Western Australian Industrial Relations Commission

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Delegated supportive tasks do not necessarily amount to a change in work value

The Public Service Arbitrator has dismissed a reclassification application filed by four ECG Recordists Cardiology G-2 at Royal Perth Hospital.

The applicants claimed that the review position had, since 2002, assumed the additional duties of teaching new staff, recording and explaining blood pressure results, placing and removing ECG monitors in a broader range of tests and participating in peer review and professional development activities. The applicants further claimed that there are new challenges in the role brought on by different computer programs and the increase in the cultural, social and linguistic diversity of patients.

The respondent did not dispute that there had been changes to the duties of the position but instead argued that the changes were not substantial enough to meet the work value test. The test, among other things, requires a significant net addition to work requirements to warrant the reclassification of a position to a higher level. The test also requires that any alteration to wages must have regard to skill, responsibility and the conditions under which the work is performed.

Commissioner Emmanuel accepted that health professionals delegate supportive tasks to the applicants' positions but, based on the evidence, found that the responsibility for those tasks still lay with the health professionals and not the applicants' positions. It could not be determined if the use of new technology and computer programs resulted in an increase in the skill required for the applicants' positions as there was no evidence given regarding the complexity of the computer programs or systems. Additionally, the Commissioner found that many of the new duties of the position, such as training in basic life support and being able to respond to certain emergency situations, are within the current G-2 classification of the position.

The Arbitrator found that whilst there had been some increase in workload and a general broadening of tasks at the G-2 level, the change does not amount to a significant increase in net work value.

The decision can be read here

Various defunct industrial agreements cancelled

Following an investigation by the Registrar, the Commission has concluded that the following industrial agreements were defunct and has cancelled them pursuant to s 47 of the Industrial Relations Act 1979

  1. K Mart Armadale Rostering Agreement 1994
  2. K-Mart Food Services (Wages) Agreement 1994
  3. Mandurah Forum Takeaway and SDA Agreement 2003
  4. Mitre 10 Warehouse Employees Agreement 2002
  5. Myer Stores Limited Distribution Centre Carousel Road Cannington Site Agreement 1994
  6. Nestle Australia Ltd Kewdale - SDA Agreement 2001
  7. Osborne Cold Stores Enterprise Bargaining Agreement 1996, No. AG 125 of 1996
  8. P & O Cold Storage Ltd Enterprise Agreement 1995, No. AG 26 of 1995
  9. P & O Cold Storage Ltd Enterprise Agreement 1997
  10. P& O Cold Storage Ltd Enterprise Agreement 1996, No. AG 66 of 1996
  11. PVS/Worths Pty Ltd Jobskills Retail Agreement
  12. PVS/Boutique Consolidated Pty Ltd Jobskills Retail Agreement
  13. PVS/Silkside Pty Ltd Jobskills Retail Agreement
  14. PVS/Suzanne Grae Corporation Pty Ltd Jobskills Retail Agreement
  15. PVS/Universal Retailers Pty Ltd Jobskills Retail Agreement
  16. PVS/Skyjack Jobskills Retail Agreement
  17. PVS/Fabric Warehouse Jobskills Retail Agreement
  18. PVS/Prints and Presence Jobskills Retail Agreement
  19. PVS/Sportsgirl Sportscraft Group Jobskills Retail Agreement
  20. PVS/Aquarius Cards and Gifts Jobskills Retail Agreement
  21. PVS/Repco Auto Parts Jobskills Retail Agreement
  22. PVS/Jacksons Drawings Supplies Pty Limited Jobskills Retail Agreement
  23. PVS/Desert Designs Jobskills Retail Agreement
  24. PVS/Peppermint Tree Jobskills Retail Agreement
  25. PVS/Gardner Electronics Jobskills Retail Agreement
  26. PVS/Poolmart Jobskills Retail Agreement
  27. Rand National Transport Enterprise Bargaining Agreement 2002
  28. River Rooster Bridgetown, SDA Enterprise Agreement 1998
  29. River Rooster Stratton, SDA Enterprise Agreement 2001
  30. River Rooster Coolbellup, SDA Enterprise Agreement 2001

Public notice was given of the Commission's intention to cancel these industrial agreements on the Commission's website on 6 November 2017 and in The West Australian on 15 November 2017. 

A copy of the Order can be viewed here

Use of heavy vehicle may be express or implied term in owner-driver contracts

The Full Bench upheld an appeal against a decision of the Road Freight Transport Industry Tribunal and found the Tribunal's interpretation of s 5(1) of the Owner-Drivers (Contracts and Disputes) Act 2007 to be too narrow and inconsistent with the purpose of the Owner-Drivers Act. The Honourable Acting President Smith, with whom Commissioners Emmanuel and Matthews agreed, found that for a contract to be an owner-driver contract under the Owner-Drivers Act it is not necessary for the contract to expressly provide for the use of a heavy vehicle, providing a term can be implied that objectively a heavy vehicle is required to transport goods.

