Western Australian Industrial Relations Commission

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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. Bakewell Morley Casual Employees Agreement 1997, No. AG 184 of 1997
  2. Certificate II Composites (Traineeship) Agreement 1997, No. AG 211 of 1997
  3. Certificate II Composites (Traineeship) Agreement, No. AG 86a of 1998
  4. Certificate II Composites (Traineeship) Agreement, No. AG 86b of 1998
  5. Certificate II Composites (Traineeship) Agreement, No. AG 86c of 1998
  6. Certificate II Composites (Traineeship) Agreement, No. AG 86d of 1998
  7. Certificate II Composites (Traineeship) Agreement, No. AG 86e of 1998
  8. Certificate II Composites (Traineeship) Agreement, No. AG 86f of 1998
  9. CSR Ltd Gyprock Bradford Welshpool Enterprise Bargaining Agreement 1993, No. AG 77 of 1993
  10. Jobskills Trainee (School Employees - Groundsperson's) Agreement, 1994, No. AG 27A of 1994
  11. Jobskills Trainee (School Employees - Groundsperson's) Agreement, 1994, No. AG 27B of 1994
  12. Jobskills Trainee (School Employees - Groundsperson's) Agreement, 1994, No. AG 27C of 1994
  13. Jobskills Trainee (Hospitality Group Training (WA) Inc.) Agreement, 1994, No. AG 36 of 1994
  14. Jobskills Trainee (School Employees - Teacher Aide) Anglican Schools Commission Agreement, 1994, No. AG 190 of 1994
  15. Jobskills Trainee (School Employees - Teacher Aide) Association of Independent Schools Agreement, 1994, No. AG 192 of 1994
  16. Jobskills Trainee (Child Care) Agreement 1994, No. AG 63 of 1994
  17. JOBSKILLS Trainee School Employees (Canteen Assistant) Agreement, 1995, No. AG 294 of 1995
  18. Jobskills Trainee (Children’s Services Private) Agreement 1996, No. AG 116 of 1996
  19. JobSkills Trainee Katanning Kids Child Care Centre Agreement 1996, No. AG 133 of 1996
  20. JobSkills Trainee Ragamuffins Child Care Centre Agreement 1996, No. AG 134 of 1996
  21. JobSkills Trainee Little Whalers Child Care Centre Agreement 1996, No. AG 135 of 1996
  22. Jobskills Trainee Plastic Injection Co. (Employer Name) Agreement 1996, No. AG 233 of 1996
  23. Jobskills Trainee Nally (WA) Pty Ltd (Employer Name) Agreement, 1996, No. AG 234 of 1996
  24. Jobskills Trainee Monopak Pty Ltd (Employer Name) Agreement, 1996, No. 235 of 1996
  25. Jobskills Trainee Plas-Pak (WA) Pty Limited (Employer Name) Agreement, 1996, No. AG 236 of 1996
  26. Jobskills Trainee Plas-Pak (WA) Pty Limited (Employer Name) Agreement, 1996, No. AG 237 of 1996
  27. Peters (WA) Limited (Balcatta Security Officers) Enterprise Bargaining Agreement 1995, No. AG 50 of 1995
  28. St John Ambulance Australia Enterprise Agreement 1995, No. AG 2 of 1996
  29. Thermofabrication Traineeship Agreement, No. AG 68 of 1998
  30. West Australian Newspapers Limited (Enterprise Bargaining) Security Officers and Cleaners Agreement 1994, No. AG 106 of 1994
  31. West Australian Newspapers Limited (Enterprise Bargaining) Security Officers and Cleaners Agreement 1995, No. AG 6 of 1996

Public notice was given of the Commission's intention to cancel these industrial agreements on the Commission's website on 30 November 2017 and in The West Australian on 13 December 2017. 

A copy of the Order can be viewed here

Public Service Arbitrator has no jurisdiction to judicially review

The Full Bench dismissed an appeal by the Civil Service Association of Western Australia Incorporated, finding that the Public Service Arbitrator does not have the power to judicially review all decisions affecting employment, except for to the extent that the Arbitrator is required to deal with the validity of a decision or action by an employer to deal with the 'industrial matter'. 

The CSA’s claim before the Arbitrator was commenced against the Housing Authority to challenge the use of fixed term contracts by the Housing Authority. The Housing Authority was affected by the 2017 Machinery of Government changes; all of its employees (except its CEO) were moved to the Department of Communities. By the time the matter came before the Arbitrator for determination, the Housing Authority no longer had any employees affected by its fixed term contract practices, and there was no evidence that the Department of Communities had engaged in the practices complained of. Therefore, the Arbitrator dismissed the application. 

