Western Australian Industrial Relations Commission

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The Road Freight Transport Industry Tribunal found that it has jurisdiction to deal with disputes under or in relation to owner-driver contracts, even when the owner-driver contract is no longer on foot. 

The Chief Commissioner noted that the Owner Driver (Contracts and Disputes) Act was meant to address the inequity in bargaining positions between owner‑driver contractors and their hirers.  The Tribunal found that the Act is ‘beneficial legislation’, and therefore it should be given a ‘fair, large and liberal’ interpretation to give effect to its purpose.  A literal interpretation would frustrate Parliament’s intention, so the Act should be read in context.  

The Tribunal will now convene a conciliation conference, to see if the dispute can be resolved. 

The decision can be read here.

The Full Bench unanimously dismissed an appeal by a South African employee who worked in Malawi for a Western Australian uranium miner.  The appeal was against a decision of the OSH Tribunal, which dismissed the employee’s application because WA’s mine safety and OSH legislation does not apply in Malawi.  The Full Bench affirmed that decision. 

The employee gave a number of reasons why the OSH Tribunal had jurisdiction, all of which were rejected by the Full Bench.  They included:

  • The contract of employment contemplated the employee working in Australia.
  • The contract did not prohibit WA’s mine safety and OSH legislation from applying.
  • The parties agreed that the contract would be governed by WA laws.
  • The mine safety regulations refer to international bodies setting applicable standards.

In dismissing those grounds, Her Honour, Acting President Smith held that the legislation which gives the OSH Tribunal jurisdiction does not apply outside WA.  WA legislation only applies outside of WA’s borders if the legislation in question expressly provides for it to extend that far.  Jurisdiction of a tribunal cannot be extended by the parties’ agreement. 

Her Honour went on to say that even if WA’s mine safety legislation applied to the employee, it would not assist him.  That is because there must be a connection between the alleged discrimination and the safety representative’s performance of their role.  There was no connection in this case. 

The Acting President also noted that employees who work overseas cannot access the general jurisdiction of the Commission through the OSH Tribunal.

The decision can be read here.

The Full Bench unanimously dismissed an appeal by the Chinese agent of an Australian university.  The Commission at first instance found that the agent was not an employee of the university, and dismissed his application.  In his appeal, the agent said he was not given a fair hearing because the interpreter at the hearing did not interpret correctly, and the Commission at first instance wrongly found that he was not an employee. 

The Full Bench held that a party will only be denied a fair hearing if there are errors in translation that were material to the decision made.  The agent pointed to a number of instances where he said there were errors in translation.  The Full Bench found these instances were of no consequence to the Commission’s decision.  The Full Bench also noted that the agent did not require an interpreter for a substantial part of the hearing before the Commission, and that his English skills were better than he claimed.  Therefore, the agent was not denied a fair hearing. 

The Full Bench also found that the Commission’s decision to dismiss the application followed from findings of fact based on the agent’s credibility.  The Full Bench held that findings based on witness credibility cannot be overturned by the Full Bench unless there is a serious and obvious flaw in the Commission’s reasoning.  The Full Bench did not find any error in the Commission’s reasoning. 

The decision can be read here.

The Full Bench found that a surgeon did not have a right to procedural fairness when the employer did not renew his fixed term contract.  On appeal, the surgeon’s union argued that its member was entitled to procedural fairness because the employer was a public entity, exercising discretion under legislation.  The union also argued that, as a matter of fairness, the employer should have given the employee an opportunity to respond to any matters that weighed against the renewal of the fixed term contract. 

Her Honour, Acting President Smith held that the employer was authorised by legislation to enter into contracts of employment, which are private rights rather than public rights.  Because they are private rights, the surgeon was not entitled to procedural fairness that would normally come with decisions made pursuant to legislation. 

Further, Her Honour also held that the surgeon was not entitled to procedural fairness, as a matter of general fairness, unless there were special circumstances.  There were no special circumstances in the surgeon’s case.  The contract of employment is relevant in considering ‘special circumstances’, and that weighed heavily against the surgeon. 

The employer was entitled to consider any matter it wished to in deciding whether or not to renew the fixed term contract. 

The decision can be read here.  

The Commission dismissed an application by a salesperson who claimed commission payments for the sale of service contracts associated with the sale of 33 trucks he sold. 

The Commission found that commission payments on the service contracts were made as a matter of company policy, and they did not have contractual force.  The salesperson claimed the policy was part of the contract of employment.  The Commission found that the sales commission policy was incorporated into the contract at the beginning of the employment.  However, the parties later agreed to amend the contract, and removed reference to the sales commission policy.  Therefore, the policy was no longer a contractual entitlement. 

The Chief Commissioner went on to find that under the policy, the employer had a broad discretion to award commissions.  In this case, the Commission found that another employee, not the applicant, performed the work to achieve the sale of the service contracts, and the employer was entitled to distribute sales commissions as it did. 

The employee also claimed that he should receive sales commissions as a matter of general fairness, even though he had no contractual entitlement to the payment.  The Commission held that it can only deal with entitlements under a contract of employment.  It cannot determine claims based on what the contract should provide, as a matter of fairness. 

The decision can be read here.

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Western Australian Industrial Relations Commission
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