Western Australian Industrial Relations Commission

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The Western Australian Industrial Relations Commission has received an application seeking that it issue a General Order under section 50 of the Industrial Relations Act 1979 (WA) for private sector employers and employees, based on the amendments made to the Fair Work Act 2009 (Cth) arising from the Coronavirus Economic Response Package Omnibus (Measures No.2) Act 2020 (Cth).

 

The application seeks a General Order in the circumstances of the COVID-19 pandemic to provide for the following specific temporary measures:

 

  1. A requirement that where a JobKeeper payment is payable, the employer is to provide eligible employees the value of the JobKeeper payment or the amount owed for work performed;
  2. Ability for employers to stand down employees (either fully or partially) because they cannot be usefully employed arising from the COVID-19 pandemic or government initiatives to slow the transmission of COVID-19;
  3. Ability for employers to alter the duties of work of an employee in order to continue the employment of one or more employees of the employer;
  4. Ability for employers to alter the location of work in order to continue the employment of one or more employees of the employer;
  5. Option for an employer and employee to agree to work being performed on different days and times, provided that the employee is not to unreasonably refuse an employer’s request.

 

The proposed General Order is intended to apply to all employers and employees in the private sector within the State industrial relations system, whether or not they are covered by an award or industrial agreement. The proposed terms of the General Order are said to aim to provide the flexibility to manage employment arrangements in a manner that supports the JobKeeper Scheme, preserves jobs and supports the viability of businesses impacted by the COVID-19 pandemic.

 

The application seeks for the General Order to be operative on a temporary basis only, applying until 28 September 2020, coinciding with the date the Jobkeeper Scheme arrangements set out in the Coronavirus Economic Response Package (Payments and Benefits) Act 2020 (Cth) cease to apply.

 

The Commission held a conference with parties named in section 50 of the Industrial Relations Act 1979 (WA), consisting of the Chamber of Commerce and Industry of Western Australia, UnionsWA, and Minister for Industrial Relations, the Honourable Bill Johnston MLA. The section 50 parties are conferring with a view to agreeing the terms of a proposed General Order.

 

The Commission intends to deal with the application as a matter of priority given the current circumstances. Any person wishing to make a submission to the Commission regarding the application for the proposed General Order is invited to do so in writing by 4.30pm on Monday 11 May 2020.

 

 

The Public Service Appeal Board (Board) has dismissed an appeal against the decision of the respondent to impose a penalty of a permanent reduction in classification following admissions by the appellant of misconduct over a six-year period.

The appellant occupied a Level 8 position with the respondent and formed part of the senior management team for several years.

In March 2019, the respondent made four allegations of suspected breaches of discipline under s 80 of the Public Sector Management Act 1994 (WA) (PSM Act). The allegations were in connection to the misuse of the respondent’s computer system, unauthorised release of official information and inappropriate behaviour.

The appellant admitted to the misconduct and the respondent imposed a penalty of permanent reduction in work classification from Level 8.3 to Level 5.4.

The appellant appealed on the basis that the penalty was harsh and unfair given the mitigating circumstances that he advanced in response to the allegations, including his unblemished record and personal issues. He sought that the penalty be reduced to a reprimand and a reduction in classification to Level 8.1.

The respondent argued that the penalty was appropriate and a higher-level position was not suitable for the appellant given his breach of trust and the respondent’s lack of confidence in the appellant as a result of his misconduct.  

The Board found, in considering the appellant’s engagement in sustained misconduct, profound abuse of the respondent’s email system, numerous breaches of the respondent’s code of conduct and his senior position, that the respondent’s decision to permanently reduce the appellant’s work classification was entirely appropriate. The Board found that the personal matters referred to by the appellant in his mitigation submissions could not be relied upon in mitigation of sustained misconduct over many years.

 

Respondent’s submission as to scope of Appeal Board’s powers under s 80I(1) of Act

The Board also dealt with a submission made by the respondent that the Board’s power to “adjust” the respondent’s decision under s 80I of the Industrial Relations Act 1979 (WA) (Act) only extended to reversing or quashing the decision. The respondent submitted that it was not open to the Board to “change” the decision in such a way as to replace it with a different decision as sought by the appellant, to impose a reprimand and a Level 8.1 classification instead.

The Board considered the powers of the Board under s 80I of the Act to “adjust” a decision of an employer to dismiss a manager for misconduct and found that its meaning was to be considered in the context of an appeal under s 80I(b) of the Act.

The Board then referred to s 80A of the PSM Act, and noted that one category of disciplinary action is a “reduction in the level of classification of the employee” and that this was the relevant ‘decision’ in this case. Thus, the Board found the meaning of “adjust” in this case is to be considered in the context of the relevant disciplinary decision to reduce the appellant’s level of classification.

The Board found that its power to “adjust” the respondent’s reduction in classification decision involved the power to “reform” it in some way. This is plainly not limited to reversing it.

The Board determined that such decisions involve “reforming” or changing a reduction in classification decision, which is the relevant decision to be adjusted under s 80I(b) of the Act. This does not involve the making of a new decision by the Board.  

The decision can be read here. 

The Public Service Arbitrator has dismissed an application for the conversion of a fixed term contract employee to permanency on the basis that the employee did not meet the requirements of clause 2.1(a) of Commissioner’s Instruction No. 23 (CI 23).

Clause 2.1(a) of CI 23 requires that ‘the reason for engagement on a fixed term contract is not a circumstance mentioned in the relevant industrial instruments’.

