Western Australian Industrial Relations Commission

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Cannot stay an industrial magistrate's court order; no appeal against a preliminary decision; costs only in exceptional circumstances

An employer had two matters before the Commission: 

  • an appeal to the Full Bench against an interlocutory decision of the industrial magistrate's court; and
  • an application to the President sitting alone to stay the operation of the order of the industrial magistrate's court.

Shortly after the application for a stay of the interlocutory order was filed, the Hon. A/President informed the employer of an authority in which it was found that there is no power to stay the operation of an order of the industrial magistrate's court. 

The employer sought to discontinue the application for a stay.

The employer subsequently sought to discontinue the appeal as research by Senior Counsel for the employer revealed a binding line of authorities that determined that an appeal to the Full Bench can only be made in respect of a final determination of a substantive matter.

The respondent in each matter, the employee, sought orders for costs. 

There are three sections of the Industrial Relations Act that may provide for costs in relation to these matters:

  1. section 84(5), which is a specific power for the Full Bench to award costs in relation to an appeal against a final decision of the industrial magistrate's court brought under that section;
  2. section 27(1)(o), which provides for orders for costs with respect to interlocutory proceedings; and
  3. section 27(1)(c), which is a general power to award costs except for costs of any legal representation. 

Her Honour found that the stay application was not brought under s 84, and therefore s 84 did not apply.  The application for a stay was not provided for by the Act and therefore could not be found to have been brought under s 84 of the Act.  Further, the employee's costs of legal representation could not be awarded under s 27(1)(o) of the Act as s 27(1)(o) did not confer a separate power to award costs from s 27(1)(c).  That left the general power of the Commission to award costs under s 27(1)(c). 

The affidavit filed by the employee set out a number items for which she claimed costs.  The A/President found that all but the printing costs related to costs for the services of legal representation and were not allowed under s 27.  The printing costs did not did not distinguish between printing costs incurred in the course of instructing her representation and other printing costs incurred.  Therefore, the A/President held that the employee's application for costs was too vague.  

In dealing with the application for costs of the appeal, the Full Bench held that the Commission only has power to order an unsuccessful party pay the costs of the services of a legal practitioner of a successful party if it is satisfied that the proceedings have been instituted or defended 'frivolously or vexatiously': 

  • without reasonable grounds;
  • purely to cause trouble, annoyance or embarrassment; or
  • for an ulterior motive, not for the purpose of having the dispute adjudicated. 

If one of these elements is proved, the Commission's discretion to award costs is enlivened.  The Commission will then consider whether to award costs, taking account of the relative informality of proceedings before the Commission and the general policy of not awarding costs. 

Even though there was no jurisdiction for each matter, the A/President in dismissing the application for costs in the stay application and the Full Bench in dismissing the application for costs of the appeal, were satisfied that the employer acted properly and abandoned both applications as soon as the jurisdictional issues were drawn to its attention.  Further, the Full Bench was also of the opinion that the appeal was not one of those rare cases where a costs order should be made.  

The A/President's stay decision can be read here

The Full Bench's decision can be read here

Teacher provoked by student reinstated

The Commission upheld a claim of unfair dismissal by a teacher who was dismissed after he made physical contact with a student who sprayed him with compressed air. 

The Chief Commissioner found that compressed air is dangerous, and being sprayed with compressed air caused the teacher to fear for his life.  This provoked the teacher to instinctively and impulsively grab and push the student.  These circumstances were exculpatory of the teacher's physical contact with the student. 

The Chief Commissioner noted that not every instance of physical contact with a student will warrant dismissal.  The context of the conduct and the circumstances of the individual have to be considered.

The Commission ordered that the teacher be reinstated. 

The decision can be read here

Various defunct industrial agreements cancelled

Following an investigation by the Registrar, the Commission has concluded that the following industrial agreements were defunct and has cancelled them pursuant to s 47 of the Industrial Relations Act 1979

