Western Australian Industrial Relations Commission

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The Commission in Court Session has delivered its decision in the 2018 State Wage Case.  The Commission adjusted the State Minimum Wage and award rates of pay in the State industrial relations system by a flat amount of $18.00 per week.  The Commission will also adjust the Statement of Principles. 

These changes take effect from 1 July 2018. 

The Commission's statement in relation to its decision can be read here

A full copy of the Commission's decision can be read here.  

The Full Bench issued orders cancelling the registration of: 

  • The Boot Trade of Western Australia Union of Workers, Perth; and
  • the Master Plasterers' Association of Western Australia Union of Employers.

The Registrar of The Western Australian Industrial Relations Commission applied to have the registration of those organisations cancelled because they had not filed returns for many years, they had failed to notify the Registrar of their office holders and appeared to be defunct. 

The Full Bench was satisfied that the Boot Trade Union and the Master Plasterers' Association are defunct.  Accordingly, it issued orders cancelling their registration. 

A copy of the order in relation to the Boot Trade union can be read here

A copy of the order in relation to the Master Plasterers' Association can be read here

The Full Bench dismissed an appeal against a decision of the Commission to dismiss a claim of contractual entitlements.  The employee claimed that the Commission did not provide him with assistance to conduct his case, and pressured him to reach agreement in respect of some of his claim.  He argued that this meant he did not get a fair hearing. 

The Hon. Acting President, which whom Chief Commissioner Scott and Commissioner Emmanuel agreed, held that in respect of self-represented parties: 

  1. the Commission has a duty to do no more than is required to diminish their disadvantage;
  2. self-represented parties are subject to the same rules as all other parties before the Commission, however the Commission may be more lenient in the standard of compliance;
  3. the Commission will not deprive a represented party 'one jot' of their lawful entitlement simply because they are represented and the other party is not;
  4. the Commission may explain to the unrepresented party substantive and procedural rights to ensure the party is not unfairly disadvantaged by their ignorance of those rights;
  5. the Commission cannot advise a party how they should exercise their rights; and
  6. the assistance required will depend on the particular party.

One of the employee's complaints was that he did not have an opportunity to adduce evidence through a number of witnesses.  However, the Commissioner asked the employee whether he wanted to call evidence other than his own evidence, and he said 'no'.  Having regard to that, the Commissioner was under no duty to inform the employee that he could ask for an adjournment to call other witnesses. 

The Commissioner encouraged the employee to state his case fully and explained matters of law raised by the employer.  In the circumstances, the Full Bench was satisfied that the Commission at first instance conducted a fair hearing. 

The decision can be read here

An employer had two matters before the Commission: 

  • an appeal to the Full Bench against an interlocutory decision of the industrial magistrate's court; and
  • an application to the President sitting alone to stay the operation of the order of the industrial magistrate's court.

Shortly after the application for a stay of the interlocutory order was filed, the Hon. A/President informed the employer of an authority in which it was found that there is no power to stay the operation of an order of the industrial magistrate's court. 

The employer sought to discontinue the application for a stay.

The employer subsequently sought to discontinue the appeal as research by Senior Counsel for the employer revealed a binding line of authorities that determined that an appeal to the Full Bench can only be made in respect of a final determination of a substantive matter.

The respondent in each matter, the employee, sought orders for costs. 

There are three sections of the Industrial Relations Act that may provide for costs in relation to these matters:

  1. section 84(5), which is a specific power for the Full Bench to award costs in relation to an appeal against a final decision of the industrial magistrate's court brought under that section;
  2. section 27(1)(o), which provides for orders for costs with respect to interlocutory proceedings; and
  3. section 27(1)(c), which is a general power to award costs except for costs of any legal representation. 

Her Honour found that the stay application was not brought under s 84, and therefore s 84 did not apply.  The application for a stay was not provided for by the Act and therefore could not be found to have been brought under s 84 of the Act.  Further, the employee's costs of legal representation could not be awarded under s 27(1)(o) of the Act as s 27(1)(o) did not confer a separate power to award costs from s 27(1)(c).  That left the general power of the Commission to award costs under s 27(1)(c). 

The affidavit filed by the employee set out a number items for which she claimed costs.  The A/President found that all but the printing costs related to costs for the services of legal representation and were not allowed under s 27.  The printing costs did not did not distinguish between printing costs incurred in the course of instructing her representation and other printing costs incurred.  Therefore, the A/President held that the employee's application for costs was too vague.  

In dealing with the application for costs of the appeal, the Full Bench held that the Commission only has power to order an unsuccessful party pay the costs of the services of a legal practitioner of a successful party if it is satisfied that the proceedings have been instituted or defended 'frivolously or vexatiously': 

  • without reasonable grounds;
  • purely to cause trouble, annoyance or embarrassment; or
  • for an ulterior motive, not for the purpose of having the dispute adjudicated. 

If one of these elements is proved, the Commission's discretion to award costs is enlivened.  The Commission will then consider whether to award costs, taking account of the relative informality of proceedings before the Commission and the general policy of not awarding costs. 

Even though there was no jurisdiction for each matter, the A/President in dismissing the application for costs in the stay application and the Full Bench in dismissing the application for costs of the appeal, were satisfied that the employer acted properly and abandoned both applications as soon as the jurisdictional issues were drawn to its attention.  Further, the Full Bench was also of the opinion that the appeal was not one of those rare cases where a costs order should be made.  

The A/President's stay decision can be read here

The Full Bench's decision can be read here

The Commission upheld a claim of unfair dismissal by a teacher who was dismissed after he made physical contact with a student who sprayed him with compressed air. 

The Chief Commissioner found that compressed air is dangerous, and being sprayed with compressed air caused the teacher to fear for his life.  This provoked the teacher to instinctively and impulsively grab and push the student.  These circumstances were exculpatory of the teacher's physical contact with the student. 

The Chief Commissioner noted that not every instance of physical contact with a student will warrant dismissal.  The context of the conduct and the circumstances of the individual have to be considered.

The Commission ordered that the teacher be reinstated. 

The decision can be read here

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Western Australian Industrial Relations Commission
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Phone : (08) 9420 4444
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Free Call : 1800 624 263

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