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Long Service Leave Contravention Upheld: Employment found to be Continuous

Under consideration by Industrial Magistrate Tsang was an application, seeking a review of a compliance notice issued by the respondent, Ms Catalucci, an Industrial Inspector, under the Industrial Relations Act 1979 (WA). The notice alleged that the applicant contravened the Long Service Leave Act 1958 (WA) by not paying pro rata long service leave to Mr McCormick upon his employment termination in October 2020. The compliance notice required the applicant to remedy the contravention by paying Mr McCormick $9,345.21.

The applicant did not dispute the employment period or the calculation but argued that Mr McCormick was not entitled to long service leave because his two employment periods were not continuous. The central legal question was whether the termination of Mr McCormick’s apprenticeship contract, leading to a break in employment, affected his entitlement to long service leave.

Tsang IM analysed the statutory construction of “continuous employment” under the Long Service Leave Act. Tsang IM rejected the applicant’s arguments, finding that the completion of the apprenticeship did not terminate Mr McCormick’s employment relationship, and his subsequent role as an Electrician constituted continuous employment. Tsang IM emphasised the ordinary meaning of the statute, its legislative purpose, and the absence of specific provisions deeming the termination of an apprenticeship as a break in continuous employment.

Ultimately, Tsang IM concluded that Mr McCormick’s employment was continuous, lasting from 23 October 2012 to 29 October 2020. Consequently, the applicant was obligated to pay pro rata long service leave, and since the company failed to prove otherwise, the compliance notice was confirmed, and the application was dismissed.

Interim Board of Directors Established

In an application under section 66 of the Industrial Relations Act 1979 (WA), the applicant sought an order to establish an interim Board of Directors due to a misalignment of rules between the respondent and its federal counterpart, the Police Federation of Australia Western Australia Police Branch (PFAWA). Chief Commissioner Kenner affirmed the applicant’s standing to bring the proceedings, as a member of the respondent.

Due to changes in the PFAWA’s rules, it was doubtful that the respondent’s section 71 certificate, relieving it from holding elections for office holders, was effective. Consequently, the respondent aims to realign its rules with the PFAWA and seek a new section 71 certificate. Simultaneously, the applicant sought the establishment of an Interim Board of Directors to manage the respondent’s affairs during this transitional phase.

After reviewing the application and hearing both parties, Kenner CC decided to establish an Interim Board of Directors. Comprising members elected to the PFAWA Branch Executive, this Interim Board will function with all of the powers of the Board, outlined in the respondent’s rules. Kenner CC’s order exempts the respondent from holding an election during the order’s duration. The order will cease upon rule alterations being made and the issuance of a new section 71 certificate by the Full Bench.

The decision can be read here.

Commission considers when travelling is “time worked”

The applicant Union’s member was a police officer who travelled to the UK in March 2021 as part of a recruitment drive, promoting living and working as a police officer in Western Australia.

The Union and the Police Commissioner were in dispute about whether the member was entitled to overtime pay for the hours outside his rostered ordinary hours, while he was on the long-haul flights to and from London, and while he was waiting at the respective airports.

The issue was what the relevant overtime clause in the applicable industrial agreement meant when it referred to “all time worked.”

The Union invoked s 46 of the Industrial Relations Act 1979 (WA) to resolve the question of the meaning of ‘all time worked’ in the Western Australian Police Force Industrial Agreement 2022. Section 46 empowers the Industrial Relations Commission to declare the true interpretation of an award or industrial agreement that is in force.

The Union argued that any time that an officer is doing an activity because they are instructed, directed or required by the Police Commissioner to do it, they are working. The Union said that if an officer travels on an 18-hour flight paid for, organised by and required by the Police Commissioner, time spent on the flight is time spent working.

The Police Commissioner argued that while time spent on a flight may in some circumstances be time spent working, it would only be time spent working if during that time the officer was on duty in the sense of either being rostered on duty or being directed outside of rostered hours to engage in policing activities.

Senior Commissioner Cosentino analysed the text of the industrial agreement to ascertain what was the objective intention of the parties when referring to “all time worked” in the overtime clause. The Senior Commissioner noted that other provisions of the Agreement contained themes that indicated rosters are the primary means of determining when an officer is on-duty, that being on-duty and working are interchangeable, that there is intended to be a clear line between when an officer is on duty and when an officer is off duty, and time spent travelling to and from work is not itself time worked.

