (2)-(9) inclusive hereof, the employment of junior employees (except apprentices) on any work which, if performed by an adult employee, would be subject to the provisions of this award is prohibited unless the consent of the union is in each case first obtained. If any junior employee (except an apprentice) is so employed such employee shall be paid not less than the rate of pay of an adult performing similar work.

(2) A junior employee employed on work for which an apprenticeship is provided for in this award and who is not registered as a probationer pursuant to regulation 6 of the Industrial Training Act Regulations, shall be paid not less than the wage prescribed in Clause 8 of this award for an adult employee performing similar work.

(3) Junior employees may be employed as roof tile fixers in the proportion of 2 juniors to 1 adult employee.

(4) (a) A junior employee employed as a roof tile fixer shall, upon attaining the age of 20 years, be classed as an improver and be paid as such, provided that the time worked prior to his 20th birthday shall be counted as time worked as an improver.

(b) Notwithstanding subclause (a) hereof, after 3 years service a junior employee may request a trade test and if he passes shall receive full adult rates.

(5) An employee commencing in the industry after his 20th birthday shall be classed as an improver and shall be paid as provided in subclause (7) hereof, provided that after 2 years service an improver may request a trade test and if he passes shall receive full adult rates.

(6) (a) The ordinary rates of pay to be paid to junior employees shall be in accordance with the percentages set out below applied to the sum of the tradesperson's weekly rate set out in Clause 8(2)(a) and the appropriate special allowance prescribed in 8(5).

Where a junior employee works in circumstances which would entitle a tradesperson to the industry allowance prescribed in Clause 8(3) the following extra rates, expressed as a percentage of that industry allowance, shall be paid.

(7) The ordinary rates of pay to be paid to improvers shall be in accordance with the percentages set out below applied to the sum of the tradesperson's weekly rate set out in Clause 8(2)(a) - Rates of Pay and the appropriate special allowance set out in Clause 8(5).

(8) Where an improver works in circumstances which would entitle a tradesperson to the industry allowance prescribed in Clause 8(3) the following extra rates, expressed as a percentage of that industry allowance shall be paid.

(9) A tool allowance of one-third of the amount payable to a tradesperson shall be paid to a junior employee or improver in that trade of his first year of service and of two-thirds of that amount in his second year of service and of the same amount as is payable to a tradesperson in the remaining period of his service as a junior employee or improver."

1. The learned Industrial Magistrate found that, for Mr La Guidara to succeed in his claim, namely that he be paid adult rates of pay pursuant to Clause 45(1) of the award, he must prove as an essential pre-requisite that he was employed without the consent of the union. The Industrial Magistrate found that Clause 45(1) prohibits the employment of junior workers unless the consent of the union has been first obtained.
2. The clause does not "absolutely prohibit" the employment of junior workers, but rather requires that the pre-requisite consent of the union be first obtained. In that regard, the clause is neither discriminatory or illegal, as it does not prevent the employment of junior workers, but rather regulates their employment.
3. If the consent of the union is given, then such junior workers can be employed and are to be paid at adult rates.
4. The second sentence of the clause cannot be read as a default provision, permitting the payment of adult rates regardless of whether the union's consent has been obtained. The plain words of Clause 45(1) of the award, read in the context of the whole of Clause 45, say otherwise. This is because Clause 8 of the award refers expressly to adult workers. Clause 45(1) enables junior workers to be paid the same rate of pay as an adult performing similar work. There is no provision for junior wages. Evidence should have been called to prove consent and it was not.
5. The learned Industrial Magistrate also found that Clause 45(1) of the award is not rendered invalid by s.5 of the MCE Act.

Lack of Evidence to prove Breach and Underpayment

1. The learned Industrial Magistrate also found that there was no sufficient evidence that Mr La Guidara worked the hours which he said he had worked or which enabled him to say that he was entitled to be paid the money which he claimed as not being paid. He found that Mr Brown's evidence was not evidence going to proof of these matters.
2. The learned Industrial Magistrate, in the end, found that Mr La Guidara could not establish, on the balance of probabilities, that the award applied to his employment by the respondent. He further found that, even if that could be established, Mr La Guidara had failed to produce evidence to establish that he was entitled to adult rates of pay or other specific benefits under the award and, further, that he did not receive the benefits to which he was entitled.

1. I wish first to observe that the decision by the Industrial Court which was appealed against was not a discretionary decision, as that is defined in Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 and Coal and Allied Operations Pty Ltd v AIRC [2000] HCA 47; (2000) 74 ALJR 1348 (HC); nor is it, nor should it be, equated to a claim for contractual benefits under s.29(1)(b)(ii) of the Act. I say that because there seemed to be some confusion about the first point in the submissions for the appellant, and also the risk that some confusion might arise by the use of the word "benefits" without my making that point.
2. This was not a matter heard by the Commission in its exercise of arbitral power, but an application pursuant to s.83 of the Act which is an application by which it is alleged that a person has (in this case) contravened or failed to comply with a provision of an award. There is a concomitant power in proceedings brought under s.83 of the Act where there is alleged (and established) a breach of an award to order to be paid to an employee the amount which he was entitled to be paid and which he was not paid.
3. However, the nature of the proceedings are enforcement proceedings in which a penalty is sought because of the breach of an award and it is for a complainant to establish all of those elements which are necessary to prove the breach of the award which the appellant alleges.

