Western Australian Industrial Relations Commission

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The Industrial Magistrate’s Court granted the respondent’s application to strike out part of the claimant’s claim due to lack of jurisdiction under section 83 of the Industrial Relations Act 1979 (WA) (IR Act). The Civil Service Association of WA (the CSA), on behalf of its member, claimed various entitlements pursuant to a voluntary severance under a Targeted Voluntary Separation Scheme based on a substantive rate of pay.

Section 83(1) of the IR Act empowers the Industrial Magistrate’s Court to:

“enforce a provision of an instrument specified in s 82(2) which includes: (a) an award; (b) an industrial agreement; (c) an employer-employee agreement; and (d) an order made by the Western Australian Industrial Relations Commission.”

Industrial Magistrate Scaddan considered whether the claimant’s member was entitled to receive the incentive payment at a rate of pay referred to in reg 15 of the Public Sector Management (Redeployment and Redundancy) Regulations 2014 (WA) (Regulations). Scaddan IM found that there was no relevant provision contained in the award and/or the agreement that was capable of being enforced and that applied to the payment of an incentive payment.

At the hearing, the CSA applied to broaden the scope of the claim to include that it was an implied term of the award or agreement that the incentive payment ought to have been “paid in full” pursuant to section 17C of the Minimum Conditions of Employment Act 1993 (WA) (MCE Act). However, her Honour found that regardless of the CSA’s ability to alter its claim, this claim would still be without merit. In the alternative, Scaddan IM held that even if she were wrong about the merits of the claim, the Regulations, and not s 17C of the MCE Act, would apply to the extent of any inconsistency with the award and/or agreement.

Scaddan IM then considered whether the claimant’s member would be entitled to receive payment of all accrued long service leave. Her Honour similarly found that the entitlement to cash in lieu of all accrued long service leave arose under the Regulations upon acceptance of voluntary severance and not from any provision, implied or otherwise, of the award or agreement.

The Court granted the respondent’s application to strike out after it found that it did not have the jurisdiction to consider the CSA’s claims for long service leave and the incentive payment because no provision of the award or agreement had been contravened that was capable of being enforced under s 83 of the IR Act.

The decision can be read here.

The Industrial Magistrate’s Court has dismissed a claim made by an estimator who alleged that his former employer had not paid him his redundancy entitlements pursuant to section 119 of the Fair Work Act 2009 (Cth) (FWA) when his employment was terminated.

Industrial Magistrate Scaddan stated that s 119(1)(a) of the FWA “entitled an employee to redundancy pay if the employee’s employment is terminated at the employer’s initiative because the employer no longer required the job done by the employee to be done by anyone, unless any exception, exclusion or other relevant provision applied.”

Scaddan IM was unable to make a finding about whether the respondent was exempt from paying redundancy due to it being a small business employer because neither the claimant, nor the respondent, had adduced evidence of the number of employees employed by the respondent at the time of the claimant’s termination.

Her Honour also accepted the respondent’s evidence that the claimant’s employment was terminated due to poor work performance and evidence that there was another of the respondent’s employees doing the job of an estimator similar to what the claimant had done during their employment. Consequently, Scaddan IM found that on the balance of probabilities the claimant was terminated at the employer’s initiative based on concerns over their work performed.

The Court dismissed the claim after finding that they had not proven to the requisite standard that the respondent no loner required his job to be done by anyone.

The decision can be read here.

The Commission has ordered the reinstatement of a teacher whose contract of employment was alleged by the Department of Education to have been repudiated when she had failed to maintain her registration with the Teacher Registration Board of Western Australia. The Commission made no order in relation to lost remuneration.

It was not argued that it was a term of the contract of employment between the teacher and the Department that the teacher maintain her registration with the Teacher Registration Board. Commissioner Matthews therefore concluded that the reason given to the teacher for her termination, that she had repudiated her contract, was not a good reason. However, Matthews C found that this did not necessarily mean that her termination was unfair.

Matthews C considered that the Department was aware that on the 8th of May 2018 the teacher asked for help to become re-registered and that they were also aware that the SSTU was seeking to preserve their member’s employment. Given the Department’s knowledge of this, their communication to the teacher that she had repudiated her contract, when she clearly had not, made the termination unfair.

