Western Australian Industrial Relations Commission

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The Commission has issued a stay of operation of a decision of the Commission pending the hearing and determination of 2 appeals against the decision.

The Commission at first instance had determined that The Shop and Warehouse (Wholesale and Retail Establishments) State Award 1977 (Shop Award) covers the retail pharmacy industry.

The Pharmacy Guild of Western Australia Organisation of Employers (the Guild) and Chemist Warehouse Perth applied for the decision to be stayed because they said the errors identified in the Notice of Appeal were strongly arguable. The employers had believed, in good faith, that the Award did not apply and had not applied it in the past.  They said they would be prejudiced by having to immediately back pay current and former employees, review staffing levels and possibly reduce opening times causing permanent change which may be unnecessary if the appeal is successful.

The Shop, Distributive and Allied Employees’ Association of Western Australia (the SDA) replied that the grounds of the appeal lack merit and the balance of convenience does not favour granting the stay order.

Chief Commissioner Scott noted that a stay order may only be granted under special circumstances where in the absence of a stay it would result in the appeal being rendered useless. In these instances, it is necessary to consider the strength of any argument for appeal along with the balance of convenience.

The Chief Commissioner noted that although the SDA and Minister for Commerce and Industrial Relations indicated that they do not intend to take enforcement action, individual employees could still seek to enforce the Award. The Chief Commissioner said that the applicants are bound to apply the Award and any decision not to take enforcement action did not alter their legal obligations.

The Chief Commissioner considered that, should the order not be stayed, the applicants would face significant structural, financial and staffing consequences such as being required to audit, reconsider and recalculate the rates of pay for present and former employees, and, reassess their operating hours, rosters and staffing generally. These consequences carry implications which, if the appeals are granted, would result in substantial disruption and waste that could not be completely restored.

The Chief Commissioner determined that the consequences, should the order not be stayed, amount to special circumstances and demonstrate that the balance of convenience lies with granting the stay.

The Chief Commissioner considered the grounds of appeal brought by the applicants. The grounds of appeal related to;

  • the proper application of authorities,
  • the application and provisions of the Industrial Relations Act 1979 and the effect of the 2002 amendments to the Act, and
  • a failure to address a relevant submission relating to an amendment to the schedule of respondents, which may affect the outcome.

The Chief Commissioner determined that these grounds of appeal were arguable.

The application was upheld and stay order granted.

The decision can be read here.

The Commission has dismissed applications made by equipment operators working at an iron ore mine in the Pilbara who said that time spent for shift change should be paid work. The mine operates on a 24 hour per day, seven days per week basis over 365 days of the year with employees working 12 hour shifts back-to-back from 6am/pm to 6pm/am daily. The applicants argued that a change to their shift roster has led to them working more hours than required by their contracts of employment. The respondent conceded, and Senior Commissioner Kenner agreed, that a limit on the time over which an employee may be required to work could constitute a benefit. However, the respondent argued that the words used in the shift roster variation letter, namely the reference to “shift length:… 12 hours plus handover”, did not establish any contractual entitlement or impose any restriction on the respondent in terms of the handover process from one shift to another.

The Senior Commissioner considered whether the roster variation letter was a contractual limitation on the applicants’ hours of work. The shift changes resulted in employees being transported by bus or light vehicle, instead of driving themselves to the designated start point. Additionally, instead of receiving shift information on screens at designated start points, employees now accessed information at the front gate. The Senior Commissioner found that the roster variation letter and outlined roster arrangement terms did not appear to be a change in any meaningful sense and noted that the letter expressly stated that the current terms and conditions of employment remained unchanged. As such, the Senior Commissioner found that the letter did not appear to result in any change in shift length and, in fact, resulted in employees spending less time on the mine site in total, not more.

The applicants argued that “handover” means the same thing as “hot seat change” and was the physical handover of one piece of equipment to another operator. The applicants claimed that their attendance at the main gate, accepting instructions and reviewing allocation screens prior to the physical “handover” of equipment was “work”. The Senior Commissioner considered the concept of a “handover” in the context of how shift changeovers have previously been performed at the mine and determined that a “handover” is part and parcel of the shift change process and is distinct from a “hot seat change” where an outgoing operator gets out of a machine and the incoming operator gets in whilst the machine is still in operating mode.

The Senior Commissioner considered the specific terms of the employment contract and determined that the Hours of Work clause and Remuneration clauses should to be read together. The Remuneration clause referred to “shift requirements” which the Senior Commissioner determined included the arrangements necessary to attend work. A subclause of the Remuneration clause referred to
“all additional work time directly associated with your shift roster” which the Senior Commissioner considered to be broad enough to cover time spent as part of a shift change and was therefore a lawful direction given by the respondent to its employees. 

The Senior Commissioner found that time spent on the work site when engaging in shift changeover activities was not negatively affected by the roster change and is within the scope of the applicant’s contracts of employment.

The applications were dismissed.

The decision can be read here.

The Commission has issued an order for the payment of denied contractual benefits, owing to the applicant, that was agreed upon at a conciliation conference.

In December of 2018, the applicant, the applicant's counsel and representative for the respondent participated in a conciliation conference where an agreement to compromise was reached. The agreement recorded that an amount was to be paid to the applicant in two instalments, on 15 January 2019 and 15 February 2019, to reflect amounts owed arising from the employment.

On 16 January 2019, counsel for the applicant advised that the first instalment payment had not been received. The Commission relisted the matter for conciliation. At this conciliation conference, the applicant requested that the matter be listed for hearing, and the matter was scheduled for hearing. At the hearing, although counsel for the applicant appeared, there was no appearance for the respondent. Commissioner Walkington was satisfied that the respondent was duly served with notice of the proceedings and proceeded to hear the matter in the respondent’s absence.

