Western Australian Industrial Relations Commission

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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.

The Public Service Arbitrator has issued a declaration under s 42H(1) of the Industrial Relations Act 1979 (WA) (Act) that bargaining has ended for an industrial agreement to replace the Western Australian Police Industrial Agreement 2017.  

The applicant, the WA Police Union of Workers, made an application to the Commission for assistance in bargaining for the making of a new industrial agreement.

Since the commencement of the bargaining process, the Commission has convened eight compulsory conferences and the parties have met for the purposes of negotiation at least fifteen times. All five offers made by the respondent for a new industrial agreement were rejected by the applicant. Despite the endeavours by the parties and the Commission, the parties were unable to reach an agreement.

The Commission is empowered under s 42H(1) of the Act to declare bargaining between the parties has ended, as long as the Commission is satisfied as to a number of matters.

As the Arbitrator, Senior Commissioner Kenner, found that the applicant had bargained in good faith, bargaining had failed and there was no reasonable prospect of reaching an agreement, the Commission issued a declaration under s 42H(1) of the Act that bargaining had ended between the negotiating parties.

The decision can be read here.

Ex tempore decision was issued at the conclusion of proceedings on 29 April 2020. 

The Industrial Magistrate has ordered that an aged care company pay a worker long service leave entitlements under s 8 Long Service Leave Act 1958 (WA) (LSL Act) after finding that the worker was a casual employee continuously employed for more than 10 years with the same employer.

Section 8 LSL Act provides for an employee entitlement to long service leave of 8 2/3 weeks on ordinary pay in respect of continuous employment of 10 years with one and the same employer.

The Claimant, an industrial inspector, contended that the worker fulfilled the requirements under s 8 LSL Act.

The company questioned whether the worker was an employee of the company or an independent contractor and whether the worker had been continuously employed for more than 10 years as required by the LSL Act.

Flynn IM found, after examining the worker’s contract of employment, relationship with the company and her work schedule, that the worker was a casual employee of the company and not an independent contractor. Flynn IM found that she was not an employee of any client of the company where she worked on a varying placements.

Flynn IM also found, after examining and applying s 6 LSL Act to the facts, that the worker was in continuous employment with the company for more than ten years.

The respondent had argued that, by reason of the nature of casual employment, any period of ‘continuous employment’ by the worker was terminated on a ‘ground other than slackness of trade’ at the end of each client placement. However, Flynn IM found that so long as the worker was available for employment, as required by her contract, she was in continuous employment. He also found that all her non-working periods, including holidays, were each an ‘authorised absence’ under s 6 LSL Act, and that these periods did not disrupt the continuous nature of her employment.

Flynn IM then determined the ‘ordinary pay’ of the worker in light of the definition of that phrase under s 4 LSL Act and then found that she worked, on average, 28.4 hours a week.

The decision can be read here.

 

The Western Australian Industrial Relations Commission has received an application seeking that it issue a General Order under section 50 of the Industrial Relations Act 1979 (WA) for private sector employers and employees, based on the amendments made to the Fair Work Act 2009 (Cth) arising from the Coronavirus Economic Response Package Omnibus (Measures No.2) Act 2020 (Cth).

 

The application seeks a General Order in the circumstances of the COVID-19 pandemic to 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 employers 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 employers to alter the duties of work of an employee in order to continue the employment of one or more employees of the employer;
  4. Ability for employers to alter the location of work in order to continue the employment of one or more employees of the employer;
  5. Option for an employer and employee to agree to work being performed on different days and times, provided that the employee is not to unreasonably refuse an employer’s request.

 

The proposed General Order is intended to apply to all employers and employees in the private sector within the State industrial relations system, whether or not they are covered by an award or industrial agreement. The proposed terms of the General Order are said to aim to provide the flexibility to manage employment arrangements in a manner that supports the JobKeeper Scheme, preserves jobs and supports the viability of businesses impacted by the COVID-19 pandemic.

 

The application seeks for the General Order to be operative on a temporary basis only, applying until 28 September 2020, coinciding with the date the Jobkeeper Scheme arrangements set out in the Coronavirus Economic Response Package (Payments and Benefits) Act 2020 (Cth) cease to apply.

 

The Commission held a conference with parties named in section 50 of the Industrial Relations Act 1979 (WA), consisting of the Chamber of Commerce and Industry of Western Australia, UnionsWA, and Minister for Industrial Relations, the Honourable Bill Johnston MLA. The section 50 parties are conferring with a view to agreeing the terms of a proposed General Order.

 

The Commission intends to deal with the application as a matter of priority given the current circumstances. Any person wishing to make a submission to the Commission regarding the application for the proposed General Order is invited to do so in writing by 4.30pm on Monday 11 May 2020.

 

 

The Public Service Appeal Board (Board) has dismissed an appeal against the decision of the respondent to impose a penalty of a permanent reduction in classification following admissions by the appellant of misconduct over a six-year period.

The appellant occupied a Level 8 position with the respondent and formed part of the senior management team for several years.

In March 2019, the respondent made four allegations of suspected breaches of discipline under s 80 of the Public Sector Management Act 1994 (WA) (PSM Act). The allegations were in connection to the misuse of the respondent’s computer system, unauthorised release of official information and inappropriate behaviour.

The appellant admitted to the misconduct and the respondent imposed a penalty of permanent reduction in work classification from Level 8.3 to Level 5.4.

The appellant appealed on the basis that the penalty was harsh and unfair given the mitigating circumstances that he advanced in response to the allegations, including his unblemished record and personal issues. He sought that the penalty be reduced to a reprimand and a reduction in classification to Level 8.1.

The respondent argued that the penalty was appropriate and a higher-level position was not suitable for the appellant given his breach of trust and the respondent’s lack of confidence in the appellant as a result of his misconduct.  

The Board found, in considering the appellant’s engagement in sustained misconduct, profound abuse of the respondent’s email system, numerous breaches of the respondent’s code of conduct and his senior position, that the respondent’s decision to permanently reduce the appellant’s work classification was entirely appropriate. The Board found that the personal matters referred to by the appellant in his mitigation submissions could not be relied upon in mitigation of sustained misconduct over many years.

 

Respondent’s submission as to scope of Appeal Board’s powers under s 80I(1) of Act

The Board also dealt with a submission made by the respondent that the Board’s power to “adjust” the respondent’s decision under s 80I of the Industrial Relations Act 1979 (WA) (Act) only extended to reversing or quashing the decision. The respondent submitted that it was not open to the Board to “change” the decision in such a way as to replace it with a different decision as sought by the appellant, to impose a reprimand and a Level 8.1 classification instead.

The Board considered the powers of the Board under s 80I of the Act to “adjust” a decision of an employer to dismiss a manager for misconduct and found that its meaning was to be considered in the context of an appeal under s 80I(b) of the Act.

The Board then referred to s 80A of the PSM Act, and noted that one category of disciplinary action is a “reduction in the level of classification of the employee” and that this was the relevant ‘decision’ in this case. Thus, the Board found the meaning of “adjust” in this case is to be considered in the context of the relevant disciplinary decision to reduce the appellant’s level of classification.

The Board found that its power to “adjust” the respondent’s reduction in classification decision involved the power to “reform” it in some way. This is plainly not limited to reversing it.

The Board determined that such decisions involve “reforming” or changing a reduction in classification decision, which is the relevant decision to be adjusted under s 80I(b) of the Act. This does not involve the making of a new decision by the Board.  

The decision 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

 

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