The Arbitrator noted that a circumstance mentioned in the Public Service and Government Officers General Agreement 2014 and the Public Service and Government Officers General Agreement 2017, which were in effect at the time of the employee’s employment, was for employment on a fixed-term contract to cover a “one-off period of relief”. His operative contract on the 10 August 2018 explicitly stated his fixed term position was a “one-off period of relief” to cover the position of another worker during the period between July and December 2018.

As the contract indicated a reason for his engagement on the contract mentioned in the agreements, he had not met cl 2.1(a) of CI 23 and therefore the Arbitrator found the employee was ineligible for conversion to permanency. 

 

Interpretation of CI 23

The Arbitrator observed that CI 23 had a commencement date of 10 August 2018, and by its scope and application, was limited to persons employed at the time of its commencement. He found it was not intended to apply to future employees.

The Arbitrator found that there was a clear indication that the terms in CI 23 were not intended to have ongoing effect. The Arbitrator found the respondent’s submission correct in that a review of a fixed term contract employee was intended to be a one-off process, and reiterated that the relevant contract to be considered was the contract in place on 10 August 2018, which was the date that the CI 23 was commenced.

The Arbitrator rejected the applicant’s submissions to the effect that the criteria for conversion of a fixed term contract employee is limited to only those matters referred to in cl 2.1. He found that the following requirements, in addition to cl 2.1, must be met:

  1. The employee must be in employment on a fixed term contract at the time of the commencement of CI 23 i.e as at 10 August 2018;
  2. In the case of an employee who was not had a proper assessment of merit one is to be taken under cl 10;
  3. Relevant advertising and recruitment obligations must be satisfied;
  4. Funding for a permanent appointment must be confirmed as required by cl 12; and
  5. If a suitable permanent registrable or registered employee under the Public Sector Management (Redeployment and Redundancy) Regulations 2014 is able to undertake a role, then no offer of conversion to permanency can be made.

The application was dismissed.

The decision can be read here. 

The Commission has issued an order that the applicant’s legal representative in another jurisdiction produce documents that are not subject to legal professional privilege in compliance with a summons.

At a preliminary hearing in relation to jurisdiction, the applicant claimed that she was “forced into resigning” in such a way as to make the ending of her employment a ‘constructive dismissal’. The respondent argued that the resignation was ‘voluntary’ and was part of the settlement of her workers’ compensation claim. The hearing did not resolve the matter of whether the applicant had been ‘dismissed’.

After the preliminary hearing, the respondent sought, by way of summons directed to the applicant’s legal representative for the worker’s compensation matter, four sets of documents. This included any file notes from the conciliation conference that led to the settlement of the applicant’s workers’ compensation claim, as well as documents containing any advice given by the applicant’s legal representative to the applicant.

The respondent argued that the applicant, in the furtherance of her case, deployed each of the documents sought and, accordingly, should be taken to have waived legal professional privilege. The respondent claimed that production of the documents would show that the circumstances were not as the applicant alleges. The respondent argued it would be unfair for the applicant to assert privilege where that is the case. 

The recipient of the summons resisted production of the documents on the basis that each and all are the subject of legal professional privilege.

The Commission found that legal professional privilege had not been relevantly waived by the applicant stating she did not receive “advice per se” whether or not to accept the settlement offer at the workers’ compensation conciliation conference. The Commission determined that the applicant’s state of mind insofar as it was created or influenced by the respondent was the relevant factor to determine the issue of ‘constructive dismissal’, not how her state of mind was affected by any advice she did, or did not, receive from her advisors. The Commission found that while the applicant having access to competent legal counsel will be relevant, the advice that was given will not be particularly relevant.

The Commission ordered that the recipient of the summons provide any notes taken by the applicant’s representatives at the workers’ compensation conciliation conference, where those notes are of events at which representatives of the respondent were present, to the Western Australian Industrial Relations Commission.

The decision can be read here.

The Western Australian Industrial Relations Commission (Commission) will issue a General Order under s 50 Industrial Relations Act 1979 (WA) amidst the COVID-19 pandemic that allows state system employees to take unpaid pandemic leave, annual leave on half pay and annual leave in advance.

The Commission has implemented these flexible leave arrangements to assist businesses to continue to operate and to preserve employment and the continuity of employment for the benefit of those businesses, their employees and the economy generally.

The terms of the General Order will provide flexibility and leave options to be available to employees for:

  1. Unpaid pandemic leave of up to two weeks if the employee is required, by government or medical authorities or acting on the advice of a medical practitioner, to self-isolate or is otherwise prevented from working by measures taken by the government or medical authorities in response to the COVID-19 pandemic;
  2. Double annual leave at half pay, by agreement between the employer and employee; and
  3. Annual leave to be taken in advance, by agreement between the employer and employee.

These measures will operate from today until 31 July 2020 and may be extended.  

The General Order will apply to all private sector employers and employees in the State system, whether covered by an award or not. State system employers generally include sole traders, partnerships, some trusts, some local government agencies and some non-for-profit organisations.

Where an award or industrial agreement contains a more beneficial term than the General Order, the award will apply. Otherwise, where there is conflict between the terms of the General Order and the award, the terms of the General Order will apply.

 

The Commission issued the Reasons for Decision and the Minutes of Proposed General Order at 10.00am on 14 April 2020.

The Commission has invited any submissions in writing by 2.00pm on 14 April 2020 as to whether the Minutes reflect the Reasons for Decision.

The Reasons for Decision can be read here.

The General Order can be read here. 

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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