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Industrial Gazette PUBLISHED by AUTHORITY 1869 Western Australian Industrial Gazette PUBLISHED BY AUTHORITY Sub-Part 7 WEDNESDAY 28 NOVEMBER, 2012 Vol. 92—Part 2 THE mode of citation of this volume of the Western Australian Industrial Gazette will be as follows:— 92 W.A.I.G. CUMULATIVE CONTENTS AND DIGEST APPEAR AT THE END OF THIS PUBLICATION FULL BENCH—Appeals against decision of Commission— 2012 WAIRC 00988 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES TREVOR DAVID HOFFMAN APPELLANT -and- PERTH MOBILE GP SERVICES LTD ACN 129 336 803 RESPONDENT CORAM FULL BENCH THE HONOURABLE J H SMITH, ACTING PRESIDENT CHIEF COMMISSIONER A R BEECH COMMISSIONER S J KENNER DATE WEDNESDAY, 7 NOVEMBER 2012 FILE NO/S FBA 6 OF 2012 CITATION NO. 2012 WAIRC 00988 Result Discontinued by leave Order WHEREAS on 27 September 2012, the appellant filed a notice of appeal to the Full Bench; and WHEREAS on 31 October 2012, the appellant by email advised that he wished to discontinue the appeal; and WHEREAS on 2 November 2012, the respondent’s agent informed the Full Bench by email that the respondent consented to the appeal being discontinued; NOW THEREFORE, the Full Bench pursuant to the powers conferred on it under the Industrial Relations Act 1979 and the Industrial Relations Commission Regulations 2005 reg 103A, hereby orders — THAT the appeal be and is hereby discontinued by leave. By the Full Bench (Sgd.) J H SMITH, [L.S.] Acting President. 1870 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 92 W.A.I.G. 2012 WAIRC 00966 APPEAL AGAINST A DECISION OF THE COMMISION GIVEN ON 30 MARCH 2012 IN MATTER NO B 195 OF 2010 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION FULL BENCH CITATION : 2012 WAIRC 00966 CORAM : THE HONOURABLE J H SMITH, ACTING PRESIDENT ACTING SENIOR COMMISSIONER P E SCOTT COMMISSIONER S M MAYMAN HEARD : WEDNESDAY, 29 AUGUST 2012 DELIVERED : THURSDAY, 1 NOVEMBER 2012 FILE NO. : FBA 2 OF 2012 BETWEEN : THE STATE SCHOOL TEACHERS' UNION OF W.A. (INCORPORATED) Appellant AND KEN DAVIS Respondent ON APPEAL FROM: Jurisdiction : Western Australian Industrial Relations Commission Coram : Commissioner S J Kenner Citation : [2012] WAIRC 00189; (2012) 92 WAIG 462 File No : B 195 of 2010 CatchWords : Industrial Law (WA) - contractual benefits claim - fixed term contract - implication of terms - 'business efficacy test' - custom and practice - principles to be applied when interpreting contracts considered - contract to vary found - appellant demonstrated error but no error found in the construction of the effect of terms of the varied contract of employment of the respondent Legislation : Industrial Relations Act 1979 (WA) s 29(1)(b)(ii). Result : Appeal dismissed Representation: Counsel: Appellant : Mr R Hooker and Mr S Millman Respondent : Mr M Cox and Mr J Hulmes Solicitors: Appellant : Slater & Gordon Respondent : MDC Legal Case(s) referred to in reasons: Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; (1973) 129 CLR 99 BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1981-1982) 149 CLR 337 Commissioner of Taxation of the Commonwealth of Australia v Sara Lee Household & Body Care (Australia) Pty Ltd [2000] HCA 35; (2000) 201 CLR 520 Commonwealth of Australia v Crothall Hospital Services (Aust) Ltd (1981) 36 ALR 567 Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1985-1986) 160 CLR 226 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2011] FCA 1294 Currie v Misa (1875) LR 10 Ex 153 Heimann v The Commonwealth (1938) 38 SR (NSW) 691 Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 92 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1871 Hughes v St Barbara Ltd [2011] WASCA 234 Kucks v CSR Ltd (1996) 66 IR 182 Lee v GEC Plessey Telecommunications [1993] IRLR 383 Meek v Port of London Authority [1918] 2 Ch 96 Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451 Ryan v Textile Clothing & Footwear Union Australia (1996) 130 FLR 313 Stirnemann v Kaza Investments Pty Ltd [2011] SASCFC 77 The Metropolitan Gas Co v The Federated Gas Employees' Industrial Union (1925) 35 CLR 449 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 Western Export Services Inc v Jireh International Pty Ltd [2011] HCA 45; (2011) 282 ALR 604 Case(s) also cited: Casella v Hewitt [2008] WASCA 13 (12 February 2008) CFMEU v John Holland Pty Ltd [2010] FCAFC 90 Finance Facilities Pty Ltd v Federal Commissioner of Taxation [1971] HCA 12; (1971) 127 CLR 106 Gallotti v Argyle Diamond Mines Pty Ltd [2003] WASCA 166 Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd (2006) 156 FCR 1 Matthews v Cool or Cosy Pty Ltd [2004] WASCA 114 McCourt v Cranston [2012] WASCA 60 Perth Finishing College Pty Ltd