Western Australian Industrial Relations Commission

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The Commission has upheld, in part, claims for denied contractual benefits made by three applicants working as permanent fly-in-fly-out equipment operators for the respondent. The upheld claims relate to payment of a Role Service Allowance.

A Role Allowance is defined in the respondent’s Schedule of Remuneration, Benefits and Employment Conditions (the Schedule) as payment, made up of a Standby and/or Call Out payment, for when employees are required to provide regular service or support outside of their normal rostered hours.

The applicants argued that since 1 October 2015, benefits contained in the “Allowances Policy” and “HR Guidance Note – Applying Allowances” have been denied to them because:

  1. Only the first and last nights of overnight stays at sites other than their home camp is counted as a separate ‘disruption’ in terms of calculating quantum of Role Service Allowance;
  2. No additional shift allowance has been paid for working night shifts as directed; and
  3. Changes in shifts often occurred at short notice and 7 days’ notice is never given as is required by the Rosters and Shift Work section in the Schedule.

The first and second applicants are parties to written contracts of employment with the respondent comprising of an Offer of Employment and the Schedule. In their claims for a Role Service Allowance, Senior Commissioner Kenner determined that the terms of the covering letter, manifested an intention that the respondent was contractually bound to provide the benefits and entitlements to the first and second applicants, as set out in the Schedule, and that the contract of employment documents specifically included the Role Service Allowance as a contractual entitlement, as a fixed amount. The Senior Commissioner further found that the terms of the first and second applicants’ contracts of employment specifically entitled them to receive payments of a higher amount for “Call Outs”, when they are required to work away from their usual place of work, and, this was also a contractual benefit which had been denied to them. The determination of what the higher amount was, required the incorporation of part of the respondent’s Allowance Policy, governing payment of allowances to employees, into the first and second applicants’ contracts of employment. This did not require the incorporation of the entire Allowance Policy, as was argued by the applicant.     

The third applicant was governed by a different contract of employment, comprising a letter of offer and the incorporation of an unregistered industrial agreement. As the third applicant’s contract of employment contained one sum only for Role Allowance and no entitlement for a higher amount for Call Outs, the Senior Commissioner did not consider that there was any basis to incorporate the relevant part of the Allowance Policy and his claim for payment of additional Role Service Allowance payments failed.

The Senior Commissioner then considered the applicants other claims for payment of a shift allowance for ad hoc night shift work and payment for lack of notice of shift change.

The Senior Commissioner considered that there was no specific provision identifiable in the contracts of employment conferring any entitlement to payment at a higher rate for ad hoc night shift work. The Senior Commissioner noted that subsequent conduct of parties cannot be taken into account in the determination of its terms. The Senior Commissioner added that the night shift arrangement is payable to persons working a shift roster and concluded that none of applicants worked in accordance with such arrangements. These applications for ad hoc night shift payment were not made out.  

The Senior Commissioner considered that the applicants’ rosters are “8 days on, 6 days off. Average hours per week 48” and found that there was no suggestion of any changes to shift rosters to warrant the shift roster change provision of the contracts of employment applying. These claims were also refused.  

The Senior Commissioner directed the parties to confer on the relevant quantum for the upheld claims within 21 days. The Commission will determine the quantum if no agreement is reached after this time.

The decision can be read here.  

The Public Service Appeal Board (Board) has unanimously dismissed an appeal against a final warning relating to an alleged breach in the WA Health Code of Conduct. Appeals of this type must usually be made within 21 days, this appeal was submitted more than eight months out of time.

The appellant said that the appeal was made out of time due to anxiety and stress; intimidation; being unaware of the Western Australian Industrial Relations Commission; continued bullying and a realisation that she was not being treated fairly or impartially and that she wanted procedural fairness. The respondent argued the delay is very long and the Board should not accept the appeal out of time. 

The Board found that the delay of 8 months was significant and that it was apparent from the appellant’s evidence that she did not actively seek industrial or legal advice about how she could appeal the decision to take disciplinary action. Whilst the Board accepted that the appellant was stressed and anxious, the appellant did not provide any medical evidence to support a finding that she was incapable of bringing her appeal earlier or within the time limit. The Board was not satisfied that the appellant had an adequate reason for the long delay.

The Board briefly assessed the merits of the appellant’s case and found the appellant’s case to be arguable.

The appellant submitted that there would be no prejudice caused to the respondent if the appeal is accepted out of time. The respondent argued that there would be prejudice caused from the obvious and significant disharmony that would result from allegations made more than 8 months after the decision, against almost everyone in the appellant’s workplace. The Board accepted the respondent's submission.

