Western Australian Industrial Relations Commission

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An employer whose employees do maintenance and repairs of established and operating plant, equipment and structures, on the premises of clients, which include mines and processing plants, engages these employees "on a site" or "on site", for the purposes of the definition of "construction industry" in an Act providing for a portable paid long service leave scheme.

The Commission has answered preliminary questions relating to an application for a review of a decision of the Construction Industry Long Service Leave Payments Board (the Board) that required the applicant to register as an employer under the Construction Industry Portable Paid Long Service Leave Act 1985 (WA) (the Act). The applicant argued that they should not be obligated to register as an employer with the Board because they do not engage employees 'in the construction industry'.

Chief Commissioner Scott found that 'on a site', when read in context, meant the site which the works listed in the Act's definition of construction industry are performed, that is the site at which they are constructed, erected, repaired, installed, reconstructed, re-erected, renovated, altered, demolished, or maintained or repaired, and, that work performed away from where these works are located is not construction work. The term "construction industry" under the Act is not limited to building or construction sites where new buildings or structures are being built. Therefore, employees may perform work 'on a site' if this was at a location away from the employer's premises.

An employer may be exempted from the scheme set up by the Act if the employer is "not substantially engaged" in the "construction industry" as defined in the Act. In this case, although the employer said that it was engaged in providing maintenance services to the mining and resources industries, the Commission found that it was substantially engaged in the industry covered by the Act, because of the breadth of the definition of construction industry.

The decision can be read here

The Industrial Magistrate’s Court has dismissed part of a claim for entitlement to a contract completion payment. A medical practitioner employed in the Western Australian public health system claimed before the Industrial Magistrate’s Court that he was entitled to a contract completion payment at the completion of a fixed term contract. Payment of a contract completion payment was alleged to be an entitlement under clause 20(5) of the Department of Health Medical Practitioners (Metropolitan Health Services) AMA Industrial Agreement 2013 (the Agreement).

Scaddan IM considered that the purpose of a contract completion payment is to compensate a practitioner who genuinely wants to, and can, be employed in the public health service but the service is unable to provide future employment.

The claimant’s limited registration as a medical practitioner under s 65 of the Health Practitioner Regulation National Law (WA) Act 2010 (the National Law) expired on 20 November 2015. The claimant applied unsuccessfully on three occasions for renewal or reinstatement of his ‘public registration by AHPRA (Australian Health Practitioner Regulation Agency).’ Shortly after, AHPRA provided the claimant with a Certificate of Registration Status noting the claimant was unregistered and his registration had expired on 20 November 2015.

The claimant argued that because he was not ‘struck off’ any register, he was eligible for restoration to the ‘public register’ provided he remained registered for the purposes of the National Law and payment of the contract completion payment. That is, until he was ‘properly removed’ from the register, he was still registered or on the register.  

Scaddan IM did not accept the claimant’s characterisation of his registration status, and found that the claimant ceased being registered in any of the categories of registration in Part 7 of the National Law. Scaddan IM found that, from 20 November 2015, he was no longer registered as a registered health practitioner in the medical profession.

Her Honour found that it was a term of the claimant’s fixed term contract to be registered under the National Law, and that without registration, the National Law does not permit him to work as a medical practitioner. Her Honour found that it cannot have been contemplated that cl 20(5) of the Agreement be intended to compensate unregistered practitioners for being unable or ineligible to do the work that the Agreement provides they do.

Scaddan IM ultimately found that because the claimant was an unregistered practitioner at the time of the expiry of his fixed term contract, he was not eligible for a contract completion payment. Her Honour dismissed the part of the claimant’s claim relation to payment of the contract completion payment.  

The decision can be read here. 