v Watts (1989) 69 WAIG 2307 Royal Botanic Gardens Trust v South Sydney City Council (2002) 240 CLR 45 Reasons for Decision SMITH AP: Background 1 Until October 2005, Mr Davis, the respondent to the appeal, was a permanent teacher employed by the Department of Education of Western Australia. In October 2005, he took leave to take up a short-term position with the appellant, The State School Teachers' Union of WA (Incorporated) (SSTU). In January 2007, Mr Davis was appointed by the SSTU as a field officer for a four year fixed term. The central issue in this appeal is whether at the expiration of the fixed term the SSTU was obliged, at law, to offer Mr Davis a further contract for a four year fixed term. 2 When Mr Davis was appointed as a field officer, the terms of his contract of employment were set out in a short letter dated 25 January 2007, signed on behalf of the SSTU by Mr David Kelly, who was at that time the general secretary of the SSTU. Mr Davis also signed the letter. The express terms of contract set out in the letter were: (a) The period of the contract was to commence on 15 January 2007 to 15 January 2011. (b) The salary was $73,862 Year 2, of the current Conditions of Employment Agreement – for Officers of the SSTU dated 16 September 2005 (the Conditions of Employment Agreement). (c) The normal hours of employment were 37½ hours per week. (d) All other conditions of employment were in the Conditions of Employment Agreement. 3 The Conditions of Employment Agreement was enclosed with the letter dated 25 January 2007. The Conditions of Employment Agreement was executed on 16 September 2005 on behalf of the officers of the SSTU by Mr Kelly and on behalf of the representatives of the officers of the SSTU by Mr C C Sharpe. It is a comprehensive document containing 40 clauses and three appendices. The document follows the form and contains the types of conditions which are usually found in industrial agreements registered by the Commission that apply to employees in the public sector. The terms of the Conditions of Employment Agreement are expressed to 'apply and be binding upon the SSTU and the officers employed by it'. 'Officers' are defined in cl 5.3 to include a number of categories of officers employed by the SSTU, including field officers who are industrial officers. However, the Conditions of Employment Agreement is not a registered agreement, so it has no statutory force. Consequently, it only had force and effect in the law of contract as it was incorporated as an express term into Mr Davis' contract of employment. 4 It is common ground that the terms of the Conditions of Employment Agreement were express terms of the contract of employment of Mr Davis and that his position as a field officer was an industrial staff position. Although Mr Davis' contract of employment was for a maximum term of four years, the Conditions of Employment Agreement contained a provision which contemplated one offer of a further four year term could be made. This provision was contained in appendix 2 of the Conditions of Employment Agreement which provided as follows: Contract appointments to the Union for Industrial Staff are on a four (4) year basis which Executive may renew for one (1) further 4 years contract without the requirement of declaring the position vacant and going to advertisement. 5 Prior to the appointment of Mr Davis in 2007, a dispute arose towards the end of 2006 between the SSTU and industrial officers employed by the SSTU about the renewal of fixed term contracts. At that time, the contracts of three industrial 1872 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 92 W.A.I.G. officers were about to expire. As a result of the dispute, negotiations took place between representatives of the industrial staff and the SSTU. After some months an agreed process for the renewal of contracts under appendix 2 was reached. 6 Mr Davis' contract as a field officer was to expire in January 2011. In early October 2010, Mr Davis was informed that his appointment would not be renewed and his contract came to an end in January 2011. 7 Mr Davis brought an application before the Commission under s 29(1)(b)(ii) of the Industrial Relations Act 1979 (WA) (the Act) claiming that he had been denied a contractual entitlement. His claim is that he should have been re-appointed for a further four year term pursuant to the terms of the agreed process and by not doing so, the SSTU breached the terms of his employment contract. The effect of the terms of agreed process and whether it applied to Mr Davis' contract of employment was a critical issue in the proceedings at first instance before the Commission.
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