Western Australian Industrial Relations Commission

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The Full Bench has unanimously dismissed an appeal against a decision of the Public Service Arbitrator that found that a vascular surgeon employed by East Metropolitan Health Service was an ongoing employee, despite the industrial agreement providing that appointments will be for a maximum term.

The appellant argued that the duration of the respondent's employment is successive 5-year terms as found in the industrial agreements. Both parties accepted that the terms of the industrial agreements are paramount and prevail over terms of an employment contract, unless there is a superior term to the contrary. The appellant argued that there was no superior term in the respondent's contract of employment that would overrule the industrial agreements.

Smith AP noted that the rules of construction require that the words of a contract must be understood in their context and that rules must be read as a whole. Smith AP found that the appellant's construction of cl20(1)(a) of the 1999 industrial agreement only had regard to some words and not the whole clause. When read correctly the clause applies to 5-year contracts and allows for an exception which is met by the respondent's contract of employment.

The hallmark of a fixed term contact is that it expires on a specified day and there is no right or entitlement of ongoing employment. Smith AP determined that the 1997 contract and 2000 terms did not contain an express term by which the contract of employment expires without either party giving notice and was therefore at common law a contract of employment of ongoing duration.

It was common ground that after 2000, the respondent did not apply for reappointment to any position, nor was reappointment considered by the appellant until February 2016. On the facts of the case,

Kenner SC determined that after 2005 the parties dealt with one another on the basis that the respondent was employed on an ongoing basis.

Matthews C concurred and found that it was impossible to draw any inference other than that upon expiry of the contract of employment in 2005, the respondent continued to be employed on a contract of indefinite duration.

The decision can be read here.

The Commission has handed down a decision in a joint unfair dismissal and denied contractual benefits matter. The applicant was a restricted legal practitioner who needed to satisfy the work experience requirement of the Legal Practice Board for unrestricted practice and who had difficulty finding a firm to take him on. The applicant was employed by the respondent in an agreement to be paid only by commission or percentage of fees invoiced, received and banked from clients.

Senior Commissioner Kenner dismissed the claim of unfair dismissal on the facts. It found that the applicant's actions, including sending a blunt letter threatening legal action and cleaning out his office, were consistent with the applicant preparing to leave employment. At no stage did the applicant inform the respondent that it was not his intention to leave the respondent's firm. Even if the employment had continued after the applicant's actions, it would have been ended by the applicant's initiative in commencing these proceedings.

In the alternative, the Senior Commissioner found that it was clear that the applicant was unlikely to return to the firm, which is a relevant consideration in determining any compensation that may be awarded in the event of a finding of unfair dismissal.

In respect of the claim of denied contractual benefits, the Senior Commissioner found that the applicant was an employee who was paid a percentage of fees paid by the client to the respondent. Therefore, he was a person who was wholly remunerated by percentage reward and was excluded thereby from the coverage of the Minimum Conditions of Employment Act 1993. The applicant was found to have been denied a contractual benefit of 40 days' annual leave. The Senior Commissioner found that annual leave entitlements are an implied term of the contract of employment as annual leave is regarded as a notoriously well-known entitlement of all employees in Australia.

The Senior Commissioner determined that the applicant was not entitled to any payment in lieu of notice as the respondent did not terminate the applicant's employment. The Senior Commissioner noted that if he was wrong in that regard then the applicant would still not be entitled to any payment for notice as it is not an entitlement arising under the contract of employment and cannot be recovered as a denied contractual benefit.

The applicant argued the Commission should assess his claim based on an estimate of reasonable value for services performed instead of the remuneration agreement that was included in the contract of employment. The Senior Commissioner found that the contract of employment was valid and enforceable and that there was no basis to set aside the contract in favour of the above principle. Whilst the Senior Commissioner had concerns about the very low amount of income earned by the applicant as a solicitor, he was limited to discovering the terms of the contract and determining whether any benefit had been denied.

The Senior Commissioner ordered that an admitted debt owed by the respondent to the applicant be paid along with 40 days of annual leave. As the applicant was paid by percentage reward, the annual leave is to be paid at an average monthly rate based on the applicant's earnings over his period of employment.

The respondent has since filed an appeal to the Full Bench of the Commission, which is yet to be heard.

The decision can be read here.

The Commission has issued a replacement Practice Note setting out extended timeframes for filing written submissions to the Full Bench.  The previous Practice Note, 1 of 2008, required the appellant or applicant to file and serve written submissions four (4) working days before the hearing.  This has been extended to 14 calendar days.

The respondent was required to file and serve written submissions two (2) working days before the hearing.  This has been extended to seven (7) calendar days.

A copy of the revised practice note, Written and Oral Submissions to the Full Bench – Practice Note 2 of 2018 is available here.

The Industrial Magistrate has handed down a pecuniary penalty for contravention of s546(3)(c) of the Fair Work Act 2009 (FW Act). The respondent was previously found to have contravened the FW Act and had been ordered to pay minimum wage for normal hours of pay, untaken paid annual leave, public holidays and personal leave to the applicant.

Scaddan IM looked at s 557(1) of the FW Act and concluded that the failure to pay the 4 amounts would constitute a single contravention as the contraventions arose out of the same course of conduct by the respondent company.

Among other things, Scaddan IM considered that the respondent company is a mid-sized company and had not been found to have previously contravened the FW Act and also considered the conduct of both parties in relation to the initial contravention. Scaddan IM determined that the conduct that caused the contravention was in the low range and ordered total penalties of $3,000. The main purpose of a civil penalty is to promote compliance with the law and it is not an additional award of compensation for hurt feelings, inconvenience, stress or legal fees.

The decision can be read here.

On Wednesday, 19 December 2018, the Industrial Relations Amendment Act 2018 came into effect.  This means that there will no longer be a President of the Commission.  The President's role in presiding on the Full Bench of the Commission to hear appeals from decisions of Commissioners and of the Industrial Magistrate's Court and to deal with certain organisations and associations matters will fall to the Chief Commissioner or the Senior Commissioner.  The President's jurisdiction in dealing with other organisations and associations matters will fall to the Chief Commissioner.

A ceremonial sitting of the Commission was convened at 4.00 pm on Thursday, 20 December 2018.  The purposes of the sitting was to:

  • Farewell Acting President, the Hon. J H Smith, who has served in this important role since 2009. (Her Honour's appointment will be extended to enable her to complete part-heard matters.)
  • Recognise the historic occasion of the abolition of this position in the structure of the Commission since it was established nearly 40 years ago.

The members and staff of the Commission thank her Honour for her judicial leadership and her generous, collegial spirit.  We wish her well for the future.  Her Honour continues as a judge of the Supreme Court of Western Australia.

A transcript of the ceremonial sitting is available here.

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Western Australian Industrial Relations Commission
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PERTH WA 6000

Phone : (08) 9420 4444
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