In these circumstances, the Board was not persuaded it should accept the appeal out of time and dismissed the application.

The decision can be read here. 

***STATEMENT BEGINS***

 

Amendments to the Industrial Relations Commission Regulations 2005

The Industrial Relations Commission Regulations 2005 have been amended, effective on and from 6 March 2019.

The amendments to the Regulations are extensive and include changes to the Commission’s processes in terms of:

  • the service of documents;
  • the hours for the lodgement of documents;
  • the consolidation and modernisation of Commission forms;
  • the ability for parties to lodge applications to register industrial agreements electronically; and
  • the simplification of processes around bringing matters before the Commission, including the ability for the Commission to deal with certain matters on the papers.

The Commission has also launched a new online lodgement system.  Parties may lodge the Commission’s modernised forms online, or alternatively, download the forms via the online lodgement system and lodge them in person, by email or by post.

 

If you have feedback or ideas about our new online lodgement system, please let us know by completing our Contact Form.  

As a transitional arrangement, the Commission will continue to deal with matters that are lodged in the Registry on the forms previously published in the Regulations.

 

 

***STATEMENT ENDS*** 

NOTICE

 

FBM Nos. 1 and 3 of 2019

 

NOTICE is given of applications by the Registrar of the Western Australian Industrial Relations Commission to the Full Bench of the Western Australian Industrial Relations Commission to cancel the registrations of the Licensed Car Salesmen's Association, Union of Workers, of Western Australia (FBM 1/2019) and the West Australian Psychiatric Nurses' Association (Union of Workers) (FBM 3/2019) on the grounds the organisations are defunct.

The matters are listed for hearing before the Full Bench at 10.30am on Tuesday, 19 March 2019 on Level 18, 111 St Georges Terrace, Perth. 

Any person who desires to object to the application/s may do so by appearing at the hearing before the Full Bench at the above listed date and time.

 

S.BASTIAN

REGISTRAR

27 February 2019

 

The Commission has issued a stay of operation of a decision of the Commission pending the hearing and determination of 2 appeals against the decision.

The Commission at first instance had determined that The Shop and Warehouse (Wholesale and Retail Establishments) State Award 1977 (Shop Award) covers the retail pharmacy industry.

The Pharmacy Guild of Western Australia Organisation of Employers (the Guild) and Chemist Warehouse Perth applied for the decision to be stayed because they said the errors identified in the Notice of Appeal were strongly arguable. The employers had believed, in good faith, that the Award did not apply and had not applied it in the past.  They said they would be prejudiced by having to immediately back pay current and former employees, review staffing levels and possibly reduce opening times causing permanent change which may be unnecessary if the appeal is successful.

The Shop, Distributive and Allied Employees’ Association of Western Australia (the SDA) replied that the grounds of the appeal lack merit and the balance of convenience does not favour granting the stay order.

Chief Commissioner Scott noted that a stay order may only be granted under special circumstances where in the absence of a stay it would result in the appeal being rendered useless. In these instances, it is necessary to consider the strength of any argument for appeal along with the balance of convenience.

The Chief Commissioner noted that although the SDA and Minister for Commerce and Industrial Relations indicated that they do not intend to take enforcement action, individual employees could still seek to enforce the Award. The Chief Commissioner said that the applicants are bound to apply the Award and any decision not to take enforcement action did not alter their legal obligations.

The Chief Commissioner considered that, should the order not be stayed, the applicants would face significant structural, financial and staffing consequences such as being required to audit, reconsider and recalculate the rates of pay for present and former employees, and, reassess their operating hours, rosters and staffing generally. These consequences carry implications which, if the appeals are granted, would result in substantial disruption and waste that could not be completely restored.

The Chief Commissioner determined that the consequences, should the order not be stayed, amount to special circumstances and demonstrate that the balance of convenience lies with granting the stay.

The Chief Commissioner considered the grounds of appeal brought by the applicants. The grounds of appeal related to;

  • the proper application of authorities,
  • the application and provisions of the Industrial Relations Act 1979 and the effect of the 2002 amendments to the Act, and
  • a failure to address a relevant submission relating to an amendment to the schedule of respondents, which may affect the outcome.

The Chief Commissioner determined that these grounds of appeal were arguable.

The application was upheld and stay order granted.

The decision can be read here.

Contact Us

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 : Registry

 

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