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.

The Public Service Appeal Board has dismissed an Electorate Officer’s appeal against a decision terminating her employment for misconduct.

Background

The Electorate Officer was a long-standing employee of the Speaker of the Legislative Assembly, employed as an Electorate Officer in the Kwinana Electorate Officer of MLA Roger Cook. Over about 4 years, she travelled overseas with her family to Europe, Bali and Vietnam, whilst being paid wages. She was also away from the workplace for 8 work-days while she was in hospital.

Findings

The Board found that the Electorate Officer was not entitled to be paid when not at work, unless she was exercising a right to take annual leave or personal leave, in accordance with the applicable industrial award or industrial agreement. The Electorate Officer had not applied for annual leave for her overseas travel. Instead, she either did not apply for leave at all, or applied for personal leave. When the Electorate Officer applied for personal leave for her time in hospital, she only applied for 2 days’ leave, not 8.

The Board found that the Electorate Officer’s overseas trips were holidays, and the circumstances in which they were taken did not entitle her to personal leave. She ought to have applied for annual leave, but did not do so. As a result she was paid wages while she was not at work, without any deduction from her annual leave accrual. That conduct amounted to the dishonest receipt of benefits which the Electorate Officer was not entitled to receive. It was therefore misconduct, justifying dismissal.

Similarly, by applying for only 2 days’ personal leave when the Electorate Officer was actually in hospital for 8 working days, the Electorate Officer was again paid for days she was not at work or working, without deduction from her leave accruals. This was also an abuse of leave entitlements, which amounted to misconduct.

The Electorate Officer alleged that the MLA for whom she worked knew where she was at all times, and approved her absences. She said her access to leave was consistent with informal procedures.  The Board said that whether or not misconduct occurred does not depend on proof of a contravention of a policy or procedure, whether it be formal or informal. The real question is whether the employee acted knowingly and dishonestly by claiming benefits that she was not entitled to receive. An employee’s duty of fidelity and good faith is fundamental to employment. Dishonestly receiving unearned benefits is inimical to this duty.

The Board also noted that the MLA’s approval of an absence from work was not the same as authorising the payment of benefits that the Electorate Officer was not entitled to receive, nor did it authorise the lack of a deduction from the appropriate leave accrual.

The Board found that the employee knew that by not submitting the correct leave application forms, she would receive payment of salary as if she was working, and that she knew she improperly benefited from her conduct.  The purpose of personal leave and the need for submitting correct and accurate application forms had been explained to her by Human Resources in the past, including when past overpayments were recouped from her.

Accordingly, the Board concluded the Electorate Officer had engaged in deliberate misconduct justifying her dismissal. It referred to previous cases establishing that misuse of sick leave constitutes misconduct sufficient to justify termination of employment. It dismissed the Electorate Officer’s appeal.

The decision can be read here.