Western Australian Industrial Relations Commission

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The Full Bench unanimously dismissed an appeal against a decision of the Commission to summarily dismiss a claim for contractual entitlements.  The Hon. A/President held that in determining whether a claim for contractual entitlements can be dismissed at a preliminary stage, the Commission must be satisfied that: 

  • there is clearly no real question of fact or law to be tried;
  • the claim cannot possibly succeed;
  • there is no risk that the development of law will be stifled by dismissing the claim at an early stage; and
  • regardless of how the facts are found, there is no basis for the legal conclusion contended by the applicant. 

The Commission is not restricted to considering the way the applicant has framed their case, and may consider agreed and controversial facts when considering each of these factors. 

The employee was employed on a contract with a maximum term and was dismissed during the probationary period.  The employee was paid notice in accordance with the contract.  The employee argued that she was entitled to the balance of the maximum term of the contract because:

  1. the employer made pre-contractual representations to her that the contract was for a fixed period.  Therefore, the employer could not rely on the notice provision in the contract; and
  2. the Fair Work Act 2009 (Cth) general protections implied a term into the contract that the employer could not unreasonably exercise its right to terminate the contract.  The employer acted unreasonably because the true reason for the termination was that the employee exercised a workplace right.  Therefore, the employee is entitled to damages, being the balance of the contract term. 

The Hon. A/President Smith found that the employee's contentions about pre-contractual representations posed no real question of fact or law because: 

  1. The pre-contractual representation relied on by the employee was not tendered in the proceedings at first instance and the employee did not persuade the Full Bench that leave should be granted to tender the new evidence of the representation;
  2. No such argument was raised at first instance and the Full Bench was not persuaded that the employee's case was so exceptional to allow a different case to be put on appeal;
  3. In any event, at its highest, the representation was 'merely a statement of subjective intention' of the employer and, as a matter of law, such a representation is not admissible to construe the terms of the contract; and
  4. The contract of employment contained an effective 'whole agreement' clause, which prevented the employee from relying on any pre-contractual representation. 

Her Honour also concluded that the employee's claim that she had a contractual entitlement that the employer would not act unreasonably when exercising its right to terminate the employment was untenable because: 

  1. At common law, an employer can terminate a contract of employment pursuant to its terms for any reason, or no reason at all;
  2. The employee had no contractual entitlement to the workplace right she alleged she was entitled to exercise; and
  3. Any workplace right conferred by the Fair Work Act, or any other legislation, is a statutory right, not a contractual right.  Contraventions of statutory rights are dealt with in accordance with the relevant statute and are generally not incorporated into the contract of employment. 

The decision can be read here

The Occupational Safety and Health Tribunal upheld an application to review a decision by WorkSafe to deregister the design for two waste heat recovery units installed at Fiona Stanley Hospital. The Units recover heat from exhaust gases of natural gas engines, generating steam for use in the hospital.

Senior Commissioner Kenner concluded that the design alteration in relation to the gas side chambers of the Units is consistent with sound engineering practice which achieves a comparable level of safety. He found the requests for exemption from compliance with the Regulations should be granted by WorkSafe. The design is limited to the Units at Fiona Stanley Hospital and may not be used for any other fabrication anywhere in Australia.

The parties agreed that the key issue for determination by the Tribunal, was whether the gas side chambers of the Units could be properly characterised as "pressure parts", as defined in AS 4942-2001 -  Pressure equipment, for the purposes of AS 1228-2006. Flowing from this was whether the AS/NZS 3678-250 steel plates used for the construction of the gas side chambers, breached the requirements of AS 1228-2006 in relation to the construction and operation of boilers.

The Tribunal concluded that the gas side chambers of the Units fall within the extended definition of a "boiler", as being a part of the "boiler setting". Having considered all the Australian Standards relating to pressure vessels, and the definition of "pressure parts "and "vessel", the Tribunal held that the gas side chambers of the Units should not be construed as "pressure parts" for the purposes of AS 4942-2001 and AS 1228-2006. Consequently, the terms of s 2.1.1 or 2.1.6 of AS 122-2006 do not have application to the gas side chambers of the Units. 

The decision can be read here.

The State Wage Case hearing commences today.  It is scheduled to continue tomorrow if necessary, and will reconvene following the decision of the Fair Work Commission in its Annual Wage Review, the date of which is not yet known.  The State Wage case hearing will be webcast and can be viewed here.

Written submissions of interested persons including the Minister for Commerce, the Chamber of Commerce and Industry of WA, UnionsWA, WA Council of Social Service and the Printing Industries Association of Australia can be viewed 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 Public Service Arbitrator (Commissioner Matthews) dismissed an application by the Police Union that he recuse himself.  He dismissed the application because a fair minded lay observer would not apprehend bias. 

The Union argued that there was a reasonable apprehension of bias because, amongst other things: 

(a)   For over 20 years, Commissioner Matthews was a solicitor in the State Solicitor’s Office.  He was an employment law expert and represented State Government employers prior to becoming a Commissioner in March 2016;

(b)   In that capacity, he made submissions for another ‘emanation’ of the State about the interpretation of s 26(2A) and s 26(2C) of the Industrial Relations Act, and those provisions have a direct bearing on this case; and

(c)   One of the witnesses in that case, who was proofed and led by Commissioner Matthews, will also give evidence in this case. 

Commissioner Matthews noted that as a matter of law, he is not obliged to recuse himself simply because he has ‘a prior relationship of legal advisor and client’ with one of the parties to a case.  Given the specialised nature of the Commission’s jurisdiction, it is to be expected that people appointed would ‘have experience working within government.’  If the correctness of Commissioner Matthews’ advice as a solicitor was in question, that may be a ground for him to recuse himself.  However, that was not the case here. 

The Arbitrator rejected the contention that a reasonable apprehension of bias could come from his submissions on the application of s 26(2A) and s 26(2C) when he was a solicitor working for the Government.  His reasons were twofold:  in that case, the Commission in Court Session gave its opinion on the correct interpretation of s 26(2A) and (2C), so the interpretation of those provisions cannot really be controversial in this case.  Commissioner Matthews also noted that a fair minded lay observer would realise that ‘counsel run all sorts of arguments on instructions’, and there is no relationship between running an argument as counsel and being a ‘professional and impartial’ decision maker. 

Commissioner Matthews also noted that having proofed and led a witness in a matter does not invite a conclusion that the decision maker will give an otherwise than ‘neutral evaluation of the merits’ of the case.  Commissioner Matthews said it is relevant that the witness in question will be an expert witness, who is under an obligation to be impartial.  A fair minded lay observer would understand the need for such a witness to be impartial, and would therefore find it difficult to conclude that Commissioner Matthews would be swayed by a ‘past professional association’. 

The decision can be read here.

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

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Western Australian Industrial Relations Commission
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PERTH WA 6000

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