Western Australian Industrial Relations Commission

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The Commission has dismissed a denied contractual benefits claim after finding that the contract of employment that existed between the parties was a sham directed toward fooling the Commonwealth Department of Immigration.

Commissioner Matthews found that although the contract of employment between the parties contained the terms that the applicant was to be employed full time and to receive $61,000 per annum, which is $1,173.08 per week, a side agreement that existed between the parties evidenced that the applicant was in fact a casual employee who worked for $25 per hour. Further, Matthews C found that where the applicant earned less than $1,173.08 per week he would refund the difference to his employer.

Matthews C dismissed the application on the basis that there was no contract of employment to enforce as the purported contract was no more than a sham.

The decision can be read here.

The Commission has dismissed an unfair dismissal claim made by a Housing and Property Service Officer after determining on a preliminary question and finding that the Commission did not have jurisdiction to hear the matter as the respondent is a trading corporation and a national system employer.

In determining on the preliminary matter, Commissioner Walkington considered three issues.

Firstly, the Commissioner was satisfied that the respondent was incorporated in Victoria on 1 August 2013 as the Community Housing (Capital) Ltd.

Secondly, the intended purpose of the respondent was found to be a benevolent one and the character of the activities at the relevant time may involve trading even though they are conducted for a public purpose.

Thirdly, Walkington C held that the respondent had engaged in significant and substantial trading activities of a commercial nature. Since 2012 the respondent had a Service Agreement with the Department of Housing which, in 2014 and 2015, was secured through a tender process. The Service Agreement included prices proposed by the respondent for the provision of services in two regional areas. The nature of the agreement between the respondent and the Department of Housing was considered by Walkington C who stated that ‘price was an important consideration in the Service Agreement tender process and one that the Department of Housing specifically reserved the right to reject the proposal.’ In light of these factors, Walkington C viewed the nature of the respondent’s business as being a commercial one that involved trade in services.

The Commission found that the respondent’s business is a trading corporation and therefore outside of the Commission’s jurisdiction.

The decision can be read here.

The Industrial Magistrate’s Court granted the respondent’s application to strike out part of the claimant’s claim due to lack of jurisdiction under section 83 of the Industrial Relations Act 1979 (WA) (IR Act). The Civil Service Association of WA (the CSA), on behalf of its member, claimed various entitlements pursuant to a voluntary severance under a Targeted Voluntary Separation Scheme based on a substantive rate of pay.

Section 83(1) of the IR Act empowers the Industrial Magistrate’s Court to:

“enforce a provision of an instrument specified in s 82(2) which includes: (a) an award; (b) an industrial agreement; (c) an employer-employee agreement; and (d) an order made by the Western Australian Industrial Relations Commission.”

Industrial Magistrate Scaddan considered whether the claimant’s member was entitled to receive the incentive payment at a rate of pay referred to in reg 15 of the Public Sector Management (Redeployment and Redundancy) Regulations 2014 (WA) (Regulations). Scaddan IM found that there was no relevant provision contained in the award and/or the agreement that was capable of being enforced and that applied to the payment of an incentive payment.

At the hearing, the CSA applied to broaden the scope of the claim to include that it was an implied term of the award or agreement that the incentive payment ought to have been “paid in full” pursuant to section 17C of the Minimum Conditions of Employment Act 1993 (WA) (MCE Act). However, her Honour found that regardless of the CSA’s ability to alter its claim, this claim would still be without merit. In the alternative, Scaddan IM held that even if she were wrong about the merits of the claim, the Regulations, and not s 17C of the MCE Act, would apply to the extent of any inconsistency with the award and/or agreement.

Scaddan IM then considered whether the claimant’s member would be entitled to receive payment of all accrued long service leave. Her Honour similarly found that the entitlement to cash in lieu of all accrued long service leave arose under the Regulations upon acceptance of voluntary severance and not from any provision, implied or otherwise, of the award or agreement.

The Court granted the respondent’s application to strike out after it found that it did not have the jurisdiction to consider the CSA’s claims for long service leave and the incentive payment because no provision of the award or agreement had been contravened that was capable of being enforced under s 83 of the IR Act.

The decision can be read here.

The Industrial Magistrate’s Court has dismissed a claim made by an estimator who alleged that his former employer had not paid him his redundancy entitlements pursuant to section 119 of the Fair Work Act 2009 (Cth) (FWA) when his employment was terminated.

Industrial Magistrate Scaddan stated that s 119(1)(a) of the FWA “entitled an employee to redundancy pay if the employee’s employment is terminated at the employer’s initiative because the employer no longer required the job done by the employee to be done by anyone, unless any exception, exclusion or other relevant provision applied.”

Scaddan IM was unable to make a finding about whether the respondent was exempt from paying redundancy due to it being a small business employer because neither the claimant, nor the respondent, had adduced evidence of the number of employees employed by the respondent at the time of the claimant’s termination.

Her Honour also accepted the respondent’s evidence that the claimant’s employment was terminated due to poor work performance and evidence that there was another of the respondent’s employees doing the job of an estimator similar to what the claimant had done during their employment. Consequently, Scaddan IM found that on the balance of probabilities the claimant was terminated at the employer’s initiative based on concerns over their work performed.

The Court dismissed the claim after finding that they had not proven to the requisite standard that the respondent no loner required his job to be done by anyone.

The decision can be read here.

The Commission has ordered the reinstatement of a teacher whose contract of employment was alleged by the Department of Education to have been repudiated when she had failed to maintain her registration with the Teacher Registration Board of Western Australia. The Commission made no order in relation to lost remuneration.

It was not argued that it was a term of the contract of employment between the teacher and the Department that the teacher maintain her registration with the Teacher Registration Board. Commissioner Matthews therefore concluded that the reason given to the teacher for her termination, that she had repudiated her contract, was not a good reason. However, Matthews C found that this did not necessarily mean that her termination was unfair.

Matthews C considered that the Department was aware that on the 8th of May 2018 the teacher asked for help to become re-registered and that they were also aware that the SSTU was seeking to preserve their member’s employment. Given the Department’s knowledge of this, their communication to the teacher that she had repudiated her contract, when she clearly had not, made the termination unfair.

Matthews C considered that there were also some materially unfair aspects to the process that led to the teacher’s dismissal such as that she had been employed by the Department for 15 years prior to her termination, was not given a fair warning of the possibility of termination if certain action was not taken, was not given the opportunity to explain herself to the decision-maker prior to being terminated and that other employees who had not paid their registration fees on time were treated differently and were allowed a limited registration from their Principals.

The Commission found that there was no good reason provided for why the teacher should not be reinstated. The Commission ordered that the teacher’s employment be considered to be unbroken by the period that she was not employed by the Department. However, the Commission stopped short of exercising its discretion to order payment of any remuneration that was lost, or likely to have been lost, because the teacher had clearly played a role in her employment coming to an end.

The decision can be read here.

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Western Australian Industrial Relations Commission
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Phone : (08) 9420 4444
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