The Commission has dismissed an application made by a seafarer who alleged that he had been denied a contractual benefit when his employer did not approve his request to study and sit for an AMSA Chief Mate Certificate of Competency. The applicant alleged that his entitlement to this request was contained in clause 13.9 of the Svitzer Australia Pty Ltd and Australian Maritime Officers Union Offshore Oil and Gas Enterprise Agreement 2010 (the Agreement) which was referred to in his contract of employment with the respondent. The Commission considered whether cl 13.9 was a contractual entitlement and, if so, was it breached.

Commissioner Matthews determined that cl 13.9 conferred a contractual entitlement on the applicant because the parties' contract of employment included language of contractual incorporation and it was reasonable to consider that the Agreement was incorporated into the contract.

Matthews C observed that cl 13.9 included a qualification, that the entitlement must not be unreasonably withheld by the employer. The respondent's financial situation and the fact that there was no pressing need for the applicant to become a chief mate was considered by Matthews C who concluded that the applicant had not established that the respondent had withheld their consent unreasonably.

The applicant claimed that a deal had been made in 2016 that if he did certain things the employer would fund his chief mate certificate. Matthews C determined that this claim did not need to be determined because the applicant had not raised this deal in his cl 13.9 application to the respondent.

The Commission dismissed the application.

The decision can be read here.

The Full Bench of the Western Australian Industrial Relations Commission has upheld appeals against a decision of the Commission interpreting the scope of The Shop and Warehouse (Wholesale and Retail Establishments) State Award 1997 (the Award) as to whether it applies to the retail pharmacy industry (the first instance decision can be found here).

When the Award was made in 1977 it named a number of retail pharmacies as respondents. In 1995, the last of those named respondents engaged in the retail pharmacy industry was removed from the respondency schedule to the Award.

Earlier this year, the Commission at first instance interpreted the Award and declared that it still applies to the retail pharmacy industry in Western Australia.

The Pharmacy Guild of Western Australia (Pharmacy Guild) and Samuel Gance t/as Chemist Warehouse Perth appealed against this decision.

The majority of the Full Bench, Chief Commissioner Scott and Senior Commissioner Kenner, found that the Commission at first instance had erred in finding that there was ambiguity in the Award and in taking into account clauses in the Award beyond the scope clause and schedule of respondents. They found that there was no ambiguity in the scope clause and respondency schedule and rather that the determination of the scope clause required a fact finding exercise.

Scott CC and Kenner SC rejected an argument that the process for the 1995 amendment to the schedule of respondents did not comply with the requirements of section 29A of the Industrial Relations Act 1979 (WA) (the Act) after they found that the application to remove the named respondent from Schedule C was made by the Commission acting on its own motion. Further, as all parties to the Award listed in Schedule C had been served a copy of the claim, the legal consequence of the 1995 decision was the removal of the retail pharmacy industry from the scope of the Award from that time.

Commissioner Walkington, dissenting, found that the Commission at first instance did not err in taking into account clauses beyond the scope clause and respondency schedule in determining the scope of the Award and disagreed with the appellants contention that the learned Commissioner's reasons for decision were inadequate. Walkington C also agreed with the learned Commissioner's conclusion that the 1995 amendments were not made according to the requirements of the Act.

The decision can be read here.

The Commission has partially granted a claim made by a restaurant manager who was summarily dismissed from his employment with The Local Shack Mandurah.

The applicant had been dismissed following an incident that occurred on 27 January 2019 where a shortage of rostered staff caused wait times at the restaurant to be blown out, and, because the applicant had not completed a required set of computer manuals or modules.

Commissioner Matthews considered that a summary dismissal by an employer is justified in instances where an employee's behaviour is so serious that dismissal without notice is appropriate. The Commissioner considered whether the applicant's summary dismissal was an appropriate response in all of the circumstances and determined that it was not. However, Matthews C concluded that the evidence suggested that the applicant could not have survived the six-month probation period.

Matthews C then found that a clause in the contract, relating to notice periods, would not apply because the applicant had not completed his probation period and resolved that the applicant was entitled to reasonable notice of one week.

The decision can be read here.

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