Western australian industrial relations commission

Submissions – Exclusive jurisdiction of the Industrial Magistrate's Court

74. 
    It is pointed out on behalf of the Director General that in cognizance of the exclusive jurisdiction of the Industrial Magistrate's Court under s 83 of the Act, the Commission has long held that if the 'essential' nature of the proceedings before it is for enforcement of an industrial instrument then the Commission may not exercise its jurisdiction in relation to the matter: Crewe and Sons (2626).
    
75. 
    It is also pointed out on behalf of the Director General that the cases on point were decided prior to 1992 when the Industrial Magistrate's Court's powers of 'enforcement' were limited. In 2002, by s 155 of the Labour Relations Reform Act 2002 (Act No 20 of 2002) (WA), a new s 83 was inserted in the Act. This s 83 included s 83(5) and s 83(8) which provide as follows:
    

(8) A person shall comply with an order made against him or her under subsection (5).

76. 
    The Director General argues that s 83(5) and s 83(8) of the Act give the Industrial Magistrate's Court true 'enforcement' powers.
    
77. 
    In J-Corp Pty Ltd v The Australian Builders’ Labourers’ Federated Union of Workers, Western Australian Branch (1993) 73 WAIG 1185 the Full Bench made the following point in relation to s 83 as it stood at that time (1188):
    

78. 
    It is also submitted that whilst Crewe and Sons correctly directs attention to the essential nature of the proceedings before the Commission, in considering whether or not the proceedings were appropriately characterised as proceedings for enforcement, the decided cases dealt with a different s 83 and a s 83 which made it easier to say, in relation to the proceedings before the Commission, that the proceedings were not, by their essential nature, proceedings for enforcement.
    
79. 
    It is said that prior to 2002 that so long as the proceedings did not actually seek the payment of money said to be owed under an industrial instrument, it was open to the Commission to find that the proceedings were not proceedings for enforcement, because the Industrial Magistrate's Court, save in relation to the payment of money owed under an industrial instrument, had no powers of enforcement.
    
80. 
    Counsel on behalf of the Director General also made a submission that is critical of the decision of the Full Bench in St Michael’s School v The Independent Schools Salaried Officers’ Association of Western Australia, Industrial Union of Workers [2000] WAIRC 00002; (2000) 80 WAIG 2839. In that matter the Full Bench applied the reasoning in Crewe and Sons. In St Michael’s School the parties were in dispute over a classification level within the Independent Schools Administrative and Technical Officers Award 1993 assigned to an employee for a period of time of over four years, given the nature of duties undertaken in the performance of the employee's employment at St Michael's School. The matter was referred to the Commission for hearing and determination under s 44(9) of the Act. The union in that matter sought an order that the employee be classified at level 4. The Commission at first instance held that the order sought by the union could not be said to be an enforcement of the award in the manner cited in Crewe and Sons and explained in J-Corp. The Full Bench unanimously found that the Commissioner correctly found that the order sought would not require St Michael's School to comply with its obligations under the award; nor was such an order sought. They also found the dispute concerned what classification should apply to the duties performed by the employee and the order would not, of itself, require the employer to pay her at that rate. In particular, the order would require that she be classified for the purposes of her employment under the award as a level 4 employee. The dispute was as to whether that was her classification [41].
    
81. 
    Counsel for the Director General made a submission that the Full Bench in St Michael’s School was wrong in finding that there was no attempt to enforce the award. It is argued that the Full Bench admitted to an intrusion upon the exclusive jurisdiction of the Industrial Magistrate's Court. This is because the Full Bench specifically contemplated that following an order made by the Commission to reclassify the employee, if she was not paid what a level 4 employee should be paid under the award in question in that matter the award would be enforceable in the Industrial Magistrate's Court pursuant to s 83 of the Act.
    
82. 
    In any event, the Director General contends that the situation since 2002 has been different and in deciding whether a matter is within the Commission's jurisdiction or should be properly before the Industrial Magistrate's Court, the Commission now needs to be cognizant of the wide enforcement powers of the Industrial Magistrate's Court in s 83(5) and s 83(8) of the Act.
    
