Western Australian Industrial Relations Commission

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No reasonable apprehension of bias

The Public Service Arbitrator (Commissioner Matthews) dismissed an application by the Police Union that he recuse himself.  He dismissed the application because a fair minded lay observer would not apprehend bias. 

The Union argued that there was a reasonable apprehension of bias because, amongst other things: 

(a)   For over 20 years, Commissioner Matthews was a solicitor in the State Solicitor’s Office.  He was an employment law expert and represented State Government employers prior to becoming a Commissioner in March 2016;

(b)   In that capacity, he made submissions for another ‘emanation’ of the State about the interpretation of s 26(2A) and s 26(2C) of the Industrial Relations Act, and those provisions have a direct bearing on this case; and

(c)   One of the witnesses in that case, who was proofed and led by Commissioner Matthews, will also give evidence in this case. 

Commissioner Matthews noted that as a matter of law, he is not obliged to recuse himself simply because he has ‘a prior relationship of legal advisor and client’ with one of the parties to a case.  Given the specialised nature of the Commission’s jurisdiction, it is to be expected that people appointed would ‘have experience working within government.’  If the correctness of Commissioner Matthews’ advice as a solicitor was in question, that may be a ground for him to recuse himself.  However, that was not the case here. 

The Arbitrator rejected the contention that a reasonable apprehension of bias could come from his submissions on the application of s 26(2A) and s 26(2C) when he was a solicitor working for the Government.  His reasons were twofold:  in that case, the Commission in Court Session gave its opinion on the correct interpretation of s 26(2A) and (2C), so the interpretation of those provisions cannot really be controversial in this case.  Commissioner Matthews also noted that a fair minded lay observer would realise that ‘counsel run all sorts of arguments on instructions’, and there is no relationship between running an argument as counsel and being a ‘professional and impartial’ decision maker. 

Commissioner Matthews also noted that having proofed and led a witness in a matter does not invite a conclusion that the decision maker will give an otherwise than ‘neutral evaluation of the merits’ of the case.  Commissioner Matthews said it is relevant that the witness in question will be an expert witness, who is under an obligation to be impartial.  A fair minded lay observer would understand the need for such a witness to be impartial, and would therefore find it difficult to conclude that Commissioner Matthews would be swayed by a ‘past professional association’. 

The decision can be read here.

Civil penalty for failing to make redundancy payments

The Industrial Magistrate upheld three employees’ claims for redundancy entitlements.  The Court imposed a civil penalty on the employer ($25,500) and on the CEO personally ($5,100), based on the ‘size of the loss incurred by each’ employee, that the employer did not deliberately defy the law and that the respondent has an unblemished record. 

The employer was a service provider to the Commonwealth government.  In April 2015, it learned that its government contract would not be renewed.  Accordingly, the employer told the employees that there would be no work for them after June 2015 and their employment would come to an end.   

The employer and its CEO alleged that the employees were not entitled to redundancy payments because: 

(a)   In May 2015, the employees were dismissed for their conduct in allegedly undermining the employer’s efforts to lease its premises to a third party;

(b)   The employees are excluded from redundancy entitlements because they were not employed for a continuous period of more than 12 months and their employment was for a specified period of time; or

(c)   The employer ‘obtained acceptable alternative employment’ for the employees. 

His Honour Industrial Magistrate Cicchini held that the employer’s dismissal of the employees for their alleged conduct was not effective.  His Honour concluded that the employer had already terminated the employment in April 2015 when it told the employees that there would be no work for them after June 2015.  That brought the employees’ contracts of employment to an end by way of genuine redundancy.  ‘All [the employer] could do [after that] was to bring the employment relationship to an end’ because the employment had already been terminated and could not be terminated again. 

The Industrial Magistrate also found that the employees were employed continuously for more than 12 months despite being appointed on rolling fixed term contracts.  The employment was continuous because renewal of the contracts was a ‘mere formality’ and the employment often continued despite the contracts having expired.  Also, the facts did not support the employer’s argument that the employment was for a specified period. 

His Honour noted that the employer had spoken to its successor, the company that won the government contract, about taking on the employees.  The employer argued that it was excused from making redundancy payments to the employees because it found acceptable alternative employment for them.  The Court held that for an employer to be excused from making redundancy payments, the employer must be a ‘strong, moving force towards the creation of the employment opportunity’; the employer must do more than merely establish contact with a prospective employer.  The employer did not call enough evidence to satisfy the Court that it convinced its successor to take on the employees.  Therefore, the employer was not excused from paying the redundancy entitlements. 

The decision as to liability can be read here

The decision as to quantum, interest, penalty and costs can be read here

State and federal organisations get a ticket to travel together

The Full Bench unanimously granted an application by The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch to approve an agreement between the applicant and its federal body. 

The ultimate effect of the Full Bench approving this agreement is that the federal branch of the registered industrial organisation can provide joint services with the state organisation to their members.  It also enables the federal organisation to manage the funds and property of the state organisation.  This agreement enables the two organisations can operate more efficiently.  When the agreement is approved, it is registered as an amendment to the rules of the state organisation. 

The process under the Industrial Relations Act allows state and federally registered industrial organisations to have the benefits of running their organisations jointly without the burden of maintaining separate administrative arrangements between state and federal bodies. 

The decision can be read here

The 2017 State Wage Case

The State Wage Case is held pursuant to section 50A of the Industrial Relations Act, 1979.  This obliges the Commission before 1 July in each year to make a General Order setting the minimum wage under the Minimum Conditions of Employment Act, 1993 for employees over the age of 21, for apprentices and for trainees. The General Order also adjusts rates of wages paid under State awards.  More information can be found here.

The State Wage Case 2017 is listed for 18 and 19 May 2017, and an additional date to be advised after the Annual Wage Review decision of Fair Work Commission.

The Notice can be viewed here.
  Submissions and submissions in reply are due to be filed by 4 and 11 May 2016 respectively.  Once available, they can be viewed here.


Proceedings will be webcast and can be viewed here.

 

Non-approval of a substituted voluntary severance constitutes a “decision” for the purposes of s 95(1) of the Public Sector Management Act 1994 (WA)

A public sector employee has referred a matter to the Commission under s 95(2) of the Public Sector Management Act 1994 (WA), alleging his employer failed to fairly and properly apply the terms of the relevant regulations in relation to his request for a substituted voluntary severance. As a preliminary issue, the Commission was required to determine whether or not there was a relevant section 94 decision for the purposes of s 95(1) of the Act.

 

Senior Commissioner Kenner found the Director Generals deliberation and consideration of the matter and his refusal to accept the employees proposal constituted a decision to not approve the substituted voluntary severance. He found the non-approval of a request for a substituted voluntary severance is a section 94 decision for the purposes of s 95(1) of the Act.

 

The decision can be read here.

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Western Australian Industrial Relations Commission
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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

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