Western Australian Industrial Relations Commission

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Surgeon an Ongoing Employee Despite Industrial Agreement Clause Requiring Maximum Term Appointments

The Commission has issued an order and declaration that a vascular surgeon employed by East Metropolitan Health Service (EMHS) is an ongoing employee, despite the industrial agreement providing appointments will be for a maximum term.

The surgeon was represented by the Australian Medical Association (AMA), who said he was appointed in writing in 1997 and 2000 as a permanent employee and there is no basis on which to find he was offered, and accepted, a contract for a maximum term ending in 2017. The AMA argued that because the 1997 and 2000 appointments were complete documents that included a start date, no maximum term, a probationary period and the ability to terminate the contract with three months’ notice, it was clear the parties had reached an agreement that the surgeon was employed on an ongoing basis.

EMHS relied on the appointment clauses in the various industrial agreements that have applied since 1997.  They broadly provide that all appointments will be on five-year maximum term contracts unless the parties reach a written agreement to the contrary.   EMHS said it did not reach a written agreement to the contrary with the surgeon because the mode of employment was not specified in the 1997 and 2000 appointments. It also said that the industrial agreements’ appointment clauses prevail over any term to the contrary at common law.  It argued any purported appointment of the surgeon on a permanent basis is ‘null and void’ in accordance with s 114 of the Industrial Relations Act 1979 (WA) (IR Act). Therefore, EMHS said as a matter of law the surgeon’s appointment in November 1997 was for a five-year maximum term contract and he had since been reappointed on a series of three consecutive five-year maximum term contracts.

Commissioner Emmanuel found that in fact the surgeon was not appointed on a series of five-year maximum term contracts. However, the Commissioner also found that the surgeon was not appointed on a maximum term contract by operation of law. Under the relevant industrial agreements, the Commissioner concluded that EMHS may have had an obligation to offer the surgeon a five-year maximum term contract in 1997 and 2000 when he was appointed, but that is not what happened. Instead it offered the surgeon an ongoing employment contract, which he accepted. That an employer may not have complied with the industrial agreements in this regard does not mean that the surgeon must have been or was employed on a series of five-year maximum term contracts.

Commissioner Emmanuel found that the surgeon has been continuously employed by EHMS for over 20 years, first on an ongoing contract formed in 1997 and then on an ongoing contract formed in 2000.

The decision can be read here

AWARDS UPDATED FOLLOWING THE 2018 STATE WAGE GENERAL ORDER AND 2018 LOCATION ALLOWANCE GENERAL ORDER BOTH TAKING EFFECT ON 1ST JULY 2018

Please find a list of Awards updated to include the $18 per week increase to award rates as per the 2018 State Wage General Order and the increases to the location allowances as per the 2018 Location Allowance General Order. List detail can be read here.

Full Bench cancels two defunct organisations

The Full Bench issued orders cancelling the registration of: 

  • The Boot Trade of Western Australia Union of Workers, Perth; and
  • the Master Plasterers' Association of Western Australia Union of Employers.

The Registrar of The Western Australian Industrial Relations Commission applied to have the registration of those organisations cancelled because they had not filed returns for many years, they had failed to notify the Registrar of their office holders and appeared to be defunct. 

The Full Bench was satisfied that the Boot Trade Union and the Master Plasterers' Association are defunct.  Accordingly, it issued orders cancelling their registration. 

A copy of the order in relation to the Boot Trade union can be read here

A copy of the order in relation to the Master Plasterers' Association can be read here

State Minimum Wage set at $726.90 per week

The Commission in Court Session has delivered its decision in the 2018 State Wage Case.  The Commission adjusted the State Minimum Wage and award rates of pay in the State industrial relations system by a flat amount of $18.00 per week.  The Commission will also adjust the Statement of Principles. 

These changes take effect from 1 July 2018. 

The Commission's statement in relation to its decision can be read here

A full copy of the Commission's decision can be read here.  

The Commission has to be fair but it does not represent a party

The Full Bench dismissed an appeal against a decision of the Commission to dismiss a claim of contractual entitlements.  The employee claimed that the Commission did not provide him with assistance to conduct his case, and pressured him to reach agreement in respect of some of his claim.  He argued that this meant he did not get a fair hearing. 

The Hon. Acting President, which whom Chief Commissioner Scott and Commissioner Emmanuel agreed, held that in respect of self-represented parties: 

  1. the Commission has a duty to do no more than is required to diminish their disadvantage;
  2. self-represented parties are subject to the same rules as all other parties before the Commission, however the Commission may be more lenient in the standard of compliance;
  3. the Commission will not deprive a represented party 'one jot' of their lawful entitlement simply because they are represented and the other party is not;
  4. the Commission may explain to the unrepresented party substantive and procedural rights to ensure the party is not unfairly disadvantaged by their ignorance of those rights;
  5. the Commission cannot advise a party how they should exercise their rights; and
  6. the assistance required will depend on the particular party.

One of the employee's complaints was that he did not have an opportunity to adduce evidence through a number of witnesses.  However, the Commissioner asked the employee whether he wanted to call evidence other than his own evidence, and he said 'no'.  Having regard to that, the Commissioner was under no duty to inform the employee that he could ask for an adjournment to call other witnesses. 

The Commissioner encouraged the employee to state his case fully and explained matters of law raised by the employer.  In the circumstances, the Full Bench was satisfied that the Commission at first instance conducted a fair hearing. 

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

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