  1. Arthur Yates and Co Limited Canning Vale Western Australia Site Agreement, AG 86 of 1994
  2. Atkins Carlyle Ltd (Belmont Warehouses) Enterprise Agreement 1995, AG 89 of 1995
  3. Australian Wool Handlers (Albany) Enterprise Agreement, 2000, AG 240 of 2000
  4. Australian Wool Handlers (Spearwood) Enterprise Agreement, 1998, AG 145 of 2000
  5. Broadway Fresh and SDA Agreement 2003, AG 230 of 2003
  6. Bunnings Forest Products Pty Ltd Storepersons Enterprise Agreement 1996, AG 300 of 1996
  7. Bunnings (Non Warehouse Stores)/SDA Agreement 2002, AG 10 of 2003
  8. City Gems Perth and SDA Agreement 2003, AG 229 of 2003
  9. Coles Distribution Centre Enterprise Agreement 1994, No. AG 38 of 1995
  10. Coles Variety City Store Rostering Agreement 1993, AG 68 of 1993
  11. Coles Myer Logistics Pty. Ltd. Myer Distribution Centre Carousel Road Cannington Site Agreement 1999, AG 63 of 1999
  12. Dewsons Cooloongup and SDA Agreement 2004, AG 103 of 2004
  13. Dyson’s Packaging Pty Ltd Enterprise Agreement 1995, No. AG 212 of 1995
  14. Elders Limited (Spearwood Wool Store) Enterprise Agreement 1995, No. AG 235 of 1995
  15. Elders Limited (Spearwood Wool Store) Enterprise Agreement 1996, No. AG 332 of 1996
  16. FAL and SDA Enterprise Agreement 1994, AG 178 of 1994
  17. Feeding Frenzy Perth and SDA Agreement 2003, AG 231 of 2003
  18. Fish Feast Canning Vale SDA Agreement 2003, AG 57 of 2004
  19. Fish Feast Gosnells SDA Agreement 2002, AG 14 of 2003
  20. Fish Feast Greenmount SDA Agreement 2002, AG 12 of 2003
  21. Fish Feast Halls Head SDA Agreement 2003, AG 51 of 2004
  22. Fish Feast Joondalup SDA Agreement 2002, AG 13 of 2003
  23. Fish Feast Kardinya SDA Agreement 2002, AG 11 of 2003
  24. Fish Feast Kelmscott SDA Agreement 2002, AG 17 of 2003
  25. Fish Feast Lathlain SDA Agreement 2002, AG 15 of 2003
  26. Fish Feast Malaga SDA Agreement 2003, AG 56 of 2004
  27. Fish Feast Maylands SDA Agreement 2002, AG 16 of 2003
  28. Goodman Fielder Consumer Foods (Canningvale) Enterprise Agreement 2004/2005, AG 85 of 2004
  29. Gordon & Gotch Limited Enterprise Bargaining Agreement 1996, AG 35 of 1996
  30. Gordon & Gotch Limited Enterprise Bargaining Agreement 1997, No. AG 43 of 1997.
  31. Inghams Enterprise Storemen’s Agreement 1994, AG 22 of 1994
  32. Inghams Enterprises Pty Ltd Distribution Enterprise Bargaining Agreement 2000, AG 268 of 2000
  33. Inghams Enterprises (Telesales) Enterprise Bargaining Agreement 2003, AG 90 of 2003
  34. Kebab Company – Joondalup Perth and SDA Agreement 2003, AG 232 of 2003

Public notice was given of the Commission's intention to cancel these industrial agreements on the Commission's website on 1 November 2017 and in The West Australian on 15 November 2017. 

A copy of the Order can be viewed here

Notice of Hearing - applications to cancel registration of defunct organisations

NOTICE is given of applications by the Registrar of the Western Australian Industrial Relations Commission to the Full Bench of the Western Australian Industrial Relations Commission to cancel the registration of The Boot Trade of Western Australia Union of Workers, Perth (FBM 2/2018) and the Master Plasterers’ Association of Western Australia Union of Employers (FBM 3/2018) on the grounds the organisations are defunct.


The matters are listed for hearing before the Full Bench at 11.30am on Wednesday 30 May 2018 on Level 18, 111 St Georges Terrace, Perth.


Any person who desires to object to the application/s may do so by appearing at the hearing before the Full Bench at the above listed date and time.


S. BASTIAN
REGISTRAR
15 May 2018

Reduction in teacher's penalty for misconduct

The Commission has upheld part of a teacher's challenge to findings made against him by the Department of Education.

The Commission found the teacher had misconducted himself but in a manner that warranted a reduction in the penalty initially imposed.

The Department of Education originally found that the teacher had misconducted himself by making a comment to a student, and in the physical altercation and restraint that ensued, he punched the student in the head.

The Commission found that, in all the circumstances, with contemporaneous reports not clearly mentioning the punch and the teacher’s evidence providing a reasonable alternative, the Department's finding that the teacher punched the student in the head was not safe, fair or reasonable.

The Commission found the teacher made a comment to the student using words to the effect “If you are going to hit me make it your best shot because you won’t get a second chance.”

The Commission rejected the teacher's submissions that in considering the comment the Department had not considered all the circumstances, being that he had made the comment instinctively and without thinking.

The Commission found that the evidence and submissions of the teacher demonstrated the comment was made as a strategy, that the comment led to the altercation and restraint of the student, and that in all the circumstances the teacher had misconducted himself by making the comment.

As the teacher was no longer found to have misconducted himself by punching the student but had misconducted himself by making the comment to the student, the Commission imposed a reduced penalty of a reprimand and a fine of one day’s pay.

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

Free Fax :1800 804 987

Email : mail reg

 

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