Western Australian Industrial Relations Commission

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The Road Freight Transport Industry Tribunal has made a declaration and issued orders for the payment of an alleged balance of monies owed to the applicant pursuant to an owner-driver contract. The Tribunal was satisfied that the applicant is an owner-driver and that despite the referral to the Tribunal being made after the termination of the owner-driver contract, the Tribunal had jurisdiction to deal with the applicant’s claim.

It was determined by the Tribunal that an oral owner-driver contract was entered into by the parties in or about July 2017 for the supply and heavy vehicle transportation of building sand. The respondent paid a portion of the balance owed to the applicant, giving rise to the remaining debt being outstanding.

The Tribunal considered that there is no capacity to institute third party proceedings to compel a third party to cover monies that they may owe and found that the respondent does owe the outstanding balance to the applicant plus interest.

The decision can be read here.

The Industrial Magistrate’s Court has made several findings and determined a claimant’s claim which alleged that their former employer contravened the Restaurant Industry Award 2010 and, in doing so, further contravened the Fair Work Act 2009 (FWA), the Fair Work Regulations 2009 and the Long Service Leave Act 1958. The claim related to the first respondent, the company that had employed the claimant in different kitchen work roles. This caused him to be paid above and below the minimum rates of pay and not paid for other entitlements applicable to his various classifications. The claimant further alleged that the second respondent, a company director of the first respondent, was knowingly involved in the first respondent’s alleged contraventions.

Industrial Magistrate Scaddan considered the issues requiring determination by reference to the relevant time periods. For the period 1 July 2012 to 16 February 2014, Scaddan IM found that the first respondent had contravened section 45 of the FWA as the claimant was employed as a casual level 1 kitchen hand grade 1 and was occasionally not paid the relevant award rate for hours worked.

From 1 February 2015 to 29 May 2015, her Honour found that the Company had contravened s 45 of the FWA when it did not appropriately classify the claimant and had not paid him the relevant award rate for his classification.

Finally, during 30 May 2015 to 10 February 2017 the Industrial Magistrate found that the first respondent had contravened s 45 of the FWA as the claimant should have been employed at a higher level and was entitled to be paid at the relevant hourly rate.

Her Honour determined that the first respondent had also contravened ss 45 and 535 of the FWA when it failed to retain and maintain records, did not keep start and finish times and did not make available copies of the Award and National Employment Standards as required. However, her Honour was not satisfied that the claimant’s claim against the second respondent was proven to the requisite standard.

The decision can be read here.

The Industrial Magistrate’s Court determined a preliminary issue on a linesman’s claim in favour of the respondent. The claimant alleged that the respondent had breached clause 5.1(c) of the Western Power and CEPU Enterprise Agreement 2013 (the Agreement) by failing to act fairly and responsibly in ceasing their employment and therefore also contravened section 50 of the Fair Work Act 2009 (Cth). The preliminary issue for determination related to the construction and character of cl 5.1(c) set out below:

Western Power remains continued to a strong working relationship with all employees based on mutual trust, good faith and respect, and in doing so will: …

(c) Act fairly and responsibly in exercising its rights and obligations under this Agreement; …”

Industrial Magistrate Scaddan considered that the introductory words of the first sentence in cl 5.1 were aspirational, that the use of the word “will” at the end of the first sentence was unlikely to have been intended by its drafters to impose a penalty in light of the whole of cl 5 and that the use of the words ‘Mutual Obligations’ in the heading did not alter the character of the clauses. The Industrial Magistrate concluded that the appropriate character or construction of cl 5 is that it is aspirational and was not intended to impose a binding obligation on the Respondent capable of giving rise to a breach of the Agreement.

In the alternative, Scaddan IM found that if she were wrong in her construction of cl 5, the Agreement would only operate in respect of a right or obligation on the respondent that expressly arises under the Agreement. The Industrial Magistrate held that cl 23 would not enliven any right or obligation on the respondent as it only prescribes the notice to be given by both parties in the event of termination.

The decision can be read here.

The Industrial Magistrate has dismissed a claim made by a customer service coordinator who said that her former employer, the City of Swan, contravened clause 24.6 of the Local Government Industry Award 2010 by not paying her an on call allowance between the dates she alleged that she was on call.

The respondent had a formal system in place that approved a number of roles to be on call and that were subject to a letter of agreement, with conditions and remuneration. The Industrial Magistrate decided that the definition of ‘on call’ contained in cl 24.6 means that an employee must be directed to be on call and that this will generally be in work areas assessed by the respondent as requiring, or possibly requiring, the immediate attendance at work outside of ordinary working hours. Her Honour then considered the meaning of ‘directed’ and found that for the claimant’s claim to be made out then she would have to show that:

  • she was directed to be on call and was obligated to be contactable and immediately available outside of ordinary working hours,
  • in the alternative, that the respondent acquiesced to the claimant being on call, or
  • in the alternative, that she was directed to be on call and was required to be available immediately to respond in a manner set out in cl 24.6(d).

The Industrial Magistrate found that the claimant had not proved to the requisite standard that they were on call over the alleged dates as the only reference to the claimant being directed to be on call came from the claimant herself and her characterisation of the situation. Further, there was no requirement or expectation on the claimant to attend work which would suggest that the respondent had acquiesced to her being on call.

The Industrial Magistrate dismissed the claim and found that the respondent had not breached cl 24.6 of the Award.

The decision can be read here.

The Commission has dismissed three applications challenging the Department of Education’s decision to take disciplinary action against the applicant on three separate occasions, namely, the 11 September 2015, 24 May 2017 and 18 August 2017. The three applications were heard together and referred to the Commission under the Public Sector Management Act 1994.

The applicant previously, while legally represented, had challenged the first disciplinary finding of 11 September 2015 through the Commission, which was resolved with a deed of settlement and the disciplinary action taken was not disturbed by the settlement. The Commission dismissed this application after it found that the applicant, although reluctantly, had accepted that he had entered into a deed of settlement that was freely executed and barred him from bringing this application.

As for the other two applications arising from the disciplinary findings that occurred on 24 May 2017 and 18 August 2017, the Commission determined that it was not in the public interest to hear the matters as they had not been brought in a reasonable time and no good explanation was given for the delay. The Commission heard that the applicant had decided to delay bringing the applications due to the expense of legal representation and his belief that he could not competently represent himself at that time. However, it was held that employers and the legal system cannot be fairly asked to wait until a time that a person considers that they are able to represent themselves to bring an application. The Commission also dismissed these applications.

The decision can be read here.

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