Western Australian Industrial Relations Commission

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The Public Service Appeal Board (Board) has determined it is unable to hear an appeal about the claimed dismissal of a health service casual employee, because it found that the employee was not dismissed.

The Board found  that the appellant was not employed on a regular and systematic basis and was a casual employee. Further, the Board found that although the appellant was no longer working at the original location of her employment, she was still employed by the health service, according to the same casual contract of employment and against the same position number, but at a different location.

The Board noted that although casual employees can be dismissed, in this matter, it was not satisfied the appellant was sent away or removed from her employment or position. The Board dismissed the appeal for lack of jurisdiction.

The decision can be read here

The Full Bench unanimously upheld an appeal by the Civil Service Association of Western Australia Incorporated against a decision of the Public Service Arbitrator that an employer was entitled to direct that an employee to take unpaid sick leave. 

The employee had a history of complex illness and had used up all of her sick leave.  On 22 December 2018, her employer, the Commissioner of Police, directed her to take sick leave and remain away from work.  As she had no sick leave left, this leave was to be unpaid.  The Arbitrator held that Administrative Instruction 601 (AI 601) and the relevant clause of the Public Service and Government Officers CSA General Agreement 2017 (PSGOGA) should be read together, and give rise to the employer's right to direct an employee to remain away from work and that such period be regarded as sick leave where an employee is in such a state of ill health as to constitute a danger to themselves, other employees or the public. 

AI 601 was made under the Public Service Act 1978 (repealed).  The Hon. J H Smith, Acting President, delivering her last decision as a member of the Commission, noted that AI 601 is a transitional instrument and should be read 'with such modifications as are necessary'.  That means, it must be read as if it were made under the current Public Sector Management Act 1994 (PSM Act).  Among other provisions, AI 601 is modified by s 64 of the PSM Act, which requires that public service officers be appointed in accordance with binding awards and industrial agreements.  There are no award provisions related to sick leave binding on the employee's employment because they have been displaced by PSGOGA during the life of that agreement.  That means, the instruments affecting the employee's employment related to sick leave are AI 601 and PSGOGA.  The former is not modified by the latter as modifications are only made to make AI 601 fit in the 1994 PSM Act scheme.  There is no provision in PSGOGA allowing the employer to direct an employee to take sick leave.  Clause 6 of AI 601 allows an employer to direct an employee to take sick leave only when the employee's state of health is a danger to colleagues or members of the public (not themselves).  When the employer directed the employee to take unpaid sick leave on 22 December 2017, he had no evidence that the employee would be a danger to colleagues or members of the public.  The employer's power to direct the employee to take sick leave was therefore not enlivened. 

The Full Bench also rejected the employer's argument that its Ill Health Retirement Policy allowed it to withhold payment because a formal dispute about her medical fitness was not raised.  Acting President Smith, with whom Chief Commissioner Scott and Commissioner Matthews agreed, held that at the material time the employee had raised a dispute with the employer's assertion that she should be medically retired by providing medical reports to substantiate her continued employment from two medical practitioners, in rebuttal of the employer's medical report. 

Her Honour also noted that the principle of 'no work, no pay' does not necessarily apply to public servants because there is a distinction between payment as a consequence of holding office and payment for work performed. 

The decision can be read here.

The Western Australian Industrial Appeal Court has upheld an appeal against a decision of the Western Australian Industrial Relations Commission (WAIRC) that found that the appellant, the Police Commissioner, had unfairly removed a police officer from the WA Police Service.

The police officer, while off duty, was involved with an incident with members of the public. He was charged with offenses of unlawfully causing grievous bodily harm and assault. Prior to the determination of the criminal charges, the Commissioner of Police commenced removal action against the officer under pt IIB of the Police Act 1982 for the conduct relating to the criminal charges. The Commissioner invited the officer to respond to the proposed removal action. The officer declined to respond to the proposed removal action as it would undermine his right to silence and his presumption of innocence whilst the criminal charges were being defended. The Commissioner continued with the removal action and removed the officer from the Police Force. After his removal, the officer was acquitted of both charges. He appealed to the WAIRC on the grounds that the decision of the Commissioner to take removal action was harsh, oppressive or unfair. The WAIRC declared that the Commissioner's decision to take removal action was unfair and ordered compensation to be paid for loss and injury caused by the removal.

