Western Australian Industrial Relations Commission

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The Commission has dismissed an application made by The Civil Service Association of Western Australia Incorporated on behalf of its member. The applicant's member alleged that she was still a permanent public service officer. The applicant’s member was informed her permanent position was to be abolished in 2014, following which she was then seconded to the respondent who subsequently entered into a fixed-term contract of employment with her.

Commissioner Matthews considered that the applicant's member's claim must fail because clause 1 of the contract stated that her appointment with the respondent was done in accordance with section 64(1)(b) of the Public Sector Management Act 1994 (PSM Act). Under s 64(1) of the PSM Act, appointments may be made on either a permanent or fixed term basis and consequently a person cannot be appointed for both an indefinite period and a finite term. The applicant argued that she is a permanent public service officer because all of the parties to the contract intended for her to maintain that status, however, this argument could not be established because as a matter of law and without more Matthews C could not simply ignore the legal effect of clause 1.

Turning to the question of fairness, the applicant claimed that it would not be fair for its member to suffer an effect of the contract which no one involved in its formation intended. On the balance of probabilities, Matthews C found that it is not now unfair for the respondent to assert that the applicant's member was employed by it on the terms set out in the contract of employment. This is because the parties’ intentions were, for the most part, not relevant to the question of fairness and any of the intentions that were relevant were not enough to make the respondent now relying upon the contract unfair.

The decision can be read here.

The Commission has upheld a denied contractual benefits claim made by a former employee of an entity which traded as M4 Marketing that she was not paid for part of the period of her claim. The applicant alleged that she had not been paid her salary and leave entitlements from 2 April 2019 to 17 April 2019.

Commissioner Mathews considered the limitations in considering the evidence when both parties appeared by telephone. Matthews C held that for the period of 3 to 10 April 2019 the applicant had not proven, on the balance of probabilities, that she was not paid. However, for the period 11 and 12 April 2019 the respondent had not given evidence disputing the applicant’s claim she was not paid. Finally, Matthews C found that for the period of 15 to 17 April 2019, the applicant had not proven to the requisite standard that she had an entitlement to sick leave for those dates.

Matthews C ordered that the applicant's salary for the two days' of 11 and 12 April 2019 be paid, and, that the name of the respondent listed on the application be amended.

The decision can be read here.

The Commission has issued an interpretation of the Anglican School Commission Support Staff Enterprise Agreement 2015 (the Agreement) after the applicant sought clarification on what remuneration applied to one of its members.

Commissioner Matthews noted that prior to the Agreement being registered on 21 March 2017 the member, and some of the respondent's other employees, were subject to the Independent Schools' Administrative and Technical Officers' Award 1993 (the Award).

Matthews C considered evidence that some employees who were previously subject to the Award were paid over the Award rate. Matthews C found that if, prior to the Agreement's registration, those of the respondent's employees that were paid at Levels 1 to 4 under the Award should be paid in accordance with table 1 of the Agreement, and, that table 2 would apply for employees that were previously being paid above the Award rate.

The decision can be read here.

The Public Service Arbitrator has dismissed an application for interim relief, brought under section 44(6)(ba)(iii) of the Industrial Relations Act 1979 (WA), and made by the Civil Service Association (Inc.) on behalf of its member. The substantive claim sought that the member's employment be converted from fixed term to permanent in accordance with the Commissioner's Instruction No. 23. The applicant's interim application, made in the course of a compulsory conference, claimed that there was a material misunderstanding by the respondent of the facts or the existence of erroneous records, and, that the grant of this order would encourage the parties to exchange or divulge attitudes or information that would, in some way, result in settlement of the matter.

Section 44(6)(ba)(iii) sets out the Commission's powers at or in relation to a compulsory conference and states:

"(ba) with respect to industrial matters, give such directions and make such orders as will in the opinion of the Commission —

(iii) encourage the parties to exchange or divulge attitudes or information which in the opinion of the Commission would assist in the resolution of the matter in question…"

For the interim order sought to be made out, the applicant was required to establish how the criterion outlined in s 44(6)(ba)(iii) was met and how the Commission could reach the requisite opinion. The Arbitrator considered that there was nothing in the submissions to satisfy how the grant of an extension in the member's employment relationship would demonstrate the s 44(6)(ba)(iii) criteria. Further, the Arbitrator found that there was no suggestion made that would enable him to form the requisite opinion that the respondent had not been prepared to divulge information or exchange attitudes in relation to the matters in dispute.

The Arbitrator consequently dismissed the application for interim orders.

The decision can be read here.

The Industrial Magistrate has upheld a claim against a sole trader for contravening the Farm Employees Award 1985 (WA) (Award) by failing to pay an overseas worker certain award entitlements as a farm hand.

The claimant argued that the worker was not a volunteer, but an employee, and subject to the terms of the Award during her employment. The claimant asserted that the worker was not paid wages owed, sick leave and annual leave under the Award.

The respondent, a farm operator, denied the claim and argued that the worker was not an employee, but a volunteer, at her farm. The respondent argued that as part of an agreement, the respondent offered the worker food, accommodation and payslips for the purposes of obtaining her second-year working visa.

There were three issues for determination:

  1. Whether the worker was an employee or volunteer, in respect of the respondent’s business;
  2. Whether the worker’s employment, if she was an employee, was covered by the Award; and
  3. Whether the worker was paid in accordance with the Award, if she was an employee, and covered by the Award.

In relation to the first issue, the Industrial Magistrate considered the level of control exercised by the Respondent, and the payment of tax and superannuation on behalf of the worker. In the Industrial Magistrate’s application of common law legal principle, she found that, on the balance of probabilities, the worker was an employee of the respondent and not a volunteer.

Regarding the second issue, the Industrial Magistrate considered whether the employee was covered under clause 3 of the Award, which protects employees working in the farming industry. The Industrial Magistrate found, because the employee’s work involved all aspects of animal husbandry in connection with the breeding and grazing of horses, her employment was covered by the Award.  

In relation to the third issue, the Industrial Magistrate found that the respondent contravened the Award and ordered the respondent to pay the claimant for the employee’s unpaid wages totalling over $10,000, sick leave on three occasions, sick leave on termination of employment and annual leave on termination of employment. The Industrial Magistrate also ordered the respondent to pay the claimant a penalty of $1,500 under s 93(4) of the Industrial Relations Act 1979 (WA).

The decision can be read here.

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Western Australian Industrial Relations Commission
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PERTH WA 6000

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