The Western Australian Industrial Relations Commission

The Commission has made a declaration regarding the interpretation Department of Justice Prison Officers’ Industrial Agreement 2020 regarding whether prior service in a substantive appointment counts as prior service for the purposes of clause 48.

Background

In May 2021, the Minister reduced a Senior Prison Officer’s classification following a disciplinary process. In November 2021, the Minister directed the Officer to act as Senior Officer on a higher duties basis, paying her a higher duties allowance at the ‘1^st Year’ increment of the Senior Officer salary range. After the demotion, the Minister did not recognise the Officer’s prior service in her substantive appointment as Senior Officer.

The Union brought an application seeking interpretation of clause 48. The Union sought an answer to the following question:

When paying a higher duties allowance under sub-clause 48.2 of the Industrial Agreement, must the employer pay an amount equivalent to the increment the Officer had attained in the previous 18 months, regardless of whether:

• the Officer attained the increment through higher duties or substantive appointment; or
• the Officer had a break in acting of less than 18 months following a disciplinary outcome?

Contentions

The Union contended that the parties to the Agreement intended to recognise all service at a higher classification in the previous 18 months when calculating increments, and that there is nothing to indicate that the parties intended the entitlement to apply differently to employees whose break in service was due to a disciplinary outcome.

The Minister contended that the construction of the word ‘act’ in the context means ‘acting’ means temporarily working in a role in that sense of acting, and not just simply working in a role, whether substantively appointed. The Minister also contended that it is not unjust that an employee does not ‘get the value’ of their prior service for higher duties allowances, as the main rationale for a demotion for disciplinary reasons would be that the conduct the subject of the disciplinary action makes the employee unsuitable for the higher role, and that it is not unfair that the employee would not get the benefit of that prior service.

Findings

The Commission considered that the definition of acting in the context means ‘serving temporarily; substitute’ and not ‘working in’. and that the objective intention of the parties was therefore to give the higher increment on acting to employees who have acted in a higher position on a temporary basis, not a substantive basis, in the previous 18 months. The Commission further considered that where an employee is demoted for disciplinary reasons because their conduct the subject of the disciplinary action made them unsuitable for the higher position, it would not be unfair that the employee would not get the benefit of prior service when acting up.

The Commission considered that the parties did not intend to recognise all service at a higher classification in the previous 18 months when calculating increments. For the purposes of sub-clause 48.2, only prior service in an acting appointment qualifies as service, and prior service in a substantive appointment does not qualify as service.

The decision can be read here.

The Commission has varied and updated the Electrical Trade (Security Alarms Industry) Award, 1980 removing various respondents.

The applicant, the Electrical Trades Union WA (ETU), applied to vary the Electrical Trade (Security Alarms Industry) Award, 1980, seeking to increase a number of allowances in the Award and remove from Schedule One – Schedule of Respondents to remove a company which is deregistered and update the current names of the other respondents.

The Commission noted that the application to vary the allowances was unopposed. The allowances were last varied on 1 January 2022: [2022] WAIRC 0044; (2022) 102 WAIG 110 and the variations updated the allowances to include increases based on the 2020 and 2021 State Wage Case decisions, and CPI increases to June 2021. The Commission found that the calculations provided by the applicant for the variations were consistent with the State Wage Case Statement of Principles, and that it was appropriate to make the variations sought.

The Commission noted that the application in relation to substituting the Award’s respondents was otherwise unopposed. The Commission noted that there was no good reason for retaining the respondents listed in the Award who were deregistered corporations, and it was desirable to update the names of those corporations who remained registered, but had changed names. The Commission considered that it was appropriate to update Schedule One to the Award accordingly.

The decision can be read here.

The Commission has varied and updated the Radio and Television Employees Award removing various respondents.

The applicant, the Electrical Trades Union WA (ETU), applied to vary the Radio and Television Employees Award, seeking to increase a number of allowances in the Award and remove from the First Schedule – Schedule of Respondents persons and entities who are no longer trading in the radio and television industry or no longer in existence.

The Commission noted that the application to vary the allowances was unopposed. The allowances were last varied were on 1 January 2022: [2022] WAIRC 0023; (2022) 102 WAIG 132 and the variations updated the allowances to include increases based on the 2020 and 2021 State Wage Case decisions, and CPI increases to June 2021. The Commission found that the calculations provided by the applicant for the variations were consistent with the State Wage Case Statement of Principles, and that it was appropriate to make the variations sought.

The Commission noted that the application in relation to substituting the Award’s respondents was otherwise unopposed. The Commission noted that there was no good reason for retaining the respondents listed in the Award who had ceased to exist, ceased to trade in the radio and television industry, or ceased to be covered by the Award, and considered that it was appropriate to update the First Schedule to the Award accordingly.

The decision can be read here.

The Commission has varied and updated the Electrical Contracting Industry Award R 22 of 1978, removing various respondents.

The applicant, the Electrical Trades Union WA (ETU), applied to vary the Electrical Industry Award R 22 of 1985, seeking to increase a number of allowances in the Award and remove from the First Schedule – Schedule of Respondents persons and entities who are no longer trading or no longer in existence.

The Commission noted that the application to vary the allowances was unopposed. The allowances were last varied on 24 February 2022: [2022] WAIRC 0085; (2022) 102 WAIG 188 and the variations updated the allowances to include increases based on the 2020 and 2021 State Wage Case decisions, and CPI increases to June 2021. The Commission found that the calculations provided by the applicant for the variations were consistent with the State Wage Case Statement of Principles, and that it was appropriate to make the variations sought.

The Commission noted that the application in relation to substituting the Award’s respondents was otherwise unopposed. The Commission noted that there was no good reason for retaining the respondents listed in the Award who had ceased to exist, ceased to trade, or ceased to be covered by the Award, and considered that it was appropriate to update the First Schedule to the Award accordingly.

The decision can be read here.