Western Australian Industrial Relations Commission

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The Industrial Magistrate’s Court determined a preliminary issue on a linesman’s claim in favour of the respondent. The claimant alleged that the respondent had breached clause 5.1(c) of the Western Power and CEPU Enterprise Agreement 2013 (the Agreement) by failing to act fairly and responsibly in ceasing their employment and therefore also contravened section 50 of the Fair Work Act 2009 (Cth). The preliminary issue for determination related to the construction and character of cl 5.1(c) set out below:

Western Power remains continued to a strong working relationship with all employees based on mutual trust, good faith and respect, and in doing so will: …

(c) Act fairly and responsibly in exercising its rights and obligations under this Agreement; …”

Industrial Magistrate Scaddan considered that the introductory words of the first sentence in cl 5.1 were aspirational, that the use of the word “will” at the end of the first sentence was unlikely to have been intended by its drafters to impose a penalty in light of the whole of cl 5 and that the use of the words ‘Mutual Obligations’ in the heading did not alter the character of the clauses. The Industrial Magistrate concluded that the appropriate character or construction of cl 5 is that it is aspirational and was not intended to impose a binding obligation on the Respondent capable of giving rise to a breach of the Agreement.

In the alternative, Scaddan IM found that if she were wrong in her construction of cl 5, the Agreement would only operate in respect of a right or obligation on the respondent that expressly arises under the Agreement. The Industrial Magistrate held that cl 23 would not enliven any right or obligation on the respondent as it only prescribes the notice to be given by both parties in the event of termination.

The decision can be read here.

The Industrial Magistrate has dismissed a claim made by a customer service coordinator who said that her former employer, the City of Swan, contravened clause 24.6 of the Local Government Industry Award 2010 by not paying her an on call allowance between the dates she alleged that she was on call.

The respondent had a formal system in place that approved a number of roles to be on call and that were subject to a letter of agreement, with conditions and remuneration. The Industrial Magistrate decided that the definition of ‘on call’ contained in cl 24.6 means that an employee must be directed to be on call and that this will generally be in work areas assessed by the respondent as requiring, or possibly requiring, the immediate attendance at work outside of ordinary working hours. Her Honour then considered the meaning of ‘directed’ and found that for the claimant’s claim to be made out then she would have to show that:

  • she was directed to be on call and was obligated to be contactable and immediately available outside of ordinary working hours,
  • in the alternative, that the respondent acquiesced to the claimant being on call, or
  • in the alternative, that she was directed to be on call and was required to be available immediately to respond in a manner set out in cl 24.6(d).

The Industrial Magistrate found that the claimant had not proved to the requisite standard that they were on call over the alleged dates as the only reference to the claimant being directed to be on call came from the claimant herself and her characterisation of the situation. Further, there was no requirement or expectation on the claimant to attend work which would suggest that the respondent had acquiesced to her being on call.

The Industrial Magistrate dismissed the claim and found that the respondent had not breached cl 24.6 of the Award.

The decision can be read here.

The Commission has dismissed three applications challenging the Department of Education’s decision to take disciplinary action against the applicant on three separate occasions, namely, the 11 September 2015, 24 May 2017 and 18 August 2017. The three applications were heard together and referred to the Commission under the Public Sector Management Act 1994.

The applicant previously, while legally represented, had challenged the first disciplinary finding of 11 September 2015 through the Commission, which was resolved with a deed of settlement and the disciplinary action taken was not disturbed by the settlement. The Commission dismissed this application after it found that the applicant, although reluctantly, had accepted that he had entered into a deed of settlement that was freely executed and barred him from bringing this application.

As for the other two applications arising from the disciplinary findings that occurred on 24 May 2017 and 18 August 2017, the Commission determined that it was not in the public interest to hear the matters as they had not been brought in a reasonable time and no good explanation was given for the delay. The Commission heard that the applicant had decided to delay bringing the applications due to the expense of legal representation and his belief that he could not competently represent himself at that time. However, it was held that employers and the legal system cannot be fairly asked to wait until a time that a person considers that they are able to represent themselves to bring an application. The Commission also dismissed these applications.

The decision can be read here.

The Commission has dismissed an application made by the respondent to adjourn the scheduled dates for a hearing for a further two weeks. The respondent applied for an adjournment on 18 June 2019 for the scheduled hearing dates to be vacated to a date not before the beginning of September 2019 on the basis that:

  • the hearing was at the busiest time of year for the respondent,
  • two key witnesses would not be available,
  • the cross-examination of other witnesses by the applicant would cause the store to be un-operational at a critical time for trade, and
  • the State Manager would be away for the hearing.

On 20 June 2019, the respondent amended their request for an adjournment to a date in the week following 13 July 2019.

The Commission noted the respondent’s lengthy notice of the dates for the hearing and the late application for adjournment when finding that it was not in the interests of parties in other proceedings and the public to adjourn the scheduled hearing. The Commission also considered that the applicant would be disadvantaged if the dates set for hearing were vacated, that the respondent had only raised the issue of the demands of seasonal trading two weeks before the first day of the hearing and that alternative arrangements could be made for witnesses to give their evidence or that issue be addressed on the first day of the hearing.

In light of these findings, the Commission dismissed the respondent’s application.

The decision can be read here.

The Commission has dismissed a reclassification application by an applicant who was employed as a full time Level 4 graphic designer in January 2016 by the Department of Corrective Services. The applicant was recommended for a Level 5 reclassification by the Department’s Classification Review Committee on 9 March 2017, however this reclassification was deferred following incorrect information being given to the Committee that the applicant had not been continuously employed by the Department for more than 12 months as required. After the March 2017 State election, the Committee reconvened but the applicant’s reclassification was denied.

The Public Service Arbitrator found that the matter was not one that the Arbitrator had jurisdiction to deal with as it did not relate to a matter described in section 80E(2)(a) of the Industrial Relations Act.

The Commission dismissed the application after finding that the applicant did not have standing to bring it.

The decision can be read here.

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Western Australian Industrial Relations Commission
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