83. 
    In this matter, the 2011 General Agreement provides for the position of 'untrained teacher' and provides a pay scale for remuneration for the position. The Director General says the essence of the case put by United Voice WA at first instance is that its member, Ms Spence, had been performing the duties of an 'untrained teacher', as that term appears in the 2011 General Agreement, for a long time and that accordingly the Commission should order the Director General to do what it could to have Ms Spence formally employed and paid as an untrained teacher under the 2011 General Agreement. Further, that it was unfair that Ms Spence had not been made an untrained teacher. In particular, she has not been employed under or paid in accordance with the 2011 General Agreement and the way this conduct is to stop is that the Commission must make a declaration that Ms Spence is in fact a teacher and should order the Department of Education to nominate her to the Teacher Registration Board as an untrained teacher.
    
84. 
    It is said the essential nature of the proceedings is set out in paragraphs (5), (9), (10), (14), (17) and (18) of the notice of application. These paragraphs provide as follows:
    

9. In Term 3, 2005, Ms Spence was engaged as an Untrained Swimming Teacher at Burbridge School for 0.8FTE to cover the absence of the substantive Untrained Swimming Teacher.

10. Since 2005, Ms Spence has continued to work, between 0.8FTE and 1FTE, as an Untrained Swimming Teacher at Burbridge School, notwithstanding the fact that she is classified and remunerated as a Level 3 Education Assistant.

14. Ms Spence is employed and paid as a Level 3 Education Assistant pursuant to the Education Assistant Agreement, despite the fact that she performs no duties of an Education Assistant and spends 100% of her work time performing the duties of a swimming teacher.

17. The rate of pay for a [sic] Untrained Teacher under the Teacher Agreement is between $44,481.00 and $69,907.00 per annum depending on years of service.

18. The rate of pay for a Level 3.3, Education Assistant pursuant to the Education Assistant Agreement is $25.91 per hour, which equates to $43,787.90 per annum.

85. 
    Thus, it is argued that the matters pleaded in these paragraphs show that what Ms Spence is complaining about is that she had been paid less than she should be and she wants the Commission to assist her to do something about that. Thus, the true nature of the application made by United Voice WA and the case at first instance is that, given Ms Spence has been carrying out the duties of an 'untrained teacher' under the 2011 General Agreement for so long, it would be unfair to not order the Director General to now do what it could to formally appoint her, and pay her the rates of pay specified for an 'untrained teacher' under the 2011 General Agreement.
    
86. 
    It is also argued that the case is not one of 'reclassification', in the sense that term is used in the Commission. A 'reclassification' application is one where the Commission is asked to determine whether, due to enhanced work value, a position should be reclassified. United Voice WA sought orders that were particular to Ms Spence and her employment with the Director General.
    
87. 
    Thus, the matter, properly characterised, was one for the enforcement of the 2011 General Agreement in relation to Ms Spence as United Voice WA sought a finding that the Director General had been acting in breach of the 2011 General Agreement in relation to Ms Spence. Therefore it can be said that United Voice WA sought an order 'for the purpose of preventing any further contravention or failure to comply with' the 2011 General Agreement, to use the language of or within the meaning of s 83(5) of the Act. That is, United Voice WA sought an order that the Director General support Ms Spence's registration as an 'untrained teacher' with the 'purpose' of 'preventing further contravention' of the 2011 General Agreement, which would be the result of the Director General having Ms Spence perform the work of an untrained teacher without paying her as such. Such matters are the exclusive reserve of the Industrial Magistrate's Court.
    
88. 
    It is also said that it is no answer to the principle in Crewe and Sons to say that no order for the payment of money or no specific order for enforcement is sought in the proceedings before the Commission. The principle in Crewe and Sons cannot be so easily avoided. The Commission is entitled to, and must, determine the 'essential' nature of the proceedings before it and having done this must decide whether those proceedings are appropriately before it or are within the exclusive jurisdiction of the Industrial Magistrate's Court.
    
89. 
    Where an employee has been performing duties under a particular industrial instrument, and not paid for those duties, and a remedy is sought to be granted against the employer to have the employee formally appointed under, and paid pursuant to, that industrial instrument this is essentially a matter of enforcement which can, and accordingly should, be dealt with by the Industrial Magistrate's Court. If the Commission gives full effect to s 83(3) of the Act it should not, in cases such as the present one, embark upon considering findings that could underpin enforcement proceedings in the Industrial Magistrate's Court and the Commissioner at first instance in this matter was correct to refrain from doing so.