Western Australian Industrial Relations Commission

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The Industrial Magistrate has partially upheld a claim made by an employee regarding deductions from the final payment of wages, unpaid annual leave and personal leave. The employer argued that they were owed an amount by the employee to cover training costs that were paid by the employer.

The employer relied on a 'return of service' clause in the contract of employment and argued that it entitled them to recoup costs of training from the final payment after the employee resigned their position. Industrial Magistrate Scaddan found that the employer was in breach of s. 324 of the Fair Work Act 2009 as there must be a written authorisation to deduct that specifies the amount of the deduction. There can be no blanket authorisation of the type contained within the particular contract of employment relied upon by the employer.

Scaddan IM ordered that the employee be paid a sum that includes the final payment of normal hours of pay, public holiday pay, untaken annual leave and personal leave.

The decision can be read here.

The Commission has upheld a claim of unfair refusal to employ by the State School Teachers' Union of W.A acting on behalf of a teacher who had been summarily terminated by the Department of Education.

The respondent disputed the claim on the following grounds:

  1. The application for a s44 conference under the Industrial Relations Act did not seek compensation or contend that the teacher's termination was unnecessary and unfair.
  2. Section 41(3) of the Working with Children (Criminal Record Checking) Act 2004 (WWC Act) prevents the applicant from arguing that the termination of employment was procedurally unfair.
  3. The Commission does not have jurisdiction to hear this matter under section 23(2a) of the Industrial Relation Act 1979 (IR Act).

Senior Commissioner Kenner rejected the respondent's first claim and found that the nature of a question, dispute or disagreement may change from the time a s 44 conference application is made to the point when the Commissioner refers the unresolved question, dispute or disagreement for determination under s 44(9). The Commission had ample jurisdiction and power to deal with the applicant’s refusal to employ claim.

Kenner SC then turned his mind to the second claim. Kenner SC determined that a "person" under s 41(3) of the WWC Act may be a union commencing proceedings before the Commission in a 'representative capacity'. Whilst the union is an applicant in this case, the relief sought is that the teacher be employed and receive compensation for his loss of income. Kenner SC went on to find that the applicant was not excluded from obtaining a remedy under the IR Act as all three of the requirements of the saving provision in the section were not met.

Kenner SC had previously rejected the respondent's third claim in his interim order decision. The respondent continued to argue this point through witness evidence which did not persuade Kenner SC to alter his decision.

On the merits, Kenner SC found the respondent’s refusal to employ the teacher to be unfair as the investigation into the allegation of misconduct was flawed and summary dismissal was not supported on the facts.

Kenner SC ordered that the teacher represented by the applicant be offered a contract of employment as a teacher and a payment of an amount representing the salary that would have been earned by the applicant from the date of the disciplinary investigation outcome to the date of his re-employment.

The decision can be read here.

The Full Bench has upheld an appeal and quashed a decision of the Commission regarding the determination of 'continuous service' for the purpose of severance payments in the public sector.  It was determined that, in order to be entitled to a severance payment under the 'Voluntary Targeted Separation Scheme for Publish Sector Renewal', any continuous service in the public service must occur in Western Australia.

Commissioner Matthews, with whom Commissioner Emmanuel agreed, determined that the term "Public Sector" has the same meaning in the Public Sector Management (Redeployment and Redundancy) Regulations 2014 (the Regulations) as it does in the Public Sector Management Act 1994 (PSM Act) where it means entities within the Western Australian government.  Commissioner Matthews went on to find that service in the Public Sector must be the overriding qualification in determining if an employee has accrued  continuous service under the Regulations.  Once that qualification is met, the Wages Employees Long Service Leave General Order may be referred to in determining what is or is not continuous service.  The respondent's employment in the Tasmanian Public Sector may have been continuous but it was not served in the "Public Sector" and must therefore not count towards any continuous service for the purpose of calculating a severance payment under the Regulations.

Acting President Smith (dissenting) found that the appeal should be dismissed.  Her Honour found that the term "Public Sector" should be defined as it is in the Wages Employees Long Service Leave General Order and that the PSM Act expressly states that regulations are to be made to provide terms and conditions to apply to a registered employee who accepts voluntary severance.

The decision can be read here.

The Western Australian Industrial Relations Commission welcomes two appointments announced by the Minister, the Hon Bill Johnston.

For more than two years, Commissioner Stephen Kenner has been Acting Senior Commissioner.  He has now been formally appointed as Senior Commissioner.  He has been a member of the Commission since 1998, is the Public Service Arbitrator and also constitutes the Road Freight Transport Industry Tribunal and the Occupational Safety and Health Tribunal.

Ms Toni Walkington will become a Commissioner.  Ms Walkington is currently the Secretary of the Civil Service Association of Western Australia Inc., and holds a number of significant roles in the union movement.  She has had many years' experience in the field of industrial relations and in particular, in the public sector.

Both appointments will take effect from 26 November 2018.

The Commission congratulates both Mr Kenner and Ms Walkington on their appointments, and looks forward to welcoming Commissioner Walkington.

The Industrial Magistrate's Court partially upheld a claim made by a police officer regarding reimbursement claims made to the Police Commissioner. Under clause 36 of the Western Australian Police Industrial Agreement 2014 (the Agreement), the Commissioner of Police may reimburse reasonable non-work related medical expenses where those expenses fall under the categories prescribed. The applicant made 3 such applications for expenses and the Police Commissioner refused the reimbursement claims.

The Police Commissioner contended that the 3 applications do not fall within the description of Non-Work Third Party Expenses Benefit because the expenses do not follow a 'referral' by a doctor for a 'service'. Industrial Magistrate Flynn found that the ordinary meaning of 'referral' in a medical context is the introduction of a patient by one medical practitioner to another medical practitioner for treatment. The fact that the claimant had such a letter that did not directly state it was a referral was insignificant as the purpose was to act as a referral. Flynn IM disagreed with the Police Commissioners assumption that 'service' has a technical meaning where the term appears in the context of 'x-ray or other service'. Flynn IM found that medical machine purchase, machine hire and hospital expense could all be 'services' under the agreement.

The claimant argued that the Police Commissioner was required to grant reimbursement. Flynn IM considered the meaning of 'may' within the agreement and found that the ordinary meaning of the word denotes a possible outcome and that the ordinary meaning of a word is to be preferred.

Flynn IM considered whether the Police Commissioner had exercised the discretion conferred by the agreement. The responses by the Police Commissioner to the claimant suggested that the Police Commissioner may have incorrectly interpreted the agreement.

Flynn IM ordered the Police Commissioner to re-consider reimbursement claims for non-work related medical expenses made by the claimant.

The decision can be read here.

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Western Australian Industrial Relations Commission
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111 St Georges Terrace

Phone : (08) 9420 4444
Facsimile : (08) 9420 4500
Free Call : 1800 624 263

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