Western Australian Industrial Relations Commission

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The Industrial Magistrate upheld three employees’ claims for redundancy entitlements.  The Court imposed a civil penalty on the employer ($25,500) and on the CEO personally ($5,100), based on the ‘size of the loss incurred by each’ employee, that the employer did not deliberately defy the law and that the respondent has an unblemished record. 

The employer was a service provider to the Commonwealth government.  In April 2015, it learned that its government contract would not be renewed.  Accordingly, the employer told the employees that there would be no work for them after June 2015 and their employment would come to an end.   

The employer and its CEO alleged that the employees were not entitled to redundancy payments because: 

(a)   In May 2015, the employees were dismissed for their conduct in allegedly undermining the employer’s efforts to lease its premises to a third party;

(b)   The employees are excluded from redundancy entitlements because they were not employed for a continuous period of more than 12 months and their employment was for a specified period of time; or

(c)   The employer ‘obtained acceptable alternative employment’ for the employees. 

His Honour Industrial Magistrate Cicchini held that the employer’s dismissal of the employees for their alleged conduct was not effective.  His Honour concluded that the employer had already terminated the employment in April 2015 when it told the employees that there would be no work for them after June 2015.  That brought the employees’ contracts of employment to an end by way of genuine redundancy.  ‘All [the employer] could do [after that] was to bring the employment relationship to an end’ because the employment had already been terminated and could not be terminated again. 

The Industrial Magistrate also found that the employees were employed continuously for more than 12 months despite being appointed on rolling fixed term contracts.  The employment was continuous because renewal of the contracts was a ‘mere formality’ and the employment often continued despite the contracts having expired.  Also, the facts did not support the employer’s argument that the employment was for a specified period. 

His Honour noted that the employer had spoken to its successor, the company that won the government contract, about taking on the employees.  The employer argued that it was excused from making redundancy payments to the employees because it found acceptable alternative employment for them.  The Court held that for an employer to be excused from making redundancy payments, the employer must be a ‘strong, moving force towards the creation of the employment opportunity’; the employer must do more than merely establish contact with a prospective employer.  The employer did not call enough evidence to satisfy the Court that it convinced its successor to take on the employees.  Therefore, the employer was not excused from paying the redundancy entitlements. 

The decision as to liability can be read here

The decision as to quantum, interest, penalty and costs can be read here

The State Wage Case is held pursuant to section 50A of the Industrial Relations Act, 1979.  This obliges the Commission before 1 July in each year to make a General Order setting the minimum wage under the Minimum Conditions of Employment Act, 1993 for employees over the age of 21, for apprentices and for trainees. The General Order also adjusts rates of wages paid under State awards.  More information can be found here.

The State Wage Case 2017 is listed for 18 and 19 May 2017, and an additional date to be advised after the Annual Wage Review decision of Fair Work Commission.

The Notice can be viewed here.
  Submissions are due to be filed 4 and 9 May 2017, and submissions in reply are due to be filed by 15 May 2017.  Once available, they can be viewed here.


Proceedings will be webcast and can be viewed here.

 

The Full Bench unanimously granted an application by The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch to approve an agreement between the applicant and its federal body. 

The ultimate effect of the Full Bench approving this agreement is that the federal branch of the registered industrial organisation can provide joint services with the state organisation to their members.  It also enables the federal organisation to manage the funds and property of the state organisation.  This agreement enables the two organisations can operate more efficiently.  When the agreement is approved, it is registered as an amendment to the rules of the state organisation. 

The process under the Industrial Relations Act allows state and federally registered industrial organisations to have the benefits of running their organisations jointly without the burden of maintaining separate administrative arrangements between state and federal bodies. 

The decision can be read here

A public sector employee has referred a matter to the Commission under s 95(2) of the Public Sector Management Act 1994 (WA), alleging his employer failed to fairly and properly apply the terms of the relevant regulations in relation to his request for a substituted voluntary severance. As a preliminary issue, the Commission was required to determine whether or not there was a relevant section 94 decision for the purposes of s 95(1) of the Act.

 

Senior Commissioner Kenner found the Director Generals deliberation and consideration of the matter and his refusal to accept the employees proposal constituted a decision to not approve the substituted voluntary severance. He found the non-approval of a request for a substituted voluntary severance is a section 94 decision for the purposes of s 95(1) of the Act.

 

The decision can be read here.

The Commission affirmed a decision of the Construction Industry Long Service Leave Payments Board to register an employer who installs air conditioners in established residential houses and apartments.  The employer said it should not be registered to pay contributions because its employees do not come within the definition of ‘employee’ under the Act because they are not covered by the area and scope provisions of the prescribed awards.  The employer also said that its employees do not work on a construction site.  The Commission found that the employees came within the definition of ‘employee’, they performed work in the ‘construction industry’ as defined by the Construction Industry Portable Paid Long Service Leave Act 1985, and the work was ‘on a site’.  Therefore, the employer is required to be registered by the Board. 

Chief Commissioner Scott held: 

(1)        For an employee to be covered by the Construction Industry Portable Paid Long Service Leave scheme, they must be in a classification referred to in a prescribed award.  The definition of ‘employee’ does not require the employee or employer to be covered by the area and scope of the award, just the classifications.

The prescribed awards can be found here:  Construction Industry Portable Paid Long Service Leave Regulations 1986 Schedule 1

(2)        The work by the employees must be in the ‘construction industry’ as defined by the Construction Industry Portable Paid Long Service Leave Act 1985.  For the work to be in the ‘construction industry’, it must firstly be ‘on a site’.  This is a low threshold; it simply means not on the employer’s premises.  The site does not have to be a building construction site.  Secondly, it must be in the kinds of work that are within the ‘construction industry’.  Relevant to this case, the work carried out was the installation of works for the supply or transmission of electricity, and fixtures or works for use on or for the use of any buildings. 

The full list of work that falls within the definition of construction industry under the Act can be found here (see ‘construction industry’). 

The Chief Commissioner specifically noted that the definition of ‘construction industry’ in the Act is broader than many would generally expect. 

The decision can be read here

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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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