Western Australian Industrial Relations Commission

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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.

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

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.  

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.

The ballot of WA Police Union members has accepted the revised offer put to the Union.  This means that the Police Union and the Commissioner of Police have reached agreement on wage increases for police officers as part of negotiations for a new industrial agreement to cover police officers throughout the State. 

The next stage is for the parties to prepare and file a proposed industrial agreement which may be registered by the Western Australian Industrial Relations Commission sitting as the Public Service Arbitrator.  

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Western Australian Industrial Relations Commission
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Phone : (08) 9420 4444
Facsimile : (08) 9420 4500
Free Call : 1800 624 263

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Email : Registry


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