Western Australian Industrial Relations Commission

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The Western Australian Industrial Appeal Court (the IAC) has unanimously dismissed an appeal against a decision of the Full Bench of the Western Australian Industrial Relations Commission where the appellant sought to pursue a moot appeal about whether an interim order of an Industrial Magistrate’s Court was considered to be a ‘decision’ within the meaning of s 84(1) of the Industrial Relations Act 1979 (WA).

In the case at first instance, the industrial magistrate issued the interim orders sought by the State School Teachers’ Union of WA (SSTUWA). The appellant appealed this decision to the Full Bench where the majority found that the appeal did not meet the s 84(1) requirement of a decision because an interim order did not finally determine the issue. The Full Bench dismissed the appeal on the ground that the appeal was incompetent.

Following the Full Bench decision, but prior to the institution of the appeal to the IAC, the parties settled the matter and the SSTUWA discontinued its claim. However, although the underlying dispute was resolved between the parties and the interim orders dissolved, the appellant continued to seek that the IAC exercise its discretion to hear the appeal. The basis of the appellant’s claim was that the scope of the appeal is narrow and that there is a public interest in resolving the s 84(1) construction issue of whether a decision under this section extends to encompass interim orders.

The IAC accepted that although the scope of the appeal was narrow, the answer to the question raised is not obvious and would require a detailed examination of a number of factors.

It was then considered by the IAC whether a resolution of the issue would be in the public interest and if there would be any ramifications extending beyond the facts of the case. The IAC found that although it had discretion to hear the appeal, this discretion should be exercised cautiously. As no sufficient case for the exercise of this discretion had been made out, the IAC dismissed the appeal on the ground that it had become moot.

The IAC also commented on whether an appeal of an industrial magistrate’s interim order lies to the Full Bench. Notably, although stopping short of making a finding, the IAC suggested that on the face of s 84(1) an interim order is “an order” and falls within the definition of a decision. This suggests that an interim order of the Industrial Magistrate’s Court may be able to be appealed.

The decision can be read here.

The Commission has dismissed an interim order application made by the Civil Service Association of Western Australia (the CSA) that its member to be returned to his workplace after he was suspended on full pay, pending a direction from the respondent that he retire on the grounds of ill health.

The CSA submitted that the Commission’s broad powers under s 44(6)(ba)(iii) of the Industrial Relations Act 1979 (WA) can require ‘parties to exchange information or to divulge their views in relation to the matter in dispute, as an aid in the resolution of a particular industrial dispute.’ Senior Commissioner Kenner found that although s 44(6)(ba) contained broad powers, subpar (iii) could not be relied upon because the terms of subpar (iii) did not have any connection to the return of the CSA’s member to the workplace.

The Senior Commissioner then considered that even if his interpretation of the power under s 44(6)(ba)(iii) was incorrect, the interim order sought would not encourage the parties to exchange or divulge attitudes or information which would assist in the resolution of the matter in question. Furthermore, the Senior Commissioner considered that given that the CSA sought the return of their member to the workplace in the substantive application under s 44 of the Act, the interim order would in effect be a final order. This was a further basis for refusing the order.

Additionally, the Senior Commissioner considered the new information that the respondent was commencing disciplinary action against the CSA’s member. The Senior Commissioner found that the Commission should not interfere in disciplinary procedures under the Public Sector Management Act 2004 (WA) unless the action is obviously baseless and that there was nothing before the Commission to suggest that this was the case.

After considering these issues, the Commission dismissed the CSA’s application for an interim order.

The decision can be read here.

The Commission has dismissed an unfair dismissal application made by a pharmacy employee who alleged that her employment was terminated at the initiative of her employer.

The Commission turned to the fundamental question, going to the Commission’s jurisdiction in dealing with unfair dismissal matters, of whether the applicant was dismissed or voluntarily resigned from the employment.

Commissioner Walkington considered the claim central to the applicant’s contention, that she felt pressured to resign after her employer had threatened to “make her life a living hell”. However, the Commissioner found that the statement was not made because the applicant did not test the conflicting evidence of their employer during cross examination. Walkington C then found that the applicant was given the opportunity to reflect and consider the options given to her and was not threatened by her employer to resign there and then. Finally, Walkington C noted that the respondent did not treat the applicant’s resignation as being of immediate effect as an agreement had been made with the applicant for her to work out her notice, and, during this time, the applicant did not raise with her employer that she had changed her mind or wished that her resignation be revoked.

The Commission determined on the threshold issue finding that the applicant resigned from her employment and consequently ordered that the application be dismissed.

The decision can be read here.

The Commission has dismissed a denied contractual benefits claim after finding that the contract of employment that existed between the parties was a sham directed toward fooling the Commonwealth Department of Immigration.

Commissioner Matthews found that although the contract of employment between the parties contained the terms that the applicant was to be employed full time and to receive $61,000 per annum, which is $1,173.08 per week, a side agreement that existed between the parties evidenced that the applicant was in fact a casual employee who worked for $25 per hour. Further, Matthews C found that where the applicant earned less than $1,173.08 per week he would refund the difference to his employer.

Matthews C dismissed the application on the basis that there was no contract of employment to enforce as the purported contract was no more than a sham.

The decision can be read here.

The Commission has dismissed an unfair dismissal claim made by a Housing and Property Service Officer after determining on a preliminary question and finding that the Commission did not have jurisdiction to hear the matter as the respondent is a trading corporation and a national system employer.

In determining on the preliminary matter, Commissioner Walkington considered three issues.

Firstly, the Commissioner was satisfied that the respondent was incorporated in Victoria on 1 August 2013 as the Community Housing (Capital) Ltd.

Secondly, the intended purpose of the respondent was found to be a benevolent one and the character of the activities at the relevant time may involve trading even though they are conducted for a public purpose.

Thirdly, Walkington C held that the respondent had engaged in significant and substantial trading activities of a commercial nature. Since 2012 the respondent had a Service Agreement with the Department of Housing which, in 2014 and 2015, was secured through a tender process. The Service Agreement included prices proposed by the respondent for the provision of services in two regional areas. The nature of the agreement between the respondent and the Department of Housing was considered by Walkington C who stated that ‘price was an important consideration in the Service Agreement tender process and one that the Department of Housing specifically reserved the right to reject the proposal.’ In light of these factors, Walkington C viewed the nature of the respondent’s business as being a commercial one that involved trade in services.

The Commission found that the respondent’s business is a trading corporation and therefore outside of the Commission’s jurisdiction.

The decision can be read here.

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Western Australian Industrial Relations Commission
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