Western Australian Industrial Relations Commission

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Unilateral variation, consideration and duress considered by the Commission

Today, the Commission held that the applicant, a Weighbridge Operator employed by the City of Stirling, remained entitled to a 15% shift allowance under her contract of employment.

The Commission found that the City’s actions in removing the allowance in January 2014 on the basis that it varied the applicant’s contract by way of a reclassification letter of 1 March 2012, constituted a unilateral variation of the contract.  The removal of the allowance was inconsistent with the applicant’s contractual rights, and the applicant did not consent or agree to its removal.

The City was also unsuccessful in arguing that the contract was varied to remove the allowance by way of a letter of 6 November 2013, which was signed by both parties.  While the applicant did not sign the letter under duress, the Commission found that the letter did not vary the contract because it was unsupported by consideration.

The City was unsuccessful in arguing that additional leave and remuneration under the enterprise agreement and the applicant’s past reclassification was consideration for the variation of the contract.  The Commission applied the principle that a promise to perform an existing legal duty is not consideration. Given the letter of 6 November 2013 did not have any contractual effect, the applicant remained entitled to the allowance.

The decision can be read here.

The applicant is a business which owns and operates trucks which transport groceries to stores in Perth. In October and December 2009 the applicant and the respondent exchanged letters whereby the applicant agreed to assign its two ‘cold store’ contracts to the respondent.
 
The Road Freight Transport Industry Tribunal held today that the agreements, on their proper construction, obliged the respondent to allocate predominantly cold store work to the applicant.

The Tribunal considered that the letter of October 2009 was ambiguous, so extrinsic evidence of the surrounding circumstances and the object and purpose of the transaction was referred to in objectively determining the parties’ intentions. The terms of the October 2009 agreement were implied into the December 2009 agreement.

The Tribunal held that the respondent breached the agreement in 2010 by changing the roster to shift one of the applicant’s contracts to the ‘dry store’. The Tribunal awarded the applicant damages in the sum of $69,600 for its expected earnings.

This matter was also the first time the Tribunal considered the unconscionable conduct provisions in the Owner-Drivers (Contracts and Disputes) Act 2007.

 

The decision can be read here.

The Occupational Safety and Health Tribunal today held that one referral to the Tribunal under s 51A(1) of the Occupational Safety and Health Act 1984 which sought a further review of 3 Improvement Notices is a valid referral. WorkSafe had submitted that each Improvement Notice forms a separate proceeding and requires a separate decision by the Tribunal.

Accordingly, the referral to the Tribunal in Form 7 is one referral which can refer only one Improvement Notice to the Tribunal for review; to the extent that it purports to refer all three Improvement Notices for review, it is invalid.

The Tribunal disagreed, holding that the “matter” which is referred to the Tribunal for further review in s 51A(1) is the matter of the review of the Improvement Notices which had been the subject of a decision of the WorkSafe Western Australia Commissioner under s 51(6).

The decision can be read here.

The Commission has found that a pharmacist in charge of a pharmacy, who left the pharmacy on a number of occasions, contrary to instructions, and then denied doing so, and denied smoking, contrary to the employer’s policies, was validly dismissed for serious misconduct. That the pharmacist left the pharmacy potentially placed her employer in breach of the Pharmacy Act.

The fact that the employer allowed her to return to work for approximately 2½ hours while it considered her responses and viewed CCTV footage did not mean that the employer had condoned the conduct and waived the right to dismiss. Therefore, the employee was not entitled to pay in lieu of notice.

The decision can be read here.

The applicant, a business which owns and operates a truck, contracted to provide transport services to the respondent. The respondent’s customers, such as Linfox, would request transport services and the respondent would offer the work to its contractors. Following discussions with the respondent’s Operations Director about Linfox seeking float services, the applicant decided to purchase a float.

Today, the Road Freight Transport Industry Tribunal rejected the applicant’s claim that the owner-driver contract was varied to include a term that if the applicant acquired a float, the respondent would hire it at a certain rate.


On the evidence, the Tribunal found that the respondent operated its business on the basis that its workflow was dependent on requests from customers, and the respondent could never guarantee a minimum level of work. At best, the applicant had an expectation that it would receive float work.

Commissioner S J Kenner considered the principles in relation to the variation of a contract, promissory estoppel and implied terms.

While an estoppel was not made out, Commissioner S J Kenner considered that the Tribunal can have regard to equitable principles when determining a contractual dispute between a hirer and an owner-driver.

The decision can be read here.

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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 : Registry

 

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