Western Australian Industrial Relations Commission

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The Commission has issued an order granting the applicant, who is a member of the organisation of the respondent, the opportunity to inspect the books pursuant to the association rules of the respondent (the Rules). The respondent is an organisation of employers registered under the Industrial Relations Act 1979 (WA) (the IR Act). The applicant sought inspection of the respondent’s books, namely their management accounts, 2017 and 2018 debtor and creditor invoices and copies of agreements with suppliers and contractors pursuant to Rule 8.15(c) of the Rules. The respondent declined the request for a number of reasons.

Rule 8.15(c) states that:

Any member and person who has an interest in the funds may inspect the books and register of members at any reasonable time.

Chief Commissioner Scott determined that the objections raised by the respondent to the applicant’s request to inspect the books were without substance. Scott CC considered that although the application form that was completed by the applicant did not comply with the Industrial Relations Regulations 2005 (WA) the correspondence attached to the form clearly identified all the required information. Further, although the applicant did not file a list of the documents that it sought to inspect, in accordance with a direction from the Commission, the documents were listed in the correspondence and this list of documents was subsequently filed by the applicant. The Commission also held that the respondent would not be prejudiced by the lateness of the confirmation of this information.

Scott CC found that the applicant had a right to inspect the books under Rule 8(15)(c) of the Rules. Acknowledging that neither the IR Act nor the respondent’s Rules defined “books” Scott CC was guided by a number of definitions, including by section 63 of the IR Act which sets out the records that an organisation is required to keep; the Macquarie Online Dictionary definition of “books” and definitions of “books” found in section 3 and part 5 of Associations Incorporation Act 2015 (WA) and schedule 2 of the Associations Incorporation Regulations 2016 (WA) that are almost identical. The Commission concluded that there was no doubt that the definition of “books” included management accounts and debtor and creditor invoices and that copies of agreements with suppliers and contractors was a record of information also covered by the definition of “books”.

Scott CC considered whether there was any good reason why the applicant should not be entitled to inspect the books. It was noted by Scott CC that the respondent’s written submissions identified that both their agreements with suppliers and contractors and invoices from legal advisors contained privileged information. The applicant provided an undertaking that they will ensure the privacy and confidentiality of the books and not use the information for any commercial purpose that is not associated the applicant’s role as a member of the respondent.

The respondent agreed to provide the applicant with the invoices, but that information which might identify legal advice would be redacted, and this was acceptable to the applicant.

The Commission ordered that the documents sought by the applicant, with the agreed invoices redactions, be provided by the respondent within two days of them being returned to the respondent from the auditors, and, following this, upon two days’ notice by the applicant.

The decision can be read here.

The Commission has dismissed an application made by a former casual Patient Care Assistant who alleged that they had been dismissed by the respondent and that the dismissal was unfair.

The Commission acknowledged that there were two types of causal engagement that may apply in this case. The first occurs where a causal employee is asked to cover known future and unplanned absences from work. The second occurs where a casual employee is asked to cover any unplanned absences that may arise from day to day. It was accepted by the Commission that the parties were not in dispute that the second type of casual engagement applied in the applicant’s case. The Commission then determined that the letter of offer represented an offer of an ongoing contract where the respondent could, and did, offer casual work engagements on an ongoing basis to the applicant in accordance with their established procedure. Also, the Commission found that the respondent’s letter of 18 June 2019 to the applicant, informing her that the respondent would not offer the applicant any more casual engagements, was a dismissal and as such the Commission had jurisdiction to hear and determine the applicant’s claim.

The Commission next considered the respondent’s evidence of the lengthy history of complaints about the applicant’s attitude and performance in the workplace and found that the applicant had not established that her dismissal was unfair in all of the circumstances.

The Commission dismissed the application.

The decision can be read here.

The Industrial Magistrates Court has dismissed a claim brought by the Transport Workers’ Union of Australia (TWU) who alleged that the respondent employer had breached a clause of the Chubb Security Services Ltd, Western Australia, Armoured Vehicle Operators Enterprise Agreement 2011-2015 which stated that a ‘two person crew is able to operate in a ‘lunch on road’ in the Rockingham and Mandurah areas only’ (the Lunch on Road Clause). On four occasions between October and November 2016, two person crews were required to take “lunch on the road” when they travelled to the country locations outside of Rockingham and Mandurah, namely to Geraldton, Margaret River and the Southwest of WA.