The Commissioner appealed the decision on the grounds that the WAIRC erred in law in its construction of s 33W of the Police Act and that in allowing the officer's appeal at first instance, the WAIRC erred in law by finding that considerations of fairness overrode the operation of s 33W. The officer argued that the Court had no jurisdiction to hear the appeal. By majority, the Court found that the appeal to the Court was within s90(1) of the Industrial Relations Act 1979 as applied and modified by s 33S of the Police Act and was therefore competent.

Buss J noted that the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions in the statute. He further noted that legislative intention to exclude the rules of procedural fairness may arise where compliance with the rules in respect of the exercise of a statutory power will 'necessarily frustrate or be inconsistent with the exercise of the power'.

The majority of the Court found that the Commissioner was not required to grant the officer an extension of time, suspension or adjournment in relation to the removal action process. Section 33W contains a declaration as follows:

To avoid doubt, it is declared that if a member –

(a)        has been charged with committing an offence; or

(b)        has been acquitted of an offence,

That charge, the existence of proceedings relating to that charge or the acquittal does not preclude the Commissioner of Police from taking any action under this part in relation to any matter, act or omission relating to or being an element of the offence.

Buss J determined that the word 'preclude' in the context of the statute meant 'prevent' and that therefore the Commissioner is not prevented from commencing or continuing with removal action under pt IIB in relation to a member of the Police Force in the circumstances specified in s 33W.

The purpose of the removal action process, as revealed by the statute, is to enable the Commissioner to promptly remove an officer from the Police Force if the Commissioner has lost confidence in the officer's suitability to continue as a member, having regard to the officer's integrity, honesty, competence, performance or conduct. The majority of the Court found that the WAIRC erred by reading an unexpressed condition based on fairness into the relevant section of statute.

Accordingly, the majority of the Court determined that it was not open for the WAIRC to conclude that the Commissioner's decision to take removal action in relation to the officer was 'unfair', within the expression 'harsh, oppressive or unfair' and that the Commissioner denied the officer procedural fairness by refusing to adjourn the removal action process. The majority of the Court was satisfied that the Commissioner afforded the officer a reasonable opportunity to be heard in relation to the Commissioner's loss of confidence in the officer's suitability to continue as a member of the Police Force.

Le Miere J (dissenting) found that the WAIRC did not misconstrue the statute. His Honour found that the effect of s 33W is that the circumstance of an officer having been charged with committing an offence does not prevent the Commissioner from taking removal action. However, that does not mean that it cannot be unfair for the Commissioner to take removal action in the particular circumstance of a case where the officer has been charged with a related criminal offence. His Honour stated that where different conclusions are reasonably possible it cannot be inferred that the WAIRC has misunderstood or misconstrued the statutory provision.

The Industrial Appeal Court set aside the declarations and orders made by the WAIRC and substituted an order that the officer's appeal to the WAIRC  be dismissed.

The decision can be read here.

The Commission has made a declaration that The Shop and Warehouse (Wholesale and Retail Establishments) State Award 1977 (Shop Award) applies to retail pharmacy employees in Western Australia.

The Shop Distributive and Allied Employees' Association of Western Australia applied to the Commission for interpretation and a declaration under s 46(1)(a) of the Industrial Relations Act 1979 (IR Act) because it disagreed with Chemist Warehouse about how the Shop Award should be interpreted, particularly in light of the scope clause, clause 40. Chemist Shops and the respondent schedule.

The Pharmacy Guild of Western Australia Organisation of Employers (Pharmacy Guild) and the Minister for Commerce and Industrial Relations (Minister) intervened in this application.

The parties and interveners agreed that when the Shop Award was made, its coverage extended to the retail pharmacy industry. The parties also agreed that in the current version of the Shop Award, there are no known respondents in schedule C carrying on the retail pharmacy industry. They disagreed about whether other clauses that reference chemist shops or pharmacies, for example cl 40, can have an effect on the scope of the Shop Award.

