Western Australian Industrial Relations Commission

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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

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

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Western Australian Industrial Relations Commission
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111 St Georges Terrace
PERTH WA 6000

Phone : (08) 9420 4444
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