Employees of the Housing Authority had been moved to the Department of Communities by a ‘Disposition Notice’ issued by the Public Sector Commissioner.  The Full Bench found the Disposition Notice was to be presumed valid until it is found to be invalid by a court of competent jurisdiction. Neither the Arbitrator nor the Full Bench have jurisdiction to review such an instrument because it was not a decision of the employer the subject of the industrial matter before the Arbitrator. 

The decision can be read here.

Unconscionable conduct and rates of pay not 'safe and sustainable'

The Road Freight Transport Industry Tribunal has upheld in part, an owner-driver’s claim for breach of contract and unconscionable conduct.

The respondent terminated the owner-driver contract summarily without notice for breach. The reasons for the summary termination of the contract were disputed by the owner-driver and several issues were raised in response, including:

  • that the respondent failed to comply with its obligation under the contract to give notice to the owner-driver of its default and to give it an opportunity to remedy any alleged breaches of the contract;
  • that the owner-driver maintained it was not in breach of the contract by failing to comply with the respondent’s leave policy and that all leave taken or proposed to be taken was approved by the respondent; and
  • that the owner-driver, in not working Saturdays after the first two years of performance under the contract, did so with the knowledge of and acquiescence by the respondent and the respondent cannot now complain.

The owner-driver maintained the respondent engaged in unconscionable conduct in the way it allocated work to it and by the way the contract was terminated, which was said to involve deception by the respondent. Finally, the owner-driver claimed the rates paid by the respondent under the contract were not “safe and sustainable rates” for the purposes of the Owner-Drivers (Contracts and Disputes) Act 2007 (WA) and the Owner-Drivers (Contracts and Disputes) (Code of Conduct) Regulations 2010 (WA).

Senior Commissioner Kenner found that the negotiations for the contract between the owner-driver and the respondent were not unconscionable. However, he concluded that the failure to provide the owner-driver with a copy of the Guideline Rates published by the Road Freight Transport Industry Council, was unconscionable for the purposes of s 30(2)(g) of the OD Act.

Senior Commissioner Kenner was not satisfied on the evidence, that the respondent was able to rely on the owner-driver’s failure to work Saturdays, as a ground to find there was a breach of contract and to terminate it. The Senior Commissioner was satisfied that the owner-driver was in default of the contract by proceeding to take extended leave, contrary to the respondent’s revised policy. However, the respondent did not give notice to the owner-driver under the contract of the alleged default, and give it an opportunity to remedy it.

Senior Commissioner Kenner found the removal of the lifter was plainly a breach of the contract. The respondent took unfair advantage of the situation and removed the lifter in a deceptive way. Accordingly, the Senior Commissioner found such conduct to be unconscionable. As to the allocation of work and the distribution of runs, the Senior Commissioner was not satisfied the owner-driver made out its case in relation to unconscionable conduct.

Finally, Senior Commissioner Kenner found the rates of payment to the owner-driver under the contract were not safe and sustainable rates.

The parties were directed to confer as to the quantum of damages and any sum in respect of safe and sustainable rates.  

A copy of the decision can be found here.  

Cook's annual leave claim upheld

The Commission recently upheld an employee’s claim for a denied contractual benefit of accrued annual leave but found that the claim for overtime was not made out.

Senior Commissioner Kenner preferred the employee’s evidence that he took no annual leave whilst working for the respondent as a cook and did not receive any payment for accrued annual leave when the employment ended.  He ordered payment of annual leave in the sum of $3,204 net.

However, the Senior Commissioner found that whilst it was plain from the terms of the written contract of employment that the parties turned their minds to the possibility of overtime being worked, the parties did not agree on the rates applicable to such overtime.  The relevant clause in the contract constituted an agreement to agree and no agreement was reached.  Accordingly, he found the term was not enforceable.

Senior Commissioner Kenner noted that depending on the respondent’s business structure, either the Restaurant, Tearoom and Catering Workers Award or the Hospitality Industry (General) Award 2010 would have covered the employment.  Accordingly, the contract of employment would need to be read along with the relevant award obligations relating to overtime.   A further term as to a rate of pay for overtime could not be implied into the contract, as it would not be necessary for the effective operation of the contract. The employee’s claim for overtime was refused. Any enforcement of the relevant award must be brought in the Industrial Magistrates Court.

The decision can be read here

New WA Police Industrial Agreement

Following an application made by the parties, the Commission today registered the new Western Australia Police Industrial Agreement 2017.  This new Agreement follows on from the ballot in December 2017, in which members of the WA Police Union accepted the revised offer put to the Union.  The new Agreement formally brings to an end the long running enterprise bargaining dispute between the parties.

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Western Australian Industrial Relations Commission
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PERTH WA 6000

Phone : (08) 9420 4444
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