1. A primary question in this matter was the effect of the award and, particularly, Clause 45. It was not in dispute that, at the material times, Mr La Guidara was a junior worker, subject to Clause 45, engaged in the building industry. An award must be interpreted as a legal document (see Norwest Beef Industry Ltd and Derby Meat Processing Co Ltd v AMIEU 64 WAIG 2124 (IAC)).
2. I therefore propose to attribute to the words of the award their natural meaning, unless to do so would lead to absurdity or ambiguity, or would lead to an interpretation inconsistent with the meaning of the award, read as a whole. Clause 45(1) must be read in the context of the whole of Clause 45 and of the award.
3. The scope clause, Clause 3 of the award, applies to apprentices, to those employed in the construction industry, as defined. Clause 3 of the award does not operate to negative Clause 45. It does not, as Clause 45(1) does, prescribe when junior employees may be employed on adult rates. The scope clause prescribes, inter alia, what the industry is. Clause 45(1) of the award forbids the employment of junior persons in the industry in adult work without the union's consent. There is no conflict between the two.
4. Clause 45(1) prescribes, except as prescribed in Clause 45(2) to (9), that the employment of junior employees (except apprentices) on any work which, if performed by an adult employee, would be subject to the provisions of the award, is prohibited. However, it is plainly not prohibited where the consent of the union is obtained to employ. The obtaining of such consent is a condition precedent to such employment being permitted. Otherwise, such employment cannot be entered into.
5. Junior employees (but not apprentices), if so employed, however, shall not be paid less than the rate of pay of an adult performing similar work. Clause 45(6)(a) and (b) of the award prescribe a separate set of rates applicable to junior employees. Therefore, there is one set of rates of pay applicable to junior employees and one set applicable to adults.
6. By reading the whole of Clause 45 of the award, one can ascertain, by reference to wage rates prescribed for employees from 16 years to 20 years and over, that a junior employee is one aged under 21 years.

(a) Mr La Guidara was a junior employee of the respondent at all times.

(d) That he was, at all times, employed doing the work of a tiler's labourer which, put at best for him, was work covered by Clause 7(10) of the award; although the application of that clause is not certain.

(e) That the work which he was employed to do was probably adult work under the award, payable at adult rates. (If it was not work under the award, he was not entitled to award rates.)

(f) That there was no evidence that Mr La Guidara was employed to do that work with the consent of the union; and it was essential that he prove that that consent had been obtained pursuant to Clause 45(1) of the award.

(g) There was no evidence, therefore, that his employment was not in breach of the award.

(h) Since there was no evidence of consent of the union, the learned Industrial Magistrate could not find that he had any right to be employed and was required to find that it was not proven that the award and its prescribed benefits applied to his employment.

1. Indeed, his employment was in breach of the award, but that does not mean that he was entitled to be paid adult rates under the award because the requisite consent of the union was not proven to have been given. Further, since he was employed contrary to the award, the breaches alleged and the consequent underpayment claims were incompetent.
2. It is trite to observe that the onus lay on the appellant to prove every element of the complaints. There was no proof that he was entitled under the award to be paid adult rates, in the absence of the requisite union consent alone.
3. Accordingly, the Industrial Magistrate did not err in dismissing the complaints for that reason.

1. There was at first instance and before the Full Bench an attempt to say, as I understand the submission, that Clause 45 of the award was null and void because it was discriminatory. It was not submitted to the Full Bench what statutory provision or other law rendered Clause 45 null and void or otherwise inoperative.
2. Further, although the question of the operation of s.34 of the Act was raised with Mr Brown for the appellant, he made no submission that the questioning of the validity or legality of an award of the Commission was being done in a manner prohibited by s.34(4).
3. S.34(4) of the Act reads as follows:-

"Except as provided by this Act, no award, order, declaration, finding, or proceeding of the President, the Full Bench, or the Commission shall be liable to be challenged, appealed against, reviewed, quashed, or called in question by any court on any account whatsoever."

1. The terms of s.34(4) plainly prohibit and prohibited this sort of submission being made at first instance or before the Full Bench. In any event, it is not clear, even if I were wrong in taking that view, what would be the effect of any other overweening legislation or law. Severance would not, on the face of it, be possible.
2. I also agree with the Industrial Magistrate's observation that Clause 45(1) of the award does not prohibit the employment of junior employees, as I have observed above. What it does is to prevent certain persons who are junior employees being employed to do work at the rate of adult employees under the award, without the union's consent. In other words, it does not enable junior employees to be employed in lieu of adults without consent.
3. Given that Clause 45(6)(a) and (b) of the award prescribed rates particular to junior employees, that is quite within the scheme of Clause 45.
4. For all of those reasons, there was no establishment at first instance or before the Full Bench that Clause 45, read as a whole, contained any illegal or discriminatory provisions. Indeed, I do not understand what, for the purposes of this appeal, was meant by "illegal" in this context.

