Western Australian Industrial Relations Commission

Latest News

The Full Bench has dismissed an appeal against the decision of the Industrial Magistrate on the basis that the appeal had no merit and the appellant, who was previously registered as a medical practitioner, had not challenged any findings of fact made by the Industrial Magistrate at first instance.

At first instance, the Industrial Magistrates Court (IMC) dismissed the appellant’s claim that the respondent, the North Metropolitan Health Service Board, failed to comply with cl 20(5) of the Department of Health Medical Practitioners (Metropolitan Health Services) AMA Industrial Agreement (Agreement) in relation to a contract completion payment. The Industrial Magistrate concluded that on a proper construction of cl 20(5) of the Agreement, to meet cl 20(5), a “medical practitioner” must be registered under the Health Practitioners Regulation National Law (WA) Act 2010 (Act).

As at the time of the cessation of the appellant’s fixed term contract, Scaddan IM found that the appellant was not so registered, ready, willing, and able to seek a new contract of employment with the respondent. Therefore, he did not qualify for a contract completion payment under cl 20(5) of the Agreement.

The appellant’s grounds of appeal were that the IMC made errors in law and facts in reaching the decision and that essential facts of the situation with respect to the appellant’s qualifications were ignored. The appellant maintained that the actions of the respondent were not fair, and the respondent had contravened its duty of good faith under s 42C of the Act.

The Full Bench noted that the appellant did not identify any alleged ‘errors in law and facts’ asserted in the Notice of Appeal and made no attempt to state how it was that the IMC made errors in the interpretation of the Agreement.

On this basis, the Full Bench was not persuaded that the appeal had any merit. It considered that Scaddan IM’s reasoning as to the interpretation of cl 20(5) of the Agreement to be entirely correct and she had made no error of principle.

The appeal was dismissed.

The decision can be read here. 

The Industrial Magistrate has dismissed a claim for unpaid wages alleged to be owed under an oral contract of employment as the claimant was found not to be an ‘employee’ of the respondent for the purposes of the Fair Work Act 2009 (Cth) (FWA).

The claimant alleged he was employed by the respondent pursuant to an oral agreement to assist in providing business knowledge for the respondent’s new business and act as a salesperson at the store for an extended period.

The respondent denied the claim and argued that the claimant was never employed by the respondent, but was given a total of $5,500 by the business owner as a goodwill gesture for introducing a customer and providing advice on how to improve the business.

The Industrial Magistrate found, on examination of the evidence provided, there was no employment agreement, written or oral, between the claimant and respondent. Scaddan IM found, therefore, that the claimant was not an ‘employee’ pursuant to the FWA and the Industrial Magistrates Court does not have jurisdiction to make an order for payment of alleged unpaid wages.

Scaddan IM noted that the claimant’s evidence objectively showed that there was no intention to create legal relations between the parties involving the performance of work.

The claim was dismissed.

The decision can be read here.

The Commission has determined it has jurisdiction to hear the substantive claim of the applicant who claimed he had been denied a benefit for payments of a bonus under a previous contract of employment with the respondent.

The applicant’s initial contract, which had commenced in 2013 (2013 Contract), was terminated by agreement in 2017. The applicant and respondent then entered into a second contract in 2017 (2017 Contract), which did not include a term for bonus payment.  

At the termination of the applicant’s employment in 2019, the respondent denied the applicant’s request for bonus payments he submitted were due under the 2013 Contract.

The respondent objected to the Commission hearing on the basis that the applicant’s salary exceeded the prescribed amount found in s 29AA(5) of the Industrial Relations Act 1979 (WA) (Act). Section 29AA provides that the Commission must not determine a contractual benefit claim if the employee’s salary exceeds the prescribed amount.

The respondent also referred to reg 5(2) of the Industrial Relations (General) Regulations 1997 (WA) (Regulations), which sets out the method for calculating an employee’s salary for the purposes of s 29AA(5) of the Act. It argued that on proper construction of the Act and the Regulations, the relevant salary rate for the purposes of this matter was the salary paid at the time of the applicant’s dismissal in 2019, which was the amount under the 2017 Contract and over the prescribed amount.

The applicant argued that the benefit he claimed he was entitled to was provided in the 2013 Contract. He asserted that the relevant salary rate to be considered was the rate paid under the 2013 Contract, which was under the prescribed amount found in s 29AA of the Act.

The Commission rejected the respondent’s contentions that the relevant salary to be considered was the salary at the time of the applicant’s dismissal. Commissioner Walkington found s29AA of the Act to mean it is the employee’s salary under the contract under which the benefit is claimed that is relevant.

