The Western Australian Industrial Relations Commission

The Commission has found that a Principal Legal Officer (applicant) who was selected for redundancy to be entitled to compensation for loss. The Commission held that while the dismissal was a case of genuine redundancy, that the employer (respondent) had not provided meaningful consultation with the applicant, and that the applicant was overlooked for redeployment, rendering the dismissal unfair.

Background

The respondent’s primary purpose was the pursuit and resolution of native title claims. The applicant was employed as a Senior Lawyer with the respondent from 2001 until 2007, and later re-employed in 2017. In 2019, the applicant was appointed to the position of Principal Legal Officer.

In June 2021, because of the settlement of the native title claims, the applicant’s position was made redundant. The applicant brought a claim challenging the termination of employment and seeking to be reinstated.

Contentions

The application was brought on three main grounds, being that:

• There was no genuine redundancy as there remained a significant amount of legal work to be performed for the foreseeable future;
• There was a failure to properly consult; and
• The applicant's selection for redundancy while another lawyer was retained was not appropriate.

Findings

The Commission held that the restructuring of the legal team was in response to a true assessment of the respondent’s business needs, and the redundancy was genuine. The Commission reiterated, however, that even in instances of a genuine redundancy, a decision to terminate employment may still be harsh, unjust, or unreasonable.

The Commission determined that the failure of the respondent to inform the applicant that one legal role would be retained, deprived the applicant of a fair opportunity to make a case in relation to redeployment. As such, there was no meaningful consultation in the process of redundancy, and the dismissal was unfair.

The Commission further held that the preference of the respondent to retain a fixed-term employee, over the applicant, was contrary to the principle that permanent employees can have a degree of expectation of ongoing employment. The Commission noted that the conscious decision of the respondent to preference the applicant for redundancy, on the grounds that the fixed term employee would not be eligible for a redundancy entitlement, could, in some circumstances, constitute a form of discrimination against the applicant based on his workplace right. The Commission also considered that the terms of the respondent’s industrial agreement contained clauses regarding the retention of mature age workers, and that the respondent should have considered this.

The Commission held that reinstatement was not practicable, given that the termination of employment was the result of a genuine redundancy, and found that the applicant should be compensated.

The decision can be read here.

In response to the current COVID-19 outbreak in Western Australia, the Commission in Court Session has issued an order reinstating provision of the 2020 COVID-19 General Order, pertaining to the taking of unpaid leave, with amendments to reflect the changed isolation requirements.

2020 COVID-19 General Order

In April 2020, the Commission in Court Session issued the COVID-19 Flexible Leave Arrangements General Order under s 50 of the Industrial Relations Act 1979 (WA).  The 2020 General Order contained provisions for unpaid pandemic leave, as well as provisions for the taking of annual leave at half pay. The 2020 General Order ceased to have effect on 31 March 2021.

Current application

On 2 March 2022, in anticipation of increasing COVID-19 cases in WA, the Hon Minister for Industrial Relations made an application for a new General Order to apply to private sector employees. The Minister sought to reinstate the unpaid pandemic leave provisions contained in the 2020 General Order. The reasons for the minister’s application included:

• Seeking to address the regulatory gap for private sector State system employees who are required to isolate due to COVID-19 and may lack access to suitable leave entitlements
• Supporting public health objectives
• Providing clarity for many employers, and protection for employee entitlements; and
• To be consistent with the entitlement to unpaid pandemic leave for national system employees covered by certain modern awards.

The Minister proposed amendments to the provisions of the 2020 General Order, the effect of which enables an employee to take up to two weeks’ unpaid pandemic leave, as a cumulative entitlement, over more than one period, subject to the total period of unpaid pandemic leave taken not exceeding two weeks. An amendment was also made to make it clear that the leave available under the proposed General Order is ‘unpaid pandemic leave’.

Findings

The Commission in Court Session considered that reinstatement of the provisions with amendments were consistent with the objects of the Act. A General Order was issued in the manner proposed by the Minister. The General Order will operate until 30 September 2022 and may be extended on application by a party or at the Commission’s initiative.

The decision can be read here.

The General Order can be read here.

The Full Bench has dismissed four interlocutory applications raised by the appellant in a Full Bench appeal. The Full Bench held that the applications raised evidence and matters not dealt with in the first instance proceedings or were not of relevance to the current proceedings.

Background

In 2019, the appellant brought a claim for a denial of contractual benefits to the Commission, which was dismissed. The appellant commenced an appeal  to the Full Bench.

Prior to the hearing of the Full Bench appeal, the appellant brought four interlocutory applications. The Full Bench listed the applications to be heard.

Interlocutory applications

The substance of the four interlocutory applications, respectively, were that the appellant:

• Sought to amend his first instance claim before the Commission, to bring in claims for long service leave, sick leave, and superannuation;
• Sought discovery of documents from the respondent in relation to a range of subject matter, to assist in establishing his grounds of appeal in the appeal proceedings;
• Sought admissions from the respondent as to the identity of the respondent in the appeal; and
• Asserted a conflict of interest against the respondent’s solicitors, Lavan, and requested disclosure of costs and expenditure incurred by the respondent and other employing entities, in relation to the appellant’s litigation against them.

Findings

The Full Bench noted that under s 49(4) of the Industrial Relations Act 1979 (WA), an appeal to the Full Bench is to be heard and determined on the ‘evidence and matters raised’ in the first instance proceedings. The Full Bench reiterated that it is not an opportunity for a party to attempt to reargue their case at first instance; or to seek interlocutory orders to bolster their case on appeal, in relation to matters not dealt with at first instance.

In relation to the first, second and third interlocutory application, the Full Bench outlined that the matters were beyond the scope of matters to be considered by the Full Bench, and that the time to bring such applications was prior to or at the first instance proceedings before the Commission.

In relation to the fourth application, the Full Bench found that it was not a matter relevant to the proceedings before the Full Bench. The interlocutory applications were dismissed.

The decision can be read here.

The Commission has issued orders establishing an Interim Union Council for the Media, Entertainment and Arts Alliance of Western Australia (Union of Employees) (respondent).

The respondent has a counterpart federal body, registered under the Fair Work (Registered Organisations) Act 2009 (Cth). In May 2010, the Commission issued a certificate under s 71(5), enabling persons elected to office in the federal Association to hold the corresponding office in the State counterpart.

Due to changes in the registered rules of the federal Association, the rules of the federal Association and rules of the respondent are no longer aligned, meaning that the requirements of the s 71(5) certificate could not be met.

The applicant, a member of the respondent, brought an application seeking an order for the establishment of an Interim Union Council, until such a time as the respondent’s rules can be amended in line with the federal Association. The respondent was in support of the application.

The Commission was satisfied that orders should be made under s 66 of the Industrial Relations Act 1979 to establish an Interim Union Council, enabling the respondent to continue its affairs and to vary its rules, in order that a new s 71 certificate can be issued in due course.

The decision can be read here.