Western Australian Industrial Relations Commission

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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 initially operated until 28 September 2020 and have now been extended to 28 March 2021.

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.

 

 

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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