The Senior Commissioner then considered what being on duty involved. In this regard, the Police Force Regulations provide strong indications of what is and is not consistent with being on duty. An officer must be able to devote themselves “exclusively and zealously” to the discharge of their duties when on duty, which indicates that being on duty that is generally inconsistent with the officer, at the same time, being able to engage in private activities, such as sleeping, enjoying entertainment or engaging in private correspondence.

The Decision can be read here.

Registered Industrial Agent cannot be intervenor too

In proceedings commenced by two unions to vary the Municipal Employees (Western Australia) Award 2021, the Western Australian Local Government Association is acting as agent for several employer parties.  The WALGA acts for those employers because it is registered as an industrial agent under the IR Act. The WALGA then additionally applied to be permitted to intervene in its own right, as the representative of the local government sector more broadly. It did so because the proceedings have potential ramifications for the local government sector, and because its local government employer members will be directly affected by the outcome in the proceedings.

The application to intervene was opposed by all of the represented parties, other than those the WALGA acts for.

The Senior Commissioner regarded the WALGA as having an indirect, but not a direct, interest in the proceedings. As a representative body, it did not have the direct interest that its members have, as it is not a registered employer organisation under the IR Act. However, having an indirect interest, meant that the Commission had a discretion to permit the WALGA to intervene, In exercising the discretion, the requirements of natural justice are the primary consideration.

The Senior Commissioner found that natural justice did not require that the WALGA be permitted to intervene, because the indirect interest it has could be advanced in other ways, namely by local governments themselves applying to intervene should they wish to do so.  The Senior Commissioner recognised that while efficiencies might be achieved by the WALGA intervening, this was not a significant factor in favour of permitting intervention. It would not, for instance, prevent individual local governments from also seeking to be separately represented.

On the other hand, the potential difficulties associated with permitting the WALGA to intervene were significant. The WALGA has a potential conflict between its interest, and those of the individual local governments it currently acts as agent for. If it ceases to act for those local governments, those local governments may then be disadvantaged by having to incur costs of alternative representation, or being unrepresented. The WALGA’s intervention would potentially also mean it is acting contrary to the Code of Conduct for industrial agents. These factors weighed against permission being given.

The Senior Commissioner dismissed the intervention application.

The Decision can be read here.

Aboriginal Communities and Organisations Award Varied

The Commission, of its own motion, initiated proceedings to vary the Aboriginal Communities and Organisations Western Australia Interim Award 2011 under s40B of the Industrial Relations Act. Section 40B allows the Commission to vary an award for any of the following relevant purposes:

  • to ensure that the award does not contain wages that are less than the minimum award wage as ordered by the Commission under s 50A;
  • to ensure that the award does not contain provisions that discriminate against an employee on any ground on which discrimination in work is unlawful under the Equal Opportunity Act 1984(WA);
  • to ensure that the award does not contain provisions that are obsolete or need updating; and
  • to ensure that the award is consistent with the facilitation of the efficient organisation and performance of work according to the needs of an industry and enterprises within it, balanced with fairness to the employees in the industry and enterprises.

 

The interested parties broadly agreed that the Award ought to be varied under s 40B:

  • That clause 7 - Enterprise Flexibility should be removed as being contrary to the principles summarised in City of Cockburn v Western Australia Municipal, Administrative, Clerical and Services Union of Employees (WASU) & Ors [2023] WAIRC 00787 and applied in Commission’s Own Motion v (Not Applicable) [2023] WAIRC 00836;
  • That Schedule B should be varied to remove salary rates which are below the minimum rates set under s 50A;
  • That Schedule F should be updated to remove parties that no longer exist and to correct party names; and
  • That discriminatory definitions of ‘spouse’ or ‘de facto’ should be removed.

The only contentious issue was what variations should be made to the rates of pay in Schedule B to achieve the purposes of s 40B. The WASU argued that the Commission should not only increase the Level 1 salaries below the statutory minimum, but also increase all rates in the Award to establish increases in pay for the steps within each classification level.

Senior Commissioner Cosentino declined to do this. The Senior Commissioner noted that the power in s 40B was limited to effecting variations for the purposes stated in the section, and that any variation to wage rates must be in accordance with the Statement of Principles contained in the State Wage Case General Order. As WASU had not addressed or satisfied any such principle, the Senior Commissioner ordered that only those wage rates that were below the statutory minimum be increased, and then that they be increased only to align with the statutory minimum.

The Senior Commissioner also rejected WASU’s argument that the pay increments within each level were an unintended distortion, noting that predecessor instruments appeared to intend to deliberately phase out pay increments within levels.

The Award was varied accordingly.

The Decision can be read here.

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