Western Australian Industrial Relations Commission

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The Commission has dismissed a claim in circumstances where the applicants and respondent reached compromise agreements. The applicants claimed that an incorrect amount of tax had been withheld from the settlement payment. The applicants were paid on a weekly basis so they considered that the tax taken from the settlement payment should reflect that.

Commissioner Emmanuel found that the applicants were asking the Commission to enforce the compromise agreements – enforcement lies outside of the Commission's jurisdiction. Commissioner Emmanuel dismissed the applications on the grounds that the compromise agreements were unimpeached, payment was made by the respondent and it was not in the public interest to hear the applications.

The decision can be read here. 

The Occupational Safety and Health Tribunal has decided on the number of Safety and Health Representatives (SHRs) and the manner of electing such representatives for a bus depot that services primarily CAT buses.

Senior Commissioner Kenner found that there is no standard formula to determine the appropriate number of SHRs for a workplace and it will instead depend on the circumstances of that workplace. In making such a determination it is necessary to look at the number of employees, working arrangements and hazards, the need for communication between SHRs and employees, the need for SHRs to be available to communicate with the employer on health and safety issues and for the SHRs to be visible and available to respond promptly to incidents and accidents.

The Senior Commissioner noted that the 'workplace', as defined in the Occupational Health and Safety Act, in this circumstance includes the depot and the buses – even when in transit. Evidence was given on the nature of health and safety hazards faced by CAT bus drivers and the limitations to communication during a shift with other employees and the control centre. The Senior Commissioner accepted that the level of hazards in relation to CBD driving was high and that CAT bus drivers face additional hazards in the city environment.

The Senior Commissioner determined that there will be 2 SHRs for each shift, 4 in total, and that a 'first past the post' method of voting following the Electoral Commission's preferred system of voting for only one candidate. The Transport Workers Union and the respondent will jointly conduct elections for any casual vacancies.

The decision can be read here

The Public Service Arbitrator has dismissed a reclassification application filed by four ECG Recordists Cardiology G-2 at Royal Perth Hospital.

The applicants claimed that the review position had, since 2002, assumed the additional duties of teaching new staff, recording and explaining blood pressure results, placing and removing ECG monitors in a broader range of tests and participating in peer review and professional development activities. The applicants further claimed that there are new challenges in the role brought on by different computer programs and the increase in the cultural, social and linguistic diversity of patients.

The respondent did not dispute that there had been changes to the duties of the position but instead argued that the changes were not substantial enough to meet the work value test. The test, among other things, requires a significant net addition to work requirements to warrant the reclassification of a position to a higher level. The test also requires that any alteration to wages must have regard to skill, responsibility and the conditions under which the work is performed.

Commissioner Emmanuel accepted that health professionals delegate supportive tasks to the applicants' positions but, based on the evidence, found that the responsibility for those tasks still lay with the health professionals and not the applicants' positions. It could not be determined if the use of new technology and computer programs resulted in an increase in the skill required for the applicants' positions as there was no evidence given regarding the complexity of the computer programs or systems. Additionally, the Commissioner found that many of the new duties of the position, such as training in basic life support and being able to respond to certain emergency situations, are within the current G-2 classification of the position.

The Arbitrator found that whilst there had been some increase in workload and a general broadening of tasks at the G-2 level, the change does not amount to a significant increase in net work value.

The decision can be read here

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. K Mart Armadale Rostering Agreement 1994
  2. K-Mart Food Services (Wages) Agreement 1994
  3. Mandurah Forum Takeaway and SDA Agreement 2003
  4. Mitre 10 Warehouse Employees Agreement 2002
  5. Myer Stores Limited Distribution Centre Carousel Road Cannington Site Agreement 1994
  6. Nestle Australia Ltd Kewdale - SDA Agreement 2001
  7. Osborne Cold Stores Enterprise Bargaining Agreement 1996, No. AG 125 of 1996
  8. P & O Cold Storage Ltd Enterprise Agreement 1995, No. AG 26 of 1995
  9. P & O Cold Storage Ltd Enterprise Agreement 1997
  10. P& O Cold Storage Ltd Enterprise Agreement 1996, No. AG 66 of 1996
  11. PVS/Worths Pty Ltd Jobskills Retail Agreement
  12. PVS/Boutique Consolidated Pty Ltd Jobskills Retail Agreement
  13. PVS/Silkside Pty Ltd Jobskills Retail Agreement
  14. PVS/Suzanne Grae Corporation Pty Ltd Jobskills Retail Agreement
  15. PVS/Universal Retailers Pty Ltd Jobskills Retail Agreement
  16. PVS/Skyjack Jobskills Retail Agreement
  17. PVS/Fabric Warehouse Jobskills Retail Agreement
  18. PVS/Prints and Presence Jobskills Retail Agreement
  19. PVS/Sportsgirl Sportscraft Group Jobskills Retail Agreement
  20. PVS/Aquarius Cards and Gifts Jobskills Retail Agreement
  21. PVS/Repco Auto Parts Jobskills Retail Agreement
  22. PVS/Jacksons Drawings Supplies Pty Limited Jobskills Retail Agreement
  23. PVS/Desert Designs Jobskills Retail Agreement
  24. PVS/Peppermint Tree Jobskills Retail Agreement
  25. PVS/Gardner Electronics Jobskills Retail Agreement
  26. PVS/Poolmart Jobskills Retail Agreement
  27. Rand National Transport Enterprise Bargaining Agreement 2002
  28. River Rooster Bridgetown, SDA Enterprise Agreement 1998
  29. River Rooster Stratton, SDA Enterprise Agreement 2001
  30. River Rooster Coolbellup, SDA Enterprise Agreement 2001

Public notice was given of the Commission's intention to cancel these industrial agreements on the Commission's website on 6 November 2017 and in The West Australian on 15 November 2017. 

A copy of the Order can be viewed here

The Full Bench dismissed an appeal against interim orders of the Industrial Magistrate's Court. The interim orders, among other things, required the reinstatement of an employee. The majority of the Full Bench held that for an appeal against a decision of Industrial Magistrate's Court to be competent, it must be against a decision as defined by s 84(1) of the Industrial Relations Act 1979.

The majority of the Full Bench affirmed the decision in Anderson v Pope. In that decision, the Industrial Appeal Court held that a decision of the Industrial Magistrate that does not finally determine the application before it does not constitute a decision from which an appeal will lie under s 84(1).

For a decision to be a 'decision' under s 84(1), it must finally determine the rights of the parties and require a court in determining this question to have regard to the legal rather than the practical effect of the order. Given that the interim orders were made provisionally during the course of the legal action, the A/President and Senior Commissioner were not satisfied that the orders were a 'decision'.

The majority of the Full Bench observed that if they were wrong about the appeal being incompetent, they would have ordered that the decision be quashed as the Industrial Magistrate's Court does not have the power to reinstate employees. The power to reinstate an employee is conferred exclusively on the Commission.

Commissioner Matthews (dissenting) found that the appeal was competent. He analysed the history of the legislative amendments in light of Anderson and concluded that the application for interim orders was a separate application, there was a discrete hearing on the matter and that orders made in such an application must be appealable. He agreed with the majority that the Industrial Magistrate's Court had no power to make the orders it made.

The Full Bench noted that the appellant could apply to the Industrial Magistrate's Court to revoke the offending interim orders on the grounds that they are beyond the power conferred on the Industrial Magistrate's Court by the Act.

The decision can be read here.

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Western Australian Industrial Relations Commission
17th Floor
111 St Georges Terrace
PERTH WA 6000

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

Free Fax :1800 804 987

Email : mail reg

 

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