Western Australian Industrial Relations Commission

General Information

The Public Service Arbitrator has made a declaration on the interpretation of shift work provisions in the Public Service and General Officers CSA General Agreement 2017 (the Agreement). The applicant brought proceedings under s 46 of the Industrial Relations Act 1979 (WA) seeking a declaration on five questions relating to the issue of whether particular members are shift workers.

The applicant submitted that members working as Intelligence Analysts for the respondent are not shift employees as they do not work in accordance with a shift roster. The applicant argued that a letter sent by the respondent in February 2015 seeking to change the working arrangements of Intelligence Analysts did not comply with the Agreement.

The respondent suggested that there is a distinction between working varied prescribed hours of work and shift work. The respondent argued that by giving notice and invoking the relevant provisions of the Agreement this made the employees shift workers and so the presence of a roster is not required.

The Public Service Arbitrator, Senior Commissioner Kenner, applied the general principles of interpretation and construction when answering the five questions posed by the applicant.

The Public Service Arbitrator declared that:

  1. In the absence of the working of shifts on a roster, an officer is not a shift worker.
  2. An employee can be deemed a shift worker and a day worker without working prescribed shifts which attract a shift allowance but only if the employee agrees in writing. This is because, the Award requires that an officer, as a shift worker, must agree in writing to be kept on day shifts or any other shifts indefinitely that do not attract a shift allowance.
  3. An employee cannot be deemed a shift worker and a day worker without prescribed shifts which attract a shift allowance as it is not permissible to work both the prescribed hours of duty and the varied prescribed hours of duty at the same time.
  4. Employers wishing to vary the prescribed hours of work for an employee need to follow a specific regime for the alteration, including making provision for work to be performed on a shift work basis in accordance with a roster. These specific provisions, outlined in the Agreement, override and displace the general consultation and change provisions in the Agreement.
  5. An employer cannot provide a one-off letter to employees varying their prescribed hours to be both shift employees and employees working their ordinary hours on a weekend or a public holiday. Employers providing a letter of this nature will not eliminate any requirement to give employees one month's notice for any future changes to prescribed hours. This is because, it is not possible to effectively designate employees to be shift workers when they are not working shifts in accordance with a roster. Employees can be working one or the other working hours arrangement, but not both at the same time.

The decision can be read here. 

Wednesday, 22nd May 2019

 

 

 

 

Tuesday, 4th June 2019

 

 

 

Friday, 14th June 2019

 

 

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Reinstatement

If an unfair dismissal claim is upheld, the Commission will order the employee be reinstated unless that is 'impracticable' to do so.  If the Commission determines that reinstatement would be impracticable, it will order compensation not exceeding 6 months' remuneration of the employee for loss or injury caused by the dismissal.  If the Commission orders reinstatement, it may order that the employee's continuity of service be maintained and that the employer pay the employee any remuneration lost because of the dismissal. 

Whether reinstatement is 'impracticable' depends to a large degree whether there is 'a sufficient level of trust and confidence' between the employee and employer 'to make an employment relationship between them viable and productive.'  '[R]einstatement is impracticable … [if] … the employer has a genuine and credible distrust and lack of confidence in the employee'. 

Reinstatement may be impracticable due to other reasons, such as: 

  • the employee's old position might have been abolished;
  • the employee's personal circumstances have changed, making reinstatement impracticable; or
  • the return of the unfairly dismissed employee to the workplace is believed will cause 'industrial strife'.

Compensation

If reinstatement is impracticable, the Commission can award compensation for loss or injury.  Compensation cannot exceed 6 months' remuneration of the employee.  In awarding compensation, the Commission will try to put the employee in the position they would have been but for the unfair dismissal. 

The Commission cannot give employees advice about possible tax implications for orders of this nature. 

The employee bears the burden of proving that they are entitled to any amount of compensation.

Loss

Compensation for loss includes 'actual loss of salary or wage, loss of benefits or other amounts which would have been earned, paid to or received by the dismissed employee but for the dismissal'.  The parties' behaviour is relevant to determining whether the dismissal was unfair, not the Commission's consideration of the loss suffered by an employee. 

Lost wages can be both up until the date of the hearing as well as anticipated future lost wages.  In each case, it is for the employee to demonstrate that they would have received the wages and have suffered a loss. 

The employee has a duty to mitigate that loss.  However, the employer has the burden of proving that the employee did not mitigate their loss.  Mitigation of loss is generally demonstrated by the employee actively looking for alternative employment or even accepting alternative employment, perhaps at a lower wage. 

Injury

Compensation for injury is compensation for loss of dignity, anxiety, humiliation, stress or nervous shock caused by the unfair dismissal.  The injury suffered must go beyond that associated with almost all employer-initiated terminations.  In many cases, medical or expert evidence may be necessary to establish a link between the dismissal and the injury.

When considering whether to make an award of compensation for injury, the Commission will consider:

  • Whether the behaviour by or on behalf of an employer by the termination of employment has caused injury to the employee.
  • If the behaviour in question has caused an injury, the gravity of the behaviour of the employer.
  • The level of effect or impact of the behaviour on the employee and whether the effect or impact goes beyond a level of distress that is caused by almost all employer-initiated terminations of employment.

Minutes of proposed order

If the Commission is finalising a matter other than by dismissing it, the Commission will draw up the proposed order in what is called “minutes” and give the parties an opportunity to 'speak to the minutes'.  This is a limited opportunity for the parties to comment on whether the minute correctly reflects the decision reached by the Commission.  It is not an opportunity to revisit the merits of the case and is not an opportunity to challenge the decision of the Commission. 

A party dissatisfied with a decision of the Commission may appeal that decision. 

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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