Commissioner Emmanuel found that the Commission is not limited to considering the scope clause when considering the scope of an award. She held it is appropriate to construe the award as a whole and in doing so found the Shop Award is intended to apply to the retail pharmacy industry.

Commissioner Emmanuel also found that in light of the ordinary words of the Shop Award, the authorities and the statutory scheme, this award must be interpreted such that its scope was established at the date the Shop Award was made, by reference to the named respondents at that time, and their industries at that time. Further, the scope of the Shop Award also includes the industries of any respondents added from 8 July 2002 as those industries were at the date those respondents were added. It will also extend to any employer who was added as a respondent after the Shop Award was made and before 8 July 2002.

The decision can be read here

The Full Bench has unanimously upheld an appeal against a decision of the Occupational Health and Safety Tribunal and found that a prohibition notice relating to asbestos containing materials did not comply with the Mines Safety and Inspection Act 1994 (MSI Act).

The appellant argued in ground 1 that the Tribunal erred in affirming the prohibition notice and that the prohibition notice was invalid as it failed to comply with the MSI Act. In order to comply with s 31AD(2)(a) of the MSI Act, a prohibition notice must require the removal of a hazard or likely hazard. Smith AP and Scott CC found that the prohibition notice did not put in place a regime to remove the hazard or likely hazard. Instead, they found that the direction to prohibit persons from being in a place where they might be exposed to a hazard or likely hazard could be said to be a regime to avoid exposure to a hazard. They also found that a requirement to remove persons from an area can only be authorised for the time it takes to remove a hazard or a likely hazard. That is, the removal of persons from an area must be for a limited time and not ongoing. For those reasons, they were satisfied that ground 1 was made out.

The appellant argued in ground 2, and the Full Bench agreed, that the prohibition notice must unambiguously identify and make clear what is to be done to remove the hazard or likely hazard and what requirements are to be complied with until the inspector is satisfied that the hazard or likely hazard has been removed. Smith AP and Scott CC found that the use of the words 'might' and 'has been' in the prohibition notice were ambiguous. They found that this was not sufficiently clear to a person in receipt of the prohibition notice. They are entitled to know, with a high degree of specificity, what they are prohibited from doing. The manner in which the prohibition notice has been written leaves the appellant to work out what it means and how it might be managed. This is problematic as the imposition of a prohibition notice places the appellant in jeopardy of prosecution and penalty if it breaches the prohibition notice.

The appellant argued that the words 'damaged and/or distributed and/or deteriorated in any matter' in the prohibition notice were also unclear. The Full Bench disagreed and found that evidence before the Tribunal established that the appellant has a comprehensive knowledge of not only what types of asbestos are contained in their refinery but also the location of the asbestos and has a clear system of work in place for identifying and determining whether asbestos containing material has degraded or deteriorated in any manner.

The appellant contended in grounds 3 and 5 that the use of the word 'might' implies that the prohibition notice is not grounded in opinion or conclusion that the asbestos containing materials are either dangerous or likely to be become dangerous, as to constitute a hazard. In the decision at first instance, Kenner SC found that the word 'might' meant something more than a mere possibility of an occurrence. Smith AP and Scott CC found that the learned Senior Commissioner erred and that the word 'might' does not mean the same as 'likely'. They went on to find that reliance on the word 'might' in the prohibition notice gave rise to a prohibition against the bare possibility that an exposure to airborne respirable asbestos 'might' occur and an ensuing bare possibility the exposure 'might' give rise to injury or harm. The use of 'might' is simply not sufficient to enliven the power to issue a prohibition notice pursuant to the MSI Act. Consequently, ground 3 and 5 were made out.

The Full Bench then considered to ground 7. The appellant argued that the Tribunal denied the appellant procedural fairness. The Full Bench did not accept this assertion as, in the matter of first instance, the appellant was provided with the opportunity to make submissions on any proposed amendments or modifications to the prohibition notice.

Grounds 4 and 6 of the appeal were not made out.

The Full Bench varied the decision of the Tribunal by revoking the decision of the State Mining Engineer and order the cancellation of the prohibition notice

The decision can be read here.

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