Western Australian Industrial Relations Commission

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The Full Bench unanimously dismissed an appeal by a real estate agent who claimed that he was entitled to $42,700 in commission payments from his former employer.  The Full Bench found real estate agents are only entitled to listing commissions if they are ‘in fact the effective cause’ of the firm winning the listing. 

The reliable evidence did not satisfy the Commission at first instance that the appellant caused the listing, and the Full Bench unanimously agreed.  Therefore, the Full Bench found, the claim was correctly dismissed.

The decision can be read here

The Full Bench unanimously approved an application to amalgamate by The Australian Workers Union, West Australian Branch, Industrial Union of Workers (AWU) and The Food Preservers’ Union of Western Australia Union of Workers (FPU). 

Before considering the application, the Full Bench dealt with an application to intervene by the National Union of Workers (NUW).  Several purported members of the FPU also lodged an objection to the amalgamation.  Each of those applications was dismissed.

The NUW said it said it has a ‘sufficient interest’ to intervene in the proceedings because the amalgamation may lead to disputation between the NUW and AWU in the Fair Work Commission and the NUW’s reputation was disparaged during FPU’s annual general meetings. 

The Full Bench held potential disputation in the Fair Work Commission does not give the NUW a sufficient interest to intervene.  Potential disputes in other jurisdictions are not relevant to the Full Bench’s consideration because it cannot deal with that ‘controversy'.  The Full Bench’s reasons also made mention of the fact that the NUW has no presence in the State industrial relations system.  

The Full Bench also found that the alleged disparagement did not establish a sufficient interest for the NUW.  The NUW cannot apply for coverage of FPU members because it is ‘not registered as an organisation under the’ Industrial Relations Act.  Therefore, the NUW has no right to procedural fairness ‘in these proceedings in relation to the statements’ at the FPU meetings.  In any event, the Full Bench noted that the alleged statements could not make any difference to the outcome of the application for amalgamation. 

The Full Bench also dismissed all purported members’ objections.  The Full Bench found some of the persons seeking to object were not eligible to do so because they had either resigned their membership of the FPU or had not paid their membership for over 3 months and so, pursuant to s 64B of the Industrial Relations Act 1979, they were no longer members of the FPU.  The objectors who were members had filed their objections out of time and did not satisfy the Full Bench that there was good reason to extend time to file the objections. 

The decision can be read here

The Commission upheld an appeal by an apprentice against the decision of the Apprenticeship Office to terminate his training contract.  The Apprenticeship Office terminated the training contract because it was satisfied that ‘the purpose of the contract has been or will be frustrated by the apprentice’s acts or omissions.’  It said the apprentice’s conduct led to the employer standing him down, and this frustrated the purpose of the training contract.  Commissioner Emmanuel found that the employer’s act of standing the apprentice down rather than the apprentice’s acts or omissions frustrated the purpose of the training contract. 

The Vocational Education and Training Act 1996 specifically provides the Apprenticeship Office with an avenue to consider terminating a training contract for ‘serious misconduct’.  Commissioner Emmanuel found that the Apprenticeship Office did not explore that option. 

Commissioner Emmanuel held that ‘frustrated’ in the regulations must be given its ordinary meaning.  This interpretation is consistent with principles of statutory interpretation.  The finding contrasts with the doctrine of frustration which has a technical legal meaning that an obligation cannot be performed because of a supervening event beyond both parties’ control.  If the technical legal meaning of frustration is applied, the words ‘by the apprentice’s acts or omissions’ could not be given any effect, which is contrary to the principle of statutory interpretation that all of the words in legislation should be given meaning and effect. 

Commissioner Emmanuel also found that an appeal against a decision to terminate a training contract is ‘by way of rehearing’.  An appeal by way of rehearing means that the apprentice must convince the Commission that the Apprenticeship Office made a serious error of fact, had regard to an irrelevant consideration or did not have regard to a relevant consideration, and/or acted on a wrong principle in coming to the decision to terminate the training contract.  This finding also means that, ordinarily, the Commission will only consider evidence that was before the Apprenticeship Office when it made the decision. 

The decision can be read here.

An employee of a company engaged in the business of mineral exploration filed a contractual benefits claim in the Commission, claiming loss of salary for the period where his employment was reduced from five to three days per week.

The employer challenged the Commission’s jurisdiction to deal with the claim on the basis that the applicant had not named the correct respondent and also, that his employment did not have a sufficient connection with the State of Western Australia, as the employee was located in and performed all of his work in Sweden.

Firstly, having regard to the employment arrangements between the parties, and in particular the terms of the Employment Agreement, in the context of the facts, the Commission concluded that the named respondent was the applicant’s employer.

Secondly, whilst the Commission accepted the work performed under the Agreement was solely in Sweden in relation to the Swedish mineral resources operations of the group, and the employee was paid in Swedish currency in Sweden, it found that at all times the employer under the Agreement was resident in the State of Western Australia. Further, it was contemplated that the WA jurisdiction would exclusively apply to the Agreement and any disputes between the parties to the Agreement, to which the Commission accorded considerable weight. Finally, the employee’s involvement in the Swedish branch as a Director and as its nominated Deputy Managing Director, was expressly contemplated by the Agreement and formed part of his duties as a senior employee of the Perth based employer.

The Commission found the employment did have a real connection with Western Australia, in the sense that that principle was outlined in Parker v Mark Anthony Tranfield (2001) 81 WAIG 2505.  

The decision can be read here.

An employee who accepted a voluntary severance offer and resigned from his employment, claimed his severance package should have included an attraction and retention incentive payment which he had been receiving in his acting position.

The applicant claimed the payment, and the manner in which he was informed as to his severance package was not in accordance with the Public Sector (Redeployment and Redundancy) Regulations 2014 (WA), and the Regulations were not fairly or properly applied. He maintained the matter may be referred to the Commission under s 95(2)(b) of the Public Sector Management Act 1994 (WA). Additionally, he claimed the sum of his incentive payment ($22,330.64) as a denied contractual benefit under s 29(1)(b)(ii) of the Industrial Relations Act 1979 (WA).

The respondent maintained the Commission had no jurisdiction to entertain the matter referred to it under s 95(2)(b) because at the time of the referral, the applicant was not an employee, having already resigned from his employment. In reply, the applicant contended that having regard to Parts 3 and 6 of the Regulations, a resignation as part of a voluntary severance process, is not a termination of employment as provided in Part 6.

The respondent also maintained the applicant’s contractual benefits claim must fail as because he was a “government officer” at the material time, as defined in s 80C(1) of the Act, any such claim can only proceed before the Public Service Arbitrator constituted under Part IIA of the Act. The applicant contended his claim fell within the Commission’s general jurisdiction under s 23 of the Act.

Having considered the relevant provisions of the PSM Act and the Regulations, the Senior Commissioner found that for a referral of a matter to the Commission under s 95(2)(b) to be valid, the person aggrieved by the decision must be in an extant employment relationship with their employer, as at the time of the referral. In relation to the applicant’s contractual benefits claim, the Senior Commissioner held the Arbitrator has exclusive jurisdiction in respect of industrial matters relating to a “government officer”, with the exception of claims made under ss 95 and 96A of the PSM Act. He found the Commission’s general jurisdiction under s 23 is not able to be availed of by a “government officer”. For the above reasons, the application was dismissed for want of jurisdiction.

The decision can be read here.

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Western Australian Industrial Relations Commission
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111 St Georges Terrace
PERTH WA 6000

Phone : (08) 9420 4444
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