Matthews C considered that there were also some materially unfair aspects to the process that led to the teacher’s dismissal such as that she had been employed by the Department for 15 years prior to her termination, was not given a fair warning of the possibility of termination if certain action was not taken, was not given the opportunity to explain herself to the decision-maker prior to being terminated and that other employees who had not paid their registration fees on time were treated differently and were allowed a limited registration from their Principals.

The Commission found that there was no good reason provided for why the teacher should not be reinstated. The Commission ordered that the teacher’s employment be considered to be unbroken by the period that she was not employed by the Department. However, the Commission stopped short of exercising its discretion to order payment of any remuneration that was lost, or likely to have been lost, because the teacher had clearly played a role in her employment coming to an end.

The decision can be read here.

The Commission has issued an order granting the applicant, who is a member of the organisation of the respondent, the opportunity to inspect the books pursuant to the association rules of the respondent (the Rules). The respondent is an organisation of employers registered under the Industrial Relations Act 1979 (WA) (the IR Act). The applicant sought inspection of the respondent’s books, namely their management accounts, 2017 and 2018 debtor and creditor invoices and copies of agreements with suppliers and contractors pursuant to Rule 8.15(c) of the Rules. The respondent declined the request for a number of reasons.

Rule 8.15(c) states that:

Any member and person who has an interest in the funds may inspect the books and register of members at any reasonable time.

Chief Commissioner Scott determined that the objections raised by the respondent to the applicant’s request to inspect the books were without substance. Scott CC considered that although the application form that was completed by the applicant did not comply with the Industrial Relations Regulations 2005 (WA) the correspondence attached to the form clearly identified all the required information. Further, although the applicant did not file a list of the documents that it sought to inspect, in accordance with a direction from the Commission, the documents were listed in the correspondence and this list of documents was subsequently filed by the applicant. The Commission also held that the respondent would not be prejudiced by the lateness of the confirmation of this information.

Scott CC found that the applicant had a right to inspect the books under Rule 8(15)(c) of the Rules. Acknowledging that neither the IR Act nor the respondent’s Rules defined “books” Scott CC was guided by a number of definitions, including by section 63 of the IR Act which sets out the records that an organisation is required to keep; the Macquarie Online Dictionary definition of “books” and definitions of “books” found in section 3 and part 5 of Associations Incorporation Act 2015 (WA) and schedule 2 of the Associations Incorporation Regulations 2016 (WA) that are almost identical. The Commission concluded that there was no doubt that the definition of “books” included management accounts and debtor and creditor invoices and that copies of agreements with suppliers and contractors was a record of information also covered by the definition of “books”.

Scott CC considered whether there was any good reason why the applicant should not be entitled to inspect the books. It was noted by Scott CC that the respondent’s written submissions identified that both their agreements with suppliers and contractors and invoices from legal advisors contained privileged information. The applicant provided an undertaking that they will ensure the privacy and confidentiality of the books and not use the information for any commercial purpose that is not associated the applicant’s role as a member of the respondent.

The respondent agreed to provide the applicant with the invoices, but that information which might identify legal advice would be redacted, and this was acceptable to the applicant.

The Commission ordered that the documents sought by the applicant, with the agreed invoices redactions, be provided by the respondent within two days of them being returned to the respondent from the auditors, and, following this, upon two days’ notice by the applicant.

The decision can be read here.

The Commission has dismissed an application made by a former casual Patient Care Assistant who alleged that they had been dismissed by the respondent and that the dismissal was unfair.

The Commission acknowledged that there were two types of causal engagement that may apply in this case. The first occurs where a causal employee is asked to cover known future and unplanned absences from work. The second occurs where a casual employee is asked to cover any unplanned absences that may arise from day to day. It was accepted by the Commission that the parties were not in dispute that the second type of casual engagement applied in the applicant’s case. The Commission then determined that the letter of offer represented an offer of an ongoing contract where the respondent could, and did, offer casual work engagements on an ongoing basis to the applicant in accordance with their established procedure. Also, the Commission found that the respondent’s letter of 18 June 2019 to the applicant, informing her that the respondent would not offer the applicant any more casual engagements, was a dismissal and as such the Commission had jurisdiction to hear and determine the applicant’s claim.

The Commission next considered the respondent’s evidence of the lengthy history of complaints about the applicant’s attitude and performance in the workplace and found that the applicant had not established that her dismissal was unfair in all of the circumstances.

The Commission dismissed the application.

The decision can be read here.

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