The Commission found that as the relevant salary rate provided under the 2013 Contract was under the prescribed amount, it therefore has jurisdiction to hear the substantive claim.

The decision can be read here.

The Industrial Magistrate has dismissed a claim for redundancy payments on the basis that it was an abuse of process to relitigate the same issue against the same party in circumstances where that issue was refused by the Industrial Magistrates Court (IMC) in a previous claim. 

First Originating Claim

The claimant had initially lodged an Originating Claim in the IMC alleging the respondent failed to comply with the Freo Group Pty Ltd Maintenance and General Services Agreement 2016 (Cth) (EBA 2016) by failing to pay the claimant a redundancy payment under cl 20.8 of EBA 2016 and failing to pay in lieu of notice under cl 18.1 of the EBA 2016.

A preliminary issue was considered by the IMC in relation to the application of EBA 2016 and Reasons for Decision with respect to that preliminary issue were delivered at a later date.  

However, during the directions hearing, the IMC identified a number of issues concerning the application of EBA 2016 and that the application did not concern a claim for redundancy under the relevant provisions of the Fair Work Act 2009 (Cth) (FWA).

The claimant subsequently lodged an applicant to amend the claim (Claimant’s Application), seeking that the following be added:

‘8. In the alternative the respondent failed to pay notice and redundancy to the claim (as particularised above) pursuant to s 117 and s 119 of the Fair Work Act’.

The respondent opposed the Claimant’s Application.

The IMC refused the Claimant’s Application for various reasons, including that the claimant sought to introduce a new cause of action and had given no reason for delay in applying to amend the claim or why the provisions of the FWA had been overlooked.

The claimant then lodged a notice of discontinuance withdrawing the whole claim.  

Second Originating Claim (current application)

The claimant then lodged a second Originating Claim (Second Claim) alleging that the respondent contravened the FWA by failing to pay the claimant a redundancy payment under s 119 of the FWA and failing to a payment in lieu of notice under s 117 of the FWA.

The respondent sought the Second Claim be struck out or dismissed for reasons including that it was frivolous and vexatious, an abuse of the Court’s process, res judicata, and a waste of the Court’s resources where the claim was essentially a resubmission of argument that the claimant has had determined by the Court.

The claimant contended that the subject matter of the first claim had never been finally litigated as the IMC refused to allow the Claimant’s Application to amend the claim and, thus, the claimant’s current claim had not been determined at all.

The Industrial Magistrate found that, whilst acknowledging that from the claimant’s perspective there is no final judgment, the Second Claim ought to be dismissed as an abuse of process as it sought to litigate the same issue against the same party in circumstances where that issue was refused by the IMC in the first claim.

The Industrial Magistrate also found that the Second Claim was oppressive and unfairly revived previous failed litigation, and that it would not be efficient, economical, and expeditious for the claim to continue.

The decision can be read here. 

The Western Australian Industrial Relations Commission will issue a General Order under s 50 Industrial Relations Act 1979 (WA) to provide private sector employers with further flexibility to manage employment arrangements in a manner that supports the JobKeeper Scheme established under the Coronavirus Economic Response Package Omnibus (Measures No.2) Act 2020 (Cth).

The General Order will provide for the following specific temporary measures:

  1. A requirement that where a JobKeeper payment is payable, the employer is to provide eligible employees the value of the JobKeeper payment or the amount owed for work performed;
  2. Ability for an employer to stand down employees (either fully or partially) because they cannot be usefully employed arising from the COVID-19 pandemic or government initiatives to slow the transmission of COVID-19;
  3. Ability for an employer to alter the duties of work of an employee in order to continue employment of one or more employees of the employer;
  4. Ability for an employer to alter the location of work in order to continue the employment of one or more employees of the employer; and
  5. Options for an employer and employee to agree to work being performed on different days and times, provided that the employee does not unreasonably refuse an employer’s request.  

The General Order also sets out the ways employees, organisations and employers can refer disputes about the General Order to the Commission for conciliation and arbitration.  

These measures will operate until 28 September 2020 and may be extended.

The General Order will apply to all private sector employers and employees in the State system, whether covered by an award or not. State system employers generally include sole traders, partnerships, some trusts, some local government agencies and some non-for-profit organisations.

The Commission issued the Reasons for Decision on Thursday, 14 May 2020.

The General Order was issued on Friday, 15 May 2020.

The Reasons for Decision can be read here. 

The General Order can be read here.

Contact Us

Western Australian Industrial Relations Commission
17th Floor
111 St Georges Terrace
PERTH WA 6000

Phone : (08) 9420 4444
Facsimile : (08) 9420 4500
Free Call : 1800 624 263

Free Fax :1800 804 987

Email : Registry

 

You are here: Home > News