Western Australian Industrial Relations Commission

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The Public Service Appeal Board (Board) has unanimously found that the respondent’s application that a PSAB Board member not sit as a member of the Appeal Board for an appeal be dismissed.

The respondent filed an application that a Board member recuse herself on the grounds of reasonable apprehension of bias. 

The respondent submitted that there was a direct association between the Board member and the appellant by way of their respective relationships with the Australian Medical Association (WA) (AMA). The Board member is a senior industrial officer of the AMA, while the appellant is a member of the AMA. The respondent submitted that by virtue of the Board member’s position with the AMA, her impartiality to the matter would be impeded.

The Board considered the legal principles relating to an apprehension of bias by association, including considerations concerning the nature of the association, frequency of contact and nature of the interest of the person with the decision-maker.

The Board discussed the implications of s 80H of the Industrial Relations Act 1979 (WA) which specifies that the members of the Board shall include two members. It provides that one member shall be appointed by the employer of the appellant as the employer’s representative, and the other as the employee’s representative appointed by the relevant organisation. A person nominated will, by nomination alone, have some association with the body nominating them, as an employee or officer.

In addition, it was noted that Board members, regardless of any necessary association, do not represent the interests of the party that nominated them and are required to act impartially and independently.

The decision can be read here.

The Commission has dismissed an unfair dismissal application where the applicant alleged that the conduct of the respondent and its staff forced her to resign from her employment.

On 14 January 2019, the applicant attended a meeting with the respondent's practice manager to discuss complaints about her behaviour. Following this meeting the applicant left the workplace and later provided medical certificates that stated she was unfit for work until 3 February 2019. On 22 January 2019 the applicant sent a letter of resignation with immediate effect to the respondent. Commissioner Walkington considered a jurisdictional question raised by the respondent about whether the letter of resignation sent by the applicant was a voluntary resignation.

Walkington C considered that the two versions of events from the meeting on 14 January 2019 differed, but that on either version it was not inappropriate for the practice manager to discuss the concerns that colleagues held for the applicant's attitude and conduct. The Commissioner found that the respondent's conduct did not result directly or consequently in the termination of the applicant's employment. Further, Walkington C held that even if the applicant had written the letter of resignation in an emotional state, she had not resigned in the heat of the moment because she had also sent a second letter on 25 January 2019 after she had had time to reflect and consider her options. This second letter did not revoke the previous letter of resignation and did not express any regret that the applicant may have had in resigning.

Walkington C found that although the applicant was clearly unwell and stressed, the respondent was entitled to accept her letter of resignation, particularly as it had been confirmed by the second letter. The Commission dismissed the claim for lack of jurisdiction.

The decision can be read here.

The Industrial Magistrate has dismissed a geoscientist's claim for the payment of an incentive bonus for the period of 2001 to the first quarter of 2005 pursuant to the Industrial Relations Act 1979 (WA) (the IR Act) or common law, and, for the payment of overtime hours worked from 4 January 2011 to 3 January 2017 pursuant to the Professional Employees Award 2010 (Cth) (the Cth Award) or the Western Australian Professional Engineers (General Industries) Award 2004 (WA) (the State Award).

Industrial Magistrate Scaddan considered when the cause of action accrued for the incentive bonus and overtime claims. Her Honour found that the incentive bonus was paid when it fell due and that the last date that the payment would have been paid but was not was in 2005. As this claim was lodged 13 years after the last date of non-payment of the bonus and a six year limitation period applied under the IR Act, Fair Work Act 2009 (Cth) (the Cth Act) and Minimum Conditions of Employment Act 1993 (WA) (MCE Act) the claim was barred by statute and consequently dismissed by Scaddan IM. Her Honour added that the Industrial Magistrate's Court does not have jurisdiction to consider the claimant's common law claim.

Turning to the alleged non-payment or underpayment of overtime claim, Scaddan IM found that each instance of the alleged failure to pay overtime was its own separate cause of action. As the claimant's salary was paid on the 15th of each month, the first offence was on the 15th of January 2011, being the first month that the claimant alleged that they had been underpaid for, and then the 15th of each month thereafter. Scaddan IM also held that the same limitation period that applied for the incentive bonus payment would apply to the claimant's claim for overtime and consequently dismissed the part of the claim that related to the payment of overtime prior to 19 December 2012.