The Commission found that the parties had reached an agreement and that the respondent had not complied with it. The Commission ordered that the respondent pay the first instalment immediately and the second instalment on 15 February 2019.

The decision can be read here.

The Western Australian Industrial Appeal Court has dismissed an appeal against a decision of the Full Bench of the Western Australian Industrial Relations Commission (WAIRC) where one of the appellants complaints was about a matter not raised in earlier proceedings.

After being summarily dismissed by the Shire of Denmark, Mr Whooley commenced proceedings in the WAIRC claiming that he had been denied contractual benefits. Mr Whooley claimed that the termination of his employment was invalid and ineffective because the shire had not complied with s 5.37(2) of the Local Government Act 1995 (LGA). The Shire of Denmark denied Mr Whooley's claims and argued that Mr Whooley was barred from bringing the claim because of a settlement agreement made between the parties during the course of proceeding in the Fair Work Commission. The Commissioner at first instance found that the termination of Mr Whooley was invalid and ineffective and ordered the Shire of Denmark to pay Mr Whooley.

The Shire of Denmark then appealed to the Full Bench of the WAIRC on the grounds that the termination was valid and effective, and that the settlement agreement was a bar to Mr Whooley's claim. The Full Bench, by majority, upheld both grounds of the appeal and set aside the decision of the Commissioner at first instance's decision and ordered that Mr Whooley's claim be dismissed.

Mr Whooley appealed to the Industrial Appeal Court on two grounds. Ground 1 was that the Full Bench erred in finding that the termination of employment was valid or effective. Section 5.37(2) of LGA is as follows:

The CEO is to inform the council of each proposal to employ or dismiss a senior employee, other than a senior employee referred to in the s 5.39(1a), and the council may accept or reject the CEO's recommendation but if the council rejects a recommendation, it is to inform the CEO of the reasons for its doing so.

The Industrial Appeal Court found that, on its proper construction, the LGA confers on the CEO power to dismiss a senior employee only if the CEO has informed the council of the proposed dismissal and the council has accepted the CEO's recommendation. The CEO of the Shire of Denmark did not inform the council of the proposal to dismiss Mr Whooley and the council did not accept a recommendation to dismiss Mr Whooley. The Industrial Appeal Court therefore found that Ground 1 of the appeal was made out.

Ground 2 of the appeal was that the Full Bench erred in finding that the settlement agreement between the parties' bars Mr Whooley's claim. The essence of Mr Whooley's argument was that the settlement agreement was not of force or effect because the it was beyond the power of the CEO to make an agreement on behalf of the Shire. Section 90(1) of the Industrial Relations Act 1979 provides that appeals to the Industrial Appeal Court must be upon certain grounds. Ground 2 does not fulfil the requirements of s 90(1) as it does not assert that the subject of the decision is not an industrial matter or that the decision is erroneous in law. The Industrial Appeal Court found that it did not have jurisdiction to hear ground 2 and, consequently, ground 2 was not made out.

In oral submissions to the Industrial Appeal Court, Mr Whooley submitted that he had been denied the right to be heard by the Full Bench. An appeal on the grounds that the appellant has been denied the right to be heard can be made to the Industrial Appeal Court. In his oral submissions to the Full Bench, Mr Whooley argued that the CEO did not have the authority to enter a legally binding contract on behalf of the Shire. The Full Bench ruled that Mr Whooley could not raise that point because it had not been raised at the matter of first instance. It is a very well-established principle that, except in very exceptional cases, a party to an appeal cannot raise a point or objection on appeal that was not raised in the primary proceedings. The Industrial Appeal Court found that the Full Bench did not deny Mr Whooley the right to be heard.

The Full Bench upheld the appeal from the first instance Commissioner on the basis that, if they were wrong about ground 1, Mr Whooley's claim would still be dismissed based on ground 2. The Industrial Appeal Court found that the error of the Full Bench in regard to ground 1 did not affect ground 2. The Industrial Appeal Court dismissed the appeal and confirmed the decision of the Full Bench, that is the decision of the Full Bench to quash the decision of the Commissioner at first instance and order that Mr Whooley's claim be dismissed.

The decision can be read here.

The Commission has upheld, in part, a claim for denied contractual benefits by an accountant who said that he was denied bonus payments for "upfronts" by the financial services provider he worked for.

The applicant submitted that "upfronts" means new revenue or new business. The respondent argued that "upfronts" in the financial services industry means a payment by a client at the stage of implementation of advice.

Senior Commissioner Kenner determined that "upfronts" must be given a meaning consistent with commercial objects and purposes of the transaction and consequently found that "upfronts" should be understood to mean an initial or first up payment by a client on the implementation of financial advice as provided by the respondent. On a spreadsheet of transactions, Kenner SC found that the items "Investment Initial Commission", "Insurance Initial Commission" and "Upfront Advice Fees-Product" all fall under the category of "upfronts" for the purposes of the employment contracts. Kenner SC found that the applicant established his claim for bonuses.

The applicant also made a claim for the furniture costs as they were required to set up an office at home from which the respondent's business was conducted. The applicant argued that, in a letter from the respondent, "table, chair, filing cabinet to be paid for to the value of $1,000" meant that they were entitled to $1,000 irrespective of the total amount spent on furniture. Kenner SC found that, whilst the terms of the letter were not entirely clear, the letter did not confer the benefit of a cash allowance payable to the applicant. The term was more in the nature of a reimbursable expense and, as the applicant did not produce any evidence of the purchase of any furniture, the claim for furniture costs was dismissed.

The decision can be read here.

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Western Australian Industrial Relations Commission
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PERTH WA 6000

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