The Hon A/President referred in her reasons for decision that the effect of this construction could be illustrated by the following example where the terms of a contract were otherwise unspecified.  If a contract required the transportation of a tank, it may be implied that a heavy vehicle would be required. However, if the contract required the transportation of a pizza then a heavy vehicle would not be necessary to fulfil the contract.

The decision of the Road Freight Transport Industry Tribunal was suspended and the matter remitted for further hearing and determination. This was because the matter at first instance was determined on the papers and there was conflicting and competing affidavit evidence so that it could not be determined on the facts if the appellant and respondent were parties to an owner-driver contract.

The decision can be read here

Interim orders for reinstatement beyond Industrial Magistrate's powers, but not appellable

The Full Bench dismissed an appeal against interim orders of the Industrial Magistrate's Court. The interim orders, among other things, required the reinstatement of an employee. The majority of the Full Bench held that for an appeal against a decision of Industrial Magistrate's Court to be competent, it must be against a decision as defined by s 84(1) of the Industrial Relations Act 1979.

The majority of the Full Bench affirmed the decision in Anderson v Pope. In that decision, the Industrial Appeal Court held that a decision of the Industrial Magistrate that does not finally determine the application before it does not constitute a decision from which an appeal will lie under s 84(1).

For a decision to be a 'decision' under s 84(1), it must finally determine the rights of the parties and require a court in determining this question to have regard to the legal rather than the practical effect of the order. Given that the interim orders were made provisionally during the course of the legal action, the A/President and Senior Commissioner were not satisfied that the orders were a 'decision'.

The majority of the Full Bench observed that if they were wrong about the appeal being incompetent, they would have ordered that the decision be quashed as the Industrial Magistrate's Court does not have the power to reinstate employees. The power to reinstate an employee is conferred exclusively on the Commission.

Commissioner Matthews (dissenting) found that the appeal was competent. He analysed the history of the legislative amendments in light of Anderson and concluded that the application for interim orders was a separate application, there was a discrete hearing on the matter and that orders made in such an application must be appealable. He agreed with the majority that the Industrial Magistrate's Court had no power to make the orders it made.

The Full Bench noted that the appellant could apply to the Industrial Magistrate's Court to revoke the offending interim orders on the grounds that they are beyond the power conferred on the Industrial Magistrate's Court by the Act.

The decision can be read here.

Dismissal upheld following guilty plea to unlawful access charge

The Public Service Appeal Board dismissed an appeal against the Commissioner of Police’s decision to terminate a Call Taker/Radio Operator’s employment. The appellant’s dismissal arose from an incident where the appellant’s computer was used to access the registration numbers of four vehicles and eight females connected with those vehicles, using the respondent’s Information Management System (IMS). The appellant was charged and pleaded guilty in the Magistrates Court to unlawful access to a restricted computer system under the Criminal Code (WA).  Despite the appellant’s guilty plea, he maintained in the proceedings before the Appeal Board that he left his computer login open and someone else must have used his access.

The Appeal Board found that the appellant’s plea of guilty and his conviction for the offence must be taken on its face as evidence of the fact of conviction and the factual circumstances upon which the learned Magistrate proceeded to convict and sentence the appellant.  The Appeal Board noted the appellant’s explanation, that he only told his counsel he would plead guilty because of the possibility of a custodial sentence and he understood that he was only pleading guilty to leaving his computer logged on.  However, these explanations only emerged for the first time in this appeal.  They were not mentioned to the respondent after the Magistrates Court proceedings and when the respondent recommenced its disciplinary investigation, despite the appellant having ample opportunity to do so. The Appeal Board found that the respondent was entitled to be concerned as to the nature of the searches and the apparent targeting of females between the ages of 19 and 24 years old.  The respondent was entitled to form the view that there had been a breach of trust, and that the appellant’s suggestion, that someone else had accessed his login over the timespan involved and in the circumstances described, was not credible. Dismissal was found to be proportionate given the seriousness of the misconduct.

The Appeal Board rejected the appellant’s arguments that the respondent had waived the appellant’s misconduct by continuing his employment after his conviction and that the appellant was not afforded procedural fairness by the respondent. The Appeal Board noted witness evidence of the respondent’s Human Resources Director, that it was common practice for an employee subject to disciplinary processes to be kept at work and gainfully employed, and that steps were taken by the respondent, such as limiting and monitoring the appellant’s access to critical and sensitive information technology systems, after the incident. The respondent was found to have taken account of matters raised by the appellant and it could not be concluded that the appellant was, to any extent, denied procedural fairness.

The appeal was dismissed.

The decision can be read here

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