Industrial Magistrate Flynn found that, properly construed, the Lunch on Road Clause required the employer to give due consideration to the safety of employees when determining whether the circumstances of travel to country locations required a two person crew or a three person crew.

Flynn IM dismissed the TWU’s claim after finding that there was no evidence of a safety issue being ignored by the employer when allocating a two person crew to the country runs the subject of the claim.

Flynn IM further observed that the respondent had not complied with the Consultative Committee Clause but did not make any finding that the non-compliance was a contravention of a civil penalty provision.

The decision can be read here.

The Commission has upheld a denied contractual benefit claim where an electrician alleged that in the course of his employment by both the first and second respondents he was only paid on the basis of a 38 ordinary hour working week even though his contract of employment entitled him to be paid for 40 hours per week.

It was held by Senior Commissioner Kenner that the relevant parts of the letter of 30 March 2015 were clear in their terms of the applicant’s employment. Also, when the second respondent became incorporated, the first respondent continued on in the employment relationship on the terms set out in the letter of 30 March 2015.

The Senior Commissioner determined that the applicant was a credible witness who did work the alleged 40 hours per week. The respondent’s assertion that they deducted two hours’ pay per week indicated that the contract of employment letter did provide for ordinary paid working hours of 40 per week and that nothing in either the State or federal awards, or relevant legislation in relation to minimum standards, precluded the working of two additional hours per week, as long as it was paid for.

As the Commission was satisfied on the required balance of probabilities that the applicant’s claim was made out, the Senior Commissioner ordered payment to the applicant accordingly.

The decision can be read here.

The Full Bench has dismissed an appeal against a decision of the Commission where a restricted legal practitioner was successful in a claim of denied contractual benefits. The Full Bench considered that a discretionary decision of a Commissioner at first instance can only be challenged by showing error in the decision-making process, and even then, the Full Bench must only proceed with caution and restraint.

The appellant’s first ground of appeal had two parts and related to order 1 of the Commission. In relation to the first part, the Full Bench noted that the appellant said that he did not deny that he owed payment to the respondent but that he was waiting on the respondent to provide him with an invoice in accordance with the parties’ agreement. The Full Bench found that this ground of appeal was misconceived by the appellant because the payment of the amount due does not rely on an invoice being issued by the respondent, it relies on compliance with an order of the Commission. The Full Bench then considered the second part of the first ground of appeal, where the appellant claimed that the Commission had erred in law by concluding that the then applicant was at all times protected by the Minimum Conditions of Employment Act 1993 (MCE Act) “yet had failed to recognise the provision that employees are not entitled to annual leave if they are paid by commission only”. The Full Bench found that the Senior Commissioner concluded that the MCE Act did not apply to the appellant’s employment and rather referred to the MCE Act, the Fair Work Act 2009 (Cth) and the “universal entitlement in awards and industrial agreements across the land” as a basis for implying terms into the employment contract, and so did not err in law. The Full Bench found that the appellant had misunderstood the reasons for decision of the Senior Commissioner and dismissed this ground of appeal.

The second ground of appeal dealing with order 2 was next considered by the Full Bench. The Full Bench found that the appellant’s claim, that he is unable to comply with the order because the Senior Commissioner “retrospectively” changed the employment relationship and the appellant is not registered with the Australian Tax Office (ATO), was also misconceived. The Full Bench dismissed this ground of appeal and found, as in ground 1, that there was no obligation on the respondent to provide an invoice and that the issue relating to the ATO is a matter of practicality for the appellant to seek advice about and not a matter properly the subject of this appeal.

The Full Bench made comment on what appeared to be a tardy approach to the appeal by the appellant. The appeal book was less than satisfactory and did not comply with the Industrial Relations Commission Regulations 2005 in a number of instances.

The respondent sought that the Full Bench award his costs and expenses (excluding legal fees) for the appeal and the matter at first instance. The general policy in industrial jurisdictions is that costs are only awarded in extreme circumstances and could not be awarded for matters heard at first instance. The Full Bench found that it was very clear that the appeal had no prospect of success as the grounds for appeal were both obscure and misconceived. The Full Bench found that it could not award costs for the appeal because the only date on the schedule of costs submitted by the respondent was on a date that had not yet occurred.

The decision can be read here.

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