1. I turn now to what was called the question of proof of breaches, although the question of the application of Clause 45(1) of the award as an essential part of what was required to be proved. Indeed, the complaint fell on the sole factor of the failure to prove union's consent of Mr La Guidara's employment.
2. The evidence of breach required is evidence that Mr La Guidara, in relation to wages, worked on certain days and for certain hours and was not paid what the award required him to be paid.
3. Alternatively, where the requirement of the award was that certain events occur or certain acts be done before there was an obligation on the employer to comply with certain clauses and pay certain amounts, it was necessary to prove that those events had occurred and the conditions precedent to payment prescribed in the award had been complied with.
4. In the submissions made by Mr Brown, Mr La Guidara maintained that he was entitled to be paid for 38 hours per week, whether he worked or not. He relied on Clause 13 of the award. Clause 13 prescribes the ordinary hours to be worked which shall be 38 hours per week, in the prescribed provisions for a four week cycle, Monday to Friday inclusive, with 19 days of eight hours each between the hours of 7.00 am and 6.00 pm.
5. It was submitted to the learned Industrial Magistrate that, on a proper reading of Clause 8(1), 8(4) and 35 of the award, an employee is entitled to be paid only for the hours worked. In my opinion, Clause 8(1), read with Clause 8(4), Clause 13 and Clause 35, leads to the conclusion, on a fair reading, that Mr La Guidara had to work 38 hours in any given five consecutive days of work in order to claim 38 hours pay for the full week.
6. Exceptions to these arise in the case of inclement weather (see Clause 19 of the award), in very limited circumstances, and in the case of work not being available when the employee presents for work.
7. The evidence which was before His Worship did not establish what days were worked or the hours worked on any given day. There was evidence about a general pattern of hours worked, but it was quite insufficient to establish when Mr La Guidara worked the hours he worked or, most significantly, that he worked 38 hours in any week or, more particularly, 38 hours in any given five consecutive days.
8. Mr La Guidara claimed that, where he worked less than five days in any given week, he was entitled to be paid casual rates. I would, first of all, say that, if his inability to work was due to work not being available when he presented himself, then there was provision for payments and the lack of availability of work did not make him a casual employee.

Minimum Conditions of Employment Act 1993

1. The requirement of the union's consent before a person can employ a junior worker and pay that junior worker adult wages simply does not fall within the definition of a "minimum condition of employment", as defined in s.3(1) of the MCE Act. "Minimum condition of employment" is defined as follows:-

"(a) a rate of pay, or other requirement as to pay, prescribed by this Act;

(b) a condition for leave prescribed by this Act; or

1. Clause 45(1) (and Clause 45 itself) of the award is not a rate of pay prescribed by the MCE Act; it is not a condition for leave prescribed by the MCE Act; it is not a condition prescribed by Part 5 of the MCE Act. The learned Industrial Magistrate was correct to so find.

Age of Majority Act 1972

1. This Act prescribed, by s.5, the age of majority as eighteen years. The Act, by express prescription (see s.5(7)) does not apply to affect the construction of any industrial award , order, termination or agreement and does not, therefore affect the subject award.

1. This was a matter where an application for costs in the event of dismissal of the appeal as made in the submissions for the respondent. That application, made before the appeal is decided, is incompetent.
2. However, I would add, in the hope of assisting the parties, that unless an application for costs contained more cogent argument than that put on behalf of the respondent in this matter, I would make no order.
3. The appellant did not succeed, but the case for the appellant, as my reasons demonstrate, was not so obviously untenable that it would not possible succeed, nor was it manifestly groundless, nor was there no possibility evident at the outset that there could not be a good cause of action (see Brailey v Mendex Pty Ltd trading as Mair and Co Maylands 73 WAIG 26 (FB)).
4. Within the meaning of s.84(3) of the Act, on what has been submitted, there was nothing on which the Full Bench could find that costs might be awarded of the appeal because the Full Bench could not reach the opinion that the appeal has been frivolously or vexatiously instituted.
5. As I say, such an application for costs can still be made, heard and determined, as I would order, provided that notice in writing of such application, supported by written submissions, is given within 48 hours of the delivery of this decision herein. I do note that the parties had submitted their arguments as if a competent application for costs had been made. That is a matter for the respondent, however.

1. I have considered all of the evidence and all of the relevant material and submissions. The learned Industrial Magistrate was correct.
2. For all of those reasons, no ground of appeal is made out, the appeal is not made out and I would dismiss it.

1. I have read the reasons for decision of His Honour the President. I agree with those reasons and have nothing to add.

1. I have read the reasons for decision of His Honour the President. I agree with those reasons and have nothing to add.