Western Australian Industrial Relations Commission

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Retail Pharmacy Employees covered by State Shop Award

The Commission has made a declaration that The Shop and Warehouse (Wholesale and Retail Establishments) State Award 1977 (Shop Award) applies to retail pharmacy employees in Western Australia.

The Shop Distributive and Allied Employees' Association of Western Australia applied to the Commission for interpretation and a declaration under s 46(1)(a) of the Industrial Relations Act 1979 (IR Act) because it disagreed with Chemist Warehouse about how the Shop Award should be interpreted, particularly in light of the scope clause, clause 40. Chemist Shops and the respondent schedule.

The Pharmacy Guild of Western Australia Organisation of Employers (Pharmacy Guild) and the Minister for Commerce and Industrial Relations (Minister) intervened in this application.

The parties and interveners agreed that when the Shop Award was made, its coverage extended to the retail pharmacy industry. The parties also agreed that in the current version of the Shop Award, there are no known respondents in schedule C carrying on the retail pharmacy industry. They disagreed about whether other clauses that reference chemist shops or pharmacies, for example cl 40, can have an effect on the scope of the Shop Award.

Commissioner Emmanuel found that the Commission is not limited to considering the scope clause when considering the scope of an award. She held it is appropriate to construe the award as a whole and in doing so found the Shop Award is intended to apply to the retail pharmacy industry.

Commissioner Emmanuel also found that in light of the ordinary words of the Shop Award, the authorities and the statutory scheme, this award must be interpreted such that its scope was established at the date the Shop Award was made, by reference to the named respondents at that time, and their industries at that time. Further, the scope of the Shop Award also includes the industries of any respondents added from 8 July 2002 as those industries were at the date those respondents were added. It will also extend to any employer who was added as a respondent after the Shop Award was made and before 8 July 2002.

The decision can be read here

Full Bench cancels prohibition notice

The Full Bench has unanimously upheld an appeal against a decision of the Occupational Health and Safety Tribunal and found that a prohibition notice relating to asbestos containing materials did not comply with the Mines Safety and Inspection Act 1994 (MSI Act).

The appellant argued in ground 1 that the Tribunal erred in affirming the prohibition notice and that the prohibition notice was invalid as it failed to comply with the MSI Act. In order to comply with s 31AD(2)(a) of the MSI Act, a prohibition notice must require the removal of a hazard or likely hazard. Smith AP and Scott CC found that the prohibition notice did not put in place a regime to remove the hazard or likely hazard. Instead, they found that the direction to prohibit persons from being in a place where they might be exposed to a hazard or likely hazard could be said to be a regime to avoid exposure to a hazard. They also found that a requirement to remove persons from an area can only be authorised for the time it takes to remove a hazard or a likely hazard. That is, the removal of persons from an area must be for a limited time and not ongoing. For those reasons, they were satisfied that ground 1 was made out.

The appellant argued in ground 2, and the Full Bench agreed, that the prohibition notice must unambiguously identify and make clear what is to be done to remove the hazard or likely hazard and what requirements are to be complied with until the inspector is satisfied that the hazard or likely hazard has been removed. Smith AP and Scott CC found that the use of the words 'might' and 'has been' in the prohibition notice were ambiguous. They found that this was not sufficiently clear to a person in receipt of the prohibition notice. They are entitled to know, with a high degree of specificity, what they are prohibited from doing. The manner in which the prohibition notice has been written leaves the appellant to work out what it means and how it might be managed. This is problematic as the imposition of a prohibition notice places the appellant in jeopardy of prosecution and penalty if it breaches the prohibition notice.

The appellant argued that the words 'damaged and/or distributed and/or deteriorated in any matter' in the prohibition notice were also unclear. The Full Bench disagreed and found that evidence before the Tribunal established that the appellant has a comprehensive knowledge of not only what types of asbestos are contained in their refinery but also the location of the asbestos and has a clear system of work in place for identifying and determining whether asbestos containing material has degraded or deteriorated in any manner.