As for the remaining part of the claim, for overtime for hours worked in excess of 38 hours per week, Scaddan IM noted that she was only required to consider the terms of the Federal Professional Employees Award 2010 (Cth) (the Cth Award) as this was all that claimant had relied on in evidence and submissions. Her Honour found that the respondent could not have contravened the Cth Award as the claimant's claim had not referred to any clause within the Cth Award, and, the Cth Award does not contain any provision for the payment of an hourly rate for hours worked over 38 hours a week. In the alternative, the claimant had not proven to the requisite standard that he had not been paid the appropriate amount of overtime because he only provided salary estimates and that these estimates were well in excess of the 2019 minimum wage contained in the Cth Award.

Scaddan IM considered that as the claimant's claim related to the Cth Award, and no other industrial instrument or order exists that would enable the IR Act or MCE Act to apply, any claim under the IR Act or MCE Act could not be enforced by the Industrial Magistrate. Further, as the claim for overtime it is not considered a minimum condition of employment the MCE Act does not apply.

The decision can be read here.

The Commission has upheld an application that sought the review of a decision of the Construction Industry Long Service Leave Payments Board (the Board). The Board's decision required that the applicant register as an employer under the Construction Industry Portable Paid Long Service Leave Act 1985 (WA) (the Act), an Act providing for paid long service leave to employees engaged in the construction industry. The applicant argued that they should not be obligated to register as an employer with the Board because they do not engage employees 'in the construction industry' but rather engage technicians under the Telecommunications Services Award 2010 (Cth) (the Award).

The obligation on an employer to register under the Act does not depend on the employer being engaged in the construction industry, but instead on the employer employing persons as employees who are engaged in the construction industry.

To determine whether the applicant employs employees in the construction industry, Senior Commissioner Kenner considered this question in two steps. Starting by addressing the second of the two steps, the Senior Commissioner was satisfied that the work of the applicant's employees can be characterised as work in the construction industry because it fell within the meaning of "telegraphic" contained in the Act's definition of construction industry. Returning to the first step, that the applicant's employees are employed in a classification of work in one of the prescribed industrial instruments under the Construction Industry Portable Paid Long Service Leave Regulations 1986 (WA) (the Regs), the Senior Commissioner considered that this step required him to be satisfied that the applicant's employees are employed in a classification of work referred to in the awards contained in Schedule 1 to the Regs. The Senior Commissioner considered the definition of employee in the Act and that it required that the applicant's employees have more than a passing association with the work identified in the list of at least 11 classifications from nine awards that were cited by the respondent as possibly applying to the applicant. The Senior Commissioner concluded that no classifications in any of the awards presented by the respondent covered the work performed by a "telecommunications technician" or "telecommunications trainee" as described and defined in the Award.

The Commission upheld the application to review the respondent's decision after the Senior Commissioner was not satisfied that the applicant was an employer, as defined in the Act, who engaged employees in the construction industry. 

The decision can be read here.

An employer whose employees do maintenance and repairs of established and operating plant, equipment and structures, on the premises of clients, which include mines and processing plants, engages these employees "on a site" or "on site", for the purposes of the definition of "construction industry" in an Act providing for a portable paid long service leave scheme.

The Commission has answered preliminary questions relating to an application for a review of a decision of the Construction Industry Long Service Leave Payments Board (the Board) that required the applicant to register as an employer under the Construction Industry Portable Paid Long Service Leave Act 1985 (WA) (the Act). The applicant argued that they should not be obligated to register as an employer with the Board because they do not engage employees 'in the construction industry'.

Chief Commissioner Scott found that 'on a site', when read in context, meant the site which the works listed in the Act's definition of construction industry are performed, that is the site at which they are constructed, erected, repaired, installed, reconstructed, re-erected, renovated, altered, demolished, or maintained or repaired, and, that work performed away from where these works are located is not construction work. The term "construction industry" under the Act is not limited to building or construction sites where new buildings or structures are being built. Therefore, employees may perform work 'on a site' if this was at a location away from the employer's premises.

An employer may be exempted from the scheme set up by the Act if the employer is "not substantially engaged" in the "construction industry" as defined in the Act. In this case, although the employer said that it was engaged in providing maintenance services to the mining and resources industries, the Commission found that it was substantially engaged in the industry covered by the Act, because of the breadth of the definition of construction industry.

The decision can be read here

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