Western Australian Industrial Relations Commission

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An employee of a company engaged in the business of mining and processing coal in the Collie Basin, filed a contractual benefits claim in the Commission, claiming various entitlements under the Griffin Coal (Maintenance) Collective Agreement 2012 which he says was expressly incorporated into his contract of employment. The Commission dealt with the question of incorporation as a preliminary issue.

Senior Commissioner Kenner dismissed the application on the basis that a reasonable bystander, having regard to the mutual knowledge of the situation facing the coal mining industry generally and the employer’s economic position specifically, would not have considered it was intended that the terms of the 2012 Agreement be secured contractually, unable to be varied without the agreement of both parties, possibly for years ahead.

The decision can be read here.

The Western Australian Industrial Appeal Court, constituted by three judges of the Supreme Court, held that if an employee is covered by an instrument that provides for long service leave, the employee cannot drop in and out of the default scheme created by the Long Service Leave Act 1958 (WA) (LSL Act) when that scheme is more beneficial at any point in time.  The Court also clarified how to determine which scheme applies. 

Their Honours Justice Buss and Justice Murphy (Justice Kenneth Martin agreed) noted that if an instrument scheme is ‘at least equivalent to’ the LSL Act scheme, the instrument scheme applies.  To determine whether an instrument scheme is ‘at least equivalent to’ the LSL Act scheme, a prospective comparison must be made between the entitlements of a class of employees under the terms of each scheme, not a retrospective comparison of the circumstances of an individual employee claiming long service leave.  The comparison is of the accumulating entitlement to long service leave under each scheme, ‘irrespective of whether it has been accrued or not’, and the comparison is broad and evaluative, ‘involving the overall weighing of the benefits provided under the two’ schemes. 

When an employee is covered by an instrument scheme which is not ‘at least equivalent to’ the LSL Act scheme, the LSL Act scheme prevails.  In that case, rather than merely supplementing the instrument scheme, the LSL Act scheme applies to the exclusion of the entire instrument scheme.

The decision can be read here

A transit officer whose employment was terminated for allegedly using excessive force by deploying OC spray during the course of an incident at the Perth Railway Station, has successfully challenged his dismissal.

 

The Public Transport Authority contended that the transit officer’s dismissal was the appropriate and proportionate response to his conduct on the night in question.

 

The Commission found the transit officer had a basis to believe, on reasonable grounds, that he was about to be spat upon by the person of interest and his deployment of OC spray was to prevent that occurring. While with the benefit of hindsight, the transit officer could have taken an alternative course by creating more distance between himself and the person of interest, the Commission found he acted with reasonable cause, and that his subsequent dismissal was harsh, oppressive and unfair.

 

Having regard to the fact that the transit officer could have taken an alternative course, the Commission ordered the transit officer be demoted two increment levels to a Level 3 position, with payment of remuneration lost and continuity of service for benefit purposes.

 

The decision can be read here.

 

The Road Freight Transport Industry Tribunal upheld an owner‑driver’s claim for payment of the balance of an owner‑driver contract that was terminated by the prime contractor approximately 9 months before it was due to expire. 

Chief Commissioner Scott found that the parties entered into a one year contract in June 2011.  The arrangement was renewed yearly, for a period of about one year, because the contract provided for renewal and each time a contract ended, the parties continued to deal with each other as before.  In the circumstances, that conduct was sufficient to support a finding that the parties intended for the arrangement to run for another year.  Therefore, the prime contractor is liable to pay damages for the unexpired portion of the owner-driver contract.

The prime contractor said it did not have to pay the balance of the contract because it gave the owner-driver ‘reasonable notice’.  However, Chief Commissioner Scott found that the contract between the parties had no term for reasonable notice.  It could only be terminated ‘by expiration or by mutual agreement.’ 

The owner‑driver tried to claim that the arrangement was for a minimum of five years from June 2011.  However, he was ‘estopped’ from making that claim because in 2013, he entered into a deed to settle a dispute with the prime contractor.  A consequence of that deed was that, among other things, he could no longer claim that the owner-driver contract was a five year arrangement.  However, on the facts of the case, this did not make a substantial difference because contracts had already run for more than 4 years before the prime contractor sought to bring it to an end. 

The decision can be read here.

The Commission dismissed an unfair dismissal claim by a teacher.  The teacher claimed that her employment was unfairly terminated because her performance was not substandard.  She also argued that the process was unfair because, among other things, she was moved to a different school to be assessed against the Australian Institute of Teaching and School Leadership Standards and she was assessed against all of the Standards rather than just the areas where the employer alleged she was not ‘Proficient’. 

Chief Commissioner Scott found that the dismissal was not unfair because the teacher’s performance was properly assessed as being substandard.  There were significant deficiencies in her lesson planning and implementation, as well as failures to follow instructions and to properly assess students’ work. 

Chief Commissioner Scott also found that the process was not unfair.  At every stage, the teacher had a high level of support available to her and was not required to perform tasks beyond those which any teacher should be able to perform.  While her dismissal was based on an alleged failure to be proficient in three of the Standards, and this was the basis of her dismissal, she was not proficient in any of the seven standards.  And further, all experienced teachers are expected to be ‘Proficient’ in all Standards, and the Standards are interrelated, so it was not unfair for the employer to assess the teacher in all Standards rather than discrete areas of alleged substandard performance. 

The decision can be read here

Contact Us

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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