Western Australian Industrial Relations Commission

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Continuous service means service in the WA "Public Sector"

The Full Bench has upheld an appeal and quashed a decision of the Commission regarding the determination of 'continuous service' for the purpose of severance payments in the public sector.  It was determined that, in order to be entitled to a severance payment under the 'Voluntary Targeted Separation Scheme for Publish Sector Renewal', any continuous service in the public service must occur in Western Australia.

Commissioner Matthews, with whom Commissioner Emmanuel agreed, determined that the term "Public Sector" has the same meaning in the Public Sector Management (Redeployment and Redundancy) Regulations 2014 (the Regulations) as it does in the Public Sector Management Act 1994 (PSM Act) where it means entities within the Western Australian government.  Commissioner Matthews went on to find that service in the Public Sector must be the overriding qualification in determining if an employee has accrued  continuous service under the Regulations.  Once that qualification is met, the Wages Employees Long Service Leave General Order may be referred to in determining what is or is not continuous service.  The respondent's employment in the Tasmanian Public Sector may have been continuous but it was not served in the "Public Sector" and must therefore not count towards any continuous service for the purpose of calculating a severance payment under the Regulations.

Acting President Smith (dissenting) found that the appeal should be dismissed.  Her Honour found that the term "Public Sector" should be defined as it is in the Wages Employees Long Service Leave General Order and that the PSM Act expressly states that regulations are to be made to provide terms and conditions to apply to a registered employee who accepts voluntary severance.

The decision can be read here.

Announcement – Appointments to the Commission

The Western Australian Industrial Relations Commission welcomes two appointments announced by the Minister, the Hon Bill Johnston.

For more than two years, Commissioner Stephen Kenner has been Acting Senior Commissioner.  He has now been formally appointed as Senior Commissioner.  He has been a member of the Commission since 1998, is the Public Service Arbitrator and also constitutes the Road Freight Transport Industry Tribunal and the Occupational Safety and Health Tribunal.

Ms Toni Walkington will become a Commissioner.  Ms Walkington is currently the Secretary of the Civil Service Association of Western Australia Inc., and holds a number of significant roles in the union movement.  She has had many years' experience in the field of industrial relations and in particular, in the public sector.

Both appointments will take effect from 26 November 2018.

The Commission congratulates both Mr Kenner and Ms Walkington on their appointments, and looks forward to welcoming Commissioner Walkington.

Enforcement of agreements outside Commission's jurisdiction

The Commission has dismissed a claim in circumstances where the applicants and respondent reached compromise agreements. The applicants claimed that an incorrect amount of tax had been withheld from the settlement payment. The applicants were paid on a weekly basis so they considered that the tax taken from the settlement payment should reflect that.

Commissioner Emmanuel found that the applicants were asking the Commission to enforce the compromise agreements – enforcement lies outside of the Commission's jurisdiction. Commissioner Emmanuel dismissed the applications on the grounds that the compromise agreements were unimpeached, payment was made by the respondent and it was not in the public interest to hear the applications.

The decision can be read here. 

Findings required to justify exercise of discretion

The Industrial Magistrate's Court partially upheld a claim made by a police officer regarding reimbursement claims made to the Police Commissioner. Under clause 36 of the Western Australian Police Industrial Agreement 2014 (the Agreement), the Commissioner of Police may reimburse reasonable non-work related medical expenses where those expenses fall under the categories prescribed. The applicant made 3 such applications for expenses and the Police Commissioner refused the reimbursement claims.

The Police Commissioner contended that the 3 applications do not fall within the description of Non-Work Third Party Expenses Benefit because the expenses do not follow a 'referral' by a doctor for a 'service'. Industrial Magistrate Flynn found that the ordinary meaning of 'referral' in a medical context is the introduction of a patient by one medical practitioner to another medical practitioner for treatment. The fact that the claimant had such a letter that did not directly state it was a referral was insignificant as the purpose was to act as a referral. Flynn IM disagreed with the Police Commissioners assumption that 'service' has a technical meaning where the term appears in the context of 'x-ray or other service'. Flynn IM found that medical machine purchase, machine hire and hospital expense could all be 'services' under the agreement.

The claimant argued that the Police Commissioner was required to grant reimbursement. Flynn IM considered the meaning of 'may' within the agreement and found that the ordinary meaning of the word denotes a possible outcome and that the ordinary meaning of a word is to be preferred.

Flynn IM considered whether the Police Commissioner had exercised the discretion conferred by the agreement. The responses by the Police Commissioner to the claimant suggested that the Police Commissioner may have incorrectly interpreted the agreement.

Flynn IM ordered the Police Commissioner to re-consider reimbursement claims for non-work related medical expenses made by the claimant.

The decision can be read here.

Number of Safety and Health Representatives depends on circumstances of workplace

The Occupational Safety and Health Tribunal has decided on the number of Safety and Health Representatives (SHRs) and the manner of electing such representatives for a bus depot that services primarily CAT buses.

Senior Commissioner Kenner found that there is no standard formula to determine the appropriate number of SHRs for a workplace and it will instead depend on the circumstances of that workplace. In making such a determination it is necessary to look at the number of employees, working arrangements and hazards, the need for communication between SHRs and employees, the need for SHRs to be available to communicate with the employer on health and safety issues and for the SHRs to be visible and available to respond promptly to incidents and accidents.

The Senior Commissioner noted that the 'workplace', as defined in the Occupational Health and Safety Act, in this circumstance includes the depot and the buses – even when in transit. Evidence was given on the nature of health and safety hazards faced by CAT bus drivers and the limitations to communication during a shift with other employees and the control centre. The Senior Commissioner accepted that the level of hazards in relation to CBD driving was high and that CAT bus drivers face additional hazards in the city environment.

The Senior Commissioner determined that there will be 2 SHRs for each shift, 4 in total, and that a 'first past the post' method of voting following the Electoral Commission's preferred system of voting for only one candidate. The Transport Workers Union and the respondent will jointly conduct elections for any casual vacancies.

The decision can be read here

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Western Australian Industrial Relations Commission
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111 St Georges Terrace

Phone : (08) 9420 4444
Facsimile : (08) 9420 4500
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