Western Australian Industrial Relations Commission

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“Restricted legal practice” only includes common law employees

Arising from a hearing on jurisdiction, the Commission held that the applicant was, as a restricted legal practitioner under the Legal Profession Act 2008 (WA) (LP Act), an employee of Thames Legal for the purposes of the Industrial Relations Act 1979 (WA). Consequently, the Commission has jurisdiction to hear the applicant’s substantive claims of unfair dismissal and denied contractual benefits.

Senior Commissioner Kenner held that “restricted legal practice,” for the purposes of fulfilling the requirements of s 50 of the LP Act, only contemplates legal practitioners who are employees at common law and does not include independent contractors. This is because the requirements of close supervision and control, underpinning the engagement of a restricted legal practitioner, as set out in s 50 of the LP Act, are entirely at odds with the independence and autonomy that is associated with a person engaged as an independent contractor.

Senior Commissioner Kenner cited the Industrial Appeal Court decision of Personnel Contracting Pty Ltd t/as Tricord Personnel v The Construction Forestry Mining and Energy Union of Workers (2004) 85 WAIG 5 which is authority for the principle that the issue of whether a person is an employee or an independent contractor involves the consideration of the totality of the relationship between the parties, including among other relevant factors, the indicia of control. In this regard, Senior Commissioner Kenner noted several factors, including that Thames Legal had strict file management and calendar systems in place which all staff were required to comply with; all advice prepared for clients was finalised and signed by the respondent; the applicant was required to inform the respondent if he wanted to take time off work and the applicant was identified as a fee earner on client invoices.

The Commission found that the inconsistency between the requirements of s 50 of the LP Act and an independent contractor and principal relationship along with the indicia of control, were sufficient to dispose of the jurisdiction argument. However, as evidence was led on them, additional factors were considered by the Senior Commissioner.  It was found that the applicant was not engaged in running a business in his own right and was represented to clients and the outside world as part of the Thames Legal ‘team’. The fact that the applicant had a registered company and an ABN was of no material weight as the applicant’s company merely acted as a conduit for the purposes of issuing invoices to Thames Legal and receiving payment from the firm, and did not hold itself out as an entity providing legal services. There was also no evidence before the Commission that the applicant performed any work for others or that the applicant delegated work to others and as a restricted legal practitioner, it is unlikely this could occur in any case. The fact that the applicant was paid by percentage reward was considered a neutral factor as both employees and independent contractors may be paid by results or by commission and piecework rates.

Senior Commissioner Kenner concluded that at all material times, the applicant was an employee of Thames Legal and was not an independent contractor.

The decision can be read here.

Surgeon an Ongoing Employee Despite Industrial Agreement Clause Requiring Maximum Term Appointments

The Commission has issued an order and declaration that a vascular surgeon employed by East Metropolitan Health Service (EMHS) is an ongoing employee, despite the industrial agreement providing appointments will be for a maximum term.

The surgeon was represented by the Australian Medical Association (AMA), who said he was appointed in writing in 1997 and 2000 as a permanent employee and there is no basis on which to find he was offered, and accepted, a contract for a maximum term ending in 2017. The AMA argued that because the 1997 and 2000 appointments were complete documents that included a start date, no maximum term, a probationary period and the ability to terminate the contract with three months’ notice, it was clear the parties had reached an agreement that the surgeon was employed on an ongoing basis.

EMHS relied on the appointment clauses in the various industrial agreements that have applied since 1997.  They broadly provide that all appointments will be on five-year maximum term contracts unless the parties reach a written agreement to the contrary.   EMHS said it did not reach a written agreement to the contrary with the surgeon because the mode of employment was not specified in the 1997 and 2000 appointments. It also said that the industrial agreements’ appointment clauses prevail over any term to the contrary at common law.  It argued any purported appointment of the surgeon on a permanent basis is ‘null and void’ in accordance with s 114 of the Industrial Relations Act 1979 (WA) (IR Act). Therefore, EMHS said as a matter of law the surgeon’s appointment in November 1997 was for a five-year maximum term contract and he had since been reappointed on a series of three consecutive five-year maximum term contracts.

Commissioner Emmanuel found that in fact the surgeon was not appointed on a series of five-year maximum term contracts. However, the Commissioner also found that the surgeon was not appointed on a maximum term contract by operation of law. Under the relevant industrial agreements, the Commissioner concluded that EMHS may have had an obligation to offer the surgeon a five-year maximum term contract in 1997 and 2000 when he was appointed, but that is not what happened. Instead it offered the surgeon an ongoing employment contract, which he accepted. That an employer may not have complied with the industrial agreements in this regard does not mean that the surgeon must have been or was employed on a series of five-year maximum term contracts.

Commissioner Emmanuel found that the surgeon has been continuously employed by EHMS for over 20 years, first on an ongoing contract formed in 1997 and then on an ongoing contract formed in 2000.

The decision can be read here

Notice of intention to cancel The Royal WA Institute for the Blind Employees Wage Agreement and others;

The Commission acting pursuant to section 47 of the Industrial Relations Act 1979, intends, by order, to cancel a number of obsolete Agreements. More detail can be read here.

Notice of intention to cancel Vandertang Concrete Industrial Agreement and others;

The Commission acting pursuant to section 47 of the Industrial Relations Act 1979, intends, by order, to cancel a number of obsolete Agreements. More detail can be read here.

AWARDS UPDATED FOLLOWING THE 2018 STATE WAGE GENERAL ORDER AND 2018 LOCATION ALLOWANCE GENERAL ORDER BOTH TAKING EFFECT ON 1ST JULY 2018

Please find a list of Awards updated to include the $18 per week increase to award rates as per the 2018 State Wage General Order and the increases to the location allowances as per the 2018 Location Allowance General Order. List detail can be read here.

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Western Australian Industrial Relations Commission
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PERTH WA 6000

Phone : (08) 9420 4444
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