Western Australian Industrial Relations Commission

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Pecuniary penalty for failure to pay ordered amount

The Industrial Magistrate has handed down a pecuniary penalty for contravention of s546(3)(c) of the Fair Work Act 2009 (FW Act). The respondent was previously found to have contravened the FW Act and had been ordered to pay minimum wage for normal hours of pay, untaken paid annual leave, public holidays and personal leave to the applicant.

Scaddan IM looked at s 557(1) of the FW Act and concluded that the failure to pay the 4 amounts would constitute a single contravention as the contraventions arose out of the same course of conduct by the respondent company.

Among other things, Scaddan IM considered that the respondent company is a mid-sized company and had not been found to have previously contravened the FW Act and also considered the conduct of both parties in relation to the initial contravention. Scaddan IM determined that the conduct that caused the contravention was in the low range and ordered total penalties of $3,000. The main purpose of a civil penalty is to promote compliance with the law and it is not an additional award of compensation for hurt feelings, inconvenience, stress or legal fees.

The decision can be read here.

Farewell to the President

On Wednesday, 19 December 2018, the Industrial Relations Amendment Act 2018 came into effect.  This means that there will no longer be a President of the Commission.  The President's role in presiding on the Full Bench of the Commission to hear appeals from decisions of Commissioners and of the Industrial Magistrate's Court and to deal with certain organisations and associations matters will fall to the Chief Commissioner or the Senior Commissioner.  The President's jurisdiction in dealing with other organisations and associations matters will fall to the Chief Commissioner.

A ceremonial sitting of the Commission was convened at 4.00 pm on Thursday, 20 December 2018.  The purposes of the sitting was to:

  • Farewell Acting President, the Hon. J H Smith, who has served in this important role since 2009. (Her Honour's appointment will be extended to enable her to complete part-heard matters.)
  • Recognise the historic occasion of the abolition of this position in the structure of the Commission since it was established nearly 40 years ago.

The members and staff of the Commission thank her Honour for her judicial leadership and her generous, collegial spirit.  We wish her well for the future.  Her Honour continues as a judge of the Supreme Court of Western Australia.

A transcript of the ceremonial sitting is available here.

Ceremonial welcome for Commissioner Walkington

A ceremonial sitting of The Western Australian Industrial Relations Commission was held on Friday, 30 November 2018 at 9.00 am to formally welcome a new Commissioner.

Commissioner Toni Walkington previously was the General Secretary of the Civil Service Association of Western Australia.  She has had many years' and in-depth experience of industrial relations matters in Western Australia.

Transcript of the proceedings is available here.

A video of the sitting is available here.  

Entitlement to Tradesperson Allowance may depend on employment contract

The Industrial Magistrate has handed down decisions in 2 cases regarding the payment of a Tradesperson Allowance. In each case the claimants argued that they had an entitlement to a Tradesperson Allowance under the Enterprise Agreement and that they were entitled to a Tradesperson Allowance due to their contracts.

Flynn IM found that consistency of interpretation, particularly within a single clause, is preferable and determined that both claimants were not eligible for the Tradesperson Allowance under the Enterprise Agreement.

In the first case (Stagnitta), the claimant signed letters of offer before the respondent noticed that a clause in the initial letter incorrectly entitled the claimant to the Tradesperson Allowance. Flynn IM found that rectification of the employment contract was appropriate; the company provided clear and convincing evidence that it had, on multiple occasions, informed the claimant that he was to be employed without the Tradesperson Allowance being paid. The first claimant was unsuccessful in his claim.

In the second case (Wright), the claimant had signed an Employment Contract that included an entitlement to a Tradesperson Allowance. The company initially paid the allowance and then stopped payment after sending a letter to the claimant advising that the allowance would no longer be paid. Flynn IM found that the company was bound by the Employment Contract and the failure to make the payment was a contravention of section 323 of the FW Act.

The Stagnitta decision can be read here and the Wright decision can be read here.

Application to vary the area and scope of the Public Service Award

The Commission has received an application from the Civil Service Association of Western Australia Incorporated to vary the area and scope of the Public Service Award 1992 (the Award) by amending the respondents to the Award. 

The changes proposed are set out in the application, which may be viewed here

A Notice was also published in The West Australian newspaper on Monday, 19 November 2018.  Any objections to the proposed amendments must be received within seven days of the date of the Notice being published in the newspaper. 

This Notice was published in accordance with an Order of the Commission, which may be viewed 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 : mail reg

 

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