Western Australian Industrial Relations Commission

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The Industrial Magistrate's Court has issued a decision about a claimant's claim for a pecuniary penalty and an amount for underpayments following a determination by the Court that the employer had contravened the Fair Work Act 2009 (Cth) (the Act) and did not pay the claimant the amount owed under the Long Service Leave Act 1958 (WA) (the substantive decision can be found here). The claimant had been unsuccessful in his claim against a second respondent who is a company director of the employer.

The parties reached an agreement on the quantum of the underpayment claim and Scaddan IM made orders that the first respondent pay the total agreed amount within 28 days.

As to the penalties to be paid, Scaddan IM considered that section 557(1) of the Act would apply to several of the first respondent's contraventions and cause them to be treated as a single contravention because there was either a commonality in the conduct or the contravention flowed from a course of conduct.

Her Honour found that punishment and specific deterrence are less important than the need to deter employers from generally contravening the Act. Scaddan IM held that, in all the circumstances, the conduct was properly categorised as low range and ordered that a pecuniary penalty be paid to the claimant for each contravention.

Scaddan IM considered the first respondent's application for costs and found that the claimant had held out for the payment of a civil penalty in circumstances where the first respondent had previously made a reasonable offer. Her Honour determined that not accepting this offer was unreasonable. This caused the respondent to incur further costs. Scaddan IM concluded that the claimant should pay 50% of the respondents' costs on a solicitor/client basis, which were incurred from the date that the reasonable offer was rejected until the date that the Court facilitated the claimant's reconsideration of the offer to settle, because the claimant was partly successful in his claim.

The decision can be read here.

The Industrial Magistrate's Court has upheld, in part, claims made by the Australian Workers' Union (the AWU) which alleged that the respondent had contravened sections of the Fair Work Act 2009 (Cth) (the FWA). The AWU claimed that its member was not paid the required amount for overtime hours worked; did not establish a system to determine any payment shortfalls and did not pay the full amount that the Enterprise Agreement entitled him to.

To determine the AWU member's agreed hours of work, Scaddan IM considered that the Court can only have regard to the terms contained in the member's Enterprise Agreement (including the undertakings) and the employment contract.

The relevant terms contained in the member's employment contract included 'that he was to work a minimum of 20 hours per week, and reasonable additional hours as determined by the roster that was made available weekly'. Her Honour determined that a 'minimum of 20 hours per week' meant the least possible number of hours that the member worked would be 20 hours per week with reasonable and variable additional hours as determined by a roster published on the Wednesday before the week commencing Monday.

Her Honour then found that overtime rates would apply if the member worked more than the published weekly agreed hours and for any hours worked more than 38 hours per week.

Scaddan IM determined the amount owed for overtime and reduced this sum by what the respondent had already paid. This resulted in her Honour's conclusion that the AWU's member had been underpaid and that the respondent had consequently contravened the FWA.

The decision can be read here.

The Western Australian Industrial Appeal Court (the IAC) has unanimously dismissed an appeal against a decision of the Full Bench of the Western Australian Industrial Relations Commission where the appellant sought to pursue a moot appeal about whether an interim order of an Industrial Magistrate’s Court was considered to be a ‘decision’ within the meaning of s 84(1) of the Industrial Relations Act 1979 (WA).

In the case at first instance, the industrial magistrate issued the interim orders sought by the State School Teachers’ Union of WA (SSTUWA). The appellant appealed this decision to the Full Bench where the majority found that the appeal did not meet the s 84(1) requirement of a decision because an interim order did not finally determine the issue. The Full Bench dismissed the appeal on the ground that the appeal was incompetent.

Following the Full Bench decision, but prior to the institution of the appeal to the IAC, the parties settled the matter and the SSTUWA discontinued its claim. However, although the underlying dispute was resolved between the parties and the interim orders dissolved, the appellant continued to seek that the IAC exercise its discretion to hear the appeal. The basis of the appellant’s claim was that the scope of the appeal is narrow and that there is a public interest in resolving the s 84(1) construction issue of whether a decision under this section extends to encompass interim orders.

The IAC accepted that although the scope of the appeal was narrow, the answer to the question raised is not obvious and would require a detailed examination of a number of factors.

It was then considered by the IAC whether a resolution of the issue would be in the public interest and if there would be any ramifications extending beyond the facts of the case. The IAC found that although it had discretion to hear the appeal, this discretion should be exercised cautiously. As no sufficient case for the exercise of this discretion had been made out, the IAC dismissed the appeal on the ground that it had become moot.

The IAC also commented on whether an appeal of an industrial magistrate’s interim order lies to the Full Bench. Notably, although stopping short of making a finding, the IAC suggested that on the face of s 84(1) an interim order is “an order” and falls within the definition of a decision. This suggests that an interim order of the Industrial Magistrate’s Court may be able to be appealed.

The decision can be read here.

The Commission has dismissed an interim order application made by the Civil Service Association of Western Australia (the CSA) that its member to be returned to his workplace after he was suspended on full pay, pending a direction from the respondent that he retire on the grounds of ill health.

The CSA submitted that the Commission’s broad powers under s 44(6)(ba)(iii) of the Industrial Relations Act 1979 (WA) can require ‘parties to exchange information or to divulge their views in relation to the matter in dispute, as an aid in the resolution of a particular industrial dispute.’ Senior Commissioner Kenner found that although s 44(6)(ba) contained broad powers, subpar (iii) could not be relied upon because the terms of subpar (iii) did not have any connection to the return of the CSA’s member to the workplace.

The Senior Commissioner then considered that even if his interpretation of the power under s 44(6)(ba)(iii) was incorrect, the interim order sought would not encourage the parties to exchange or divulge attitudes or information which would assist in the resolution of the matter in question. Furthermore, the Senior Commissioner considered that given that the CSA sought the return of their member to the workplace in the substantive application under s 44 of the Act, the interim order would in effect be a final order. This was a further basis for refusing the order.

Additionally, the Senior Commissioner considered the new information that the respondent was commencing disciplinary action against the CSA’s member. The Senior Commissioner found that the Commission should not interfere in disciplinary procedures under the Public Sector Management Act 2004 (WA) unless the action is obviously baseless and that there was nothing before the Commission to suggest that this was the case.

After considering these issues, the Commission dismissed the CSA’s application for an interim order.

The decision can be read here.

The Commission has dismissed an unfair dismissal application made by a pharmacy employee who alleged that her employment was terminated at the initiative of her employer.

The Commission turned to the fundamental question, going to the Commission’s jurisdiction in dealing with unfair dismissal matters, of whether the applicant was dismissed or voluntarily resigned from the employment.

Commissioner Walkington considered the claim central to the applicant’s contention, that she felt pressured to resign after her employer had threatened to “make her life a living hell”. However, the Commissioner found that the statement was not made because the applicant did not test the conflicting evidence of their employer during cross examination. Walkington C then found that the applicant was given the opportunity to reflect and consider the options given to her and was not threatened by her employer to resign there and then. Finally, Walkington C noted that the respondent did not treat the applicant’s resignation as being of immediate effect as an agreement had been made with the applicant for her to work out her notice, and, during this time, the applicant did not raise with her employer that she had changed her mind or wished that her resignation be revoked.

The Commission determined on the threshold issue finding that the applicant resigned from her employment and consequently ordered that the application be dismissed.

The decision can be read here.

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Western Australian Industrial Relations Commission
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Phone : (08) 9420 4444
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