The appellant contended in grounds 3 and 5 that the use of the word 'might' implies that the prohibition notice is not grounded in opinion or conclusion that the asbestos containing materials are either dangerous or likely to be become dangerous, as to constitute a hazard. In the decision at first instance, Kenner SC found that the word 'might' meant something more than a mere possibility of an occurrence. Smith AP and Scott CC found that the learned Senior Commissioner erred and that the word 'might' does not mean the same as 'likely'. They went on to find that reliance on the word 'might' in the prohibition notice gave rise to a prohibition against the bare possibility that an exposure to airborne respirable asbestos 'might' occur and an ensuing bare possibility the exposure 'might' give rise to injury or harm. The use of 'might' is simply not sufficient to enliven the power to issue a prohibition notice pursuant to the MSI Act. Consequently, ground 3 and 5 were made out.

The Full Bench then considered to ground 7. The appellant argued that the Tribunal denied the appellant procedural fairness. The Full Bench did not accept this assertion as, in the matter of first instance, the appellant was provided with the opportunity to make submissions on any proposed amendments or modifications to the prohibition notice.

Grounds 4 and 6 of the appeal were not made out.

The Full Bench varied the decision of the Tribunal by revoking the decision of the State Mining Engineer and order the cancellation of the prohibition notice

The decision can be read here.

Commission limited to discovering terms of contract

The Commission has handed down a decision in a joint unfair dismissal and denied contractual benefits matter. The applicant was a restricted legal practitioner who needed to satisfy the work experience requirement of the Legal Practice Board for unrestricted practice and who had difficulty finding a firm to take him on. The applicant was employed by the respondent in an agreement to be paid only by commission or percentage of fees invoiced, received and banked from clients.

Senior Commissioner Kenner dismissed the claim of unfair dismissal on the facts. It found that the applicant's actions, including sending a blunt letter threatening legal action and cleaning out his office, were consistent with the applicant preparing to leave employment. At no stage did the applicant inform the respondent that it was not his intention to leave the respondent's firm. Even if the employment had continued after the applicant's actions, it would have been ended by the applicant's initiative in commencing these proceedings.

In the alternative, the Senior Commissioner found that it was clear that the applicant was unlikely to return to the firm, which is a relevant consideration in determining any compensation that may be awarded in the event of a finding of unfair dismissal.

In respect of the claim of denied contractual benefits, the Senior Commissioner found that the applicant was an employee who was paid a percentage of fees paid by the client to the respondent. Therefore, he was a person who was wholly remunerated by percentage reward and was excluded thereby from the coverage of the Minimum Conditions of Employment Act 1993. The applicant was found to have been denied a contractual benefit of 40 days' annual leave. The Senior Commissioner found that annual leave entitlements are an implied term of the contract of employment as annual leave is regarded as a notoriously well-known entitlement of all employees in Australia.

The Senior Commissioner determined that the applicant was not entitled to any payment in lieu of notice as the respondent did not terminate the applicant's employment. The Senior Commissioner noted that if he was wrong in that regard then the applicant would still not be entitled to any payment for notice as it is not an entitlement arising under the contract of employment and cannot be recovered as a denied contractual benefit.

The applicant argued the Commission should assess his claim based on an estimate of reasonable value for services performed instead of the remuneration agreement that was included in the contract of employment. The Senior Commissioner found that the contract of employment was valid and enforceable and that there was no basis to set aside the contract in favour of the above principle. Whilst the Senior Commissioner had concerns about the very low amount of income earned by the applicant as a solicitor, he was limited to discovering the terms of the contract and determining whether any benefit had been denied.

The Senior Commissioner ordered that an admitted debt owed by the respondent to the applicant be paid along with 40 days of annual leave. As the applicant was paid by percentage reward, the annual leave is to be paid at an average monthly rate based on the applicant's earnings over his period of employment.

The respondent has since filed an appeal to the Full Bench of the Commission, which is yet to be heard.

The decision can be read here.

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.

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