Western Australian Industrial Relations Commission

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The Industrial Magistrates Court has dismissed a claim brought by the Transport Workers’ Union of Australia (TWU) who alleged that the respondent employer had breached a clause of the Chubb Security Services Ltd, Western Australia, Armoured Vehicle Operators Enterprise Agreement 2011-2015 which stated that a ‘two person crew is able to operate in a ‘lunch on road’ in the Rockingham and Mandurah areas only’ (the Lunch on Road Clause). On four occasions between October and November 2016, two person crews were required to take “lunch on the road” when they travelled to the country locations outside of Rockingham and Mandurah, namely to Geraldton, Margaret River and the Southwest of WA.

Industrial Magistrate Flynn found that, properly construed, the Lunch on Road Clause required the employer to give due consideration to the safety of employees when determining whether the circumstances of travel to country locations required a two person crew or a three person crew.

Flynn IM dismissed the TWU’s claim after finding that there was no evidence of a safety issue being ignored by the employer when allocating a two person crew to the country runs the subject of the claim.

Flynn IM further observed that the respondent had not complied with the Consultative Committee Clause but did not make any finding that the non-compliance was a contravention of a civil penalty provision.

The decision can be read here.

The Commission has upheld a denied contractual benefit claim where an electrician alleged that in the course of his employment by both the first and second respondents he was only paid on the basis of a 38 ordinary hour working week even though his contract of employment entitled him to be paid for 40 hours per week.

It was held by Senior Commissioner Kenner that the relevant parts of the letter of 30 March 2015 were clear in their terms of the applicant’s employment. Also, when the second respondent became incorporated, the first respondent continued on in the employment relationship on the terms set out in the letter of 30 March 2015.

The Senior Commissioner determined that the applicant was a credible witness who did work the alleged 40 hours per week. The respondent’s assertion that they deducted two hours’ pay per week indicated that the contract of employment letter did provide for ordinary paid working hours of 40 per week and that nothing in either the State or federal awards, or relevant legislation in relation to minimum standards, precluded the working of two additional hours per week, as long as it was paid for.

As the Commission was satisfied on the required balance of probabilities that the applicant’s claim was made out, the Senior Commissioner ordered payment to the applicant accordingly.

The decision can be read here.

The Full Bench has dismissed an appeal against a decision of the Commission where a restricted legal practitioner was successful in a claim of denied contractual benefits. The Full Bench considered that a discretionary decision of a Commissioner at first instance can only be challenged by showing error in the decision-making process, and even then, the Full Bench must only proceed with caution and restraint.

The appellant’s first ground of appeal had two parts and related to order 1 of the Commission. In relation to the first part, the Full Bench noted that the appellant said that he did not deny that he owed payment to the respondent but that he was waiting on the respondent to provide him with an invoice in accordance with the parties’ agreement. The Full Bench found that this ground of appeal was misconceived by the appellant because the payment of the amount due does not rely on an invoice being issued by the respondent, it relies on compliance with an order of the Commission. The Full Bench then considered the second part of the first ground of appeal, where the appellant claimed that the Commission had erred in law by concluding that the then applicant was at all times protected by the Minimum Conditions of Employment Act 1993 (MCE Act) “yet had failed to recognise the provision that employees are not entitled to annual leave if they are paid by commission only”. The Full Bench found that the Senior Commissioner concluded that the MCE Act did not apply to the appellant’s employment and rather referred to the MCE Act, the Fair Work Act 2009 (Cth) and the “universal entitlement in awards and industrial agreements across the land” as a basis for implying terms into the employment contract, and so did not err in law. The Full Bench found that the appellant had misunderstood the reasons for decision of the Senior Commissioner and dismissed this ground of appeal.

The second ground of appeal dealing with order 2 was next considered by the Full Bench. The Full Bench found that the appellant’s claim, that he is unable to comply with the order because the Senior Commissioner “retrospectively” changed the employment relationship and the appellant is not registered with the Australian Tax Office (ATO), was also misconceived. The Full Bench dismissed this ground of appeal and found, as in ground 1, that there was no obligation on the respondent to provide an invoice and that the issue relating to the ATO is a matter of practicality for the appellant to seek advice about and not a matter properly the subject of this appeal.

The Full Bench made comment on what appeared to be a tardy approach to the appeal by the appellant. The appeal book was less than satisfactory and did not comply with the Industrial Relations Commission Regulations 2005 in a number of instances.

The respondent sought that the Full Bench award his costs and expenses (excluding legal fees) for the appeal and the matter at first instance. The general policy in industrial jurisdictions is that costs are only awarded in extreme circumstances and could not be awarded for matters heard at first instance. The Full Bench found that it was very clear that the appeal had no prospect of success as the grounds for appeal were both obscure and misconceived. The Full Bench found that it could not award costs for the appeal because the only date on the schedule of costs submitted by the respondent was on a date that had not yet occurred.

The decision can be read here.

The Road Freight Transport Industry Tribunal has made a declaration and issued orders for the payment of an alleged balance of monies owed to the applicant pursuant to an owner-driver contract. The Tribunal was satisfied that the applicant is an owner-driver and that despite the referral to the Tribunal being made after the termination of the owner-driver contract, the Tribunal had jurisdiction to deal with the applicant’s claim.

It was determined by the Tribunal that an oral owner-driver contract was entered into by the parties in or about July 2017 for the supply and heavy vehicle transportation of building sand. The respondent paid a portion of the balance owed to the applicant, giving rise to the remaining debt being outstanding.

The Tribunal considered that there is no capacity to institute third party proceedings to compel a third party to cover monies that they may owe and found that the respondent does owe the outstanding balance to the applicant plus interest.

The decision can be read here.

The Commission has dismissed three applications challenging the Department of Education’s decision to take disciplinary action against the applicant on three separate occasions, namely, the 11 September 2015, 24 May 2017 and 18 August 2017. The three applications were heard together and referred to the Commission under the Public Sector Management Act 1994.

The applicant previously, while legally represented, had challenged the first disciplinary finding of 11 September 2015 through the Commission, which was resolved with a deed of settlement and the disciplinary action taken was not disturbed by the settlement. The Commission dismissed this application after it found that the applicant, although reluctantly, had accepted that he had entered into a deed of settlement that was freely executed and barred him from bringing this application.

As for the other two applications arising from the disciplinary findings that occurred on 24 May 2017 and 18 August 2017, the Commission determined that it was not in the public interest to hear the matters as they had not been brought in a reasonable time and no good explanation was given for the delay. The Commission heard that the applicant had decided to delay bringing the applications due to the expense of legal representation and his belief that he could not competently represent himself at that time. However, it was held that employers and the legal system cannot be fairly asked to wait until a time that a person considers that they are able to represent themselves to bring an application. The Commission also dismissed these applications.

The decision can be read here.

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Western Australian Industrial Relations Commission
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PERTH WA 6000

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