Western Australian Industrial Relations Commission

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Clause of industrial agreement must be read as a whole

The Full Bench has unanimously dismissed an appeal against a decision of the Public Service Arbitrator that found that a vascular surgeon employed by East Metropolitan Health Service was an ongoing employee, despite the industrial agreement providing that appointments will be for a maximum term.

The appellant argued that the duration of the respondent's employment is successive 5-year terms as found in the industrial agreements. Both parties accepted that the terms of the industrial agreements are paramount and prevail over terms of an employment contract, unless there is a superior term to the contrary. The appellant argued that there was no superior term in the respondent's contract of employment that would overrule the industrial agreements.

Smith AP noted that the rules of construction require that the words of a contract must be understood in their context and that rules must be read as a whole. Smith AP found that the appellant's construction of cl20(1)(a) of the 1999 industrial agreement only had regard to some words and not the whole clause. When read correctly the clause applies to 5-year contracts and allows for an exception which is met by the respondent's contract of employment.

The hallmark of a fixed term contact is that it expires on a specified day and there is no right or entitlement of ongoing employment. Smith AP determined that the 1997 contract and 2000 terms did not contain an express term by which the contract of employment expires without either party giving notice and was therefore at common law a contract of employment of ongoing duration.

It was common ground that after 2000, the respondent did not apply for reappointment to any position, nor was reappointment considered by the appellant until February 2016. On the facts of the case,

Kenner SC determined that after 2005 the parties dealt with one another on the basis that the respondent was employed on an ongoing basis.

Matthews C concurred and found that it was impossible to draw any inference other than that upon expiry of the contract of employment in 2005, the respondent continued to be employed on a contract of indefinite duration.

The decision can be read here.

Revised practice note for written and oral submissions to the Full Bench

The Commission has issued a replacement Practice Note setting out extended timeframes for filing written submissions to the Full Bench.  The previous Practice Note, 1 of 2008, required the appellant or applicant to file and serve written submissions four (4) working days before the hearing.  This has been extended to 14 calendar days.

The respondent was required to file and serve written submissions two (2) working days before the hearing.  This has been extended to seven (7) calendar days.

A copy of the revised practice note, Written and Oral Submissions to the Full Bench – Practice Note 2 of 2018 is available here.

Farewell to the President

On Wednesday, 19 December 2018, the Industrial Relations Amendment Act 2018 came into effect.  This means that there will no longer be a President of the Commission.  The President's role in presiding on the Full Bench of the Commission to hear appeals from decisions of Commissioners and of the Industrial Magistrate's Court and to deal with certain organisations and associations matters will fall to the Chief Commissioner or the Senior Commissioner.  The President's jurisdiction in dealing with other organisations and associations matters will fall to the Chief Commissioner.

A ceremonial sitting of the Commission will be convened at 4.00 pm on Thursday, 20 December 2018.  The purposes of the sitting will be to:

  • Farewell Acting President, the Hon. J H Smith, who has served in this important role since 2009. (Her Honour's appointment will be extended to enable her to complete part-heard matters.)
  • Recognise the historic occasion of the abolition of this position in the structure of the Commission since it was established nearly 40 years ago.

The members and staff of the Commission thank her Honour for her judicial leadership and her generous, collegial spirit.  We wish her well for the future.  Her Honour continues as a judge of the Supreme Court of Western Australia.

Pecuniary penalty for failure to pay ordered amount

The Industrial Magistrate has handed down a pecuniary penalty for contravention of s546(3)(c) of the Fair Work Act 2009 (FW Act). The respondent was previously found to have contravened the FW Act and had been ordered to pay minimum wage for normal hours of pay, untaken paid annual leave, public holidays and personal leave to the applicant.

Scaddan IM looked at s 557(1) of the FW Act and concluded that the failure to pay the 4 amounts would constitute a single contravention as the contraventions arose out of the same course of conduct by the respondent company.

Among other things, Scaddan IM considered that the respondent company is a mid-sized company and had not been found to have previously contravened the FW Act and also considered the conduct of both parties in relation to the initial contravention. Scaddan IM determined that the conduct that caused the contravention was in the low range and ordered total penalties of $3,000. The main purpose of a civil penalty is to promote compliance with the law and it is not an additional award of compensation for hurt feelings, inconvenience, stress or legal fees.

The decision can be read here.

Ceremonial welcome for Commissioner Walkington

A ceremonial sitting of The Western Australian Industrial Relations Commission was held on Friday, 30 November 2018 at 9.00 am to formally welcome a new Commissioner.

Commissioner Toni Walkington previously was the General Secretary of the Civil Service Association of Western Australia.  She has had many years' and in-depth experience of industrial relations matters in Western Australia.

Transcript of the proceedings is available here.

A video of the sitting is available 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
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