Western Australian Industrial Relations Commission

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The Commission sitting as the Public Service Arbitrator will convene a further compulsory conference concerning the present police dispute at 10:30 am on Tuesday, 10 October 2017.

The Commission will issue a statement regarding the outcome of the conference in due course.

The Commission sitting as the Public Service Arbitrator this evening, convened an urgent compulsory conference under s 44 of the Industrial Relations Act 1979 (WA) concerning the present police dispute. The Commission expressed to the parties its concern as to the deterioration in industrial relations during the course of this dispute, with the escalation of the Union’s industrial action campaign last night, being of major concern. As is publicly known, the Commissioner of Police was moved to issue a direction to police officers under the Police Force Regulations 1979 (WA) to ensure that public safety was not put at risk.

 There have been numerous compulsory conferences to date convened by the Commission in an endeavour to assist the parties to reach a new industrial agreement through enterprise bargaining. Thus far, those processes have been unsuccessful in reaching agreement. The Commissioner of Police put its final offer for a new industrial agreement to the Union on Friday, 22 September 2017. The Union’s Board will formally consider that final offer and respond to it after its meeting on 11 October 2017.

 At the urgent compulsory conference the Commissioner of Police sought orders from the Commission that all present industrial action cease and that further possible options for resolution of the present dispute be explored.

 Given the concerns held by the Commission about the impact of the ongoing industrial campaign, the cost to the community and the public interest, orders were made this evening requiring the Union and its police officer members to cease all industrial action by 12:00 p.m. Thursday, 28 September 2017. Furthermore, in response to an application made by the Union, the Commission also made orders restoring access by senior officers of the Union, to the police computer and communications system so that the Union can continue to communicate with its members during the bargaining process.

 Furthermore, the Commission has also ordered that the parties further confer and report back to the Commission by no later than 6 October 2017 on the prospect of a replacement industrial agreement. The Commission has also recommended that other steps be taken to explore possible agreed outcomes to resolve the present dispute, under the terms of the Industrial Relations Act 1979.

 A copy of the orders and recommendation issued by the Commission is attached to this Statement.

The Commission recently upheld two employees' claims for denied contractual benefits of notice, annual leave and unpaid wages, awarding one employee more than $120,000 and the other employee about $15,000.

The employer dismissed one employee in December 2016.  Although the employer did not tell the other employee she was dismissed, Commissioner Emmanuel found that its conduct amounted to constructive dismissal because it failed to pay the employee's wages after November 2016, it failed to respond to her questions about when she would be paid, it told its business partners that it had stopped operating and it failed to pay its suppliers, including its landlord.

The employees said they were dismissed without notice, in breach of their employment contracts, and were not paid out their annual leave.  The employer's accountant confirmed the employees' evidence.

Commissioner Emmanuel found that the employer did not have the right to dismiss the employees without notice.  Under their employment contracts, the employees were entitled to 12 months' notice. The Commissioner distinguished a debt owed under a contract from a claim for damages for breach of contract.  Because employer could choose to give notice or pay an amount in lieu of notice, the employees' claims for notice were effectively claims for damages.  Consequently, the employees needed to take reasonable steps to mitigate their losses. 

The employee who was awarded the lower amount was able to find another job after she was dismissed.  The employee who was awarded the higher amount was unable to find another job for a range of reasons, including changes in Australian visa rules.  In the circumstances the Commissioner found she was entitled to damages in the amount of 12 months' pay.

Commissioner Emmanuel heard and determined this matter in the absence of the respondent, who did not file answers to these claims, did not respond to the Commission's correspondence and did not appear at the hearing.

The decision can be read here.  

The Full Bench has upheld an appeal by The Australian Rail, Tram and Bus Industry Union of Employees against two decisions of the Commission in relation to the interpretation of cl 5.2.1 of the Public Transport Authority/ARTBIU (Transperth Train Operations Rail Car Drivers) Industrial Agreement 2016.

The issue between the parties was the method of calculating payment of an allowance to rail car drivers when they are required to commence work at a depot other than their home depot. The rate of the allowance depends upon the employee’s ability to use public transport to travel to and from the other depot. The parties differed on whether the ability to use public transport to travel to and from the other depot is to be assessed from the employee’s home depot or place of residence.

The Commission at first instance rejected an application by the Union to dismiss the substantive application on the basis that there was on foot, enforcement proceedings in the Industrial Magistrates Court between the parties involving the same factual allegations.

The Commission considered the true meaning of cl 5.2.1(b) and declared that in considering whether an employee is reasonably able to use public transport to travel to and from a depot other than the employee’s home depot, the depot manager of the employee’s home depot shall consider as the relevant locations, the employee’s usual place of residence and the other depot.

The Hon. A/President, with whom the Chief Commissioner agreed, summarised the relevant case law and held the learned Commissioner erred in finding that s 46(3) of the Act, to the effect that a declaration of the Commission under s 46 binds all courts, was a complete answer to the Union’s s 27(1)(a) application to dismiss. The Full Bench found as follows:

  • Section 46(3) enables the Commission to make a binding declaration as to the true interpretation of cl 5.2.1 insofar as it applies to all employees whose terms and conditions of employment are covered by the Industrial Agreement.
  • The Commission has no power to consider whether cl 5.2.1 has been breached by the Public Transport Authority by not paying a particular employee an allowance calculated in accordance with the rate specified in cl 5.2.1(b)(i) of the Industrial Agreement.
  • Given the matter before the Commission related only to the factual circumstances of a particular employee’s claim before the Industrial Magistrates Court and the fact that such a claim is an enforcement matter in relation to which the Industrial Magistrate's Court has exclusive jurisdiction to determine, the learned Commissioner erred in dismissing the Union’s application.

The Full Bench also found the declaration made by the learned Commissioner was erroneous in that it was inconsistent with his observations that access to and proximity to a bus stop, park and ride facilities or obtaining a lift from another person to public transport may be relevant circumstances to consider when determining whether an employee is reasonably able to use public transport.

The decisions of the Commission were quashed and the substantive application dismissed.

The decision can be read here.

The Full Bench unanimously dismissed an appeal by a nurse against a decision of the Industrial Magistrates Court dismissing his claim for pro-rata long service leave.

The appellant sustained a work-related injury in 2011 and lodged a workers’ compensation claim. As part of the settlement of the claim, the appellant agreed to resign from his position at the Department of Corrective Services.

The appellant claimed he was entitled to pro-rata long service leave on termination of his employment, pursuant to clause 29(11)(a)(iii) of the Department of Corrective Services – Registered Nurses (ANF) Industrial Agreement 2010. Clause 29 provides for payment of pro-rata long service leave if the employee has completed at least 12 months’ continuous service and their employment has been ended by the employer on account of incapacity due to old age, ill health or the result of an accident.

The appellant submitted he was entitled to the benefit of cl 29(11)(a)(iii) as the resignation was initiated at the respondent’s request and was a mandatory requirement, and the ending of the employment contract was directly related to his injury and on account of incapacity due to the result of an accident and/or ill health.

The Hon. A/President and Chief Commissioner (Commissioner Emmanuel agreeing), found the appellant made an informed choice on advice to settle his workers’ compensation claim and pursuant to the terms of settlement, freely resigned from his employment. Accordingly, the employment was not ended by the employer, but was by mutual agreement.

The Full Bench held it could not be found that the appellant’s employment was ended by his employer within the meaning of cl 29(11)(a)(iii) of the Industrial Agreement. The appeal was dismissed.

The decision can be read here.

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